Special Analysis:
The Filibuster, the Quorum, and the Nuclear Exchange
Executive and judicial posts are filled by the President of the United States, who nominates appointees with the advice and consent of the Senate. Practically speaking, this means that the Senate must vote under regular Senate rules in favor of each appointment. These votes are similar to votes on bills, with the obvious exception that the latter are subject to amendments while the former are essentially up-or-down votes.
The United States Constitution requires that a quorum of Senators be present for regular business to be conducted. A quorum exists if 51 members are present, although that number of Senators does not necessarily have to be in the chambers at the time the quorum is declared.
A Senator may suggest the absence of a quorum, in which case the Presiding Officer must make a quorum call to determine that, indeed, 51 Senators are present. By unanimous consent, a quorum call can be suspended, delaying the final count until 51 members can actually respond to the call.
When a bill or nomination comes out of committee, a floor manager from each party will be designated to coordinate action on the floor of the full Senate. These managers are typically the chairman and ranking minority member of the committee from which the measure came; otherwise, a designee may be assigned by either or both of those persons to serve as floor manager with respect to a matter before the full Senate.
Once a Senator has been recognized by the Chair, that Senator has the floor.
By Rule XXII, a Senator is guaranteed debate without time limit unless at least 60 Senators vote in favor of cloture, which then sets an overall time limit for debate on a specific matter.
Should a proposal for cloture not be brought to a vote, or should such a vote fail to receive the necessary support of at least 60 Senators, then only the Senator who has the floor can end the filibuster, and he or she would do so by yielding or otherwise terminating his or her control of the floor.
In the matter of the so-called "nuclear option," by which is meant that filibusters on judicial nominees would be prohibited, the effect is to have each nomination come to the floor of the Senate with a built-in cloture, setting an overall time limit on debate, meaning that the "nuclear option" would be an exception to Rule XXII, this exception serving to set forth an unvoted, provisional cloture attached to each and every nomination brought to the floor of the Senate. To the extent that a simple majority could contruct this exception to Rule XXII, a standing arrangement requiring the approval of 60 Senators is entirely circumvented by a provision upon all matters of a certain type by the one-time consent of only a simple majority of the Senators, meaning that a protective arrangement that can be overcome only by a super-majority on a case-by-case basis becomes a sub-Rule imposed by a simple majority once and for all with a single vote.
In the event that the right of filibuster under Rule XXII becomes permanently and absolutely frustrated, the only recourse available to those Senators wishing to block a judicial nomination would be by an effort to deny the Senate a quorum by which to conduct regular business. Because under Senate Rules a quorum comprises a simple majority, those in opposition—most likely the Party that is the minority by representation in the body—would have to rely upon at least several members of the Party of the majority in order to execute an effective denial of quorum. Adding to the difficulty would be that the Presiding Chair could declare a quorum even if it was not so, and a Senator would have to be present and willing to suggest the absence of quorum. It is unlikely that any Senator in favor of the nomination pending would make that suggestion, meaning that a Senator in opposition would have to be present to make the suggestion, thereby slightly diluting the denial of quorum by such presence.
However, even in the nearly certain event that a denial of quorum failed, the absence of a significant block of Senators would have two practical effects: first, the official record of the Senate would reflect for the public and for historians the extraordinary situation that existed at the time the nomination was placed before the Senate; and second, those in opposition to the nomination would then have clearly before them a record of those of their Party who nonetheless chose to thwart the denial of quorum effort.
To this second point, it would then be up to the leadership of the Party—not to those in leadership of the Party's representatives in the Senate—to take retributive action at the level deemed necessary to re-establish Party discipline. Such punishment could include measures as mild as denial of a certain portion of funds otherwise available for the Senators' re-election campaigns, or the measures could be as severe as expulsion from the Party.
Although expelling members from the Party of the minority might seem self-defeating, that would not necessarily be the case were the majority Party, by its case-by-case actions and by the accumulation of its bills passed, to become a pariah to the American electorate. Although expulsions would undeniably be risky punishment fraught with opportunities for backlash, the payoff would be substantial in terms of loyalty of remaining members and respect for the less accommodative wing of the Party.
Far more importantly, re-emphasizing the main potential benefit, were the majority Party, by its own malfeasance, incompetence, and criminality, to become widely rejected by voters, the alternative that had already displayed its willingness to gamble all to stop the excess would garner the reward as the wrath of voters translated into throwing the rascals out.
It is only by sharply distinguishing itself from the ruling Party that the Party in opposition can hope to gain from what is increasingly appearing to be an inevitable, looming interest by the electorate to put into the majority a Party that can take the nation in a new direction and begin the long, painful process of repairing the financial, ethical, and statutory damage done by the Party currently in the majority in both Houses of Congress.
In plain English, it boils down to this sequence. If the nomination of Samuel Alito comes to the full Senate, and if it looks like the Republican leadership has the votes to confirm him, the Democrats should filibuster. If the Republicans pull out their "nuclear option" and end the right of filibuster on Executive Branch nominations to the judiciary, then the Democrats should all walk out, save for one Senator who demands that a quorum be proved instead of being merely assumed by the Majority Leadership. Any Democrat who doesn't honor the denial of quorum walk-out gets kicked out of the Party and forced either to go Independent or to join the Republicans. It doesn't matter how powerful that Democrat is; as soon as he's no longer a Democrat, hang around his neck the label "Republican," and make everyone in America know that this is just another one of the fiscally reckless, ethically bankrupt members of the GOP who couldn't keep a federal budget balanced, who couldn't keep terrorists from knocking down our buildings, and who couldn't resist lying through their teeth to the American people so they could start a useless, savage, endless war for the benefit of pumping federal money by the hundreds of billions of dollars into the pockets of their corporate cronies.
In other words, let the loss for the Democrats of this Supreme Court nomination fight be the training ground where they not only learn how to fight like they want the country back, but where they also learn how to kill their own weaklings to get it back.
The Dark Wraith has spoken.
Published 10/31/2005 11:37:00 PM
<< 17 Comments Total
Right on.
I've been consistently amazed at the Democrats' unwillingness to punish or expel those members of their party who to most intents and purposes are full-blown Republicans. They seem to have little idea of what it takes to form effective opposition - you have to fight hard, and you when the majority party is as ruthless and cohesive as the Republicans are, you need to be prepared to fight dirty, too.
I think they also ought to try creating a Shadow Cabinet - this is an effective tool in British politics, where the opposition party nominates a recognizable spokesperson on every major function of government. This team of professional pit-bulls then takes every opportunity to savage their counterparts in the Government, and make sure that the difficult questions get asked. In this day of he-said she-said journalism it also gives the press a go-to person for reaction quotes on a major issue or decision.
Another advantage of this approach is that it lends an air of legitimacy to the opposition party: see we're ready to govern, and we have all these talented people who are thinking about our problems and who are ready to step in when you decide you don't like what these guys are doing.
They need to try something. Yeesh.
God, how I wish we could have some of the more brutish elements of politics on the Isles, Mr. Shakes! The prospect of Bush facing "Question Time" just makes me grin from ear to ear.
That idea of a Shadow Cabinet should have been put into effect years ago, during the Reagan Administration; but it is so sorely needed now. One of the main problems has been the Democratic Leadership Council, which has pushed and pushed for this idea of civility in political discourse, and the Republicans have just tromped the Democrats into the ground because of that tepidness of response.
My understanding is that the Big Dog, himself, has finally told the DLC that it's time to take the gloves off. Even though Bill Clinton might be responding at least to some extent to overtures from Rupert Murdoch to juice up the Party so it becomes more amenable to coverage by Fox News as it pulls away from the neo-cons, I'm still happy to hear at least some heavy hitters finally saying that it's time to get rowdy.
The Dark Wraith does not, however, want to see mud wrestling between Hillary Clinton and Condoleeza Rice (or between John Edwards and Jeb Bush, for that matter).
Wow! There's a lot of good information in your article, Dark Wraith.
I have one question, right now, though. How would the party go about expelling one of their own? Can they do it now, or would it be at the next time the person runs for office?
I'm sorry to be dense. Thanks!
Ooooyukaroo, thanks a lot for that mud wrestling vision!
Yes, Mr. Shakes - we just don't seem to have the same stomach for polite evisceration as the British do. I always enjoyed watching Parliament – up stands some back-bencher, whips out his dictionary, and shreds the P. M. and his party with sharp little adjectives. In rush the pamphleteers, pen and ink at the ready, skewering pompous windbags as they go. Courtesy with cudgels. Heady stuff – just lovely!
Here – lack-luster Dems vie with Sponge-Bob Square-Pants to see who holds the record for most inane things to say. Makes you want to stick a firecracker in their pants – just to get them moving. Alito’s going to get confirmed – no matter the posturing – some shaky dems will equivocate, and vote yes. After that, thirty years of darkness will descend on America – and when she emerges, whatever momentum she may have accrued over the latter half of the 20th century will have been pissed away.
Like our dark host, I am feeling a mite pessimistic this All Hallows Eve.
Good evening, Trailer Trash.
You're not dense at all: the answer to that question is crucial, and it's really hard to find out, although parliamentary procedure would have to be followed in executing the expulsion. Theoretically, the Party could expel a member at any meeting of the governing body, provided the expulsion was done in due form and according to the by-laws or other document governing the process.
I'll bet you that not one in a hundred Democratic Party wonks actually knows the procedure in sufficient detail to do it right. The quilting circle that has come to be those Party meetings hasn't the time to contemplate how to clean out its own house, and I'll bet my bottom dollar a lot of those folks would prefer not to even contemplate such hurtful shenanigans going on at an otherwise productive gathering where they make yet another nice quilt for the Republicans to use as a toilet mat.
The Dark Wraith wonders if they ever win second prize at the state fair with those quilts.
Good Morning Dark Wraith,
And when they've told LIEberman to go be a republican, if you like them so much; and they've nuked the fillibuster; then they can bring the Senate to a grinding halt.
There's alot more they can do, after the fillibuster. They can put holds on legislation, and on appointments.
There's been nothing coming out of the legislature for the past five years that isn't bad for the country. Tax relief for the rich; ugly, unwinnable, unjustifiable wars; energy bills that degrade our environment; pork, pork, and more pork; selling off the commons...
Just stop them!
I really don't think they'll do it, tho. They haven't shown their spine since Newt crawled out from under that rock.
The only trouble with "just stop them" is that it isn't really accurate to say that only bad stuff's come out since ShrubCo. came into office.
Sure, almost all the changes to status quo have been putrid, but then there are things like Social Security checks.....
If you stop everything (a la Newtie in - '95 was it?), then you & your party get blamed for halting everything.
EVERYTHING.
- oddjob
Good morning, OddJob.
I probably should have brought this point up in the article.
The business of the Senate can be frustrated with regard to one particular matter, but that doesn't require the Senators be absent at all times. The absence has to be when the motion of relevance is about to be brought up.
That's how filibusters work. They don't stop everything: the Senator controlling the floor controls debate only during debate on the bill that is the subject of his filibuster. The Presiding Officer can, at his discretion, hold the matter open to try to wear down the filibuster, but that is a counter tactic, not a requirement.
The denial of quorum could be staged to ensure maximum damage only in the matter of the consent of the Senate on the matter of the appointment of Alito. Everyone could be a happy family for other business of the chamber.
The Dark Wraith should explain a little better how procedure works.
Dahlia sums it up nicely.
- oddjob
DW, my comment was more going back to hat I had thought I recalled of Reid's comments the last time the nuclear option arose. If I recall correctly, he threatened drastic retaliation if the Senate decided to deny them the right to filibuster judicial nominations.
As Newtie proved to his dismay, truly drastic retaliation results in an awful lot of unwanted side effects.
- oddjob
You're right on, Dark Wraith. Sadly, I suspect that we won't see anything like this. I've begun to think that the biggest difference between the two parties is that one is in power, whereas the other one isn't.
Or perhaps that's too cynical, but that's often how it feels.
At any rate, we shall soon see just what kind of backbone the Democrats have.
Good Evening DW,
Watching the political hullabaloo tonight on the news, my older son commented that it was just like the Crips and Bloods without guns.
I responded the guns were not visible is all, but I thought that was a fairly apt observation and must confess I'd never considered the political struggle in that light before. Silly me !!!
Sure, almost all the changes to status quo have been putrid, but then there are things like Social Security checks.....
If you stop everything (a la Newtie in - '95 was it?), then you & your party get blamed for halting everything.
EVERYTHING.
I lived in DC during Watergate. Sometimes you need to let the garbage pile up on the streets for the people to see - and smell. (Especially if it's in the summer.)
Then you might get action.
But if they don't authorize the release of Social Security and Medicare payments it will be the Dems. who are blamed, not the Repubs. That's what Gingrich found out the hard way, and it backfired.
- oddjob
While I agree with your description of the process, it will not happen. Several Democrats have already stated that Alito is qualified. Then there is also the agreement made between Republicans and Democrats as to this situation to avoid the last "nuclear" threat. Finally, even if this did happen? You would not stop Alito from being appointed. The President could use his Recess Appointment powers.
The average american would not understand why the Democrats were stopping the government. The Democrats would be blamed and that could very well help the Republicans gain even more seats. A rather large risk to take.
Personally I'd much rather see the media and Democrats turn it's attention to what the Republicans are in the process of cutting to provide funds for the war in Iraq, the hurricanes and now the emergency demand for billions for the Bird flu. While Alito is making the front pages some very sinister action especially regarding foodstamps and nutrition for poor school children is happening.
Good evening, Lisa Renee.
Although it is highly unlikely, stranger things have happened. It looks like a few leading Democrats are finally getting desperate enough to take the Senate into very unusual territory: the call by Reid to a closed session did not garner anywhere near the backlash that it could have, despite the attempt by some media outlets to give the Republicans more than their fair share of on-air whine-time about the outrage of it all.
A number of Democrats have by now noticed that the incident did not cause them to burst into flames and lift away in a puff of unpopular smoke. That simple observation will give them incentive and courage to push further and harder into dramatic (and theatrical) means. It is unfortunate that Conyers was largely ignored for some of his displays, but he can be rightfully credited for leading the way to what we are now beginning to see as media coverage of the schism that has existed for at least several years in the upper chamber of Congress, known historically for a high degree of civility and a distinctively less rowdy decorum than the House of Representatives.
All of that having been said—and drifting perilously close to talking about the frame within the frame of political discourse—I am, here at The Dark Wraith Forums, laying down in my run of recent posts an insurmountable challenge to the Democrats, giving them evidence of a voice that has become entirely disenchanted of all of them in their political activities. Although this kind of writing can alienate some who believe most of the Democratic elected officials are good people, my purpose is to cut them no slack until they actually cause something to happen that is not on the Republican agenda.
You will have noticed, I am sure, that I have absolutely no use whatsoever for the outcome of Fitzgerald's investigation: perhaps the indictment of Libby contributed to the recent drop into the basement of Bush's popularity, it did nothing to change his course of action in either tactical moves or in strategic direction: the man went right out of that little Fitzgerald media event and nominated a Right-wing radical to serve as an Associate Justice of the United States Supreme Court. Bush showed no penitence, no sense of willingness to reconcile to a more moderate tone, and no new-found self-control over his obsession with the narrow, mentally unbalanced base of support he has among religious extremists and their sycophants.
It is only when material, adverse, public revulsion to him is displayed from the very top that people down the line will become comfortable with finally listening to their inner sense that he is and always has been wrong. It is still far too easy to fear letting that feeling out, even though I am certain that many people who voted for him in 2004 knew very well, deep down inside, that it was a bad, bad move.
My sense is that, although a number of bloggers and commentators genuinely agree with me to a greater or lesser extent, there is a sense that I am on my own for the time being in taking such a hard and unforgiving stance against the Democratic Party. If, as time goes along, I don't get shot or otherwise have my blog and by butt turned into randomized electrons racing away to the four corners of the universe, then perhaps more people who share my earnest desire for a different future will become comfortable with expressing their frustrations at the entirety of the Democratic Party. When and if that happens, the Democratic leadership will pay very strict attention. I don't think bloggers realize that their sentiments are beginning to be noticed by the big players in the Party. And I'm not talking about attention being paid only to the giant graffiti blogs; I'm talking about attention being paid to what I call Blogosphere Left 2.0, which is getting a whole lot of attention—albeit quiet and from the shadows—of the big dogs of the Democratic Party. They're still not sure whether it's going to amount to much, but there are definite indications that they want to make sure that these medium-level blogs are in their corner come 2008. If those big players in the Party see Blogosphere Left 2.0 turning uniformly sour on them, they're going to react. They can't silence us, so they're going to have to accommodate us. If we're chopping every one of their candidates to shreds for being cowardly, ineffective straight men to the Republican comedy engine of doom, they're going to do what they can to appease us, lest we turn in big droves to a love affair with Green Party or Libertarian Party candidates.
That's how I see it, but I don't see it as a certainty. Blogosphere Left 2.0 might very well fizzle out instead of continuing to rise in importance. Whatever the case, though, we will make ourselves far more compelling if we give the
Democratic politicians a goal they will have a hard and risky time achieving.
We as bloggers sit in an amazing position right now: we still have within our power the opportunity to be as meaningful as we choose to be. We serve ourselves well if we seize that opportunity as a call to change the course of the nation rather than to let the nation remain on its current path, a path that is a frightful descent of the republic into Hell as the Democrats look on wringing their hands.
That, I submit to you, makes this a great moment in history. We can change the future materially.
But only if we remain true to cause rather than faithful to failed leadership. And that applies equally to both political Parties.
That, at least, is the way of the Dark Wraith.
Good Morning Dark Wraith,
Hear hear! I've been hearing that kind of sentiment more and more lately.
The average american would not understand why the Democrats were stopping the government. The Democrats would be blamed and that could very well help the Republicans gain even more seats. A rather large risk to take.
Yesterday, after the shutdown of the Senate for the closed meeting, I sampled some of Blogosphere Left 2.0, and the kudos were being slung around fervently! Other than a couple of trolls who lamented that anyone would disrespect their precious Bush, there were thanks and hosannahs.
I think that if the Dems could combine a shutdown with a clear and concise explanation of what's been going on and what needs to be done about it, they could avoid a major backlash.
The majority of people think Bush is leading the country in the wrong direction, and the Dems need to take the reins and show us that they can get us back on track.