Since the young among us have never really seen a sustained filibuster, I thought I’d help everyone know what to look for. The reason this filibuster is happening is not because there is any rule about filibusters, but rather a lack of them. The filibuster situation is made possible by the Right of Recognition:
The Right to Recognition
Rule XIX affords the presiding officer no choice and no discretion in recognition. As a general rule, if a Senator seeks recognition when no other Senator has the floor, the presiding officer must recognize him or her. The presiding officer
may not decline to recognize the Senator, whether for reasons of personal preference or partisan advantage, or to enable the Senate to reach a vote on the pending matter.As a result, when the Senate is considering any debatable question, it cannot vote on
the question so long as any Senator wants to be recognized to debate it.
The presiding officer is usually a freshman Senator from the majority party, (i.e., McCaskill, Tester, Sanders, or Brown).
Another thing to look for is the Two-Speech Rule and different ways that Senators can screw up and lose the floor.
The Right to Speak at Length and the Two-Speech Rule
Under Rule XIX, unless any special limits on debate are in effect, Senators who
have been recognized may speak for as long as they wish.They usually cannot be
forced to cede the floor, or even interrupted, without their consent. (There are some
exceptions: for example, Senators can lose the floor if they violate the Senate’s
standards of decorum in debate, or, as discussed later, they may be interrupted for the
presentation of a cloture motion.)
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.Senators rarely invoke the two-speech rule because they generally do not believe
that there is any need to do so. Sometimes, however, they may insist that the two-
speech rule be enforced, as a means of attempting to overcome a filibuster. On such
occasions, nevertheless, Senators often can circumvent the two-speech rule by
making a motion or offering an amendment that constitutes a new and different debatable question.For example, each Senator can make two speeches on each bill, each first-degree amendment to a bill, and each second-degree amendment to each of those amendments as well.
In recent practice, the Senate considers that being recognized and engaging in
debate constitutes a speech. The Senate, however, does not consider “that recognition for any purpose [constitutes] a speech.” Currently effective precedents have held that “certain procedural motions and requests were examples of actions that did not constitute speeches for purposes of the two speech rule.” These matters
include such things as making a parliamentary inquiry and suggesting the absence of
a quorum.Nevertheless, if a Senator is recognized for a substantive comment, however brief, on the pending question, that remark may count as a speech.
Hope this helps you have a more informed evening.
