Senate Parliamentarian: Thank you for answering selise’s questions [a second working thread about forcing the (real) filibuster].
Welcome, again, readers and commenters. Your input and feedback, however major or minor, is invited. No question is too obvious, no confusion too petty to mention here. Thank you to all those who participated in the discussion in the earlier thread.
Our first formal working thread on this issue, started last Friday, is available here. There’s a lengthy introduction there, and a lot of detail in the comments, for anyone wondering what this is all about.
Since the comments closed on that thread sometime late Monday, and the Senate Parliamentarian’s office is scheduled to be open today, Tuesday, selise and I thought that another working thread would be in order, until we finally receive (we hope) the definitive answer(s) we’re looking for, and selise is ready to post her Seminal diary based on those answers.
Meanwhile, this was how selise’s first round with a staffer in the Senate Parliamentarian’s office went, on Friday afternoon (the office was apparently closed for four and a half days due to the record D.C. snowfalls):
I was able to connect with the Senate Parliamentarian’s office late yesterday afternoon although I had only a very short moment to talk, and I think so did the person I spoke with (understandable given the week DC has had).
The question I attempted to ask was, of course, about any Senate rules, starting with the two-speech rule, that could be used to put limits on an older-style, debate-based filibuster. There was a bit of confusion, because I apparently wasn’t clear enough that I wasn’t talking about a debate under cloture (alternatively, it may have been that the person I was talking with couldn’t imagine that possibility). When we, I hope but am not sure, got that bit cleared up, he said, regarding the two-speech rule he thought it was probably not workable because, if I understood correctly, it would be hard to enforce. I tried to ask why, but all he said was because of precedent. So of course I asked for a reference on that (which precedent?), but he didn’t have one for me. I ran out of time and I don’t think he was that interested in talking with me — unfortunate, but understandable.
At least I know now that the office should be open next week, and I’ll hope for a better conversation then. – selise, 2/13/10
I’ll try to briefly refocus below on where we are most in need of feedback from the Senate Parliamentarian, after the discussions in the first working thread’s comments.
Working backwards, I left a question hanging at the close of that thread that I think will need to be directly addressed by someone in the Senate Parliamentarian’s office:
Does it stand to reason, or is it logically the case, that actions considered by precedent to be Senate "business" for the purpose of calling another quorum (see list @ comment 65) – and for which the action of a Senator who has been recognized by the Presiding Officer is required – would likewise be considered (first) "speeches" under the two-speech rule – even if the Senator only executes such an action, without saying more – when that Senator is next recognized to speak on the pending question?
If that sounds like Greek to you, I’m sure you’re not alone. That question is part of an effort to, in effect, prove a negative: That, contrary to the conventional wisdom, there isn’t an easy way for a filibustering minority to avoid physically-taxing debate on the Senate floor, by shifting most of the burden of a real filibuster (as opposed to a non-filibuster cloture delay) to the majority.
The allegation that’s been widely made, once the obvious errors in the superficial conventional wisdom case (that a real filibuster is impossible today) are pointed out, is that there are multiple ways for a filibustering Senator (even during a real filibuster) to easily and painlessly avoid debating or speaking by, in particular, gaming the so-called "two-speech rule" that otherwise appears to limit him or her (as enforced by points of order by the majority) to only two speeches per legislative day (meaning, in effect, per filibuster) on the pending question (a bill, an amendment, certain motions, a conference report, a nomination).
A minority trying to shift much of the burden of the filibuster to the majority comes into conflict with the limits imposed by the two-speech rule in various ways.
For example, waiting until some qualifying (as defined by Senate precedent) Senate "business" – which doesn’t include "debate," or "discussion," or making of parliamentary inquiries, or suggesting the absence of a quorum – has been conducted, in the midst of their filibuster, is one requirement that a filibustering minority would need to repeatedly meet each time they wanted to force certain majority-inconveniencing votes or actions (like requesting a live quorum call, which requires 51 majority Senators to present themselves in the chamber to prevent a filibuster-aiding adjournment, or votes on motions to adjourn and motions to recess). But, because of the two-speech rule, if all or most of that qualifying Senate "business" (at least the "business" actions that directly involve a Senator, like offering amendments or making motions or unanimous consent requests) itself qualifies as a "speech" under the two-speech rule and its precedents – even if the Senator says no more than the absolute minimum needed to effect one of those "business" actions – the minority’s opportunities to inconvenience the majority, and make a mockery of both the "two-speech" and "intervening business" rules and precedents, would be drastically reduced (normal tactical moves of each side in a real filibuster excepted).
That’s what my question is getting at. The relative lack of Senate precedent directly addressing the issue leads me to believe that, if such credibility-risking actions were to be undertaken by a supposedly-principled minority forced to actually filibuster in the name of ‘needing more debate,’ they would quickly be reined in by new precedent, if not by existing, long-practiced Senate custom. The same lack of precedent guidance seems to indicate that such a Senate precedent-abusing practice, even if theoretically possible, has not been used in any significant way in real Senate filibusters since 1873.
So that’s one of the key questions we need answered or clarified by the Senate Parliamentarian.
We also need confirmation of the following flat impediment (whether or not this "business" action is itself considered a "speech") to one seemingly-available endrun – at least at a cursory glance, or in the absence of a majority actively contesting a real filibuster – of the two-speech rule, which seems to be evident from Senate rules and precedent:
Amendment, offering of: Can be blocked in multiple ways (to avoid providing the minority with serial opportunities to restart the "two-speech" clock), but most comprehensively by the Majority Leader "filling the (amendment, and maybe motion-to-recommit) tree" before the filibuster begins. [I’ve given lengthier explanations about this elsewhere, most recently here.]
This problem of ‘proving a negative’ as a result of the lack of proof offered by the conventional wisdom case that we’re challenging is itself part of a larger effort to officially rebut widespread claims that – as I wrote in the first working thread diary – the 1930s-era "Mr. Smith Goes to Washington"-style filibuster has somehow been rule-changed out of existence in the modern United States Senate, or is otherwise unfeasible, pointless, or impossible to conduct today under the existing rules.
I yield the floor.
“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.”