SHOW NOTES FOR EP 4

Introduction

Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try and teach you things in an hour. My name is Ashley, aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company or other individuals. Ron is a licensed practicing attorney in the state of California.

Itinerary 

  1. Our Weeks
  2. Topic of the day – Filibuster, Impeachment proceedings, Myanmar
    1. Filibuster
      1. What is a filibuster
  3.  Filibuster is a tactic of obstruction used in the United States Senate to prevent a measure from being brought to a vote. The most common form occurs when one or more senators attempt to delay or block a vote on a bill by extending debate on the measure. The Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless “three-fifths of the Senators duly chosen and sworn”[1] (currently 60 out of 100) vote to bring the debate to a close by invoking cloture under Senate Rule XXII.
  4. History of the filibuster
  1. Although not explicitly mandated, the Constitution and its framers clearly envisioned that simple majority voting would be used to conduct business. The Constitution provides, for example, that a majority of each House constitutes a quorum to do business.[3] Meanwhile, a small number of super-majority requirements were explicitly included in the original document, including conviction on impeachment charges (2/3 of Senate),[4] expelling a member of Congress (2/3 of the chamber in question),[5] overriding presidential vetoes (2/3 of both Houses),[6] ratifying treaties (2/3 of Senate)[7] and proposing constitutional amendments (2/3 of both Houses).[8] Through negative textual implication, the Constitution also gives a simple majority the power to set procedural rules: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”[5]
  2. Commentaries in The Federalist Papers confirm this understanding. In Federalist No. 58, the Constitution’s primary drafter James Madison defended the document against routine super-majority requirements, either for a quorum or a “decision”:  

“In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.”[9]

  1. Evolution of the filibuster
  1. In 1789, the first U.S. Senate adopted rules allowing senators to move the previous question (by simple majority vote), which meant ending debate and proceeding to a vote. But Vice President Aaron Burr argued that the previous-question motion was redundant, had only been exercised once in the preceding four years, and should be eliminated, which was done in 1806, after he left office.[11] The Senate agreed and modified its rules.[11] Because it created no alternative mechanism for terminating debate, filibusters became theoretically possible.
  2. Nevertheless, in the early 19th century the principle of simple-majority voting in the Senate was well established, and particularly valued by Southern slave-holding states.[citation needed] New states were admitted to the Union in pairs to preserve the sectional balance in the Senate, most notably in the Missouri Compromise of 1820.
  3. Until the late 1830s, however, the filibuster remained a solely theoretical option, never actually exercised. The first Senate filibuster occurred in 1837.[12] In 1841, a defining moment came during debate on a bill to charter a new national bank. Senator Henry Clay tried to end the debate via majority vote, and Senator William R. King threatened a filibuster, saying that Clay “may make his arrangements at his boarding house for the winter”. Other senators sided with King, and Clay backed down.[11]
  4. At the time, both the Senate and the House of Representatives allowed filibusters as a way to prevent a vote from taking place. Subsequent revisions to House rules limited filibuster privileges in that chamber, but the Senate continued to allow the tactic.[13]
  5. In practice, narrow majorities could enact legislation by changing the Senate rules, but only on the first day of the session in January or March.[14]

From 1917 to 1949, the requirement for cloture was two-thirds of senators voting.[18] In 1949, the Senate made invoking cloture more difficult by requiring two-thirds of the entire Senate membership to vote in favor of a cloture motion.[22] 

In 1953, Senator Wayne Morse of Oregon set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Then Democratic Senator Strom Thurmond of South Carolina broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes,[24] although the bill ultimately passed.

One of the most notable filibusters of the 1960s occurred when Southern Democrats attempted to block the passage of the Civil Rights Act of 1964 by filibustering for 75 hours, including a 14-hour and 13 minute address by Senator Robert Byrd of West Virginia. The filibuster failed when the Senate invoked cloture for only the second time since 1927.[26]

From 1917 to 1970, the Senate took a cloture vote nearly once a year (on average); during this time, there were a total of 49 cloture votes.[27]

As the filibuster has evolved from a rare practice that required holding the floor for extended periods into a routine 60-vote supermajority requirement, 

https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate#Constitutional_design:_simple_majority_voting

  1. Should we keep it – opinion
  1. Impeachment Proceedings
    1. When is trial to start – Feb 8
    2. What is Trump being impeached for – inciting insurrection
    3. Constitutionality – no longer in office
    4. NYTimes article
    5. Likelihood of conviction – opinion
  2. Myanmar
    1. Breakdown from BBC
    2. What does this mean for the US?
      1. similarities/differences
      2. Has this given the extremists optimism for such to happen here

Closing

Thank you so much for listening to Learning the Law if you liked this podcast and want to hear more don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted on twitch at twitch.tv/phoenixnymphy use the hashtag #learningthelaw on tiktok to follow more there. You can find Ron on twitter at Necrokijo and Ashley on most social media platforms at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.

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