Filibusters in Nevada

Riley Snyder has a brief blog post looking at whether a determined member of the Nevada Legislature could mount a filibuster like the one that recently took place in the Texas Senate. Secretary of the Nevada Senate David Byerman, who also acts as that chamber’s parliamentarian, says no. The rules cited, however, plainly demonstrate this is an incorrect reading of parliamentary law.

Byerman apparently reads Senate Rules 80 and 81 as creating a mechanism that can cut off a filibuster. But that’s not what those rules say; not even close.

The Previous Question Motion

The rules do provide for the motion for the previous question. The effect of adopting a motion for the previous question is to bring all debate to an immediate end and to proceed to an immediate vote on the question under debate. In most parliamentary bodies (including deliberative assemblies under Robert’s Rules of Order), a single member can move the previous question, provided it is then seconded. Both the Nevada Senate and Assembly, however, require the motion be sustained by three members before the motion can be put. All that means is before a vote is taken on the motion for the previous question, three members must demand it. Think of it as a second, second, to a motion (i.e., “I move.” “I second.” “I second the second.”).

But properly moving the previous question does not in and of itself end debate. This is a common misconception among parliamentary novices. Demanding the previous question or shouting “I call the question” does not bring debate to a close. Only when the motion for the previous question is adopted by the requisite majority–a majority in both chambers of Nevada’s legislature, but a two-thirds majority under Robert’s (the idea being a bare majority should not be able to squelch debate from the minority)–is debate properly ended.

So now that we know what it takes to move and to adopt the motion for the previous question, we need to address a very important threshold point: when can the motion be made?

Byerman appears to suffer from the same misconception that the parliamentarians at Robert’s point out. A member cannot interrupt another member who has the floor. Indeed, interrupting another member who has the floor is generally a breach of decorum, unless the interruption is privileged under the rules. For instance, a point of order that the member cannot be heard would be a privileged interruption. Only once a member is properly recognized may that member then move the previous question. Mason’s Manual, the Robert’s for state legislatures, confirms this point. Section 61 states “A member once recognized and having the floor is entitled to freedom from interruptions unless something arises that requires immediate consideration. A member cannot be interrupted merely to make motions having a higher precedence than the one under discussion” (emphasis added). This is why the filibuster is so potent: there is no way to stop it so long as the filibustering member holds the floor.

Comparing parliamentary bodies a bit, the reason the filibuster is not possible in the U.S. House is because almost all measures that make their way to the floor are considered under a “rule,” which is a resolution adopted to govern debate on a measure. These “rules” provide for time limits on debate. Once time is expired, debate ends and the previous question is automatically ordered. The same limitations could be imposed in the Nevada Legislature by motion. But again, the motion must be made by a member who properly obtains the floor.

“Order of Business 15 (or 16)”

One last quirk of Nevada legislative procedure which may affect my analysis, but I’ve never understood why, is the Assembly’s “Order of Business 15” and the Senate’s “Order of Business 16.” (Assembly Rule 120 and Senate Rule 120). Those orders of business each provide for “Remarks from the Floor” and limit those remarks to 10 minutes. This has driven me nuts for as long as I have observed the Nevada Legislature, but if you listen carefully, you will often hear debate on a bill’s third reading open with the manager of the bill reading the bill’s floor statement and then asking for “Order of Business 15/16.” Then the member continues debate, but this time not from the staff-prepared, neutrally-worded floor statement. The debate at this point usually takes a more impassioned tone. It sounds like actual debate, rather than just mechanically listing the bill’s provisions.

Why they do this, I don’t know, other than to say it’s a tradition that never should have been started. When a question is under consideration, debate on its merits is always in order, unless the motion being debate is not debatable under the rules or parliamentary procedure in effect (the motion for the previous question itself is not debatable). Changing the order of business, from a strictly parliamentary standpoint, would mean moving away from the question under consideration. An order of business is designed to organize classes of business, not to corral debate. This is why Nevada’s tradition seems incorrect (just as is its insistence on calling the building where the legislature meets something other than the capitol, but I’ll leave that touchy subject for another day).

The reason these provisions might affect my analysis is because the provisions seem to imply automatic 10-minute time limits on a member’s debate when the member asks for “Order of Business 15/16.” This tradition, as far as I can tell, has no basis in the Rules of the Assembly or the Senate, nor in parliamentary law, and indeed seems plainly contrary to Senate Rule 80, which is headed “Debate” (“Every Senator who speaks . . . shall confine himself or herself to the question before the Senate.”) Order of Business 16 is not a question; it’s just an order of business.

In sum, were I in a position to give parliamentary advice to the members of the Nevada Legislature, I would allow the filibuster to run its course. And now that my Friday night rant is complete, I can go back to complaining about Vegas’ “heat storm.”