If the ‘Talking Filibuster’ Means Anything, It Would Irrevocably Change the Senate for the Worse

Lowering the bar from 60 senators to 51 would be a bonanza for Democrats. For what?

O ur editorial against the SAVE Act made three major points. First, we shouldn’t inject the federal government further into state administration of elections. That’s been a long-standing National Review commitment, whether in 2013 when our editorials defended state-level voter ID laws against federal interference, or in 2021–22 when Joe Biden and the Democrats were trying to enact H.R. 1 to federalize elections (including banning state voter ID laws) and demanding that the filibuster be removed as an obstacle to doing that. Second, while the SAVE Act reflects generally good policy that ought to be adopted at the state level, the practical benefits are limited, and this matters in deciding what costs are worth accepting to accomplish it. Third, the legislative filibuster, which has been the great friend of conservatives for a long time in holding back mischievous legislation, should not be demolished or altered in order to get this fairly modest legislation passed.

Allow me to add a few points in defense of those positions and responding to some of the proponents of changing how the filibuster operates in order to get the SAVE Act passed.

SAVE What?

How likely is it that the SAVE Act would eliminate large quantities of fraud? The House-passed version of the SAVE Act was remarkably modest, covering only two subjects: the identification required to register new voters, and programs to have states remove voters from the rolls who are not citizens. The first deals with a fairly small subset of voters, of whom noncitizens are a very small share; the second would take time to implement. Indeed, it is far from clear that any of the provisions of the law would be in place in time for this year’s midterms even if it sailed to the President’s desk today.

Requiring proof of citizenship to register is a good idea. Federal action is needed in this area because the Supreme Court has read current federal law to bar states from asking for such proof. And the SAVE Act’s requirements should not be that burdensome in this area. Citizenship can in most cases be proven by a Real ID–compliant driver’s license, and it’s not as if proof at the time of voter registration is an every-year thing. But imposing a federal requirement just drives federal mandates further into the state process and does so to deal with a comparatively small problem that is better handled at the state level.

The Senate version of the SAVE Act (which has yet to pass the House) is broader, because it introduces a national voter ID requirement. Contrary to what you may have heard from the President, it does not ban mail-in ballots (as Trump is apparently being urged to do by executive order — another dreadful idea). Doing so would be immensely unpopular in many red states, such as Florida and Utah, that have a lot of senior citizens and/or a high level of trust in their state election systems.

State voter ID laws are a commonsense provision with a very mild burden on voters and supermajority support, typically around 80 percent in polls. They are more important than proof of citizenship, because they address multiple potential kinds of voter fraud beyond voting by noncitizens. H.R. 1, which would have federally banned voter ID requirements, was a scandal. The quantity of voter fraud prevented by voter ID is not enormous, but elections in America are decided by handfuls, tens, dozens, or hundreds of votes every year. People get convicted of varying types of voting and election fraud every year. Every few years, a court has to toss out an election result for one type or another of fraud (often, these are local party primary elections that wouldn’t be covered by federal legislation, but sometimes this happens in House races).

Where the SAVE Act’s voter ID provisions are more dubious on policy grounds is in requiring proof of citizenship every time you vote. If you have to prove citizenship to register, it ought to be enough to prove at the polling place, or when requesting a mail-in ballot, that you’re the same person who registered.

Not every good state law is good, or appropriate, to enact in a one-size-fits-all federal rule. And not every good federal law is so urgent that it requires rewriting the rules for how laws are passed in order to get it done. The SAVE Act comes nowhere near meeting the second threshold, even if you think it clears the first.

This reality requires proponents to engage in flights of fantasy far removed from either practical or political reality. Consider the argument made by Sean Davis of The Federalist that Republicans need to pass the SAVE Act in order to win the midterms, because “what Republicans need to do is to deliver on the things they said they were going to do” and because “if we don’t have secure elections and election integrity, all these other issues don’t matter. It doesn’t matter how popular you are if these people can just flood the system.”

As politics, this is ridiculous — the sort of thing people say without believing it or really expecting any sensible person to believe it. The midterms will be predominantly about the economy, and secondarily about immigration enforcement policy, cultural issues, and possibly foreign policy if things heat up further between now and then. Sure, a background perception of inaction can hurt, just as it hurt Republicans in 2006, but as much as some of us wanted to argue it at the time, they didn’t get wiped out in that midterm because Republicans hadn’t done enough to cut spending or pass Social Security private accounts. They lost for much bigger-picture reasons.

People who voted for Trump in 2024 and are currently not going to show up to vote in 2026 even if Trump tells them to (or are showing up to vote Democrat) are mostly not the kinds of people tracking Senate votes on process issues such as voter registration and voter ID bills. They’re mostly people upset at their household budgets. Some are swing voters rattled by the broad perception of Trump doing too much with agencies like ICE and DOGE, or with retaliatory lawfare and corruption. A sliver, but in some cases a significant one, are the fringe elements who wanted Trump to turn on Israel and Ukraine, go full MAHA on vaccines, release all the Epstein files, prosecute people over the 2020 election, and otherwise feed the conspiracy-theory monster. The interests of those people may be hard to balance with the swing voters who are easily spooked by the anti-normalcy aspect of the second Trump administration, but that’s the nature of coalitions. And there are numerous other groups disgruntled for particular reasons, such as pro-lifers. But claiming that you can paper over these political problems by passing an election-law bill is just self-serving propaganda.

As for Davis suggesting that Republicans may lose this November because our elections are not entirely secure, he’s completely ignoring the scale of the issue, the marginal nature of the reforms, and most of all how long it would take just to implement the SAVE Act. It’s not going to matter.

So, if this is so untrue, why say it? Frankly, this is a pattern we often see from right-populists (and one mirrored by left-populists). There always needs to be some dolchstoßlegende excuse to blame “the establishment,” or “RINOs,” or even ideological conservative groups such as pro-lifers, for MAGA’s own political missteps. In 2018, it was all Paul Ryan’s fault. In 2020, it was a stolen election. In 2021, when Republicans blew two Georgia Senate seats while Trump and his surrogates were running around telling Georgia voters that their state system was hopelessly rigged, it had to be a theory that Mitch McConnell had lost the runoffs by not passing enough inflationary pandemic handout checks. In 2022, it wasn’t Trump spooking voters and promoting terrible candidates; it was Dobbs and pro-lifers. Even in 2016 and 2024, there were excuses being pre-spun. So, yes, expect the populists to tell you yet again that Republican midterm setbacks have nothing at all to do with Donald Trump, who cannot be expected to influence the Republican Party’s behavior or perceptions of the party with voters. He can never fail; he can only be failed.

Busting the Filibuster

Even if the SAVE Act is worth passing, it’s not worth overhauling our system for enacting federal legislation in order to do it. Yet that’s what proponents are urging. Senator Ted Cruz: “We ought to nuke the zombie filibuster and require a talking filibuster if Democrats want to try to block it.” Representative Greg Steube: “If Democrats want to kill a bill supported by 83% of Americans, they should have to stand on the Senate floor and own it.” Elon Musk: “The filibuster rule is meant to allow senators to present their arguments before a bill is passed. It is NOT intended to require 60 votes to pass anything at all!” Senator Mike Lee: “If we had an easier way to pass it, we’d pursue that.” Representative Eli Crane: “So they won’t nuke the filibuster OR work within the current filibuster guidelines to pass the SAVE America Act. DC is such an awful place.”

Now, there are a lot of intricacies to how the filibuster works and interacts with Senate rules as well as Senate practices. There are lots of subsidiary arguments about what is and isn’t a Senate tradition, and what is and isn’t a Senate rule as opposed to an interpretation of Senate rules. But before even getting into those, it is worth bearing in mind at all times the bottom line of what is being argued.

Here’s that bottom line: Under current Senate practice, legislation such as the SAVE Act cannot pass without the help of 60 senators. That many senators must either support the bill, or at least agree to let it come to the floor. (There are exceptions to the 60-vote threshold for certain tax and spending bills enacted through the reconciliation process, but nobody argues that the SAVE Act would be eligible for these.) Put another way, the Senate represents the states, and there need to be senators from at least three-fifths of the states behind a bill before it can become federal law. The cloture rule, as currently administered, does not require a Strom Thurmond or Mr. Smith Goes to Washington-style speechmaking marathon in order to block a bill; if the bill cannot get past the cloture vote, it doesn’t get to a floor vote, period.

Proponents argue that the practice of the legislative filibuster should be changed in order to allow the SAVE Act to pass without 60 votes. That’s it. That’s the goal; it’s the stated aim. However much smoke they throw up when challenged, everyone involved is quite open about that. As Lee says, opponents of altering the filibuster “haven’t said the talking filibuster couldn’t help us in our efforts to pass the SAVE America Act” — because that’s his argument for the change. Anything done to pass the SAVE Act could and would be done to pass H.R. 1 the next time Democrats are in power, and likely most any other kind of law that Democrats desire but were unable to enact during the Biden presidency due to the filibuster.

This is why debates about the exact mechanism are mostly a sideshow. Call it a change of the rules or a change of interpretation or a change of practice, it doesn’t matter: Either the change would allow the bill to pass without 60 votes, in which case it is an enormous sea change in how the Senate works, or it would not allow the bill to pass without 60 votes, in which case this is all for show.

The former is bad for all the familiar reasons: It would not only allow Democrats to enact a lot more bad legislation when in power but would also free them from taking the political cost of making the change. That cost includes turning off voters; it also includes strong-arming reluctant marginal members. The last drive to change the filibuster ended with Joe Manchin retiring from the last deep-red-state Senate seat the Democrats had, and losing that seat to a Republican, while Kyrsten Sinema retired in a swing state won by Donald Trump, and only the Republicans nominating Kari Lake kept that seat from going red as well. (Ruben Gallego was held under 50 percent of the vote and won by only 2.5 points even with the hapless loser Lake as his opponent.)

As much as the Democrats have radicalized in recent years, and as willing as they have been to monkey with the Senate process down the last few decades in the judicial confirmation wars, these are real costs. Remember once again: Right now, there are ten Democratic senators in states Trump won, compared with only three Republican senators in states Biden won, and that ratio has to get even more lopsided just for Democrats to get from 47 senators to 51.

Moreover, ending the 60-vote threshold even in a limited way makes it politically less costly for Democrats to make further changes — which their progressives very much want to do. We should understand why they want it so much.

“Ah,” say the proponents of the change. “It’s not really such a big change! It wouldn’t end the filibuster, just require opponents to talk at length to carry it out.” This is the line from Lee and Roy, set out in print by Russ Vought’s Center for Renewing America and Rachel Bovard. But they still come back to the same bottom line. The Center for Renewing America:

Ultimately, the talking filibuster on the SAVE Act would end with either all of the opposing Democrat senators using up their two speeches each or one side giving up due to exhaustion. If the Republican majority can outlast the Democrat minority speeches (which could take weeks) or can exhaust enough Democrat senators to the point of signing a cloture petition to end debate (currently, there must be at least seven Democrat votes to reach 60 for cloture), then a final vote on the SAVE Act would take place at a simple majority threshold of 51 votes. [Emphasis added.]

Bovard: “Cloture — the 60 votes required to end debate the easy way — isn’t needed. Sheer physical exertion will carry the day. . . . There are tricks Democrats can play in this process. . . . Republicans can table those motions with 51 votes” (emphasis added).

One way or another, this is an argument about making it easier for both parties to pass permanent legislation with 51 votes in the Senate.

Michael Fragoso, a veteran of Senate process fights himself, has laid out the nuts and bolts of how the proposed changes would work here, here, here, here, and here, if you have the stomach to wade into the eye-watering details of how this stuff plays out in practice. There’s one underrated problem for the Republican majority specific to the strong form of the “talking” filibuster: It clogs the Senate floor, rather than just keeping things from reaching it. Procedurally, this is because requiring the filibusterers to hold the floor uninterrupted means that no other Senate business can reach the floor so long as the filibuster is ongoing — even if it drags on for weeks or months. Even committees would not be able to meet absent unanimous consent, preventing routine business like confirmation and oversight hearings. That’s very bad news for the current majority: If you lose floor time, you can’t confirm judges or executive branch officials. As Fragoso explains:

Obviously there would be no floor consideration of judicial nominees during the filibuster. But interestingly there would also be no consideration of them in committee either. Under the Senate rules, committees can’t meet more than two hours after the Senate opens on a given day absent unanimous consent (this is known as the two-hour rule). Because a talking filibuster would be one legislative day that goes on for weeks or months at a time, no committees could meet during its pendency.

Well, that’s only one month, right? Republicans will find their backbones and pass the SAVE America Act and we’ll be back to considering judges in April.

This ignores the power of majoritarianism. Once Republicans realize that this one weird trick lets them pass bills without Democrats, they’d be crazy not to use it to, say, end the impasse on DHS funding. What about permitting? Republicans have been trying to do that for years, and now they will be able to get it done without catering to the whims of Sheldon Whitehouse. That’s another talking filibuster. And, of course, what better way to prevent a government shutdown after the Senate returns in September than through yet another talking filibuster. Why deal with Democrats when you can enact all the DOGE cuts you can while keeping 50 votes willing to exhaust the Democrats? The base will demand it, and we all know that midterm elections are base elections. All the while committees won’t be meeting and nominations will pile up.

Maybe not being able to confirm people to the executive branch is not as big a deal to the Trump administration, given Trump’s preference for disposable acting appointees who couldn’t get confirmed by the Senate anyway. But it would be the height of insanity for the GOP right now, while it has 53 senators, is feeling harassed by liberal and progressive district judges, and might yet have a Supreme Court vacancy, to give Democrats a weapon with which to thwart its presently untrammeled power to get judges confirmed.

Rules and Will

There’s a deeper reason hinted at in some of the commentary as to why some populist activists want to change the filibuster rule to a “talking filibuster.” The current practice is essentially a rule-based system: You get a floor vote with 60 votes, and you don’t get one without it. That means your bills need either bipartisan support or a large Senate majority that must be built over several election cycles. It’s maddening, yes, but rules are rules, and democracy operates between those lines to give voters a clear idea of what they need to do if they want bills to pass.

Populists don’t like rules-based systems. Those systems require them to win elections they often lose, and to take responsibility for failing to get what they want. Rules-based systems also benefit people who put in the time to learn the rules and can, at times, tell the populists that they can’t get what they want.

The theory of the talking filibuster is, ultimately, that rules will be replaced with contests of will. Everything is possible if we just want it badly enough. That this empowers left-wing radicals is not incidental. Under a will-based system, every failure can be attributed to Senate caucus leaders, who of course are easy targets because holding a Senate caucus in line is like herding cats. Presently, someone in John Thune’s job can point to the rules when he’s in the majority and observe that he doesn’t have 60 senators, but he can also use those rules to rack up lots of victories against Democratic mischief with 41 senators. A will-based system is apt to favor Democrats more than Republicans, precisely because they are better at holding together ruthlessly — but the fact that it will let Democrats enact more ruinous legislation is a feature, not a bug, if you make your living blaming Republicans for lacking the will to power. Nothing raises money for primary challengers like defeats, after all.

I’d prefer to keep the filibuster the way it is because I don’t much like defeats, and because long and bitter experience in the history of American politics teaches us that defeats at the hands of expanding government and rampaging social progressivism are very hard eggs to unscramble. It’s better not to lose in the first place.