This is just a quick note on the filibuster. It’s poorly understood, so I want to give a brief explanation of what it is, what it is not, and how you know if you are witnessing one.
In the popular imagination, when someone is filibustering, they are talking endlessly in order to prevent the Senate from conducting some piece of business, usually a vote.
This is possible because a senator has the right to talk as long as they want unless there has been some consent agreement that limits their time.
When I say “consent agreement,” I mean unanimous consent agreement. And when I say “unanimous,” I mean that all 100 senators have agreed to limit the time for debate.
In the absence of a unanimous consent agreement, senators may talk until they drop.
But that is not how the filibuster works.
If we use the confirmation of Chuck Hagel as an example, there will come a time when Majority Leader Harry Reid will try to negotiate a unanimous consent agreement with Minority Leader Mitch McConnell to bring Hagel’s confirmation up for a debate. The agreement will include limits on the amount of time allowed for debate, which will be evenly split between the two parties.
However, if there are any senators who refuse to grant their consent to begin the debate, then Harry Reid needs to do something called “filing for cloture.”
Let me stop here and say that this is the filibuster. The lack of consent is the filibuster. One single solitary senator refusing to grant their consent is the filibuster.
Cloture is a mechanism to overcome the lack of unanimous consent, and it currently requires 60 votes. If Harry Reid can get 60 votes for cloture then he has simultaneously overcome a filibuster.
A senator can filibuster repeatedly. They can filibuster a motion to begin debate. They can filibuster a motion to end debate. When it comes to legislation, they can filibuster a motion to move to Conference with the House (until this January, a senator could filibuster such a motion three times).
But all a filibuster is, is a refusal of one senator to grant their consent to whatever it is that the Majority Leader would like to do.
Now, if 60 votes are quickly acquired, then we don’t really talk about it being a filibuster because the delay was short. We only really speak about filibusters when they are successful.
So, for example, there were a few Democratic senators who, in 2006, didn’t grant unanimous consent to begin debate on the confirmation of Dirk Kempthorne as Interior Secretary. This only caused a delay of a couple of days, so many people don’t report it as a filibuster. But that is exactly what it was. It was a failed filibuster.
In reality, it wasn’t a serious effort to derail the nomination or deny a vote. It was just a protest. And the mini-filibuster of Kempthorne is the only known example of a lack of unanimous consent to debate a cabinet nominee.
I mention all this because there are several Republicans in the Senate who do not plan to give their consent to begin debate on Hagel’s nomination who are attempting to say that they aren’t going to filibuster.
Rachel Maddow mocked them tonight on her show, but she didn’t explain why they are full of crap.
A filibuster occurs whenever a single senator refuses to consent to a motion. It is upheld whenever 40 additional senators also refuse to offer their consent to a motion. It is broken whenever 60 senators agree to the motion. There is no talking involved or required.
We tried to change that in January, but too many Democratic senators like things the way they are.
