by Paul Goldman
As a legal matter, what is called the “personhood” bill seems to have any number of problems, constitutional and otherwise. But leaving those aside for another day, let’s address politics, namely 2013 Governor’s race. It is first worth noting the bill itself seems to be not all that much different than constitutional amendment included as a plank in the 1980 GOP National Convention Platform. Perhaps I missing a key legal fact here. But in terms of the politics, the LG is going to vote in favor of it if he wants to be the 2013 VA GUV nominee.
So let’s start the analysis for this point: We presume the “personhood” bill can make it to the Senate floor one way or another since it has Dem. Senator Colgan as a sponsor and Dem. Senator Puckett as a supporter. Thus, as I understand the rules, even if it didn’t get out of committee, it will still be possible for 21 Senators to join together on the floor of the body and pass a motion to “discharge” the measure from said committee.
Would all 19 of Republicans go along? It is likely all 20 would do it.
In terms of the Senate passing the legislation, it would only take 20 Senators to vote YES to guarantee passage given that Bolling would vote YES if need be.
So we reach this point then: We assume the bill is going to get to the floor and receive a enough votes to pass once the question is called.
What should Senate Democrats do about this situation?
If one side doesn’t have the votes to kill a measure, they seemingly have two options.
First, they could prevent the Senate from acting by denying the body the ability to have a quorum. It takes 21 Senators present at the quorum call.
Mathematically therefore, the Senate Democrats could refuse, in mass, to provide the quorum to get the Senate in Session to vote on the “personhood” bill.
But this math is not realistic given Colgan and Puckett.
Deductively then, we get to option # 2 or more accurately the only one left:
Filibuster!
Technically, in terms of common parlance, there is no such thing as a filibuster in Virginia as the parliamentary maneuver is viewed in folklore in terms of the US Senate. In common parlance, a filibuster is an effort by one or more Senators to talk a bill to death while their colleagues refuse to cut off the debate by invoking what is known in DC as a cloture motion. Prior 1917, there was no such thing as a cloture motion in the US Senate, any Senator could just talk and talk on any subject whether germane to the bill or not.
No one could stop him, so in my context, it wasn’t a filibuster in classic parlance.
But President Wilson feared this situation would allow the anti-war folks in the Senate to prevent a motion to declare war on Germany from ever reaching a vote. So they came up with the 2/3 cloture rule: for the first time, the body could shut off debate despite it’s tradition of unlimited yakking.
Today, the cloture rule takes a 3/5 vote of the body.
BUT IN VA, THERE IS NO SPECIAL CLOTURE RULE.
20 Senators can force the debate to be shut off with the help of a friendly LG: if they can get the floor to make such a motion although again, it has never been necessary to date. The usual Senate debate gives everyone a chance to speak for as long as they like, with the “manager” of the bill getting the last word. At this point, the LG calls for the vote.
HOWEVER:
As I understand the rules of the VA Senate, the Senator with the floor can keep it for as long as he or she wants, provided they speak to the bill, not read the phone book or other non-germane oratorical feats as can be done in the U.S. Senate.
This is to say: Should the “personhood” bill get to the floor, the tradition is for the LG to allow those who want to speak on yak away, with germane stuff, with the person “managing” the bill getting the first and last words.
In theory, the LG could rule that debate has gone long enough, or call a vote on the bill without allowing any debate: under the procedures adopted, his ruling would stand as long as he keeps his GOP forces with him. But this would destroy the atmosphere in the body, and would have unintended consequences.
SO: Bolling Alone is going to allow debate as normal. Which means at some point a Senate Democrat with real guts is going to get a chance to hold the floor and:
FLIBIBUSTER!
Assume Senator Goldilocks for example, this way we can protect all the real ones.
Goldilocks starts to talk about the bill, starting with whatever legal or scientific or whatever stuff germane to the measure. He yaks and yaks and yaks, droning on and on. When he needs to get some health food, he cedes the floor to Senator LowKell, known for his/her bluesy talk. Lowkell keeps rapping and rapping until Goldilocks comes back to his desk and asks for the floor back.
As the rules were explained to me, as long as the person holding the floor keeps talking, and doesn’t fall into the GOP trap of taking a question thus giving up the floor, this VA STYLE FILIBUSTER can go on and on.
At some point, enough Senators will go home and there is no way to formally adjourn. So as long as Senator Goldilocks stays close by to resume talking at the right moment, he can keep yakking and yakking since on this bill, there is an unlimited amount of germane stuff to say, read, etc.
The headlines around the state the next day – and of course immediately on the WEB – will be how the Democrats tried the first ever FILIBUSTER to kill the “personhood” bill, thus forcing a statewide debate fueled by national coverage which will follow, I would expect such reporters to be in the Senate gallery the next day.
As a practical matter, this brave Democrat and posse will have to let the Senate vote on the measure at some point, since there is other business unless some deal is reached with Bolling Alone. This true because of the difference with the US Senate, where they put a measure aside – kill it really – after failing to invoke cloture business.
BUT: Even if the VA Senate ultimately gets to vote on it, the publicity for a several day period will focus as nothing else can the public’s attention on the measure.
2013: It seems to me this is all upside for Democrats in 2013. Moreover, right now, we can’t field a team of three as in statewide ticket.
Surely one or more Senators can handle the situation to emerge as a more credible statewide figure.
BOTTOM 2013 LINE:
The risk vs. reward equation works here for Democrats. It will be a highly charged situation so it isn’t for amateurs.
So the Filibusteree needs to be the right person with the right strategy. This isn’t easy but is doable. .
The right Filibuster on this issue will serve the interest of Virginians in my view.
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