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There is significant interest in the rules surrounding filibusters and when a motion for cloture will be considered to be in order by the presiding officer. This memo is meant to lay out how I intend to approach cloture motions during the long session of the 107th Legislature. The procedure is briefly laid out here; my reasoning is further below.
General Rule Regarding Cloture
In general, the following rules apply to a bill:
1. On general file, full and fair debate will have occurred after 8 hours of debate;
2. On select file, full and fair debate will have occurred after 4 hours of debate;
3. On final reading, and assuming that a motion for cloture had been adopted on either general file or select file, full and fair debate will have occurred after 2 hours of debate; provided, however, that if no motion for cloture was adopted on either general or select file, then full and fair debate will have occurred after 4 hours of debate on final reading.
In potentially rare instances, it may be that a bill is of such complexity, importance, and/or materiality to the State of Nebraska that additional time for debate is necessary. In such instances, on general file full and fair debate will occur at 12 hours, with appropriate adjustments made on select file and final reading. In such a case, I intend to provide the body advance notice of the threshold before each stage begins.
Conversely, while it is not my current intent to do so, I reserve the right, judging on the quality of the debate and the complexity of the bill, to adjust the threshold downward. If that happens, I will treat such occurrence as “precedent” and apply that decision in similar situations regardless of bill or introducer. Please note that my expectation is that floor debate addresses the policy under consideration and is not a member or members talking about unrelated issues to just run out the clock.
Analysis and Reasoning
The motion for cloture goes to many issues at the heart of our work — the proper use of floor debate, which is one our most important tools, the proper allocation of scarce time, as well as important principles of process including fair notice, uniformity, and equal application of rules. I have elaborated on my reasoning here so that the body can understand how I have tried to balance these issues to further our work.
Rule 7, Section 10 sets out the cloture motion. It provides that “the presiding officer may rule such motion for cloture out of order if, in the presiding officer’s opinion, a full and fair debate has not been afforded. Such ruling by the presiding officer shall not be subject to challenge.”
The rule provides three specific elements — (1) the motion for cloture is within the discretion of the presiding officer; (2) a standard of “full and fair debate”; and (3) that the motion is not subject to challenge.
Nowhere do the rules specify any specific time for when “full and fair” debate will occur; indeed, what is “full and fair debate” will depend on a variety of factors, including the complexity of the bill, the substance of the issue, and the importance to the State, such that full and fair debate could not reasonably be determined by a clock.
Despite the inevitable variation between bills, as a historical matter, previous Speakers have set a threshold at which “full and fair” debate occurs. That hour threshold has varied but often has been either 8 hours or 6 hours on general file. At one point in time, the cloture rule had a threshold of 8 hours at each stage of debate.
As a matter of principle, I do not agree that an hours threshold accurately captures the spirit of the rule which requires only “full and fair debate” for the specific bill. Nevertheless, I am adopting such a rule for four reasons.
First, providing a rule in advance gives fair notice and the opportunity for proponents and opponents to rely on set rules for debate. Relying on discretion, or a messy set of potentially conflicting precedents of decisions of the presiding officer erodes predictability and undermines our work.
Second, and critically, an hours threshold promotes a significant principle to this session–fairness and equal treatment. We are a body of 49 equal members and each member must have confidence that the rules will apply equally to each; leaving the decision to pure discretion invites arbitrary application of the rules.
Third, an eight-hour threshold on general file is a reasonably accurate proxy for adequate debate on most, if not nearly all, issues. The majority of bills will never debate eight hours in total; in contrast very few bills, if any this year, will not have been fully debated by the end of eight hours. In that way, the eight hours should account for most, if not all, circumstances.
Fourth, in explicitly allowing for potential (if rare) deviations, there is enough flexibility in the system to handle the one-off occurrence that does not fit within this structure. In deciding on the possibility of a 12-hour threshold at general file, I am recognizing that for some bills 8 hours of debate is simply not enough time to fully debate.
In deciding on deviating from 2 hours at final reading, my reasoning is this: 2 hours at final reading presumes a lengthy debate at previous stages of debate. A bill debated 8 hours on general file and 4 hours of select likely does not need many more hours of debate on final reading. At the same time, it is highly discouraged that, absent extraordinary circumstances, a filibuster should begin at final reading. When such debate at previous stages has not occurred, then additional hours at final reading will likely be necessary.
Some discussion in my time in the body has been around whether 6 hours, or 8 hours, or some other period, may discourage or encourage filibusters. While that can be a factor in the number of filibusters, especially at extremely low thresholds, that was not a primary factor in my analysis. Outside of extremely low hours thresholds, I believe that the number of filibusters are driven by two primary variables–the number of bills passed out of committee that truly merit extensive debate and the culture within the body and the associated respect for floor time. If there are abuses of floor debate and/or an “overuse” of filibuster there are other means by which the body can react and correct; the cloture rule is too imperfect of a mechanism, with too many potential unanticipated consequences, to be used as such a tool.
While I anticipate that these procedures will cover the entire session, given the uncertainty of whether or not this session could be shortened due to Covid-19 or other unforeseen circumstances, I do reserve the option to change these procedures with notice to the body beforehand.