Make them talk: A true filibuster will restore debate in the US Senate

The U.S. Senate has been dysfunctional for decades. There has been a lack of debate on bills thanks to procedural tactics used by the leadership of both parties that marginalized rank-and-file members. Senator Mike Lee (R-Utah) has pushed for a strategy called the “Talking Filibuster.” It would restore the Senate tradition of extended debate on legislation and set up a process that will allow bills to pass with a simple majority vote.

It is a misconception that 60 votes are needed in the Senate to pass a bill. The leaderships of both parties have relied on the use of Senate Rule 22 — the rule that sets up a cloture procedure to expedite debate — to foster this misconception. Senate Rule 22 provides that if sixteen Senators sign a petition to end debate, then the Senate must vote one day and one hour later on whether to end debate, with 60 votes required for that motion to pass.

Thirty hours after that vote, a final vote on the bill must be conducted, using a simple majority vote.

Rule 22 has been the preferred way to end debate for years, but there is another way. The talking filibuster is a tool that could pass a bill, even when there are not 60 votes to shut down debate. The bill that has triggered the debate over how to pass a bill is the SAVE Act, a bill to reform voting, including requiring proof of voters’ citizenship. This bill has majority support, but due to unified opposition from Democrats, it lacks the 60 votes needed to shut down debate under Rule 22.

The Talking Filibuster strategy is simple one. The Majority Leader calls up a bill and does not file cloture to trigger the Rule 22. Democrats are then forced to debate the issue until they either tire or give up. Each senator is limited to just two speeches during the debate. Given 47 senators in the Democratic caucus, that means we might have to sit through 94 long speeches. The process could last a long time. But if the Majority Leader keeps the Senate in session and does not provide consent to go out of session, Democratic Senators will stop talking at some point. When they stop talking, the Senate can vote and pass the bill with a simple majority.

There are Senate rules experts who have explained why this process is a winner on this bill. As one author put it recently, “The talking filibuster is a strategy that, first and foremost, imposes a physical and psychological cost of obstruction on filibustering senators. Second, it forces a public political process that has implications for those who oppose the bill. In other words, it doesn’t allow them to hide behind a single vote. If Democrats want to oppose securing the vote from the interference of noncitizens, they should have to explain why — at length and in public.”

Forcing a filibuster to require actual debate should not be controversial at all.

Detractors argue that Democrats could use their speeches to offer any amendments they want to the bill. If this were the only opportunity for Democrats to force politically charged votes, this objection may have some weight, but it is not. When the budget reconciliation process is voted on in the Senate, they have something called a “vote-a-rama,” during which Senators can offer unlimited amendments that are politically charged and often show up later in campaign ads.

But why would Senators be scared to just vote down all the Democrat amendments, arguing that the merits of this bill outweigh any political damage such votes might do.

The tradition of the Senate has always been for a freewheeling amendment process. Senators in the majority should not be scared to do their jobs by voting on controversial ideas. Furthermore, this is the ideal moment to expend political capital to enact the party’s agenda. If Republicans believe this bill is a popular one, they should be willing to suffer criticism for the process in the short run in exchange for long term gain.

The overriding argument for this debate is that Republicans are unpopular right now. If they want to show the American people that they can get important bills passed, they need to fight.

A housing reform bill will have no impact on the midterm elections, nor will legislation to open up the closed parts of the government. But a fight over election integrity might help them stave off a midterm disaster.

That’s why Lee and Reps. Chip Roy (R-Texas) and Anna Paulina Luna (R-Fla.) are taking the fight to the Democrats on an issue and with a strategy that might help this fall. Now it is up to Republicans in the Senate to “fight, fight, fight.”

Brian Darling is former counsel for Sen. Rand Paul (R-Ky.).

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