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Disclosure: I'm advising Open Left in a paid capacity on procedure with regard to the Wall Street reform bill, and thought readers at Daily Kos and Congress Matters would be interested in the information as well.

In previous posts, I've made brief mention of how today's repeated Republican abuse of the filibuster has made conferencing -- once the most efficient method of settling differences between the houses -- so inconvenient and difficult to get to that it's actually become something of a rarity to see it happen.

What exactly do I mean? I'm going to lean on CRS again to set things up, this time on their report titled, "Conference Committee and Related Procedures: an Introduction":

Before a conference committee is created to resolve disagreements between the two houses, the House and Senate each must state its disagreement over a bill, either by disagreeing to the amendments of the “other body” or by insisting on its own amendments. So long as one house concurs in the amendments of the other with amendments, there is no formal disagreement. But at any point during an exchange of amendments between the House and Senate, either house can propose that they can go to conference instead.

That's step one: clarifying whether or not there's a disagreement between the Houses. Simple enough to do in the House. But in the Senate, you know how things can get. Someone moves that the Senate disagree to the House bill (or amendments), and somebody else says they'll filibuster and prevent closing debate on whether or not to declare a disagreement. Sounds dumb, but unless there's a formal declaration by the Senate that there's a disagreement, you can't have a conference. Because you can't conference where there's no disagreement. But if one or more Senators wishes to pretend they have reason to insist that "debate" continue over whether or not there's disagreement, you'll need a cloture vote -- and the agreement of 60 Senators -- to move the process along.

Recalling exactly what that means, you'll need to file a cloture motion (along with a petition signed by 16 Senators, which is never a problem), but then wait for a full calendar day to pass after the day on which you file the motion. Then, after one hour of session has elapsed on the second calendar day following the filing, your cloture motion is "ripe" for consideration. But remember, even if you trounce the opposition, all cloture gets you is the right to end debate... following another 30 hours of it! So now you've spent about a day and a half to get to your cloture vote, won the vote, but may have to sit by for another 30 hours before you ever get to actually vote on whether or not there's a disagreement with the House!

But hold on, you're not done yet! Because now that you've spent three days or so getting to the vote on disagreement (and remember, the Senate is very often in session only 3-4 days a week), it's time for the next step: deciding what to do about the disagreement. Again, this sounds dumb, because there's really only one thing to do about it once you've opted not to simply amend the bill and send it back, and that's have a conference. But the Congress is very exacting in its procedures, and just as you can't contemplate a conference unless there's an official disagreement, you can't just tell a bunch of Senators to go have a conference. You need to send them on their way as official agents or managers (as conferees are sometimes called) of the Senate's position. (Same goes for the House, of course, but there's no filibuster there, so this is much easier to do.)

So at this point, the Senate needs to actually declare its intentions with regard to rectifying the formal disagreement. It needs to request a conference or agree to such a request if one was made by the House. And guess what? Yes, that can be filibustered too. Add another three days. And that leaves you where, exactly? With a formal disagreement and an announced intention to convene a conference.

But who'll be sent on behalf of the Senate? Guess what? Another motion and another vote! With another possibility for filibuster. Three more days, even if you're winning your votes 100-0. With the Senate holding session just 3-4 days a week, depending on the circumstances, it can take nearly three weeks just to get to the point where the Senate is ready to actually start talking to the House about how to settle their differences.

I think you can see how the filibuster and cloture rules can all too easily be exploited to make using the once far more efficient conference procedure a tremendous pain in the ass, instead. And once you're clear on that, it's pretty obvious how it came to be that conferences ended up the rare exception rather than the norm.

So that's where we stand with this procedure in the current atmosphere of hyper-partisanship. How did the Wall Street reform bill happen to squeak by and make it to conference? Well for one thing, widely varying approaches to the subject matter between the two houses made addressing the differences particularly difficult to do via the ping-ponging process. But probably more important than that was the current climate surrounding issues of Wall Street and high finance. There just weren't a whole lot of Republican Senators feeling up to the challenge of being the guy who stood in the way of letting Congress negotiate a Wall Street reform bill. There may have been partisan points to be won in being seen doing anything you could to obstruct the progress of the health insurance reform legislation, but the conditions on Wall Street reform just aren't the same.

Now, when things aren't this bad, going to conference in the Senate can be a breeze. If you can get unanimous consent to all the motions, you can basically just consolidate them all into one unanimous consent request and be done with it all in 30 seconds. Just not today. Not so long as the filibuster remains a tool that can be so easily abused. Which brings us to another disclosure...

Disclosure: I'm also doing paid work as a Fellow for ProgressiveCongress.org in addressing the necessity of filibuster reform in the Senate. The Fellowship is being supported in part by CREDO Action and Blue America. You can help support this work by signing CREDO Action's petition and/or donating at Blue America's ActBlue page.

Two disclosure statements in a single post ought to be quite enough for anyone, so I'll close it out here. But I wanted to illustrate for you one of the under-reported and infrequently recognized places where the filibuster can have an enormous impact on how the Congress does its business. When a determined minority sets its mind to viewing the delay and/or derailing of any and all legislation as a political victory, even relatively simple legislation becomes bogged down in procedure, which the same minority then ridicules as inefficiency. The filibuster costs us much more and creates many more traps for watering down what legislation actually does move than we sometimes realize.

Other entries on this subject:

Originally posted to Daily Kos on Mon Jun 21, 2010 at 06:32 AM PDT.

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Comment Preferences

  •  Suggestion (1+ / 0-)
    Recommended by:
    gpoutney

    Have a process to declare a filibuster "specious", or some nicer word that means the same.

    At which point the bill or motion in question can't be filibustered until something is about to be passed into law.

    In other words, a majority declares that the other side is playing games, and the nominee / bill can't be filibustered until the final vote for confirmation / passage.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Mon Jun 21, 2010 at 06:41:52 AM PDT

    •  Careful what you ask for (0+ / 0-)

      You really sure you would want your proposed rule when Bush had both the house and senate?

      Respect everyone, fear no one

      by sigsauerdude on Mon Jun 21, 2010 at 06:44:36 AM PDT

      [ Parent ]

      •  Last vote - to enact into law (0+ / 0-)

        Still subject to full filibuster.

        This just cuts out the idiocy of filibusters for every proposed amendment.

        In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

        by blue aardvark on Mon Jun 21, 2010 at 06:48:04 AM PDT

        [ Parent ]

      •  when they control the senate (1+ / 0-)
        Recommended by:
        bear83

        they will dump the filibuster if it suits them.

        right now we're accomplishing little in Congress. This is our chance to show America that D governance is good governance. But this ridiculous filibuster (from a dutch word for pirate) makes it next to impossible to accomplish things.

        An ambulance can only go so fast - Neil Young

        by mightymouse on Mon Jun 21, 2010 at 07:02:57 AM PDT

        [ Parent ]

        •  But it won't suit them. (1+ / 0-)
          Recommended by:
          mightymouse

          The filibuster has never been effectively used for progressive ends.

          The Republicans are clever enough to understand that this is an institution that helps them much more than it helps the Dems.

          Obama's belief in the rule of law apparently takes the back seat to Obama's belief in his own ability to make the right call as executive. - Scott Horton

          by GreenSooner on Mon Jun 21, 2010 at 07:51:22 AM PDT

          [ Parent ]

      •  The filibuster did nothing to stop Bush. (1+ / 0-)
        Recommended by:
        4nnapolis

        The Democrats just kept their powder dry on vote after vote after vote.

        So I have no fear about the lack of a filibuster when the GOP controls Congress and the Presidency. It would change nothing.

        And that's putting aside the fact that the filibuster is deeply undemocratic.  Elections have consequences.  If the Republicans get majorities in both houses of Congress and retake the White House, they deserve the opportunity to use them. And given Democratic behavior, they'll have that opportunity, whether or not there's a filibuster.

        Obama's belief in the rule of law apparently takes the back seat to Obama's belief in his own ability to make the right call as executive. - Scott Horton

        by GreenSooner on Mon Jun 21, 2010 at 07:50:27 AM PDT

        [ Parent ]

    •  Dilatory. (2+ / 0-)
      Recommended by:
      SciVo, blue aardvark

      That's the term they use in parliamentary language. It's not out of the question. Since the filibuster is actually defined as "extended debate," I could see where calling for extended debate without any actual intention of debating could be seen as dilatory.

      •  Sweet (0+ / 0-)

        Establish a process (not subject to filibuster) declaring a particular filibuster motion to be "dilatory". Establish some reasonable rules to keep "dilatory" from being abused, too.

        "Dilatory" cuts off further filibusters on this topic until such time as the bill / amendment / motion is about to actually become law. Final passage of a bill is always subject to filibuster. Which helps to limit potential abuses - sure, you can bypass filibuster on an amendment, but if the amendment can't pass filibuster at the end, the entire bill may go down.

        In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

        by blue aardvark on Mon Jun 21, 2010 at 07:28:03 AM PDT

        [ Parent ]

    •  I'm ambivalent about the filibuster. (0+ / 0-)

      It may seem like an impediment to us now, but many of us here at dKos were fervently defending the procedure in the bad old days of the Bush administration, when was one of the few tools available to Democrats to prevent Republicans from ramming through one legislative atrocity after another.

      I'm just sayin'... one person's 'partisan gridlock' is another's 'checks and balances.'

      Nothing requires a greater effort of thought than arguments to justify the rule of nonthought. -- Milan Kundera

      by Dale on Mon Jun 21, 2010 at 08:18:52 AM PDT

      [ Parent ]

      •  I recall it being used quite a bit (0+ / 0-)

        to keep knuckle-draggers with the right philosophy, but no real credentials, from becoming judges.

        In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

        by blue aardvark on Mon Jun 21, 2010 at 08:33:00 AM PDT

        [ Parent ]

      •  Then why not amend the Constitution (0+ / 0-)

        to require 0.6 instead of a majority?

        That's what I don't understand about the "pro-filibuster" crowd -- if it's so good, if it's so necessary, why not make the 60% majority (or 2/3s or whatever) explicit rather than just a customary parliamentary procedure.

        Stop playing games with it and allowing the nuclear option to exist -- just put it in. If it doesn't make sense as an explicit requirement, it doesn't make sense as a nominal, traditional requirement.

  •  Don't allow pimping of the BP mothership here. (3+ / 0-)
    Recommended by:
    palachia, SciVo, RhodaA

    It would be entirely inappropriate for anyone to ask for recommends to the BP Mothership diary in this thread.

    Please report anyone doing that to the management.

  •  Question (0+ / 0-)

    How do you get past an Objection to unanimous consent to bring a bill to the floor to start debate?

    File for cloture?

    The news: whether you like it or not. -- James Poniewozik

    by RhodaA on Mon Jun 21, 2010 at 06:52:07 AM PDT

    •  The motion to proceed. (1+ / 0-)
      Recommended by:
      RhodaA

      If there's objection to unanimous consent to bring a bill to the floor, you can make a motion to proceed to its consideration.

      The problem with the motion to proceed is that it's debatable, which means it is itself subject to a filibuster. So these days, you have to win a cloture vote just to get to a vote on whether or not to begin debate on a bill!

      One partial solution to some of this mess would be to make the motion to proceed non-debatable. Then you could still filibuster the bill, but not the question of whether or not to start debating that bill.

      •  That sounds so easy (0+ / 0-)

        to declare that just to proceed is not debatable. Why isn't it being done, e.g., objections to uc to proceed are happening all the time, for instance in McCaskill's Motion to Proceed on the secret holds issue.

        One partial solution to some of this mess would be to make the motion to proceed non-debatable.

        The news: whether you like it or not. -- James Poniewozik

        by RhodaA on Mon Jun 21, 2010 at 07:15:53 AM PDT

        [ Parent ]

  •  3 things needed to make Congress work (1+ / 0-)
    Recommended by:
    Churchill

    Like an engine that refused to get a tune-up, our Congress, especially the Senate, is grinding to a halt.

    There are 3 things needed to make democracy work again.

    1. Federally-financed elections. As long as politicians spend an inordinate amount of their time raising money for re-election, and as long as corporate and special interest money can buy politicians, this will not be a government 'for' the people.
    1. Strict term limits. Our founding fathers had never intended government service to be a permanent vocation. Because of this, most politicians have a beltway mentality and are truly out-of-touch with their constitutents. As it stands right now, this is not a government 'of' the people.
    1. A thorough rewriting of the rules of procedure, especially in the Senate. Since the Senate will never take this up there has to be another way. I have no easy answer to how rules get rewritten, but maybe we can start small, by focusing on changing the rules of the filibuster so that the will of the majority is not superceded by the pettiness of a super-minority. If we don't make the changes we will have a government run by an elite club, not a government run 'by' the people.
    •  ABSOLUTELY no consecutive terms (0+ / 0-)

      The NeoCon's Potemkin Village is fading away. Our MANTRA: This is GOPs fault!

      by Churchill on Mon Jun 21, 2010 at 07:06:37 AM PDT

      [ Parent ]

      •  Term limits are a terrible idea. (2+ / 0-)
        Recommended by:
        palachia, lurks a lot

        They're undemocratic and they give us a permanent government of lobbyists, who become the folks that never leave.

        Term limits make careers like Ted Kennedy's impossible.

        But we don't need to argue this theoretically. Many states have adopted legislative term limits. Give me an example of one in which state government has improved as a result.

        Obama's belief in the rule of law apparently takes the back seat to Obama's belief in his own ability to make the right call as executive. - Scott Horton

        by GreenSooner on Mon Jun 21, 2010 at 07:53:07 AM PDT

        [ Parent ]

        •  Regarding your 'lobbyist' comment (0+ / 0-)

          If you combine term limits WITH publicly financed elections, lobbyists become a non-issue.

          •  Even if that works.... (1+ / 0-)
            Recommended by:
            lurks a lot

            We end up with a government of the inexperienced.

            We might as well go for broke in that case and try some classical democracy: instead of electing our legislators, we could choose them by lot.

            Obama's belief in the rule of law apparently takes the back seat to Obama's belief in his own ability to make the right call as executive. - Scott Horton

            by GreenSooner on Mon Jun 21, 2010 at 09:29:42 AM PDT

            [ Parent ]

        •  Additionally (0+ / 0-)

          For every Ted Kennedy there is a Strom Thurmond. The Senate, in particular, is a club of elitists that have no desire to have a vital, functioning legislative chamber.

          Their decades in Washington have made them insular, and ineffective. They are caught in the trappings of proceduralism and ceremony.

          It will be interesting to see if Al Franken will have any stomach for staying on after his term is up.

          All I can say is thank God there are some who still act as if the chamber means anything, such as Russ Feingold and Bernie Sanders.

  •  Barack "the system" Obama likes the system (0+ / 0-)

    he will never change it.

    The NeoCon's Potemkin Village is fading away. Our MANTRA: This is GOPs fault!

    by Churchill on Mon Jun 21, 2010 at 07:05:44 AM PDT

  •  peasants, wake up, it's not going to change (0+ / 0-)

    The NeoCon's Potemkin Village is fading away. Our MANTRA: This is GOPs fault!

    by Churchill on Mon Jun 21, 2010 at 07:05:58 AM PDT

  •  Best dairy in a long time, THANKS (0+ / 0-)

    The NeoCon's Potemkin Village is fading away. Our MANTRA: This is GOPs fault!

    by Churchill on Mon Jun 21, 2010 at 07:06:11 AM PDT

  •  Who decided the agreement of 60 Senators should (0+ / 0-)

    be the requirement to move the process forward? When did that happen?

  •  John Edwards: they never give up their power (1+ / 0-)
    Recommended by:
    Heh

    will set at a table and bargain to give up their power.  I've been doing it for along time in a court of law, and they never give up their power.

    Obama has been setting at a table thinking that he can get them, the elite, to give up their powers

    The NeoCon's Potemkin Village is fading away. Our MANTRA: This is GOPs fault!

    by Churchill on Mon Jun 21, 2010 at 07:08:46 AM PDT

  •  2 evening anchors in Philly, 700k /yr (0+ / 0-)

    no joke, two nobodies getting that kind of cash.  I know this because the guy was fired for getting into the ladies email account and finding out that she makes 705 per year, and he "only makes 695 per year.

    The NeoCon's Potemkin Village is fading away. Our MANTRA: This is GOPs fault!

    by Churchill on Mon Jun 21, 2010 at 07:09:53 AM PDT

  •  Thank you for this detailed and very useful (0+ / 0-)

    explanation of the ways the filibuster is abused in today's senate. Increasing the public's understanding of procedures is an important step towards change.

    Every day I marvel at the many ways the internet has improved our ability to participate in governance by increasing transparency and making information available to so many.

    Thanks, also, for your disclosures. I'm happy you have found a way to earn money providing a valuable service.

    I blog on healthcare issues for Tikkun Daily as Lauren Reichelt.

    by TheFatLadySings on Mon Jun 21, 2010 at 07:10:23 AM PDT

  •  One way to make the filibuster work again (1+ / 0-)
    Recommended by:
    RhodaA

    is to make the Senators filibuster.

    It was an infrequently used tool when the filibuster required the continued presence of the Senate in chamber during the filibuster, which also required that the filibustering Senator continue live debate, discussion, etc. until the filibuster was over.  Often this process took days, weeks even (on one occasion Senator Everett Dirkson read the entirety of Gone with the Wind into the record)

    What might at first blush, be regarded as a "waste" of congressional time, actually was a fully cogent and sensible way to force the Senate into two things (1) INFREQUENT use of the filibuster except for extraordinary legislation) and (2) actually debate the merits/downsides of proposed/pending legislation.

    If the GOP over uses the filibuster now it's because there is absolutely no down side to it AT ALL.  Just say the magic word "filibuster" without actually having to endure a filibuster, and it's a painless way to logjam the congress without paying the price for it.  Then it's straight to the cloture vote!  

    If you want to see an end to the abuse of the filibuster, gotta put the filibuster back into the process.  Otherwise, the next time the Dimwits find themselves in the minority (this fall even) they should abuse the process too.  It won't make a damn bit of difference how the Democrats are perceived but it will give the GOP a bit of their own back and best of all, will block the GOP from enacting more of its idiotic agenda.  Of course, the GOP hasn't left much to ruin.

    •  David Waldman (0+ / 0-)

      wrote some articles explaining why it would actually turn out to be more difficult fot he Dems than the Repubs if this were done. It's somewhere in the Congress Matters archives. Has to do with maintaining a quorum; the burden would be on the Dems.

      The news: whether you like it or not. -- James Poniewozik

      by RhodaA on Mon Jun 21, 2010 at 07:24:34 AM PDT

      [ Parent ]

      •  That's because the Dimwits (0+ / 0-)

        are totally outplayed procedurally.  They need to sharpen up if they are gonna swim with the GOP.

        However my original point remains, that if the filibuster was still a real filibuster, there would be far fewer of them and fewer opportunities for GOP obstruction.

    •  Why should the filibuster "work"? (0+ / 0-)

      It's utterly antidemocratic.

      And historically it has always worked in favor of reactionaries.

      There's no good here, in theory or in practice.

      It doesn't need to be mended; it needs to be ended.

      Obama's belief in the rule of law apparently takes the back seat to Obama's belief in his own ability to make the right call as executive. - Scott Horton

      by GreenSooner on Mon Jun 21, 2010 at 07:55:26 AM PDT

      [ Parent ]

  •  Don't remove the fillibuster (0+ / 0-)

    just scale it back to only be effective on certain types of items.

    As Howard Dean said, killing the fillibuster completely is something we'll regret when we get another congress like 2002-2004.

  •  Drool, Haley, Drool. (0+ / 0-)

    Another Haley Barbarism.

  •  How did Repubs get stuff done? (0+ / 0-)

    I keep hearing excuse after excuse from the Democrats about why they can't get things done in the Senate.

    The Republicans didn't have any trouble getting things done in the Senate when they were in control.

    Actions speak much louder than words. Democrats in the Senate roll-over for the Republicans no matter if they are in power or not in power.

    Pissing me off!

    Thom K in Los Angeles.

    by Thom K in LA on Mon Jun 21, 2010 at 10:37:09 AM PDT

  •  Can reconciliation support unemployment extenion? (0+ / 0-)

    Seems like it could since it's all budgetary stuff. I'm not sure why they don't pass it through reconciliation and everything else they can as well

    That's the lesson of the health care bill.

  •  The US Senate: an anachronism bound for the grave (0+ / 0-)

    State of the art in the 18th century; ready for the scrap heap in the 21st.

    Will the entire Constitution need to be carted off with it?

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