Hoping for a C-SPAN spectacle of GOP obstruction, some impatient Democrats are urging Senate Majority Leader Harry Reid (D-NV) to call Republicans on their filibuster bluff.
House Majority Leader Steny Hoyer (D-MD) made a plea typical of the genre, recently telling Politico that Reid should force Republicans into a filibustering talk-a-thon, "so that the American people can see who's undermining action."
By threatening a filibuster, the shrunken bloc of 41 GOP senators has just enough members to prevent a vote, requiring Democrats to make concessions to pick off a few moderate Republicans.
Reid has heard the calls. But his answer will surely disappoint: Sorry. It can't happen.
Reid's office has studied the history of the filibuster and analyzed what options are available. The resulting memo was provided to the Huffington Post and it concludes that a filibustering Senator "can be forced to sit on the [Senate] floor to keep us from voting on that legislation for a finite period of time according to existing rules but he/she can't be forced to keep talking for an indefinite period of time."
Bob Dove, who worked as a Senate parliamentarian from 1966 until 2001, knows Senate rules as well as anyone on the planet. The Reid analysis, he says, is "exactly correct."
To get an idea of what the scene would look like on the Senate floor if Democrats tried to force Republicans to talk out a filibuster, turn on C-SPAN on any given Saturday. Hear the classical music? See the blue carpet behind the "Quorum Call" logo? That would be the resulting scene if Democrats forced a filibuster and the GOP chose not to play along.
As both Reid's memo and Dove explain, only one Republican would need to monitor the Senate floor. If the majority party tried to move to a vote, he could simply say, "I suggest the absence of a quorum."
The presiding officer would then be required to call the roll. When that finished, the Senator could again notice the absence of a quorum and start the process all over. At no point would the obstructing Republican be required to defend his position, read from the phone book or any of the other things people associate with the Hollywood version of a filibuster.
"You cannot force senators to talk during a filibuster," says Dove. "Delay in the Senate is not difficult and, frankly, the only way to end it is through cloture."
And cloture requires 60 votes. Democrats, short of Minnesota's Al Franken, have 58.
But what about Strom Thurmond?
The legendary opponent of Civil Rights famously talked through the night in an attempt to block the Civil Rights Act. It's the example routinely raised by proponents of the make-them-talk strategy because it's such a delicious political image for progressives: the embodiment of racism, literally standing in the way of the march of morality. It draws a line and forces the public to choose a side. Democrats, who feel the political winds at their backs, want a repeat.
But if Thurmond's speech wasn't necessary to stall Senate business, why'd he talk all night?
"He just wanted to make a point," says Dove. "He chose to keep talking."
It may have made Thurmond a demon in the eyes of history, but in the South, his filibuster vaulted him to the legendary status he retains today. He eventually ran out of gas and Civil Rights proponents carried the vote.
Yet they succeeded, says Dove, not because Thurmond eventually stopped talking, but because they already had the votes.
When the majority doesn't have the votes, it doesn't go well. Since Thurmond, says Dove, the only time the majority tried to jam a bill through the Senate without having 60 votes ahead of time ended in failure.
Robert Byrd, a Democrat from West Virginia, was majority leader in 1988, when Democrats controlled 54 seats and wanted to push through campaign finance reform.
But Republican minority leader Alan Simpson of Wyoming was easily able to block it by sitting on the Senate floor and occasionally noting the absence of a quorum, thwarting a vote.
"Alan Simpson basically guarded the floor and the other Republicans simply went home," says Dove.
Byrd, fed up and deprived of the spectacle of non-stop-speechifying, ordered the sergeant-at-arms to arrest Sen. Bob Packwood (R-OR) and physically carry him to the Senate floor so he could be counted in a quorum call. Such a move is within the legal right of a majority leader, but it backfired when the sergeant-at-arms accidentally injured the 6'6", 235-pound Packwood.
Byrd and Senate Democrats eventually gave up. "I don't like to do things on a win-lose basis. I would rather say that we apparently have prevailed," Simpson boasted at the time.
Dove concurs with Simpson's political scorekeeping. "It was almost a farce," says Dove. "The bottom line is the bill never passed."
UPDATE: Several readers have asked to see the memo itself. I'm pasting it below. Also, some readers have raised interesting points about the details of the parliamentary procedures involved. I'll follow up soon with answers to those questions.
The memo:
How Cloture Rule Allows Minority To Block Legislation Without "Actual Filibustering"
Under the 1917 rules change the very nature of the filibuster changed. Whereas before any Senator could block any bill by simply talking, this was no longer true. A cloture motion could stop a Senator from talking. At the same time the addition of this procedure added the ability of the minority to block bills without filibustering merely by voting against cloture.
Since the 1950's true filibusters (i.e. Standing on the floor and talking for ever), have been used, more often than not to delay the inevitable, or to block last minute action that the minority party does not like. For example the when Strom Thurmond filibuster the Civil Rights Act of 1957 for 24 hours 18 minutes, the bill was eventually passed.
The last modern filibuster occurred in 2003 over some Judicial nominations. Harry Reid held the floor for nine hours where he read Searchlight (his first book) and I am not kidding, discussed the relative virtues of wooden matches.
Very technically if a single Senator wanted to employ every delay tactic possible, he could stall a single piece of legislation for a week and hold the Senate hostage, not allowing them to conduct any other business. This is basically the threat of the hold. Then the Senate needs to determine first will the Senator carry out the threat, can they be bought off, or is the bill worth a week of the Senates times. Hence a lot of important but minor bills get killed this way.
The byproduct of the cloture rule changes in 1917 and 1974 is you need to invoke cloture to proceed to a bill. Senators don't have to speak to vote against cloture. If you can't get 60, you can't move it to the floor. On the motion to proceed, if a Republican chose to get up they can speak about any topic they want, or they can sit down and begin an endless series of quorum calls. Or they can begin motions to proceed on their own set of bills.
Basically there is no way to force a Senator to speak or vote on any particular bill and if you can't get 60 you can't proceed to final passage.
The "PR Value" Of Making The Minority "Filibuster" For An Indefinite Period Of Time
It's true that if the Majority Leader doesn't file a cloture motion to cut off debate on the floor, the opponents of the bill which the Senate is on can continue to debate on it indefinitely. However, as mentioned in my previous email it will still not force them to do any kind of actual filibustering by forcing them to talk for unlimited hours (like we have seen in the movies).
Again, if someone wants to obstruct a specific piece of legislation, he/she can be forced to sit on the floor to keep us from voting on that legislation for a finite period of time according to existing rules but he/she can't be forced to keep talking for an indefinite period of time.
As explained above a Senator doesn't need to talk for an indefinite period of time to sustain a "filibuster" under existing rules. All he or she has to do is suggest the absence of a quorum when no one has any more to say on the specific legislation he or she is trying to delay. If someone comes in and wants to speak to give that Senator a hand, he lets them call off the quorum and speak and then he puts another quorum call in. It only takes one member to keep that going, he/she can have colleagues spell them and work in shifts just making sure that if no one is speaking then the chair doesn't put the question, i.e. begin the vote on the amendment, by putting in a quorum call.
So, if anyone was expecting a Republican Senator could have been forced to stay up and speak for hours if not days obstructing the auto legislations or any other bill would most likely have been disappointed since it was a good bet that the Republican conference would have coordinated and keep the quorum calls going. As a result, the public would not see the Republicans out there filibustering they'd see a quorum call or, since after the first three hours of each day debate no longer has to be germane to the pending business, they may see a Republican senator speaking about anything they want.
So not sure how much of a PR value is there not filing cloture to cut off debate. If anyone thinks there would be a show for the networks for hours/days they would have been disappointed because after couple of hours the only thing for network and news media for cover would be some quorum calls.