The following ‘proof’ takes it as a given – based on all available evidence, including the late Senate President Pro Tempore Robert Byrd’s February, 2010 “Dear Colleague” letter, Congressional Record excerpts from Senator D’Amato’s 1992 real filibuster, and evidence compiled in three FDL reader-diary working threads – that forcing actual, physical Mr. Smith Goes to Washington-style filibusters is absolutely still possible today in the United States Senate, under (and while honoring) its current rules and precedents. So this effort to ‘prove a negative’ – that is, to ‘prove’ that it is not possible or feasible (as Party myth would have it), under existing Senate rules and precedents, for a minority to force a majority to do the heavy lifting during a (real) floor filibuster – instead focuses on the specifics of the likely floor conduct of, and tactical moves available to, both sides in a real Senate filibuster.
This material was originally posted in March, 2010, in this FDL reader-diary working thread, and revised and expanded on the discussion in a first reader-diary working thread about how the “two-speech” rule [Senate “Debate” Rule 19] apparently would or could be used by the majority during a real filibuster to foreclose otherwise-available avenues of non-debate delay by a filibustering minority, and how that minority apparently would or could (unsuccessfully) try to avoid the constraints of the two-speech rule to ease the physical burdens of their real filibuster.
First, the pertinent provision of Senate Standing Rule XIX (19), the “two-speech” rule:
1. (a) When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and 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.
As discussed in the FDL working threads, Senate precedents – as collected in Riddick’s Senate Procedure and carefully tracked by the Office of the Senate Parliamentarian – play a vital role in implementing this, and any other pertinent, rule, in practice, during debate on the Senate floor (if and when the rule is enforced – which this particular provision generally is not, during routine, daily floor action – by the making of a point of order by any Senator).
One thing we didn’t discuss in the first two working threads is the subtle difference in the precedential weight of earlier Senate practices collected in Riddick’s, based on how those practices are footnoted. This subtle but important difference was brought to my attention by reading the important 1986 floor debate making up the bulk of the third working diary, which [FDL commenter and third working diary author] selise tracked down at a local library and scanned and uploaded – a debate which led to the establishment of an important two-speech rule precedent, which reads as follows [Starting on Page 782 (PDF Page 67 of 83) of the DEBATE PDF of Riddick’s]:
“When a Senator called for the regular order, the Senator who had the floor was directed to take his seat, since it was determined that he had already spoken twice on the question before the Senate that legislative day, the Chair holding that recognition for any purpose constituted a speech. On appeal this ruling was not sustained as the judgment of the Senate. By this vote of the Senate, it was determined that standing alone, the following procedural motions and requests were examples of actions that did not constitute speeches for purpose of the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments. Therefore, the two speech rule requires not a mechanical test but the application of the rule of reason.”[Footnote 561]
As selise’s diary highlights, during that 1986 debate, Senator Byrd, then the Democratic Minority Leader, quickly pointed out that difference in precedential weight to his colleagues, by reading from the (1981-edition) preface of Riddick’s. Here is the pertinent language in full, from the preface of the current edition of Riddick’s (which incorporates the 1981 preface):
It will be observed that the footnotes divide themselves into two classes: those without, and those with the word “See” and “See also.” Those without are rulings by the Presiding Officer or decisions by the Senate, and those with “See” are responses by the Chair to parliamentary inquiries in cases where the opinions expressed are in keeping with the practices of the Senate, even though in such cases an appeal from an opinion expressed by the Presiding Officer in reply to a parliamentary inquiry is not in order.
Note, too, the closing sentence from the paragraph just above that one:
Such responses to [parliamentary] inquiries selected for use here include only those which are in keeping with the long-established practices of the Senate.
Thus, Senator Byrd focused on that difference in footnote class to give very little weight to the ruling of the Presiding Officer (issued per the advice of the Senate Parliamentarian Bob Dove) on the question at issue (whether Senator Hollings was or was not on his third speech on the pending question), because Dove was relying on one of those “See” or “See also” citations. Such citations, as the preface notes, represent only an “opinion expressed” by the Presiding Officer to an earlier parliamentary inquiry, rather than an actual Senate decision or ruling by the Presiding Officer (which may be appealed, unlike mere opinions) – though the opinion Dove relied upon was evidently an earlier opinion that was “in keeping with the long-established practices of the Senate” since it was listed in Riddick’s.
As a result of that difference in footnote “class” explained by Senator Byrd, the analysis in this and future comments I make about how the two-speech rule might be deployed in a real filibuster will now err on the conservative side, by severely discounting any pertinent “See” cites in Riddick’s, in favor of non-“See” cites (clear precedents) – even though there’s no guarantee that in future the Senate would likewise so-easily dismiss a “long-established practice of the Senate” simply because it’s only cited as a response to a parliamentary inquiry, rather than earlier made formal precedent by the Presiding Officer ruling on a point of order or by vote of the Senate itself. [Nor is there any guarantee that the Senate will always act to uphold even clear (non-“See”) Senate precedent in future, should a majority prefer instead to change it.]
Applying that severe discount to the (minority of) “See” cites that I included in the earlier working thread(s) reduces the apparent feasibility of certain minority actions in a real filibuster in several ways, which I will attempt to illustrate below.
Providing some context for this exercise – which is, again, an effort to prove wrong the widespread evidence-free assertions that real Senate filibusters are no longer possible in actual practice – is this representative sample of the conventional wisdom promulgated by the Party/media narrative, from the first comment in our first working thread:
Such a filibuster is impossible to force under the current rules. The best Democrats would be able to do is force one single Republican to say “I sense the absence of a quorum” every 15 minutes (while the Senate clerk repeatedly calls the roll for the quorum call). Furthermore, at least 50 Democrats would have to remain on the floor during this entire time, because as soon as the quorum call fails, the Senate would adjourn for the day. – FDL commenter ericj115
The same commenter (ericj115), after reading further, and speculating about how a filibustering minority might game the two-speech rule, then questioned whether the following scenario would be feasible in a real filibuster (from Comment 10 of the first working thread):
In other words,
Senator A: motion
Senator A: quorum call
Senator A: motion
Senator A: quorum call… when A gets tired
Senator B: motion
Senator B: quorum call
Senator B: motion
Senator B: quorum calletc.
No one is making any speeches here, so I don’t think the two speech rule applies, right?– FDL commenter ericj115
[Note: I’m going to assume, for the purposes of this exercise, that a “Motion, making of” qualifies as intervening “business” between live quorum calls. However, the most recent non-“See” Riddick cite (from 1942) in fact says it isn’t “business,” contradicting precedent from the year before (1941) that says it is “business,” but there’s also a “see also” cite from 1948 saying it is “business.” In addition, however, a (in-effect, for purposes of intervening business between quorum calls, non–roll call) “Vote on any motion, including to take a recess” is qualifying “business” according to 1921 and 1935 Senate precedent.]
So, to respond to ericj115’s question, and adding to and refining what I said in the first working thread in response to his Comment 10 scenario, this is how I now believe that his scenario would in fact play out in a contested real filibuster, based on Senate rules and (non-“See”) precedents [specified further below]:
Senator A is recognized by the Presiding Officer and makes a motion to adjourn (“business”), including requesting the yeas and nays (“business”), but says nothing more. [At this point a quorum call is always in order.]
Making that motion (or any other motion) causes Senator A to lose the floor, presumably (pending the working definition of “procedural” non-speech motions or requests) without being charged with a speech.
The Presiding Officer immediately puts the question to a vote (no one first suggests the absence of a quorum), and the roll is called.
The motion to adjourn fails.
Immediately after the Presiding Officer announces the result of the vote, Senator A again seeks recognition, receives it, and suggests the absence of a quorum, without saying more.
The Presiding Officer, on his or her own initiative, or in response to a shout of “regular order” from another Senator, explains that a quorum call is out of order because the immediately-preceding roll call vote on the motion to adjourn just demonstrated the presence of a quorum. [Despite the fact that the vote on the motion to adjourn (or any other – in practice, seemingly non-roll call – vote) is itself considered to be “business” according to 1935 & 1921 precedent. See below for the bolded, italicized 1897-1986 precedent for this from Page 1042 of the QUORUM PDF, and the 1895 precedent for this from Page 7 of the ADJOURNMENT PDF.]
Senator A then either starts his first “speech” under the two-speech rule by saying something other than making a different procedural motion or request (another motion to adjourn at this point likewise being out of order), or immediately yields the floor.
If Senator A yields, and Senator B is then immediately recognized, Senator B must either start his or her first speech, or instead, like Senator A, make only a qualifying (non-speech “procedural”) motion, or request, without saying more.
At this point, the “non-business” of the suggestion of the absence of a quorum is still not in order, and neither is the “business” of another motion to adjourn.
*********************************************************************************************
Here are the Senate precedents governing my scenario, more or less in order of exercise:
Page 1043 [PDF Page 5 of 41] of Riddick’s QUORUM PDF:
“A quorum call is not in order unless business has intervened since a quorum was last established [1982 & 1986 precedent], and the withdrawal of an amendment does not constitute business [1986 precedent].”
Starting on Page 782 [PDF Page 67 of 83] of Riddick’s DEBATE PDF:
“When a Senator called for the regular order, the Senator who had the floor was directed to take his seat, since it was determined that he had already spoken twice on the question before the Senate that legislative day, the Chair holding that recognition for any purpose constituted a speech. On appeal this ruling was not sustained as the judgment of the Senate. By this [1986] vote of the Senate, it was determined that standing alone, the following procedural motions and requests were examples of actions that did not constitute speeches for purpose of the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments. Therefore, the two speech rule requires not a mechanical test but the application of the rule of reason.”
Page 776 [PDF Page 61 of 83] of Riddick’s DEBATE PDF:
“A Senator who yields for the transaction of business will lose the floor.”
and
“A Senator loses the floor when the Senate votes on a proposition, and would have to be recognized after the vote in order to get the floor, except by unanimous consent.”
and
“A Senator in the course of his speech cannot hold the floor, on objection or when a point of order is made, if: (1) He suggests the absence of a quorum and leaves the Senate Chamber; […] (3) he asks for a vote which is taken; […] (5) he makes a motion to adjourn; (6) he makes any motion; (7) or if a Senator in debate suggests the absence of a quorum or yields for that purpose, he loses the floor and his speech is thereby terminated.”
Page 3 [PDF Page 3 of 23] of Riddick’s ADJOURNMENT PDF:
“Business must intervene between motions to adjourn when a quorum is present [1888 precedent]; likewise in the absence of a quorum, a motion to adjourn is not in order where no business relating to the obtainment of a quorum has been transacted since a previous motion to adjourn was defeated [1930 precedent], [the last clause is an 1889 “See” footnote/opinion].”
Page 1086 [PDF Page 7 of 11] of Riddick’s RECESS PDF:
“The renewal of a motion to take a recess is in order when business has intervened subsequent to a vote on a previous such motion.”
Starting on Page 1042 [PDF Page 5 of 41] of Riddick’s QUORUM PDF:
“Business must intervene before a second quorum call or between calls [multiple precedent cites from 1895-1935], or a quorum call is not in order when there has been no business transacted since the previous call which was completed if a point of order is made [multiple precedent cites from 1914-1988], and the suggestion of the absence of a quorum is not in order immediately following a yea and nay vote where the presence of a quorum was shown and no business has intervened [1897, 1980 & 1986 precedent]; but another quorum call is in order when business has intervened [1938 precedent]. Where a motion to adjourn has been made, the suggestion of the absence of a quorum is in order” [1917 & 1926 precedent].
Page 7 [PDF Page 7 of 23] of Riddick’s ADJOURNMENT PDF:
“A quorum having rejected a motion to adjourn, the suggestion of the absence of a quorum immediately thereafter, no business having intervened, was ruled out of order.” [1895 precedent]
Page 1043 [PDF Page 6 of 41] of Riddick’s QUORUM PDF is where the list of qualifying “business” transactions “for the purpose of calling another quorum” begins; see this comment for that list.
*********************************************************************************************
Other presumably “procedural” (until we can confirm otherwise with the Senate Parliamentarian) “business” motions available to the minority during a real filibuster in addition to the motion to adjourn – assuming that motions to amend and recommit can be, and have been, fully blocked by the Majority Leader “filling the tree” before the filibuster starts – are a motion to recess (which aids the majority in a real filibuster by keeping the legislative day going into another calendar day), a motion to table (which would remove the pending measure from consideration) and a motion to postpone (the pending measure). If any of these were made instead of the motion to adjourn in my scenario, the same process would unfold, except that a live quorum call is not automatically in order as soon as those other motions are made, as it is when a motion to adjourn is made.
So Senator A, before yielding the floor, or Senator B upon taking the floor, could turn to one or more of those (presumably non-speech “procedural”) motions (the latter two being the most likely) to repeat the process of requesting and receiving a roll call vote on both, but still without making it then in order for a live quorum call to be immediately called, unless and until some non-roll call-vote “business” action was first transacted.
And although it does appear that, despite not being able to repeat the same (defeated) motion at will, Senator A or B could repeat a defeated motion after a different “business” (and officially non-speech “procedural”) motion action has intervened – so as to simply interchange such motions to construct a non-stop series of roll call votes on successive motions to adjourn, to table, and to postpone – I think that such obvious bad faith use of “procedural” motions by a filibustering minority to game the two-speech rule, in an effort to frustrate or inconvenience the majority of Senators, without bothering to debate the pending question, would probably be quickly brought to an end by some application of precedent, or change in precedent, by the majority, affecting how quickly or how often already-defeated motions may be repeatedly made in succession. [For example: The majority could decide to define or refine what a “procedural” motion is under their 1986 “non-speech” precedent (where it’s not certain from the debate or from the precedent’s wording that such motions are included, anyway), and/or remove the making of, and the (at least) roll-call voting on, such motions from the list of qualifying intervening “business” actions.]
Which leaves only a few other non-speech “procedural” requests that are also “business” actions – only one of them involving a roll-call vote – for the minority to try to exploit to create the scenario posited by ericj115 of requesting repeated, successive live quorum calls while simultaneously avoiding the constraints of the two-speech rule.
Heading that list of remaining non-speech “business” actions are points of order and unanimous consent requests.
The seeming potential of points of order [which are made in response to some action being taken on the floor; meaning, in practice, an action that the filibustering Senator first proposes, against which he then immediately makes a point of order, so that, somehow, he or she would be challenging some action of his or her own, more than likely…] for this purpose is belied by both the “See”-footnote cite that categorizes points of order as “business,” and by a perverse Catch-22 that I described in the last comment in the first working thread:
Note this precedent from Page 7 [PDF Page 7 of 23] of Riddick’s ADJOURNMENT PDF:
“A quorum having rejected a motion to adjourn, the suggestion of the absence of a quorum immediately thereafter, no business having intervened, was ruled out of order.”
How was the suggestion of the absence of a quorum “ruled out of order”? Presumably by the Chair ruling on a Senator’s point of order, a point of order whose “ruling on” is officially defined as “business” – after which a live quorum is supposed to be in order… Except not that time…
See the problem? It takes a point of order to enforce the requirement that “intervening business” transpire between live quorum calls. Thus, if such a “point of order” is made before an out-of-order quorum call begins, in order to challenge the fact that no business has been transacted since the last live quorum call, suddenly “business” (in the form of that point of order challenging the lack of business, or at least the “ruling on” that point of order) has transpired, and thus, presumably, the pending live quorum call is suddenly in order, after all… Except, of course, that seems absurd.
My assumption is that this Catch-22 contradiction would be resolved in favor of points of order being allowed to be used to enforce Senate precedents without, by means of their exercise alone, permitting the evisceration of Senate precedent. [Which might consist of points of order being moved to the “non-business” list, or else off the “procedural,” non-speech list.]
Thus, not unlike the situation outlined above with motions, if and when Senator A or Senator B tried a quorum call/point of order (against…something)/quorum call filibuster to avoid the two-speech rule and prolong a filibuster without debating, some new Senate precedent recharacterizing points of order would probably be set post-haste by the majority to prevent such an inadvertent loophole from being exploited.
That leaves, as the 1986 debate seems to confirm, unanimous consent requests (which are “business” and do not cause the Senator making the request to lose the floor), the ability to request the yeas and nays (“business” which may result in loss of the floor), and appeals of rulings of the chair (possibly “business” and which lead to roll call votes), as the remaining “procedural”/non-speech business actions which could intervene between live quorum calls.
Requesting the yeas and nays won’t help the minority here – because there’d be one measure pending that’s being filibustered, and once the yeas and nays are requested on that, future requests would presumably be ruled out of order. And yeas and nays requested on “procedural” motions that might be made, though “business,” would precede roll call votes, which then prevent subsequent live quorum calls until other business has intervened.
If appeals from rulings of the chair are in fact “business,” obviously somehow a ruling by the Presiding Officer would need to be generated before such an appeal could be made. Which gets back to the making of points of order against actions the Senator doing the filibustering is likely undertaking. I guess a Senator could intentionally abuse the rules to get someone else to make a point of order that he or she could appeal, resulting in a vote on the appeal, but that tactic would require the cooperation and tolerance of the majority to succeed, and like the abuse of motions and points of order themselves, is likely to quickly backfire. And, as with the motion/quorum call/motion scenario first described, the resulting roll call vote on the appeal would preclude an immediate subsequent live quorum call, anyway.
Leaving, finally, unanimous consent requests which, like motions to adjourn, recess, or postpone, are not explicitly named as “procedural” actions or requests in the 1986 Footnote 561 non-speech precedent, although the 1986 debate on which the third diary is based (and which led to the vote that created the Footnote 561 precedent) clearly seems to have intended to include them as non-speech “procedural” requests, at least to some extent. [Unfortunately, the precise extent to which the two-speech rule is impacted, or not, by unanimous consent requests, seems to have been left unsatisfactorily-open and unresolved as a result of the posture of the 1986 debate in a post-cloture environment, which added an additional “dilatory” restriction that doesn’t apply in real filibusters conducted outside of Rule 22’s cloture process.]
Like the other theoretically-available non-speech actions that might lead to ericj115’s debate-free filibuster scenario, but to apparently-greater advantage for the minority at first than with motions or points of order, Unanimous Consent Requests – of any and all creative content, and even when, as they would be, they are not granted – as “business,” and seemingly “procedural,” non-speech requests, could take place between live quorum calls, but in this case repeatedly and immediately by the same Senator, or by multiple Senators, in sequence. At least until it dawned on the majority that the 1986 non-speech “procedural” request list needs clarifying to remove most or all unanimous consent requests from the “procedural,” non-speech category – or else that they should revise the qualifying intervening “business” list of actions to remove UCRequests. Because otherwise the 1986 Footnote 561 precedent managed to drive an unintended hole through Rule 19’s two-speech restriction on floor debate, at least during bad faith real filibusters. [“Unintended” – as is clear from the concerns expressed about this very issue by the Republican Majority Leader and Whip (Dole and Simpson) at the close of that 1986 debate.]
Some explicit answers from the Senate Parliamentarian (I believe selise has received at least one such so far, with regard to our main premise) could helpfully firm up this analysis in one direction or the other – in particular, perhaps, at least to begin with, explicit answers to these questions:
1. Are Senate precedent-defined “business” actions “procedural” for purposes of the 1986 Footnote 561 “non-speech” precedent? [This is another way of framing the “business as speech” question in the body of the second working thread post.]
2. Is there any working definition of “procedural motions or requests” in the Senate aside from the examples listed in the 1986 Footnote 561 precedent [starting on Page 783 of “Debate” in Riddick’s]?
– pow wow
For broader context, as to how all this relates to present Senate practices, see:
(Debating) Filibuster vs. (Optional) Cloture: The Self-Inflicted Catch-22 in Senate Rule XXII