the “talking filibuster”
From a Twitter thread I did today.
Several House Rs are pushing for Majority Leader Thune to force a “talking filibuster” in the Senate to try to overcome a filibuster on the SAVE Act. There seems to be a lot of confusion about this. My aim here is to clear that up. Start with some big pictures:
1: first, the “talking filibuster” is not an innovation and does not require any rule changes, nuclear options, or other tactics in the Senate. In fact, quite the opposite: a “talking filibuster” is the original filibuster, dating back to English parliament and Rome before that.
2: second, there is no “filibuster rule” in the Senate, because the filibuster is a strategic cosquence of the rules, specifically the rule that makes most pending questions debatable, and the lack of a majoritarian motion for ending debate.
3: third, final passage votes on motions in the Senate are by majority (51 votes). The 60-vote threshold you always hear about is for ending debate on a question via the cloture process. If debate ends another way, the threshod for passage is a bare majority.
3: Let;’s begin: in the Senate, most pending questions are either debatable or not debatable. if they debatable, each Senator may speak twice on the quesiton, with no time limit on each opportunity. That is, the Senate generally has unlimited debate.
4: So if Majority Leader Thune makes a motion to proceed to the consideration of the SAVE Act, that motion is debatable, and the debate is only nomrally constrained by the two-speech rule and the desire of Senators to keep debating.
6: This is literally where the talking filibuster comes from. Hundreds (thousands?) of years ago, legislators realized that if you just keep talking, you will never get to a vote on the question. And thus you can defeat a measure even if it has majority support.
7: And even if you can’t talk forever, if you hold out long enough, the majority will see that it is going to be very costly to wait you out. They may have other things they want to do before the two-year Congress ends. And so they may give up.
8: That’s the talking filibuster! If the Senate majority believes it can wait out those opposed to the SAVE Act, and willing to accept the opportunity cos, they can move to proceed to consideration of the bill, and start the debate, and see how long the Dems can talk.
9: This has proven very hard in Senate history when up against a determined minority.
10: First, it’s a long slog. Imagine all 47 Dems making two 3-hour speeches. That’s totally plausible. That’s 282 hours. And that’s just to get to a majority-rules vote on the motion to proceed, which only puts the bill on the floor.
10: Once the bill is on the floor, it gets worse. Now you have to deal with the Dems offering amendemts, which create additional opportunities to talk twice. You can table the amendments, but that creates roll-call votes. Which also take time.
11: One strategy is to keep the Senate open all night. Force them to talk around the clock. But the burden on the majority is much greater than on the filibusters. Those filibustering only have to keep a couple people around to talk. The majority needs to keep everyone around.
12: Why? Because if they don’t, the filibusteres will make a quorum call, and when a quorum isn’t there, they will adjourn the Senate and go home to sleep. So an entire quorum of the majority must be near the floor, around the clock.
13: Trying to break a talking filibuster also cedes the entire debate to the minority, since they will be the only ones talking. And, of course, it blocks you from doing other legislative business (though you can shift to executive session).
14: So, throughout history, trying to break filibusters by waiting people out has more often been done for the spectacle than the result. Which might be a reason to do it with the SAVE Act! Certainly Senator Lee thinks so.
15: So if it’s impossible to wait people out, how does debate ever end in the Senate? Typically, one of four ways: naturally, unanimous consent, via expedited procedures, or via cloture.
16: Unanimous consent is most common. Every Senator agrees to a request to either dispense with debate (“I ask unanimous consent to proceed to consideration of the SAVE Act”) or to an agreement that lays out the limits on debate (a “UC agreement”, or “time agreement”).
17: Naturally. Sometimes, there’s a debatable motion on the floor, no unanimous consent agreement in place, and…nobody else wants to speak. Under the rules, the chair then must put the question. Happens occasionally.
18: Expedited procedures. Some parts of the Senate rules (and statutory rulemaking) provide for limits on debate in certain circumstances. Most notably the Budget Act budget resolutions and reconciliation bills. And war powers resolutions.
19: In fact, the reason everyone thinks of these things as majority votes is precisely because there is limited debate. You can’I filibuster. Thus you are guaranteed to get to the final, majority-rules vote.
20: Finally, cloture. Installed in 1917 and altered several times, the current cloture rules allow for a supermajority to put limits on debate. Currently requires 60 affirmative votes. If that is attained, debate is limited to no more than 30 more hours.
21: What has happened in the last 20 years is that the minority filibsuter and majority cloture process has become so normalized, that many people just assume it’s the only way to break a filibsuter on controversial, partisan legislation.
22: Since around 2010, the minority has essentially filibsutered everything. Then they either negotiate to a UC agreement, or force the majority to try to get to 60 votes for cloture to end debate. Almost nothing passes anymore by majority, without a UC agreement.
23: But it still can! If debate ends naturally or you can break a talking filibuster, you can still pass legislation with less than 60 votes. Has always been true.
24: Trying to wait people out and break a talking filibuster is near impossible. Getting a UC time agreement on strong party priorities is hard. And so the leaders have resorted to starting the process by filing cloture petitions before anyone debates.
25: As soon as the motion to proceed is made, the majority leader files for cloture. They then try to negotiate off the floor to get to 60 votes, and do other stuff on the floor while the petition ripens (2 days). If the they the 60 votes, they do the same thing with bill.
26: This results in a situation where no one actually filibusters by talking. Which is totally bizarre, but in some ways is a reflection that the filibuster has always been about raising the costs for the majority rather than principled debate.
27: The current system helps both sides in some sense: the majority can do other things and use the floor while it works on getting to 60, the minority doesn’t have to stand and talk. Nobody has to be up all night. Also good for lazy Senators.
28: Talking filibusters now are usually reserved for spectacles, either by Big Mad individuals, or parties that want to highlight minority recalcitrance. And they are rare.
29: Now, many people want to change the Senate rules. This is beyond the scope of this thread, but a few words. First, that’s also by majority in the Senate, but is also debatable. And rules changes have a cloture threshold of 67 votes.
30: There is also the so-called nuclear option, where bare majorities can set precedents and back-door change the rules. This is how the cloture threshold was lowered on nominations in 2013 and 2017.
31: Some people in both parties would like to change the filibuster rules on legislation, either by abolishing it or making a talking filibuster tougher on the minority. Either could be accomplished by rule changer or nuclear option.
32: Right now, the votes aren’t there. And that is the final word. The Senate rules aren’t magic, and if you don’t have 50 votes, you really can’t do anything, no matter how hard you wish you could.