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I get asked from time to time whether it's possible to force Republicans to engage in a "real" stand-up, talk-a-thon filibuster, so that they'd have to stand there and explain to the American people why they're obstructing the passage of some bill or another, or holding up some nomination.

As with almost everything involving procedure, there are a thousand directions the answer can go in, depending on how wild a scenario you're willing to consider, your reading of the willpower and patience of key Senators, and what you think public reaction is likely to be to each decision.

So, is it true that Harry Reid can force Republicans to engage in a "real" filibuster and thereby make asses of themselves?

There are several parts to the answer to this one. Here's my best shot at what we might only be able to call an opening round on the issue.

What we've come to know as the modern filibuster these days rarely involves anything even remotely resembling marathon speeches on the floor. All of the "action" is abstract. Objecting Senators indicate their willingness to refuse assent to any unanimous consent agreements to bring a measure to the floor for debate, and that resolve is either tested by filing a motion for cloture and holding a vote (with the well-known threshold 3/5 of Senators chosen and sworn -- 60 in a full Senate -- required to end debate), or else the point is conceded, temporarily or otherwise, that a cloture vote would fail for lack of support.

But that's not the end of the story, and most of the advocates for "forcing" a filibuster are more interested in what happens next, though in modern practice, what happens next is: nothing. That is, a failed cloture vote or declining to even take a cloture vote because it's expected to fail usually results in pulling the bill from the floor or otherwise indefinitely delaying its consideration. To be a little clearer about it, then, those who want to see a filibuster forced are interested in what happens if the Senate leadership refuses to give up on a bill that's being blocked and can't currently get 60 votes for cloture.

Can't Harry Reid just leave the bill on the floor for debate, they ask, and keep trying for cloture over and over until someone breaks? Or is a cloture motion even really necessary? If you're willing to tough it out on cloture votes over and over again, why not simply let the obstructionists talk themselves into a coma instead?

This is all theoretically possible, but none of it would happen in a vacuum. Remember that at any given time, there are hundreds of measures which could and should be moving through a properly functioning Senate. If one measure is stuck on the floor for some indeterminate length of time, that means none of the others are moving. And some of those other measures can by themselves cause enormous problems when they don't move on time.

So let's look at a few of these moving parts, one at a time. Yes, the Majority Leader can file repeated cloture motions, or even decline to file a cloture petition at all and discourage the members of his caucus from doing so, and then the Senate can continue to debate a pending measure indefinitely. But though he can leave the Senate in an extended period of "debate" on the measure, he can't force anyone to use the time in that debate in any particular way, let alone force them to use it in a way that makes asses of them. That would be entirely up to them.

Even if members of the minority chose to speak the entire time, there's no real requirement that the "debate" be relevant to the measure on the floor. You'd probably be very lucky if -- as is often imagined to be the case with "real" filibusters -- they chose to read the phone book, or discuss some other inane topic, rather than use the free, nationally televised time to bash Democrats on any subject under the sun. It could easily turn into an extended, 24/7 teabagger town hall, if Senators thought they'd benefit from such a thing. And all indications are that they might think exactly that.

But even more annoying is the fact that they don't actually have to use the time to continuously "debate" at all. Every few minutes or so, any Senator who has the floor can note the absence of a quorum-- even when there's obviously a quorum present -- and the rules technically afford the presiding officer no flexibility in determining whether it's necessary. Once a Senator suggests the absence of a quorum, the chair is obligated to conduct a quorum call -- which is what you're seeing if you've ever tuned into C-SPAN2 and seen Senators milling about aimlessly on the floor, with that interminable classical music playing. Whenever the absence of a quorum is suggested, the presiding officer must direct the clerk to call the roll. The roll can be called quickly or slowly, but it has to be called either until there is unanimous consent for suspending it, or until it's called all the way through and a quorum is either established or not. And if it's not, the Senate automatically adjourns for the day and the pending business remains unfinished.

What this means in effect is that a dedicated team of participants in the filibuster could take turns an hour or two at a time (or more if they chose) occupying the floor, lying like maniacs about whatever bill was under consideration, and any Democrat who sought to correct them would only help extend the filibuster. And any time they got bored or tired or even just mischievous, they could suggest the absence of a quorum and then disappear, forcing the Democrats to produce 50 Senators or face automatic adjournment. The only rule about how often they can do that is that "some business" must transpire between quorum calls. So if they decided to do it every five minutes or so, Democrats would have to drag 50 Senators to the floor each time, while the Republicans could go take naps. Which means that a "real" filibuster kills the schedule of almost every single Democrat and commits them to sleeping in their offices for however long it goes on, while Republicans can share the duties among 41 of them, one or two at a time, working in shifts.

Can that be done? Yes. But there's no telling how long that could last, or whether they could ever truly wear out 41 Republicans who can go home for a good night's sleep every night while Dems spent the night on cots and couches, etc. There are, technically, some limitations on how often each Senator can speak. The rules do limit each Senator to two speeches per "legislative day" (not the same -- of course! -- as a regular calendar day) on any particular pending question, for instance. But there are usually ways around that, like offering an amendment, which creates a new debatable question upon which each Senator is again entitled to two speeches.

Is there anything that Dems could do to short-circuit some of that? Yes, but it's probably beyond their comfort zone, though they should begin thinking about it anyway. For one thing, the presiding officer could be asked to rule that constant quorum calls are dilatory and out of order, though typically the fact that they are dilatory by themselves is not considered to be enough to rule them out of order. Coupled with some other grounds -- perhaps a constitutional challenge to the delay, if the measure under consideration can be tied to some constitutional function of the Senate -- such a motion might find sufficient grounds. During certain portions of the Senate's procedural day, demands could be made that the debate be germane to the pending legislation, etc. And then of course there's the so-called "nuclear option." All of which are at the moment probably beyond the political will of the Democratic Caucus, and only one of which -- the nuclear option -- would directly overcome the problem in the end. Even without ending the quorum calls, etc., a team of 41 Senators who wanted to carry this on could probably do so very comfortably, while inflicting a lot of pain on Democrats. And that's all without even getting to the fact that nothing else can move on the Senate floor during all this time, setting up a potentially huge budget and appropriations backlog that could threaten to shut down the government if it lasts long enough or comes at the wrong time.

The super short version, then, is that while a "real" filibuster can result, all of the costs fall on the majority. That might not settle the issue for people who want to see an all-out showdown over some particularly important bill or nomination (though remember, it could be considerably less trouble for a nomination, since that can't be amended). But it doesn't take any special knowledge or understanding of how Senators tend to view things to realize that they're not likely to be especially well-disposed toward trying it.

Originally posted to Daily Kos on Sun Feb 21, 2010 at 06:00 AM PST.

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