MELISSA BLOCK, host:
If no compromise is reached in the Senate, the coming days are likely to be a thicket of procedure and arcane terminology. To help sort through what we might expect, we've asked Sarah Binder to join us. She teaches political science at George Washington University and is co-author of the book "Politics or Principle: Filibustering in the United States Senate."
Thanks for being with us.
Professor SARAH BINDER (Political Science, George Washington University; Co-author, "Politics or Principle: Filibustering in the United States Senate): Sure. Thanks for having me.
BLOCK: Let's talk a bit about the high or low points in the history of the filibuster.
Prof. BINDER: Well, a filibuster's been used for all sorts of purposes by senators over almost the history of the US Senate. There have been filibusters on important issues, like slavery, like civil rights. There have been filibusters over not-so-important issues, like smaller legislation, like radio stations in Illinois, all sorts of small issues.
BLOCK: And do you actually have to stand up and declare, `I am about to filibuster,' or does it just happen by default, that you start talking and you don't stop?
Prof. BINDER: Well, in today's Senate, one needn't even go to the floor. Often the threat of a filibuster is enough to derail the legislation. And we think in the past of the Senate, in the 19th century Senate, senators were expected to talk, and oftentime they did for days, if not weeks and sometimes months, in an effort to block a bill.
BLOCK: And there are famous examples of that: Senator Huey Long standing giving recipes for corn bread and...
Prof. BINDER: Absolutely. Yeah, giving us the recipes for pot liquor and all sorts of other recipes, all toward blocking what he saw were anti-populous legislation in the 1930s.
BLOCK: Let's talk about ending a filibuster. The rule now is that you need 60 votes to stop a filibuster, a cloture vote, a supermajority.
Prof. BINDER: Well, since 1917, when this cloture rule was created, yes, you need either two-thirds or a three-fifths today majority. Typically, majority parties don't have 60 votes within their own ranks, and in a time of intense polarized parties, majorities have a very tough time invoking cloture or cutting off debate.
BLOCK: Now, in this case, Republicans want to end the filibuster for judicial nominees. How are they going to go about doing that procedurally?
Prof. BINDER: Well, Republicans don't have the number of votes necessary to block debate on an effort to change the rules, a formal change of the rules.
BLOCK: That would require 67 votes.
Prof. BINDER: That would require 67 votes.
BLOCK: A super-supermajority.
Prof. BINDER: Super-supermajority to cut off debate on motions to change the Senate's own rules. Senate majority does have, they believe, a different option, which is to change the precedents of the Senate, which are interpretations of the formal rules. And to change precedent, that is simply a majority vote. So the idea behind the nuclear or constitutional option is to change precedent to say that cloture no longer applies to judicial nominations. All one needs would be a simple majority vote to end debate.
BLOCK: And has that been done before?
Prof. BINDER: This is a contentious issue on whether previous majority leaders have tried to change precedent in this way. There have clearly been changes in precedent by majority votes. There are thousands of precedents in the Senate. There have been episodes where the Senate has used a change in precedent to rein in the rights of the minority members. My sense is never has it been done in this way that severely restricts the right to filibuster in this way.
BLOCK: There's been a lot of invoking of the Constitution in this whole debate and what the Constitution has to say about the right of the minority in the Senate. What does the Constitution say about all of this? Is any of it written down there?
Prof. BINDER: The Constitution says the House and Senate each shall set its own rules, so the Constitution gives authority to the House and the Senate to decide the rules of debate. My reading the Constitution is that's the relative portion of the Constitution. It is true the Constitution also stipulates advice and consent, but it doesn't mandate votes for giving advice or consent. But, obviously, there's been quite a lot of debate and conflict over what was relative about the Constitution.
BLOCK: And there's nothing in the Constitution that talks about supermajority or how that would be defined.
Prof. BINDER: Absolutely. The Constitution lays out some principles but doesn't stipulate the rules for either the House or the Senate.
BLOCK: Sarah Binder, thanks very much.
Prof. BINDER: Sure. Thanks for having me.
BLOCK: Sarah Bender is a professor of political science at George Washington University.
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