Many well informed DUers have differing opinions regarding what can and cannot be done during a filibuster.
There are many myths about what can and cannot be done under a filibuster.
The controversy surrounds the question whether or not you can insist on a "Mr. Smith Goes to Washington" type of situation.
Well known Doris Kearns Goodwin suggest that the rules can invoke such a dramatic scene:
http://www.thedailyshow.com/watch/wed-march-21-2007/doris-kearns-goodwinAt 3:20 she states that the rules include:
1) "You have to stand on your feet"
2) "You can only have milk or water"
3) "You can't go to the bathroom"
What are the rules governing filibuster:
Short answer None. And to be a little more specific
there is no rule to terminate debate .
Long answer the rules that govern a filibuster are the rules that the Senate enforces and if you patch them together they become a filibuster.
Most important fact about a filibuster - You do not necessarily have to have 60 Senators to break one. See item 15
Here are facts taken from a Library of Congress article on the filibuster.
http://lugar.senate.gov/services/pdf_crs/Filibusters_and_Cloture_in_the_Senate.pdf1) No explicit rules for a filibuster exist As a consequence, the Senate has no specific “rules for filibustering.” Instead,
possibilities for filibustering exist because Senate Rules deliberately lack provisions
that would place specific limits on Senators’ rights and opportunities in the
legislative process. In particular, those Rules establish no generally applicable limits
on the length of debate, nor any motions by which a majority could vote to bring a
debate to an end. 2) Cloture does not terminate debate The only Senate Rule that permits the body, by vote, to bring consideration of
a matter to an end is paragraph 2 of Rule XXII, known as the “cloture rule.”
Invoking cloture requires a super-majority vote (usually 60 out of 100 Senators), and
does not terminate consideration, but only imposes a time limit. It also imposes
restrictions on certain other potentially dilatory procedures. In recent years, as a
result, cloture has increasingly been used to overcome filibusters being conducted not
only by debate, but through various other delaying tactics. 3) Rule 22 The core rule of the Senate governing floor debate 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.
This is essentially all that the Senate’s rules have to say about the right to speak on
the floor, so the rule is just as important for what it does not say as for what it does
say. The lack of discretion by the chair in recognizing Senators, and the lack of time
limits on debate, combine to create the possibility of filibusters by debate. 4) Guarantee to be eventually heard The result is that, although no Senator can be sure that he or she will be recognized promptly for debate on a pending question, each can be sure of recognition eventually.
5) Senators can in fact stand and talk, like Mr. Smith, for as long as they want (as long as they don't violate rules on decorum) Under Rule XIX, unless any special limits on debate are in effect, Senators who have been recognized may speak for as long as they wish. .
6) Rule 19 - Two speech rule “no Senator shall speak more than twice upon any one question in debate on the same legislative day"
7) Rule 19 Two speeches in one day means two speaches in one session The “day” during which a Senator can make no more than two speeches on the same question is not a calendar day, but a legislative day. A legislative day ends only with an adjournment, so that, whenever the Senate recesses overnight, rather than adjourning, the same legislative day continues into the next calendar day. A legislative day may therefore extend over several calendar days. The leadership may continue to recess the Senate, rather than adjourning, as a means of attempting to
overcome a filibuster by compelling filibustering Senators to exhaust their opportunities of gaining recognition.
8) A brief comment could repeat could count as a speech Nevertheless, if a Senator is recognized for a substantive comment, however brief, on the pending question, that remark may count as a speech.
9) A simple majority can table ammendments during a filibuster Within these limitations, if a majority of Senators oppose a matter, the motion to table may enable them to prevail at a time of their choosing. By this means, Senators can prevent a debate from continuing indefinitely, if they are prepared to reject the amendment, motion, or bill that is being
debated.
10) Debate need not be germaine In earlier times, filibustering Senators were known to speak about virtually anything. In his 1940 study of filibusters, Franklin Burdette reported that Senator Huey Long of Louisiana– would dictate for the benefit of the Congressional Record recipes for cooking upon which his authoritative advice had been regularly in demand in Washington social circles .... He then proceeded to tell the Senate at great length and in meticulous detail how to fry oysters. Nor did he omit a rambling discourse on
the subject of ‘potlikker.’
11) Senator must remain standing and must speak continuously. A Senator who has the floor for purposes of debate must remain standing and
must speak more or less continuously.5
12) Senator cannot yield the floor Thus, if a Senator simply yields to a colleague, he or she has yielded (relinquished) the floor,
however inadvertently. This is another one of those Senate procedures that often is not observed during the normal conduct of business on the floor. But during filibusters, Senators are much more likely to insist on it being observed.
13) Senator can yield to a question but must remain standing A Senator may yield to a colleague without losing the floor only if the Senator
yields for a question.6 With this in mind, a colleague of a filibustering Senator may
give that Senator some relief by asking him or her to yield for a question. The
Senator who retains control of the floor must remain standing while the question is
being asked.
. . .
In this way, participating Senators can extend the debate through an exchange of what sometimes are long questions followed by short answers, rather than by relying exclusively on a series
of long, uninterrupted speeches.
14) During the filibuster they minority can cause delay by many other factors See page 8 for long discussion.
15) You do not need 60 votes to invoke cloture, you can invoke cloture by havingTWO THIRDS OF THE SENATORS PRESENT. THAT MEANS IF OUR SENATORS STAY IN THE HALL AND THE REPUBLICANS GO TO BED YOU CAN INVOKE CLOTURE WITH LESS THAN 60 There is an important exception to the three-fifths requirement to invoke cloture. Under Rule XXII, an affirmative vote of two-thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules.
. .
As a compromise, the Senate agreed to move from a maximum of 67 votes (two-thirds of the Senators present and voting) to a minimum of 60 votes (three-fifths of the Senators duly chosen and sworn) on all matters except future rules changes, including changes in the cloture rule itself
16) Filing for cloture gives two days notice, there is no limit to the number of cloture motions There often has been more than one cloture vote on the same question. If and when the Senate rejects a cloture motion, a Senator then can file a second motion to invoke cloture on that question. In some cases, Senators even have anticipated that a cloture motion may fail, so they have filed a second motion before the Senate has voted on the first one. For example, one cloture motion may be presented on Monday and another on Tuesday.
17) Passing of Cloture does not terminate debate Invoking cloture on a bill (or on any other question) does not produce an immediate vote on it. The effect of invoking cloture is only to guarantee that a vote will take place eventually.
18)Cloture limits further debate Rule XXII imposes a cap of no more than 30 additional hours for the Senate to consider a question after invoking cloture on it.
19) Once cloture has passed the presiding officer has expanded powers When the Senate is operating under cloture, the Senate’s presiding officer has powers that he or she does not have under the Senate’s regular procedures. As already noted, the presiding officer may rule amendments and motions out of order at his or her own initiative, without waiting for Senators to make points of order from the floor, and even without waiting for the amendments to be read. Under the
Senate’s precedents, “
nce cloture has been invoked, the Chair is required to take the initiative to rule out of order dilatory amendments, and the Chair makes the determination regarding dilatory intent.” Also “under cloture, the Chair has taken the initiative to rule out of order amendments that were dilatory, nongermane or improperly drafted as each was called up and before the amendment could be
reported.”25 There is one other potentially important authority that the presiding officer exercises after the Senate votes to invoke cloture. Under normal Senate procedure, the chair is not empowered to count whether a quorum is present on the floor. When a Senator suggests the absence of a quorum, the chair’s only response is to direct the clerk to call the roll. Under cloture, however, the presiding officer can count to ascertain the presence of a quorum.
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