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

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11/15/2016 07:05 pm ET


MIKE REED

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.

AP
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


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.
http://www.huffingtonpost.com/entry/...=1479312982009


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.







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

Comments

  1. ImmigrationLawBlogs's Avatar
    Nolan's last paragraph, if I understand it correctly seems to imply that the filibuster is likely to last in the new Senate as long as the Democrats don't actually try to use it for anything important. If they do, the filibuster might be abolished and then the Democrats would have only themselves to blame.

    If this is in fact what Nolan means to say or imply, then what might arguably be America's last democratic protection against one-party rule (or one-man rule, if the leader of that party and presidential popular vote loser, Donald Trump, can control his troops in Congress, which is not a given), might be abolished, and America could then turn into a democracy of the kind that Rome had under its first emperor, Augustus Caesar.

    Augustus, as historians make clear, refused to be called "Emperor" and referred to himself only as "Princeps" ("first"). He insisted on keeping all the formal trappings of the by then defunct Roman Republic in place (including Senate power) so long as no one went against his will or contradicted him.

    Will Donald Trump be America's new "Princeps"? This might cenceivably happen, if, for example, he tries to pursue the kind of white nationalist immigration legislative agenda that would be consistent with some of the reported racial views of his new senior adviser, Stephen Bannon, whose White House appointment was reportedly praised by the American Nazi Party, the KKK and former Harvard Summer School Japanese language teacher now turned alt-right whites only immigration advocate Jared Taylor. See:

    https://mic.com/articles/159436/as-t...ope#.hlxhlPSxZ

    If any of these extreme whites only immigration proposals were actually adopted by Trump as a legislative agenda (not impossible, based on his announced 10-point immigration plan which has a lot in it for white nationalists to like - see my own November 14 Immigration Daily post, as updated), then the Democrats would almost certainly try to filibuster them, much to the all but certain displeasure of "Princeps" Donald Trump.

    McConnell would then most likely come under intense pressure from the White House, led by Bannon, whose anti-immigrant and general racial views are no secret, to do away with the filibuster.

    In this hypothetical but by no means unrealistic scenario, that might be the end of the filibuster, the last of the very few protections that might still be left to prevent this country from turning into a "Princeps" America with Apartheid immigration policies.

    Roger Algase
    Attorney at Law
    Updated 11-16-2016 at 12:48 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan's last paragraph, if I understand it correctly seems to imply that the filibuster is likely to last in the new Senate as long as the Democrats don't actually try to use it for anything important. If they do, the filibuster might be abolished and then the Democrats would have only themselves to blame.

    Roger Algase
    Attorney at Law
    The filibuster has been in effect since 1917, and my article does not indicate in any way that it is in jeopardy. The democrats lowered the cloture threshold from a super majority to a simple majority to get past republican filibustering over Obama nominees who needed senate approval. That is the only time the threshold has been lowered since 1975.

    The Republican Majority Leader in the Senate, Sen. Mitch McConnell, has made it clear that he thinks the democrats were wrong in lowering the threshold. He wisely points out that neither party is in the majority forever, and the filibuster is needed to protect the minority.

    But. If the democrats block Trump's supreme court nomination or important legislation with filibusters, the leader will be under pressure from his fellow senators as well as from Trump to do what the democrats did and lower the cloture threshold to a simple majority. But Roger is right that I think that would be the democrats own fault. If they had not lowered the cloture threshold the last time they were in the majority, there is no reason to think that the republican senate majority in 2017 would have considered such an extreme move.
    Updated 11-16-2016 at 01:04 PM by ImmigrationLawBlogs
  3. Felpone's Avatar
    What's all the uproar?
    By 2019 California will officially start the process of seceding from this failed union (#Calexit), followed by Oregon and Washington...

    Should California, Oregon and Washington join Canada? #Calexit talk envelops West Coast
    http://www.seattletimes.com/seattle-news/politics/should-california-oregon-and-washington-join-canada-calexit-talk-envelops-west-coast/


    "5. IMMIGRATION
    California is the most diverse state in the United States and that is something we are proud of. This diversity is a central part of our culture and an indispensable part of our economy. As a U.S. state, our immigration
    system was largely designed by the 49 other states thirty years ago.
    This immigration system has since neglected the needs of the California economy and has hurt too many California families. Independence means California will be able to decide what immigration policies make sense for our diverse and unique population, culture, and economy, and that we?ll be able to build an immigration system that is consistent with our values."
    Calexit Bluebook
    http://www.yescalifornia.org/calexit_blue_book

    Additionaly, Russian political scientist Igor Panarin proposed some years ago (1998) a theory about the disintegration of the United States into six parts...thanks to Trump's election Panarin's theory may finally come into view:
    US breakup: Myth or reality?
    https://www.rt.com/politics/panarin-usa-collapse-economy-905/
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