I got briefly ensnared in a technical error yesterday by referring to Manchin-Toomey as a cloture vote when it was actually a vote on an amendment offered under a Unanimous Consent agreement requiring 60 votes for passage (I corrected this in an update, noting it was a distinction without a difference). But because there was no cloture, Kevin Drum wondered if it was technically accurate to call what preceded it as a “filibuster,” which led to a long and interesting lecture on Twitter by Jonathan Bernstein.
Recapitulating the discussion at his blogging site, Bernstein sorted it out nicely for us:
Republicans have declared a 60 vote Senate. They are demanding 60 votes to pass any bill, any amendment, any nomination, anything. That’s a filibuster on everything. Technically and all.
I think — and I’m not just talking about one post here, but generally — part of the confusion is caused by conflating three things: whether there is a filibuster; how the filibuster is conducted; and how the filibuster is resolved. How it is conducted and how it is resolved are both determined by the tactics of both sides, and sometimes by agreement between both sides. Again, it could be resolved by forcing Senators to talk and seeing whether they would keep going or not (attrition); it could be resolved by a cloture vote; it can be resolved by informally agreeing whether or not there are 60 votes and then moving ahead if there are and pulling the bill/amendment/nomination if there are not; and it can be resolved through this 60 vote threshold thing. And it can be conducted by Senators standing on the Senate floor and talking, or, under current norms, by Senators informing leadership or bill managers that they’ll insist on 60.
But it is wrong to say that insisting on 60 is threatening a filibuster. The demand is the filibuster, under the conditions — which hold now, and have held for decades — that the way a filibuster is conducted is by notifying people of the demand for 60.
And so, whenever 60 is demanded, and however that is resolved, the press should report that a measure has been filibustered, and if it fails — again, however it is resolved — they should report that it has been defeated by filibuster.
Amen, and even if they don’t, they should sure as hell not fall into the habit of just assuming 60 votes are required for passage as though that’s the way it’s always been and write about this or that bill or motion that has majority support being “defeated” or “overwhelmingly defeated.”
For all the above reasons, as we used to conclude presentations in college debate: Filibuster Delenda Est.