I understand that there are Senate rules that require a 3/5 vote to stop a fillibuster. 1) Is this a Senate-imposed rule? I can’t find reference to it in the Constitution. When was it passed?
2) If the Senate is stopped for a fillibuster, does ALL business stop?
3) If there is a bill in the Senate, why doesn’t it just take 51 people to pass it?
Thanks, Dopers.
(jeez, I shoulda paid more attention in school)
It is a Senate Rule, not part of the constitution.
The custom of the Senate is that any Senator can speak at length on a bill. But to prevent this from getting out of hand, the Senate can vote to end debate on a matter with a 3/5th majority.
Pretty soon people noticed that if you just kept on yakking you could stop any business from going forward unless your opponents could get a 60% supermajority. So the filibuster isn’t an explicit part of Senate rules, but rather a consequence of the rule that you need a 3/5th majority to end debate.
Yes, it’s a Senate procedural rule. don’t know when it came about.
A “fillibuster” in this context is the invocation of the Senate’s procedural rules which provide for unlimited debate on a current bill. That’s what bogs down the Senate - so if they’re currently debating a bill scheduled for a vote, it stands to reason that you can’t do anything else until the vote occurs (or there is Cloture, which is what requires the 6/10 supermajority). No comment on how this affects Senate committees and sub-committees’ business during a fillibuster
It only takes 51 votes to pass a bill (or 50+the president of the senate [edit: not pro tempore president, the actual president i.e. the VP])
#2 is technically correct–it is true in the context of a “real” filibuster, but wrong in the context of how the filibuster works in the senate today.
A true, Mr Smith goes to Washington filibuster stops all business in the senate.
That was understandably difficult–and so the “procedural” filibuster was born–the basic concept being a “procedural” filibuster simply precludes a vote–but does not stop debate on other topics. This makes it a very low-cost exercise–such that, as we see today, it is possible to “filibuster” more or less every bill, creating the 60% supermajority requirement.
For efficiency, here is my prior description of the process.
I’ve posted on filibusters before–here are two other posts (in useful threads).
http://boards.straightdope.com/sdmb/showpost.php?p=10518168&postcount=2
http://boards.straightdope.com/sdmb/showpost.php?p=11826931&postcount=4
Since it’s a Senate rule, can’t the Senate vote to change it, say, from 3/5 to 51%? Would that vote, itself, require 60 votes? and if so, why didn’t they change it while they could?
So from **Wharfin’**s explanation, I take it that in theory, the Senate minority could continue a fillibuster on only the current health care proposal and it would never, ever come to a vote unless the majority could invoke cloture through a 3/5 vote? And other bills could be routed through the Senate at the same time and even be passed while the first bill is bottled up in a fillibuster?
There is a rather noteworthy parliamentary tactic that can be used to pass a filibustered bill with 51 votes, but using it would be a big mistake. Its use was threatened a few years back over the filibustering of judicial candidates.
The Senate can vote to change it, but that vote itself could be filibustered. Here’s a Congressional Research Service report from 2005, when the Senate was talking about getting rid of the filibuster to keep Democrats from blocking President Bush’s judicial nominees.
<sigh>
I think I’ve answered this question 3 or 4 times on this board.
In 1806 in the Senate, there was a misunderstanding of the motion to Move the Previous Question and it was discarded. This motion if passed serves to end debate and take a vote on the motion currently on the table. Because of this misunderstanding, the Senate created ex nihlio this cloture rule to end unlimited debate. If there were a parliamentarian in that session, there would be no filibuster or cloture today.
Wait a minute!!! Before you pull out Robert’s Rules to quote the limits on debate (no more than twice, 15 minute limit each time, and the person who made the motion is not allowed to speak against it although they can vote against their own motion), you need to know that most American legislatures use Mason’s. But the Senate doesn’t use either. They just make up the rules as they go along. This did create a contraversy during the health care when the Republicans used a rule to force the reading of a HUUUUUUGE amendment (would have taken three days for the clerk to read it) and the parliamentarian reinterpreted the rules so the clerk would not have to read it.
No one cares what I think but as a parliamentarian, I agree with his interpretation. Once a motion is withdrawn, all business on it should cease. It was win-win given the situation at that moment. The Reps got an amendment they were not able to read killed and the Dems were able to end a blatant stall tactic.
Exactly. It’s not just a theory–that is why the only health care bill that got a vote in the Senate was the one that had 60 votes in favor. (although some bills simply aren’t brought for a vote if the majority knows they’ll lose the cloture vote–but that is politics).
There are two exceptions–(1) if the house passes the same bill that has already defeated a filibuster and passed the senate, no additional senate vote is necessary, and (2) if it is a “revenue” bill (it is certainly possible to draft a healthcare bill that qualifies, but the current one doesn’t), it could be passed through “reconciliation”–which cannot be filibustered.
Because the Democrats will need it next time they have less than 50 seats.
It takes a supermajority of 67 votes to change senate rules, so no, they couldn’t do it. And really, why would they want to? If the majority party changes the rules for political expediency they will get it rammed up their ass when they become the minority party.
Filibustering violates the constitutional requirement that no Senator shall have the proportional power of his/her vote reduced. All it would take is lawsuit and the Supreme Court would most likely, in my opinion, strike it down, Scalia leading the way if he isn’t a hypocrite. Oh. Sorry.
Next time read the Constitution before you post. The Constitution reads that no STATE shall be denied its equal representation in the Senate without that’s state’s approval. That is why there is no way Reid can keep Scott Brown from being seated once the Governor sends in the certification of election.
And before you bring up Franken’s case, remember that the Minnesota governor refused to send in the proper certification which (as far as the Senate and Constitution are concerned) was the state willingly giving its equal representation up.
The Supreme Court has historically been rather reluctant to involve itself in the vagaries of parliamentary procedure, declaring most controversies arising under such to be political questions.
Also, you’re wrong.
Thank God I am wrong. But I don’t recall California or any other state agreeing to have a filibuster, which violates the provision. Requiring super majorities of 2/3 or 3/5 certainly does water down the votes of senators. Unless math is completely invalid. Which, I acknowledge, lawyers posing as judges would do if it suited their oath to the Federalist Society, which they obviously consider more important than their oath to office.
There is a rationale behind these things - the Senate is supposed to be the more deliberative, less democratic of the two houses. There is also the issue of two senators per state, regardless of state population. That, together with the original mechanism of state legislatures selecting senators, ensured that state governments had a say in federal legislation. The House was intended to be the less deliberative, more democratic of the two houses.
In its original form the filibuster made sense. It was an extreme high-profile, high-cost move that the minority could use in rare cases where it really wanted to block the majority.
The current procedural filibuster is insanity. The Senate was intended to function by majority rule, not a 60/40 supermajority. Many historical pieces of legislation would never have been passed if today’s filibuster rules had been in effect. It’s a recipe for gridlock and inaction and the sooner we return to the traditional “Mr. Smith Goes to Washington” version the filibuster, the better off we’ll be.
There is a rationale behind virtually all human activity. That doesn’t mean it has any merit.
The Senate is not supposed to be less democratic than the house, it represents the state governments, not the people directly. The entire point of the Constitution rather than the Articles of Confederation was to get rid of a constitutional supermajority requirement, namely unanimity. The US under the Articles was unworkable for the same reason that the Senate is today: rules require a supermajority of 60. This violation of the states acting by majority vote through the Senate could just as easily require 2/3 vote as it used to. Or a 9/10 supermajority. It is unconstitutional per the specific language and irrational in running a government. I wouldn’t run a condo association by allowing the idiot minority to stymie all business, much less the greatest constitutional system ever conceived.
There is nothing requiring the Senate or House to be more or less deliberative, however the Federalist Papers may have originally marketed The Great Compromise.
In fact the real political reason for the compromise establishing the Senate was the same as the electoral college. The interests of the northern states and southern states were vastly different. Slavery was less used in the north and the north was far more populous. The South counted slaves for the purposes of electoral college at a 3/5ths a person rate. Nobody considered this sacred at the time, but it was considered essential to establishing the new constitution allowing less than unanimity to pass national measures under the Articles. To put it in a nutshell, this was about accounting for slave economies compared to the emerging industrial economy of the north.
Until the filibuster was established, we operated fine without it. Since then we have gone first to reading phone books and then back towards the worthless Articles of Confederation.
I’ve spent the past 35 years with the opinion that the filibuster is a stupid and undemocratic, and anti-parliamentary way of conducting business. I was not of a different opinion at any time the Republicans have had a majority in the Senate. It’s a democracy, let’s let the exception be that small states still have the same vote in the Senate, rather than an arbitrary super-majority, that has the actual effects of allowing a minority to establish a rule of doing nothing if that suits their agenda. It is oddly in contrast to what the voters did: put the minority into the minority and putting the majority in the position of not being able to conduct business without earmarks to bribe people like was done with Sen. Nelson and his state’s subsidization of the blessedly dead health care plan.
Wasn’t the vote lowered to 60 back in 1975 following the large Democratic party landslides in the 1974 election after Watergate and Ford pardoning Nixon before the election? I’m not sure what is was before, probably 67, but it has been done before.
The Senate prides itself of being “the Deliberative Body” or “Stuck in the Mud” depending if you want debate to be closed or continued. I don’t know how many votes it would take to change but I suspect enough Democrats are wary what will happen when/if the Republicans regain control that 60 will stay.