Did Gun Legislation Fail Because of a Filibuster?

| Thu Apr. 18, 2013 7:33 PM EDT

Bob Somerby wants to know why the Manchin-Toomey background check bill failed in the Senate even though it received 54 votes:

All through the Post, reporters and analysts referred to “the 60-vote threshold required for approval.” But no one ever tried to explain where that threshold came from....The Post’s news report didn’t try to explain where that threshold came from. Neither did its analysis piece. 

....After that, we read the New York Times, including its featured news report on the front page. After reading that report, we realized that we were no longer sure....Sixty votes were “needed under an agreement between both parties?”....Do you have any idea what that means? Frankly, we do not, though [Jonathan] Weisman makes it sound like this was not a typical filibuster. He makes it sound like Democrats agreed to a special threshold in part to defeat that amendment they didn't favor.

Here’s our question: Did the practice known as a “filibuster” create the need for the sixty votes? That’s what we would have thought last night. By this morning, we no longer knew. And our big press organs were working hard to keep us all in the dark.

Maybe some of you are wondering the same thing. Was this a filibuster? If so, why not say so?

Here's the answer: over the past few years, as the use of the filibuster has become routine, it's become common to speed things up a bit by adopting unanimous consent agreements under which both sides agree that a piece of legislation will require 60 votes to pass but won't require all the usual procedural hurdles of an actual filibuster. This is often convenient for both parties.

That's what happened in this case. The party leaders negotiated a unanimous consent agreement which specified that 60 votes were required to proceed to debate on Manchin-Toomey. It didn't get those 60 votes, so it failed. [UPDATE: This agreement also applied to all the other amendments to the gun bill, both Democratic and Republican. That's why they all failed.]

This puts reporters in a bind. Here are their options:

  1. Explain the whole thing: a UC was negotiated; it required 60 votes on a motion to proceed; the motion failed because it got only 54 votes. Unfortunately, this will leave readers confused unless you also explain why Harry Reid agreed to such terms in the first place. The answer is that if Reid didn't, then Republicans would formally filibuster the bill. 60 votes would still be required and a bunch of other procedural hurdles would be put in place. Reid was better off negotiating the UC.
  2. Chalk it up to "Senate procedures" or something like that and move on. This is short and sweet, but it risks leaving a lot of readers scratching their heads and wondering what really happened.
  3. Just call it a filibuster. For all intents and purposes, that's what it is, and it's the threat of a filibuster that prompted the UC in the first place. Technically, however, it's not a filibuster, so reporting it as one isn't precisely correct.

You can see the problem: none of these is really satisfactory. #1 is out of the question. It's simply too long. #2 is unsatisfying. It doesn't really explain what happened. #3 gets the guts of the explanation right, but it's technically inaccurate.

Along with James Fallows, I guess I'd opt for #3. It's a very minor inaccuracy, I think, since the whole point of the unanimous consent agreement is to incorporate the voting requirements of a filibuster. So far, though, I don't know of any newspapers that have decided to go this route. That leaves option #2, so that's what we usually get. It may leave readers completely uninformed, but it's technically accurate. Apparently most copy desks think that's a reasonable tradeoff.