Yesterday (Feb. 5), the Republicans in the Senate blocked a Democratic attempt to begin debate on the the Warner-Biden Resolution, which opposes Bush's intended escalation of the War in Iraq. They accomplished this by getting more than the forty votes needed to defeat a Democratic motion to end debate on the "motion to consider" the Warner-Biden Resolution.

But the Democrats never needed a motion to end debate on the motion to consider, because they could have made a non-debatable motion to consider.

According to Senate Rule 8, any "motion to consider" which is made during the first two hours of a new legislative day is non-debatable. And if there is no debate, then there can be no motion to end debate, and therefore no possible filibuster. A simple majority is all that is needed to pass a non-debatable motion to consider.

Here is the exact text:

"All motions made during the first two hours of a new legislative day to proceed to the consideration of any matter shall be determined without debate, except motions to proceed to the consideration of any motion, resolution, or proposal to change any of the Standing Rules of the Senate shall be debatable. Motions made after the first two hours of a new legislative day to proceed to the consideration of bills and resolutions are debatable."

Source: Senate Rule 8, Section 2 as shown at http://rules.senate.gov/senaterules/rule08.php

If there is any doubt that cloture applies only to debatable motions, the following words from Rule 22 -- the rule which governs cloture -- will confirm this fact:

"Is it the sense of the Senate that the debate shall be brought to a close?"
These are the exact words which must be used in a motion for cloture; and these words would obviously be meaningless if applied to a non-debatable motion.

Source: Senate Rule 22, Section 2, as shown at http://rules.senate.gov/senaterules/rule22.php

After debate on the Warner-Biden resolution begins, however, it would require a three-fifths vote to cut off debate and go to an immediate up-or-down vote.

The motion to end debate on a question being debated in the Senate -- which is frequently called "Cloture" -- requires a three-fifths majority to pass, under Senate Rule 22. By "Invoking Cloture" in this way, a sixty-vote majority can cut off debate and force an immediate up-or-down vote on a question which is currently being debated in the Senate. If, however, the motion to end debate fails to receive the necessary sixty votes, then debate can continue, perhaps indefinitely, and the up-or-down vote continues to be postponed. By this means, Democrats have postponed an up-or-down vote on several of the Bush nominations to fill vacancies in the Federal Courts.

But cloture could not possibly apply to a non-debatable motion, because the purpose of cloture is to cut off debate; and with a non-debatable motion, there is no debate to cut off.

Thus it appears to me that the Senate Republicans are pulling a flim-flam by pretending that they have the power to filibuster a non-debatable motion to consider, when they do not really have that power.

Blessings to you. May God help us all.