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  1. Will the filibuster save the Democrats from an onslaught of Republican legislation? By Nolan Rappaport

    11/15/2016 07:05 pm ET


    The power of a Senator to block legislation

    The Republicans were able to hold on to their majorities in the House and the Senate, but that does not mean that the Democrats will be unable to stop an onslaught of Republican legislation. The Republicans only have 51 members in the Senate, and they will need a super majority of 60 votes to stop the Democrats from blocking legislation in the Senate with a filibuster. Ironically, though, it does not take a super-majority vote to lower the 60-member threshold to a simple majority.

    The Senate Rules provision that makes filibusters possible is paragraph 1(a) of Rule XIX, which states that:

    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.

    With some exceptions, Rule XIX permits Senators who have been recognized to speak indefinitely, and the Senate cannot vote on a bill if any senator wants to be recognized to debate it. Filibusters, however, can be stopped by a cloture motion. Also, Rule XIX provides that, “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.” This is called, “the two-speech rule.”

    How does a filibuster work?

    When a senator has been recognized, he can begin a filibuster with a long speech. When the first Senator concludes his speech and yields the floor, another Senator will seek recognition and continue the debate. The debate can proceed in this way until all the participating Senators have made their two speeches on the pending question. Then the filibustering senators can offer an amendment or make some other motion to start a new debate and continue their filibuster on the new topic.

    If a bill is particularly important to the majority, the majority leader might be willing to invest the days or even weeks that can be required to out wait a filibuster. Another consideration is the amount of business that the Senate has to complete. In the first months of a session, there may be very little business that is ready for Senate floor consideration. In that situation, an extended filibuster will not prevent the Senate from timely action on other legislation. This changes near the end of a session when time is running out.


    Cloture was adopted by the Senate Rules Committee on March 8, 1917 to permit the Senate to end a debate with a two-thirds majority vote. In 1975, the Senate reduced the number of votes required for cloture to three-fifths, which is 60 votes. The cloture procedures are governed by paragraphs 2 and 3 of Rule XXII. A cloture motion will say, “We, the undersigned Senators, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, hereby move to bring to a close the debate upon [the matter in question].” The Senate will vote on the cloture motion one hour after it convenes on the second calendar day after the cloture motion was filed.

    The Democrats were thinking about reducing the 60-vote cloture threshold for Supreme Court nominees if Hillary Clinton had been elected.

    Before Clinton lost the election, Democratic Senator Harry Reid said that Democrats should curtail the filibuster if they were to win the White House and Senate only to run up against persistent use of the tactic by Republicans. He claimed that he had laid the groundwork for Democrats to nuke the filibuster for Supreme Court nominees if they win back the Senate.

    During a Huffington Post interview on October 28, 2016, vice presidential candidate Time Kaine said, “I was in the Senate when the Republicans’ stonewalling around appointments caused Senate Democratic majority to switch the vote threshold on appointments from 60 to 51. And we did it on everything but a Supreme Court justice.”

    Kaine was referring to the fact that in November 2013, then Senate Majority Leader Reid pushed through a change in Senate rules that reduced the threshold from 60 votes to 51 votes to end a filibuster blocking Senate approval of executive and judicial nominees. The Senate voted 52 to 48 to change the rules by rejecting the opinion of the presiding officer that a super majority was required to invoke cloture. According to Reid, “To the average American, adapting the rules to make Congress work again is just common sense. This is not about Democrats versus Republicans. This is about making Washington work — regardless of who’s in the White House or who controls the Senate.”

    Will the Republicans reduce the 60-vote cloture threshold to a simple majority to be able to stop filibusters in the 2017 session?

    Maybe not. Republican Senate Majority Leader Mitch McConnell has said that America expects results, which will require Democratic cooperation. McConnell is a strong believer in the traditions and practices of the Senate, and he believes that the filibuster is crucial to protecting the rights of the minority. “I don’t think we should act as if we’re going to be in the majority forever.” But this is not a guarantee. If the Democrats block President Donald Trump’s Supreme Court nominee or important legislation, McConnell could face great pressure to reduce the 60-vote cloture threshold to a simple majority.

    Initially published on Huffington Post.

    About the Author
    Nolan Rappaport
    was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

    Updated 11-16-2016 at 10:20 AM by ImmigrationLawBlogs

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