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September 20, 2013 9:24 AM Why Cruz Can’t Filibuster the CR

By Martin Longman

Byron York has taken it upon himself to break the news to the Republican base that there will be no filibuster of the Continuing Resolution. He has his facts mainly right, but we can dig a little deeper to discover the real limitations on obstruction here. To begin with, the Senate ordinarily operates by unanimous consent, which means that the works can be gummed up if even one senator doesn’t want to proceed to the next order of business. This is how the filibuster works. The Majority Leader asks for unanimous consent to consider a bill or a nomination. If the debate has begun on an issue or nominee, the Majority Leader will eventually ask for unanimous consent to end debate and have a vote. At either point, a single senator can object. What happens next is that the Majority Leader invokes Rule XXII and calls for a cloture vote. The cloture vote is not debatable. A senator cannot withhold his consent and prevent a cloture vote. And this is why Ted Cruz can’t filibuster the CR. Let me explain.

A filibuster can work in one of two ways. On most bills and nominations, the Majority and Minority Leader get together and make an agreement on which amendments will get votes and how much time each side will have for debate. They get unanimous consent for these agreements, so you can’t exceed the allotted time for debate. In these cases, the filibuster is ruled out. But, when the Majority and Minority leader cannot arrive at a consent agreement, then the Majority Leader must ask for unanimous consent to begin debate and to end debate, and the latter case is where an actual talking filibuster can come into play. While the Majority Leader can call for a cloture vote, he can’t make a senator shut up and sit down in the absence of a consent agreement. However, if cloture is invoked on the front-end, before debate begins, then Rule XXII kicks in and makes a filibuster impossible. If cloture fails on the front-end, that is the second type of filibuster: the silent kind.

So, here is how this would work. Harry Reid would make a motion to proceed to consideration of the Continuing Resolution. Some Republican senators would object. Harry Reid would call for a cloture vote (which can’t be debated). He’d have to wait a day to have the vote but it would get more than the required 60 votes. Once cloture was invoked, Rule XXII says that each side shall have no more than 15 hours to debate and that no senator can speak for more than one hour nor have more than two hours ceded to them by other senators. So, Ted Cruz would be limited to, at most, three hours of floor time in any debate over the Continuing Resolution.

The key here is that the filibuster is really not possible if there are 60 votes for cloture. The Republicans could defeat the cloture vote if 41 of them voted against it, and that would be a silent filibuster. Ted Cruz wouldn’t get to talk. But they eventually have to consider a bill to keep the government operating. And once they agree to that, a simple majority of 50 (with the veep casting the tie-breaking vote) will be sufficient to pass the spending bill.

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