When is a filibuster not a filibuster? Senator Jeff Merkley has offered up a demonstration of the answer to this riddle by talking non-stop overnight in what he calls an attempt to stop the confirmation of Neil Gorsuch to the Supreme Court. It won’t work, but it certainly gives Merkley an opportunity to soak up some attention from extremists pushing obstructionism on Senate Democrats.
Supreme Court showdown! Sen. Merkley holds all-night talkathon to protest Gorsuch pic.twitter.com/DVgYkcnSka
— FOX & friends (@foxandfriends) April 5, 2017
A filibuster isn’t just non-stop talking, not even in the US Senate. Amber Phillips explains why at the Washington Post:
While you slept, for the past 12 hours and counting, Sen. Jeff Merkley (D-Ore.) has seized the Senate floor in an attempt to launch an old-school filibuster to block Judge Neil Gorsuch from getting on the Supreme Court.
But his filibuster comes too late to be able to derail or even delay Gorsuch’s confirmation. In fact, it may not even technically be a filibuster. That’s because procedurally there’s nothing he nor his colleagues can do to stop Gorsuch from getting a vote on Thursday to advance his nomination — and, ultimately, not much they can do stop him from getting on the court.
And why is that? Because Merkley didn’t start talking until after Mitch McConnell scheduled the cloture vote, the procedural step before taking the floor vote on Gorsuch. As the Congressional Research Service noted in 2014, the cloture vote once scheduled has privilege over any action on the floor:
The process begins when a Senator presents a cloture motion that is signed by 16 Senators, proposing “to bring to a close the debate upon” the pending question. The motion is presented to the Senate while it is in session and must be presented while the question on which cloture is sought is pending. For example, it is not in order for a Senator to present a motion to invoke cloture on a bill the Senate has not yet agreed to consider or on an amendment that has not yet been offered. A Senator does not need to be recognized by the chair to present a cloture petition. The Senator who has the floor may be interrupted for the purpose but retains the floor thereafter and may continue speaking.
The motion is read to the Senate, but the Senate then returns to whatever business it had been transacting. In almost all cases, the Senate does not act on the cloture motion in any way on the day on which it is submitted or on the following day. Instead, the next action on the motion occurs “on the following calendar day but one”—that is, on the second day of session after it is presented. So if the motion is presented on a Monday, the Senate acts on it on Wednesday.
During the intervening time, the Senate does not have to continue debating the question on which cloture has been proposed but can turn to other business. One hour after the Senate convenes on the day the cloture motion has ripened or matured, the presiding officer interrupts the proceedings of the Senate, regardless of what is under consideration at the time, and presents the cloture motion to the Senate for a vote.
At this point the presiding officer is required to direct that an actual (or live) quorum call take place. (The Senate often waives this quorum call by unanimous consent.) When the presence of a quorum is established, the Senate proceeds, without debate, to vote on the cloture motion: “the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: ‘Is it the sense of the Senate that the debate shall be brought to a close?’” The terms of the rule require an automatic roll call vote.
After McConnell filed the cloture motion yesterday, the opportunity for a speaking filibuster had passed under the rules. Even if he can keep his speech going for another two days, Merkley would still have to yield the floor for the cloture vote, and then for the question of precedent that McConnell will use to fulfill the Reid Option and confirm Gorsuch with a simple majority.
In other words, this is just an elaborate stunt. It’s not even a real filibuster — merely the use of an empty chamber for several hours as a means of attracting attention. There may be worse uses of that time, and worse uses of that chamber for that matter, but it’s as empty a gesture as Democratic huffpuffery over Senate traditions in the post-Reid Option era.