Notes on yesterday's alleged talking filibuster
Yesterday, the Senate took up S.1383, as amended by the House, and began consideration of it. The bill is the controversial SAVE America Act, which has majority support in both the House and Senate, but not the 60 votes needed to end debate via a cloture motion in the Senate, due to opposition from Democrats.
Proponents of the bill, particularly Senator Lee (R-UT) but also President Trump, have been leaning on Majority Leader Thune and the Senate GOP to setup a so-called Talking Filibuster, in hopes of ending debate via attrition or forcing the Senate Democrats to compromise.
Careful regular readers will know my somewhat nuanced views on Talking Filibusters. I generally think they don't work as strategic plays to achieve policy or political ends. But I also think they have value, in that they create the conditions for actual floor deliberation in the Senate, which the current practices of the 60-vote Senate essentially forecloses.
It can be difficult, however, to tell when a talkin filibuster is taking place, because it doesn't look at all different from regular order in the Senate, and it doesn't look especially different from the 60-vote process regularly used these days.
I don't think what we saw yesterday was a talking filibuster. Nor do I think it was regular order in the Senate. It was basically just the top-down, leader-driven, 60-vote Senate, dressed up with a little bit of debate. Let's go to the particulars:
Senator Thune kicked things off by making a non-debatable motion to lay the message from the House before the Senate, which consists of the House amendments to S.1383. This immediately triggered a vote, and the motion was adopted 51-48.
Thune then filled the amendment tree, by offering (1) a motion to concur in the House amendments; (2) a motion to concur with amendments; (3) a 2nd degree amendment to the motion to concur with amendments; (4) a motion to refer the amendments to committee; (5) an amendment to the motion to refer; and (6) a 2nd degree amendment to the motion to refer. By filling the tree, Thune essentially blocked any further amendments to the bill until these amendments are disposed of.
Notably, Thune did not then file cloture on the motion to concur.
Debate then began, and five Republican Senators made short speeches.
After the sixth speech, Senator Schmitt asked unanimous consent to structure four more hours of debate, alternating hours of control between the Democrats and Republicans. Twelve Democrats took part in the debate, and six Republicans took part.
During the debate, unanimous consent was requested by Senator Moreno to setup an adjournment for later in the evening until noon Wednesday, and to resume consideration of the SAVE Act then.
The Senate adjourned under the consent order at 11:03pm.
What should we make of this?
This wasn't a talking filibuster. Or, at least, it wasn't an attempt to grind the Democrats down via attrition. The goal of a talking filibuster is to exhaust the minority, either physically (literally wear them out), procedurally (run them out of available speeches under Rule XIX), or politically (break their coalition so they compromise or give in).
The way Thune structured the floor, none of this was possible. First, filling the tree makes Rule XIX irrelevant, since it creates six pending questions and therefore gives each Democrat 12 chances to speak; adjourning for the evening (rather than recessing) also resets the speech count. Second, none of this was physically taxing: everyone went home for the night, and the GOP spent more time talking than the Democrats. Nor was it politically taxing, at least not yet. It looked like any other Senate day, from a media perspective.
But this also wasn't regular order. By filling the tree, Thune precluded floor amendments, from either Democrats or Republicans. No procedural deliberation took place; it was all just speeches. One value of getting on a bill and staying on it is that the Senate might procedurally amble toward a compromise. In fact, on this particularly legislation, there actually is a plausible compromise to be had; watering down the bill to focus on the most popular parts of it---voter ID to vote---might very well get 60 votes for cloture. No one, of course, was allowed to offer such an amendment.
What did this look like? It looked mostly like the normal 60-vote Senate. Usually, the majority leader would bring the bill to the floor, fill the three, and file cloture on the underlying motion (here, the motion to concur). Then the Senate would go do something else for two days and wait for the cloture motion to ripen. Yesterday, Thune did all of that except filing the cloture petition and doing something else. Instead, they stayed on the bill. But otherwise, this looks like business as usual.
There's no evidence they are actually trying to break the Democrats here via attrition. Maybe the pressure will ramp up; maybe we will have all-night sessions; maybe there will be amendments and roll call votes and tabling motions. But right now, this looks more like Thune trying to pretend there's a talking filibuster, and soon we will see a cloture petition, a failed vote for cloture, and eventually an acceptance of defeat and a moving on.
If they go one-and-done after a failed cloture vote (rather than staying on the bill and continuing debate), that will be the real clue that this was never intended to be a war of attrition.