No, Chris Cillizza, the filibuster is not a unicorn. It is not mythological. It is not impossible to define. You have a job at the Washington Post where you are expected to explain politics to the American people, and you are failing at it.
So, what is the filibuster? At its most basic, 99% of the time, the filibuster is simply the lack of unanimous consent for any motion proposed by the Majority Leader of the Senate. Any time even a single senator objects to a motion, the Majority Leader must decide whether to drop the matter (which means that the filibuster succeeded) or to file for cloture. If he has to file for cloture, it imposes a one day (plus one hour) delay followed by 30 hours of debate before a vote on cloture can be held. Therefore, withholding consent is dilatory, even if you ultimately lose on the cloture vote and the Majority Leader gets to proceed as he intended to three days prior. If you succeed on the cloture vote, you have successfully filibustered. If you fail on the cloture vote then you have unsuccessfully filibustered.
So, how should we treat Ted Cruz’s long speech?
It’s fairly simple. Harry Reid asked for and was denied unanimous consent to proceed to the House’s continuing resolution. That’s a filibuster. It’s a silent filibuster because it delays things automatically under Rule XXII of the Senate rules. No one needs to speak to cause the delay. The Senate is currently operating within the 30 hour rule for post-cloture debate [ed. note, I got this wrong. The Senate is currently voting to begin the 30 hours of debate], but Harry Reid granted Ted Cruz the right to talk his head off during this time. Sen. Cruz isn’t delaying anything, so he isn’t technically filibustering, but the Senate is undergoing a filibuster nonetheless.
To fully understand the filibuster, you need to understand not only the silent filibuster but the more understandable Mr. Smith-Goes-to-Washington talking filibuster.
When a senator goes to the floor to speak, he or she reserves the right to speak for as long as they want. The other ninety-nine senators cannot shut them up. So, it is possible to delay action in the Senate simply by talking for a long time. This isn’t ordinarily very effective for a couple of reasons. First of all, most of the time the Senate considers bills under what is called a “consent agreement” that limits the time for debate, meaning that all 100 senators have agreed that the talking filibuster will not be allowed. So, normally, the talking filibuster can only work before bills are under consideration. Secondly, because the cloture rule automatically causes a 55-hour delay, it is more dilatory than even the most talkative senator can hope to be. For these reasons, the old-fashioned talking filibuster has basically disappeared.
Because Cruz received special permission from the Majority Leader to talk for a long, but still time-limited, amount of time, and because his speech did not actually delay any Senate business, he cannot be considered to have filibustered anything. What he did was talk during a filibuster that will fail as soon the post-cloture debate time expires.
How could Ted Cruz have filibustered?
He could have sought recognition on the floor prior to the Majority Leader filing for cloture and then could have talked in order to prevent the Majority Leader from filing for cloture. This is what distinguishes the talking filibuster from the silent filibuster. When Harry Reid gives us a list of all the filibusters he’s faced, he is using the list of all the times he was forced to file for cloture because he was not afforded unanimous consent. But you can prevent him from asking for unanimous consent by not yielding the floor. You can also refuse to allow any time limits on debate by refusing to accede to any consent agreement. That allows a talking filibuster during debate on a bill or nomination.
So, when can you say that a filibuster has succeeded?
If the Majority Leader fails to get 60 votes for cloture, then the filibuster has succeeded. If he doesn’t bother to even try for cloture because he knows that he will not win, that isn’t technically a filibuster, but it has the exact same effect. Finally, by continuously forcing the Majority Leader to waste time on cloture votes, you can cumulatively chew up so much legislative time that you limit what the majority can accomplish. This is has been one of Minority Leader Mitch McConnell’s most aggravating innovations.
In any case, that’s a lot of words but it isn’t really all that complicated. A filibuster is used to delay and frustrate the majority. Any time the Majority Leader is frustrated in his effort to move to a new piece of business and has to suffer some delay, that’s a filibuster. Ted Cruz didn’t accomplish that by talking. It was accomplished when Harry Reid was not given unanimous consent to take up the House’s bill.
