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April 19, 2013 3:02 PM A Filibuster By Any Other Name

By Ed Kilgore

I got briefly ensnared in a technical error yesterday by referring to Manchin-Toomey as a cloture vote when it was actually a vote on an amendment offered under a Unanimous Consent agreement requiring 60 votes for passage (I corrected this in an update, noting it was a distinction without a difference). But because there was no cloture, Kevin Drum wondered if it was technically accurate to call what preceded it as a “filibuster,” which led to a long and interesting lecture on Twitter by Jonathan Bernstein.

Recapitulating the discussion at his blogging site, Bernstein sorted it out nicely for us:

Republicans have declared a 60 vote Senate. They are demanding 60 votes to pass any bill, any amendment, any nomination, anything. That’s a filibuster on everything. Technically and all.
I think — and I’m not just talking about one post here, but generally — part of the confusion is caused by conflating three things: whether there is a filibuster; how the filibuster is conducted; and how the filibuster is resolved. How it is conducted and how it is resolved are both determined by the tactics of both sides, and sometimes by agreement between both sides. Again, it could be resolved by forcing Senators to talk and seeing whether they would keep going or not (attrition); it could be resolved by a cloture vote; it can be resolved by informally agreeing whether or not there are 60 votes and then moving ahead if there are and pulling the bill/amendment/nomination if there are not; and it can be resolved through this 60 vote threshold thing. And it can be conducted by Senators standing on the Senate floor and talking, or, under current norms, by Senators informing leadership or bill managers that they’ll insist on 60.
But it is wrong to say that insisting on 60 is threatening a filibuster. The demand is the filibuster, under the conditions — which hold now, and have held for decades — that the way a filibuster is conducted is by notifying people of the demand for 60.
And so, whenever 60 is demanded, and however that is resolved, the press should report that a measure has been filibustered, and if it fails — again, however it is resolved — they should report that it has been defeated by filibuster.

Amen, and even if they don’t, they should sure as hell not fall into the habit of just assuming 60 votes are required for passage as though that’s the way it’s always been and write about this or that bill or motion that has majority support being “defeated” or “overwhelmingly defeated.”

For all the above reasons, as we used to conclude presentations in college debate: Filibuster Delenda Est.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • john sherman on April 19, 2013 3:41 PM:

    And those voting no should be described not as voting against background checks but against allowing the senate to vote on background checks.

  • Notorious P.A.T. on April 19, 2013 3:42 PM:

    "Republicans have declared a 60 vote Senate"

    Nonsense. Absolute rot. The 60-vote requirement is a Senate rule, and Senate rules are made by the majority party, which is the Democrats. Just because they are too spineless and short-sighted to make rules that will allow them to pass (what they claim to be) their agenda does not absolve them of blame.

  • Melville on April 19, 2013 3:53 PM:

    Using the term filibuster is still problematic, even if it accurately describes the situation. Any imprecision will lead to complaints that liberal media is biasing the coverage and in any event "filibuster" still carries a whiff of noble "Mr. Smith"-style standing upon principle.

    I think we should simply say that "Measure X blocked by Senate Minority". It is factual, sidesteps the issue of the term filibuster, and does not imply that a 60-vote threshold or a UC agreement is in any way normal or a standard requirement for passage. We should also never say that the bill "failed" or "was defeated" because it never got to a proper vote in the first place.

  • c u n d gulag on April 19, 2013 4:32 PM:

    And the party that's causing the dysfunction, will now run on the Senate being dysfunctional - and, enough people will go along with it, that they might very well end up in the majority.

    Btw, Notorious P.A.T.
    I'd recommend "US Government for Dummies," to help you understand how filibusters, closure, and actual votes on bills, are different.
    Of course, if you're not a reader of books, YouTube and Wiki might also help you.

  • Coop on April 19, 2013 10:25 PM:

    Remember the good ol' "strict constructionist" Constitutional days when the Vice-President's job was to cast tie-breaking votes? Has VP Biden *ever* gotten to cast a tie-breaking vote?

  • Fritz Strand on April 20, 2013 9:05 AM:

    One can go on endlessly nit picking away at arcane Senate rules, but if majority rule is a thing of the past for this country we are in deep, deep trouble.

  • James Moore on April 22, 2013 12:13 PM:

    Melville, I strongly disagree with your suggestion about claiming that the minority blocked something.

    The correct phrasing is more like "the majority decided not to pass X." Later on, an article could expand on that, with something like "they wanted an even larger majority than what they had".

    But since the majority has the actual power to pass the bill, it's their decision not to do so. Allowing them to place any blame whatsoever on the minority is indeed absolute rot.