On December 30, 2009, C-SPAN’s Chairman and CEO Brian Lamb made the following written offer to House Speaker Nancy Pelosi, House Minority Leader John Boehner, Senate Majority Leader Harry Reid, and Senate Minority Leader Mitch McConnell:
The C-SPAN networks will commit the necessary resources to covering all of these [health reform bill House/Senate] sessions ["all important negotiations, including any conference committee meetings"] LIVE and in their entirety.
Now that the process moves to the critical stage of [conferencing or merging bills] between the two Chambers, we respectfully request that you allow the public full access, through television, to legislation that will affect the lives of every single American.
Multiple national outlets are reporting today on Lamb’s offer, five days after it was made, and a day after anonymous leaks from Congressional staff (and original FDL reporting about on-the-record remarks by the powerful Henry Waxman) asserted that no formal conference would be held between the House and Senate, or by appointed, accountable conferees, on this major piece of legislative policy, that’s in dramatically different form after passage by the House and Senate.
Is there a chance, at long last, to get the "mainstream" national media to focus on the paucity of, and maybe even to promote, open, democratic process in our House and Senate, thanks to C-SPAN’s extremely-helpful and timely offer? Lamb’s offer could be a game-changer, on multiple fronts, depending on how it is covered, how it is responded to, and how that response is then queried by media reporters and bloggers. [That focus and game-changing may have already begun, based on the defensive responses – including the claim, contrary to Waxman’s Sunday comments, that no decision has yet been made about bypassing a formal conference – by the House democratic leadership in a press conference today at which they were asked about the C-SPAN letter.]
I noted in a comment here yesterday some of the differences between a formal conference committee between House and Senate, which includes both Democrats and Republicans (a process that, unfortunately, under both Parties, has been increasingly transformed into nothing but a single public rubberstamp for private deals dictated by Party, often at the behest of the White House), and the planned non-conference, wholly-private, Party-directed, off-the-record negotiation, which – not for the first time – removes the voices of every American represented by a Republican Member of Congress from the negotiation process. See also the formal Senate rules for (the bypassed-in-spirit, if not letter) conference committees, their "open meetings" and conference reports, here.
Now if we could just get some informed national media coverage about the Senate rules – which, in my opinion, enable a real filibuster to be forced into action and faced down to a simple-majority conclusion without the painless, time-wasting, 60-vote-supermajority of Rule 22’s cloture motions – we might start getting somewhere.
The long-gone real filibuster
I’ve read accounts of why the Majority Leader "can’t" force (in order to overcome, without resort to 60 votes on a cloture motion) actual filibusters in the modern Senate here (before the Democratic caucus had 60 votes), here and here. But all of those accounts have at least minor errors in them that I can see, and I believe that their assertions can be rebutted by reference to the actual Senate rules and precedents (as opposed to what’s simply convenient practice used by modern Majority Leaders, including Mike Mansfield’s "two-track" filibuster). Provided that people understand that – like Steny Hoyer, I assume, in his February, 2009 comments about the filibuster in relation to the stimulus package – I’m referring to forcing filibusters without resort to the convenience of invoking a cloture motion, and thus Rule 22’s many painless delaying tactics, to foreclose it.
I’m repeating below some information I posted yesterday, regarding the overlooked/ignored feasibility of forcing the filibuster when one is merely being threatened on a major piece of legislation, partly to try to highlight some specific questions that need asking of the powers that be, quoting pertinent excerpts from a 2003 Congressional Research Service report on the subject.
First, excerpting what I surmise to be (aside from his and his Party’s fear of genuine debate on a lousy piece of legislation) one of the real obstacles that keeps Harry Reid from forcing a filibuster – the likelihood of some inconvenience to the majority, proponent Senators that support the filibustered legislation:
Today, all-night sessions are very unusual. The Senate may not even convene earlier or remain in session later when a filibuster is in progress than it does on other days. One reason may be that filibusters are not the extraordinary and unusual occurrences that they once were. Another may be that Senators are less willing to endure the inconvenience and discomfort of prolonged sessions.
The latter point is important because late-night or all-night sessions put as much or more of a burden on [more of] the proponents of the question being debated than on its opponents. The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote. If, late in the evening or in the middle of the night, a Senator suggests the absence of a quorum and a quorum does not appear, the Senate must adjourn or at least suspend its proceedings until a quorum is established. This works to the advantage of the filibustering Senators, so the burden rests on their opponents to ensure that the constitutional quorum requirement always can be met.
If someone can get recognition in order to recess the Senate for the night, however, such late night sessions aren’t a necessary feature.
During a filibuster, however, the clerk may be directed to call the roll more rapidly [than during the fake quorum calls of the modern idling, empty Senate chamber], as if a [real quorum] rollcall vote were in progress. Doing so reduces the time that the quorum call consumes, but it also creates the real possibility that the quorum call may demonstrate that a [physical, Constitutionally-mandated] quorum [consisting of a majority of Senators] in fact is not present. In that case, the Senate has only two options: to adjourn, or to take steps necessary to secure the presence of enough absent Senators to create a quorum. Typically, the majority leader or the majority floor manager opts for the latter course, and makes a motion that the sergeant at arms secure the attendance of absent Senators, and then asks for a rollcall vote on that motion. Senators who did not respond to the quorum call are likely to come to the floor for the rollcall vote on this motion. Almost always, therefore, the vote establishes that a quorum is present, so the Senate can resume its business without the sergeant at arms actually having to execute the Senate’s directive.
When Senators suggest the absence of a quorum, however, they lose the floor. Also, "[i]t is not in order for a Senator to demand a quorum call if no business has intervened since the last call [further "debate" or speeches do not qualify as such business]; business must intervene before a second quorum call or between calls if the question is raised or a point of order made."7 These restrictions limit the extent to which quorum calls may be used as [a] means of conducting filibusters.
Note that the Senate, during the conduct of an actual filibuster, will in fact not want to adjourn, because recessing (instead, unlike adjourning) continues the "legislative day" into the next calendar day, thereby helping to impose the limit on any particular filibustering Senator of two speeches on any particular matter:
Rule XIX places no limit on the length of individual speeches or on the number of Senators who may speak on a pending question. It does, however, tend to limit the possibility of extended debate by its provision that "no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate." This provision, commonly called the "two-speech rule," limits each Senator to making two speeches per day, however long each speech may be, on each debatable question that the Senate considers. A Senator who has made two speeches on a single question becomes ineligible to be recognized for another speech on the same question on the same day.
The "day" during which a Senator can make no more than two speeches on the same question is not a calendar day, but a legislative day. A legislative day ends only with an adjournment, so that, whenever the Senate recesses overnight, rather than adjourning, the same legislative day continues into the next calendar day. A legislative day may therefore extend over several calendar days. The leadership may continue to recess the Senate, rather than adjourning, as a means of attempting to overcome a filibuster by compelling filibustering Senators to exhaust their opportunities of gaining recognition.
So the Senate would actually have to be a Senate again for a few days – with members physically present (or nearby) for hours or days, prepared at any time to respond to their names (in sufficient number to make a majority of 51, for a Constitutional quorum) in order to avoid an early adjournment that would aid the filibustering Senator’s cause.
Is there any labor more burdensome than that for the majority Party, which would or should lead it to avoid an actual filibuster at all cost, thereby establishing a new default Senate supermajority of 60 for the passage of legislation? Simply (supposedly) to avoid watching Ben Nelson or Blanche Lincoln, who rarely make appearances on the Senate floor, or Joe Lieberman, or a sequence of Republicans, speak for hours, on their feet, about their opposition to a bill in a droning monologue, without pause? Until their two speeches each are used up, and they no longer have the right of recognition to debate the question? Not that I’m aware of.
I contend that it simply takes the courage of principled conviction, equally by the proponents as by the opponents of important legislation, to stare down and engage an actual filibuster until a measure can proceed to an actual simple-majority up-or-down vote – consuming, in the process, quite possibly considerably less time than all the painless Rule 22 cloture-motion-initiated delays of the super-majority 60-vote response to merely threatened filibusters in the modern, make-believe Senate.
Once the Senate is debating a piece of legislation, when debate is finished (all Senators wishing to speak either having spoken, or having used up their alloted two speeches with a filibuster) the Presiding Officer puts the simple-majority question to an up-or-down vote [Page 2], no 60-vote majority needed.
Only testing the resolve of the purported opponents will ever demonstrate whether or not Republicans (plus assorted Democrats) in fact have the staying power to really drag out proceedings more than a week or two with a genuine filibuster to block a simple-majority vote – which the painless cloture motion process already allows them to do (though by both imposing a de facto 60-vote supermajority to pass legislation and by allowing other Senate business to get in around the edges during that time). Democrats like Ben Nelson, or Evan Bayh, or Mary Landrieu, I’m confident, will be nowhere in sight if a real filibuster is forced upon their empty negotiating threats.
I welcome contrary takes on the rules and precedents of the Senate that would realistically make a traditional filibuster impossible today, since this issue has been confused to such a great degree – deliberately so, in my opinion, by those in-the-know in the Senate – despite its significant potential impact on the future of the legislative process in both the Senate and the House. Any changes to the present 60-vote cloture rule will require a two-thirds vote [Page CRS-10] of Senators present and voting (with at least a quorum present, or a maximum of 67), as agreed when the cloture threshold was lowered to 60 in 1975. Note too that, until last year, for only two years since 1975 (when the cloture threshold was lowered from 67 to 60) has any Party in the Senate had 60 or more votes in its caucus, and thus the ability to steamroll over the minority at will on cloture votes, as the Democrats are now in the process of doing on the health "reform" legislation.