Educate me: How enforceable is the filibuster?

[Norman Alexander]

There's LOTS of continuous talk online and elsewhere about the US Senate filibuster and how current desired legislation is being snagged on it by Mitch and rogue Dems, etc.

I know what the filibuster is, but it does seem that, as a Senate rule, it is more a convention than a law. I understand that, prior to its implementation sometime after the Civil War, it was a simple majority in the Senate that carried measures. And that is what was implemented by "Founding Fathers". No other bicameral parliamentary system I know of has such a thing - simple majority rules.

So what is the actual legal enforceability for the filibuster in the US Senate? Can the Senate speaker simply ignore it and proclaim measures passed or failed on the simple majority of the votes? Can a dissenting group of Senators (you know who I mean ) "take it to court"?

Legal eagles! Educate me on this.

 

[The Great Zaganza]

In a Trumpian sense: no, the filibuster isn't enforceable,as the Courts would be reluctant to get involved in a purely internal congressional business.
We know from State Houses that the Majority can get away with almost anything.

 

[crescent]

If cloture is invoked, it takes a 60 vote majority to end debate and allow a bill to come to the vote. But then it only needs 50 votes to pass. Cloture can be invoked via a simple email.

But....

It only takes a 50+% majority to change the Senate rules and votes on changing the Senate rules cannot be filibustered. That's all it would take to end the filibuster.

Or to just make it much harder to or politically costly to do (like returning the the old talking filibuster, or a filibuster that prevents any Senate votes until the filibuster ends or the bill is dropped - make it hurt so that it is only done when it is very high priority.

The Dem's can't even get that done.

It's just a rule - but enforcement is sort of a moot point if the majority in the Senate don't want to change the rule. No bill would pass even if they tried to do an end run around the filibuster because the majority would just vote against it anyway - Every Republican + the 2 pro-filibuster Democrats.

 

[The Great Zaganza]

Have the CDC put all congressional Republicans into a 14-day quarantine and get everything done.
simpels.

 

[Norman Alexander]

If cloture is invoked, it takes a 60 vote majority to end debate and allow a bill to come to the vote. But then it only needs 50 votes to pass. Cloture can be invoked via a simple email.

But....

It only takes a 50+% majority to change the Senate rules and votes on changing the Senate rules cannot be filibustered. That's all it would take to end the filibuster.

Or to just make it much harder to or politically costly to do (like returning the the old talking filibuster, or a filibuster that prevents any Senate votes until the filibuster ends or the bill is dropped - make it hurt so that it is only done when it is very high priority.

The Dem's can't even get that done.

It's just a rule - but enforcement is sort of a moot point if the majority in the Senate don't want to change the rule. No bill would pass even if they tried to do an end run around the filibuster because the majority would just vote against it anyway - Every Republican + the 2 pro-filibuster Democrats.

I think you missed my point. I understand how the process works. But that is premised on every senator obeying the so-called rules of the filibuster. Which, to my view as an outsider, is one of these many "road rules" that are actually just "gentlemen's agreements".

We have all seen that the Trump White House immediately chose to ignore just about all of the "gentlemen's agreements" on how a US president is expected to behave, not to mention a bunch of actual laws (which is a separate subject). And while everyone was up-in-arms about what a brazen lout he was and flouting conventions, he got away with it because it was, frankly, mostly legal for him to do so. He exposed those conventions as toothless.

So my question is basically: How strictly enforceable IS the filibuster rule, legally and specifically constitutionally. Is it only as enforceable, legally, as the rules of Scrabble?

 

[Bob001]

I think you missed my point. I understand how the process works. But that is premised on every senator obeying the so-called rules of the filibuster. Which, to my view as an outsider, is one of these many "road rules" that are actually just "gentlemen's agreements".
....
So my question is basically: How strictly enforceable IS the filibuster rule, legally and specifically constitutionally. Is it only as enforceable, legally, as the rules of Scrabble?

What do you mean by "enforceable?" The Senate makes its own rules by vote of the majority. The courts and the executive branch have nothing to do with it. It's not mentioned in the Constitution. It is simply a procedural rule. In recent history, a Democratic Senate voted to end the filibuster with regard to all federal judges except for Supreme Court justices, and a subsequent Repub Senate eliminate it for them too. That's how we got Kavanaugh and Barrett. The 50 Democratic Senators with VP Harris on their own could vote to end the filibuster entirely, or with regard to specific legislation, as they just tried to do about voting rights. But Manchin and Sinema had their own plans. I think the premise of your question might be mistaken.

 

[DevilsAdvocate]

The filibuster was not created by the Founding Fathers. It was not created at all. It is an exploitation of technical procedures that was created by accident. House rules give Representatives a limited number of minutes to speak on each issue. Because the Senate was intended to be a more deliberative body, the I no time limit for Senators. They can talk as long as necessary to make sure complex issues are fully discussed before a vote. Initially this was not a problem. Remember that there far fewer Senators then and the role of the Federal government was much smaller with few bills to consider and less polarization.

Initial both the House and the Senate had a rule referred to as “calling the previous question”. This is just calling for a vote to vote issue. If a simple majority votes to call the previous question, debate ends and the issue is taken to a vote. In the early 1800s this was not used to end debate. This is just what was procedurally done when debate had ended and nobody else wanted to talk on the floor.

In 1806, Aaron Burr complained about the Senate rules being a mess with too duplicative and unnecessary rules. The “previous question” rule was one that he called out and the Senate voted to get rid of the rule. As I said, at the time this was almost never used to end debate, so eliminating it did not cause any issues. About 30 years later Senators realized that if they did not like a bill, they could just talk endlessly hoping that people would get tired of their time being wasted and move on to something more important. That still was not really an issue until after the Civil War. By that time more States had joined the Union meaning more Senators, there was obviously more polarization, and there were more Federal bills to gets the States in line.

Senators tried to get rid of the filibuster by restoring the “previous question” rule or a cloture rule, but those attempts were themselves filibustered. When World War I broke out in 1917, there was finally a desire to get rid of the filibuster because the Senate needed to act quickly in the interest of national security without the filibuster wasting their time. But there was only about 40% support for a simple majority cloture. The rest of the Senate was split between no cloture or a supermajority cloture. The simple majority people eventually gave up and compromised on the three-fifths rule.

Senate rules are established at the beginning of each session. The rules cannot be changed during a session. But there is a complex procedural loophole that can be used to effectively change a rule. This is often called the “nuclear” option. If the Chair is not following the rules, a Senator can call a point of order. The Chair then determines whether the point of order is valid. If the Senator disagrees with the Chair’s determination, the Senator can appeal and ask to have the Senate vote on the point of order. A simple majority makes the final decision on the Chair’s determination on the point of order.

The nuclear option can be used when there is a filibuster. A bill has more than 50% support but less than 60% (3/5s). A Senator wanting to get rid of the filibuster calls for cloture. The Chair calls for a vote on cloture. That obviously comes back as less than 3/5s. The Chair says the motion for cloture did not pass because it did not get 3/5s vote. The Senator calls for a point of order that the motion passed because it had a simple majority (the Senator knows this is not correct, but pretends like it is). The Chair denies the point of order because the rule is 3/5s. The Senator appeals and calls for the yeas and nays on the Chair’s decision. The Chair calls for the vote. A simple majority votes against sustaining the Chari’s decision on the point of order. That means a simple majority of the Senate voted that the 3/5s rule means a simple majority. That is obviously wrong, but since the Senate makes the final decision, if a majority says that is what it means then that is what it means.

 

[TalosMarr]

IIRC any senator not following the agreed upon senate rules can be removed from the chamber by the Sergeant at Arms. Beyond that removal I'm not sure there is any further enforcement or consequence.

 

[Norman Alexander]

What do you mean by "enforceable?" The Senate makes its own rules by vote of the majority. The courts and the executive branch have nothing to do with it. It's not mentioned in the Constitution. It is simply a procedural rule. In recent history, a Democratic Senate voted to end the filibuster with regard to all federal judges except for Supreme Court justices, and a subsequent Repub Senate eliminate it for them too. That's how we got Kavanaugh and Barrett. The 50 Democratic Senators with VP Harris on their own could vote to end the filibuster entirely, or with regard to specific legislation, as they just tried to do about voting rights. But Manchin and Sinema had their own plans. I think the premise of your question might be mistaken.

This is probably the direction of discussion I am trying to pursue: The LEGALITY of how the filibuster may or may not be heeded.

Given what you say, it appears to be a not-legally-enforceable "procedural rule" where everyone agrees up front how they are going to play the game for a while. Ignoring those rules would seem to be far, far less of a legal problem than, say, trying to buy your own senator with suitable bribes. Defiance of The Rules^TM would probably be met with uproar, mass harrumphing and finger-waving, and even the threats of ejection. But the police would not be called because no laws had actually been broken. I imagine these US Senate rules would carry as much importance as the ISF Forum Rules - we here all agreed to play by them, but we would look exceedingly stupid if we tried to raise a court case due to a suspension or banning.

These sessional variations to the Senate rules suggests that they are either based upon, or are variants of, a base set of rules. That is, there is somewhere in the reason for the Senate even existing a description of what it is supposed to achieve, and at least a basic guide as to how those achievements are measured. Without having the time to do the research myself, I wonder if some of our US friends can clarify this situation. Does the US Senate have simple, basic rules on which current procedures are built?

For example. is the purpose of the Senate simply to debate legislation? If so, to what end? To fill their empty days with talk? Or is that debate with a purpose of "passing" or "failing" legislation after debate? If so, by what criteria is this pass/fail determined?

I appreciate the day-to-day running rules are there to facilitate some sort of reasonable order and progress with debate. But as they have grown more complex, they appear to have become a law unto themselves, and a barrier to actual progress. So now, when the rules say that the rules can only be changed under certain conditions that cannot be reasonably met, like a bully demanding your lunch money every day, they would appear to have become too silly to be sensible any longer. Maybe it is time they were disposed of from outside their scope but within the constitution. Like getting your big brother to kick the bully in the balls.

 

[shuttlt]

I appreciate the day-to-day running rules are there to facilitate some sort of reasonable order and progress with debate. But as they have grown more complex, they appear to have become a law unto themselves, and a barrier to actual progress. So now, when the rules say that the rules can only be changed under certain conditions that cannot be reasonably met, like a bully demanding your lunch money every day, they would appear to have become too silly to be sensible any longer. Maybe it is time they were disposed of from outside their scope but within the constitution. Like getting your big brother to kick the bully in the balls.

If the majority of the Senate don't want to change this rule, what are you proposing?

 

[smartcooky]

Here is what I can tell you

The filibuster, in the form used by the US Senate, is the most undemocratic rule of procedure in any western democracy. It effectively means that the Senate minority gets to dictate the terms to the majority, go directly against the will of the people, and blame the majority for their failure to pass legislation, because most people are too stupid to understand - they only see promises made and broken.

In every other western democracy, a one seat/vote majority passes the legislation - which is as it should be.

 

[shuttlt]

Here is what I can tell you

The filibuster, in the form used by the US Senate, is the most undemocratic rule of procedure in any western democracy. It effectively means that the Senate minority gets to dictate the terms to the majority, go directly against the will of the people, and blame the majority for their failure to pass legislation, because most people are too stupid to understand - they only see promises made and broken.

In every other western democracy, a one seat/vote majority passes the legislation - which is as it should be.

Bills occasionally get talked out in the UK parliament. Preventing legislation progressing based on procedure is not unheard of. During the end of the Brexit long parliament the whole thing descended into haggling over procedure. It's different, certainly, but the basic phenomenon can and does happen. I'm not sure that this is quite as unique as you think.

The issue at the moment in the US Senate seems to me to be more the lack of a majority due to Sinema and Manchin. Getting legislation through a chamber in which you have less than half the votes is always tricky. This kind of thing happens all the time in the UK, and I'm sure widely around the world, whenever there is a weak government with a razor thin majority.

 

[JoeMorgue]

The filibuster isn't like... a thing. It's not like a Veto that's actually in the Constitution. It's not a law.

It's a procedural thing. To oversimply it some (but not a lot) while it's been part of Senate procedures in some form for a long time, what we now think of the filibuster in the modern sense was pretty much just created in 1975 with the "Way to keep the Party in power in check" subtext moved to the text.

It's not some ancient hallowed tradition of the Democratic process that goes to the Greek Forum. But much in the same way an American Tradition is anything that happened to a Baby Boomer twice, anything that happened to Congress in the 60/s70s from the filibuster to the goddamn candy desk is treated like some vaulted part of its soul.

It's procedural trick. It's a "Rule of Order." Nothing more. But Congress, the Senate especially, loves them some dog and pony show because more than America, more than the law, more than themselves Congress loves reminding everyone how important they are and they've long thought the best way of doing that is to make everything they do as ponderous and procedure filled and anti-efficient as possible to the point where I doubt they can ask to go to the bathroom without performing an entire Japanese Tea Ceremony.

Beyond that... it's just absurd. It's literally "I win because I won't shut up and stop talking." It's so childish. It's one step removed at best from holding your breath until you get your mumbling under breath "A moron says what?"

And hell it's not even that anymore. At least Thurmond actually had to talk for 24 hours straight to try and stop the Civil Rights Act from happening (shakes head) but now they can just "Not technically according to Hoyle yield the floor in accordance with Section 4, Subsection B of the Wasting Everyone's Time Act of 1975" and skate off to the Congressional Cafeteria for Taco Tuesday.

It's a Gish Gallop given an air of unearned respectability. Small wonder the Right is in love with now.

 

[Random]

I am not sure how trying to ignore the filibuster would even work. You would need to have a piece of legislation that would pass without the filibuster, but not with it. That would be a simple majority. But you only need a simple majority to change the rules regarding the filibuster.

So you would need Senators who are willing to ignore Senate rules when they are inconvenient, but are unwilling to change them when they are inconvenient.

 

[JoeMorgue]

Legalese and government---errr ese is full of procedures that if you don't look at it within the context of "For some reasons some system somehow manage to impose restrictions on themselves that they themselves don't like" make no sense.

It's the governmental equivalent of the person who puts a padlock on their fridge that they have the combo to instead of just not eating the entire pack of Bavarian Cream Puffs.

It's not completely insane that Congress has things which on the surface are just hindrances but serve a purpose of keeping things from happening to quick.

The filibuster is just not one of them.

 

[shuttlt]

I am not sure how trying to ignore the filibuster would even work. You would need to have a piece of legislation that would pass without the filibuster, but not with it. That would be a simple majority. But you only need a simple majority to change the rules regarding the filibuster.

So you would need Senators who are willing to ignore Senate rules when they are inconvenient, but are unwilling to change them when they are inconvenient.

With only a minority of Senators in favour of getting rid of the filibuster, this does all seem a bit academic.

 

[JoeMorgue]

The Filibuster is the #1, grade A, prime example, of the whole "Oh we totally for realzies would get rid of it... but *sigh* we just have to keep for the next time the other side is in power." thing.

 

[Bob001]

....
Maybe it is time they were disposed of from outside their scope but within the constitution. Like getting your big brother to kick the bully in the balls.

What is this supposed to mean? The Senate operates under rules that it chooses. It can and does change those rules by majority vote as it wishes. There is no outside authority that can make it do something else. Who do you think would be the "big brother?"

 

[JoeMorgue]

The filibuster is something that the Senate wants us to think they don't want, as if their hands are tied by it, while just ignoring the fact that they tied their own hands.

 

[Brainster]

The Filibuster is the #1, grade A, prime example, of the whole "Oh we totally for realzies would get rid of it... but *sigh* we just have to keep for the next time the other side is in power." thing.

Given that the Republicans will never win another election in our lifetimes, that particular risk seems minimal.

Errrr.