More Talking Filibuster: Enter the 1964 Civil Rights Act
I recommend reading my previous piece on the talking filibuster, or watching my video about it, prior to reading this.
As previously discussed, there are multiple ways to end debate in the Senate: naturally, unanimous consent, expedited procedures, or cloture.
A talking filibuster, in theory, aims to end it naturally; just wait people out until they give up due to exhaustion, or run out of opportunities to speak under the two-speech rule. The advantage of this is that, if successful, you would never need to get the 60 votes for cloture; if debate ends naturally, you just proceed to a majority-vote on the motion.
It is very difficult to end debate by waiting people out under the two-speech rule; the rules burden those trying to break the filibuster significantly more than they burden those conducting it. In fact, as Jamie Dupree has continuously noted, he cannot find a single instance in Senate history of a determined-minority being broken on the floor by this method.
Nevertheless, Senator Lee continues to press for a talking filibuster, at one point suggesting that the 1964 Civil Rights Act was an example of the talking filibuster being used effectively.
This is, at first glance, incorrect. Debate on the 1964 CRA was ended by a cloture vote (71-29) that got the required 2/3 majority (the rules were changed in the 1970s to make cloture an affirmative 60 votes rather than a 2/3 majority).
Senator Lee responded to me by arguing that he never meant that the CRA filibuster didn't get cloture, just that the talking filibuster aided the process of compromise in order to build the supermajority for cloture. And, furthermore, in his view, this would be the purpose of a talking filibuster now; not to exhaust the opponents of the SAVE Act in order to get to a majority vote, but instead to force action toward building a 60-vote majority for cloture, perhaps via compromise.
This is indeed a different claim than saying the majority waited out the southerners in 1964, and it is definitely a more plausible view of what a talking filibuster might accomplish. While we can't find an instance of a filibuster truly being broken by waiting people out, it's obvious that keeping legislation on the floor might yield fruitful movement of the politics.
That said, Senator Lee's position here has a couple of problems. First, there are many people supporting a talking filibuster who don't see cloture as the goal; instead, they believe that the opponents can be exhausted into submission in order to get to a majority vote that 50 Republicans can then win. In fact, I'd wager that most people supporting the talking filibuster right now believe it is a path to getting to a majority vote, not a vehicle to promote compromise and build a 60-vote cloture coalition.
Second, and perhaps more importantly, I don't think the 1964 Civil Rights Act is a good analogy to the current circumstance with the SAVE Act.
The first distinction is that, in 1964, the original version of the civil rights act had already passed in the House 290-130, in a truly bipartisan fashion: 152 Democrats and 138 Republicans in favor, with 96 Democrats and 34 Republicans opposed. This reflected that civil rights was massively popular, and also massively popular in both parties.
Of course, the structure of the situation was that you essentially had three different parties on the issue: northern Democrats, Republicans, and southern Democrats. The southern Democrats were almost universally and adamantly opposed to the CRA; the northern Democrats almost universally supported it.
Republicans almost universally supported civil rights in theory---very few of them had the southern Democrat ardent pro-segregation position---but within the party there was a range of views about the relative importance of the issue and/or various concerns about federalism or public accommodations. Some Republicans were just as staunchly in favor of the CRA as the northern Democrats, many others were happy to vote for it but didn't see it as a priority, and others still (like Goldwater) supported civil rights in principle but opposed legislating it at the federal level.
This created a distinctive circumstance for the filibuster in the Senate. There were 67 Democrats (47 northern and 20 southern) and 33 Republicans. The southern Democrats were the ones who would ardently conduct the filibuster; the northern Democrats the ones ardently trying to break it. None of the Republicans would actually actively join the filibuster and support the southerners, but they also were reluctant to provide the votes to the northern Democrats for cloture.
Famously, Republican Senate leader Everett Dirksen---who supported civil rights but had federalism misgivings about the bill---spent much of 1963-1964 working to build a compromise on the bill with the Kennedy and then Johnson administration, the Senate northern Democrats, and the Senate Republicans. This is a long and detailed story, but more or less everyone agrees that Dirksen was essential to the outcome, building the policy and politics that could put together a CRA package that could get the cloture vote.
What role did the talking filibuster play in the CRA of 1964? It definitely kept the heat on the issue inside the Senate, and it definitely provided cover to the Republicans who wanted to allow the southerners "to make their case" before voting for cloture. And it was probably a necessary ingredient in forcing some reluctant Republicans to face the issue instead of trying to bury it.
What it emphatically didn't do was break the southerners. It never came close to exhausting them, and they never came close to losing the floor under the two speech rule. Nor did it change any of their minds; none of the members conducting the filibuster voted for the CRA in the end.
And this raises the hard questions for the SAVE Act. If the goal is not to exhaust the Democrats and get to a majority vote, then it has to be to use the filibuster to build the 60-vote coalition, either through compromise or via political pressure.
But the circumstances seem quite different on their face. There's no huge bipartisan House bill; there's no large set of Senate Democrats currently supporting the bill; there's no discernable group of Democrats who are moderates sitting on the sidelines; there's no Dirksen rallying them to support a compromise. It's not even clear to me that the GOP supporters of the talking filibuster want a compromise on the SAVE Act. I think many of them think they can grind out the filibuster and get to a majority vote on the legislation as is.
That doesn't mean it's impossible for a talking filibuster to work in this manner to produce attention and force some action; it's certainly more likely than actually exhausting people conducting a filibuster. And I'm all for giving it a go and seeing what happens. I'm certainly not going to tell you that Senate is too busy with other stuff. It'd probably be good for them to get on a bill like this and see what happens.
But I think Republicans are being naive if they see the 1964 Civil Rights Act as a template for how this will work. The vast, vast majority of the time, this is just going to crash and burn on them with the SAVE Act.
I will also note that I had an excellent Twitter conversation with Senator Lee and and others about this---certainly a rarity these days---and I very much appreciate their willingness to engage in the discussion in good faith. Many (most?) people operating in this debate are doing so at a much lower level of discourse.