Senator Mike Lee was on X this weekend arguing that the Senate’s 60-vote threshold to end debate doesn’t really need to be satisfied, provided Republicans force Democrats to use up their debate time. This is not a new concept, popularly known in Senate circles as the “two speech rule.” That it both isn’t new and hasn’t been used is sound evidence that it doesn’t work. Mechanically, ChatGPT provides an essentially accurate and digestible summary of why. Theoretically, I explained why it misses the mark (the filibuster is about minority power, not legal process). But Senator Lee is right to raise the question of how the Senate can work better.
As I also noted on X, the simplest fix would be the elimination of “staff holds,” or when Senate staff call the Cloakroom to say their bosses won’t agree to an action. It’s these increasingly promiscuous holds that grind the Senate to a halt, and returning them to the member level could address the problem and get the Senate moving.
Big picture, the way the Senate works is that the default rule is open debate. You need 60 votes to pass a bill because you need 60 votes to invoke “cloture” and end the debate on the bill. The other way to end the debate is by unanimous consent (UC). Because the cloture process is cumbersome and time-consuming, it’s typically only used for relatively significant bills. For everything else, there’s UC.
By everything, I mean everything. When will the Senate convene? UC. Can committees meet in the afternoon? UC. Can Senate staff testify in a trial? UC. Will this uncontroversial bill pass? UC. Will the mandatory reading be waived? UC? The list goes on and on, and it is all accomplished by UC. That any one senator has the capacity to derail the workings of the Senate by denying UC is what makes senators uniquely powerful legislators.
An area where the UC process is particularly important is in negotiating amendment packages during the cloture process on legislation. Recall that senators enjoy unlimited amendment as well as debate, absent cloture. This means if the majority has 60 votes, they don’t need to allow amendments on the bill because they can stop the amenders. Once they are on the bill, they have to face “back-end cloture” (there are two cloture votes: first on the motion to proceed to the bill and second on the bill itself — front-end and back-end), where members can threaten to vote no on back-end cloture in exchange for amendment votes. Some senators did this to augment the religious liberty protections in the 2022 gay-marriage bill, for example. Even when cloture is invoked, the majority can trade away part of the 30 hours of post-cloture time for amendment votes.
What does this have to do with UC? Since Harry Reid was the majority leader, the standard practice has been to “fill the amendment tree” with “blocking” amendments chosen by the majority leader to prevent an open-amendment process. Senators say they hate “filling the tree” because it infringes upon their rights, but in reality, the practice has persisted across parties because senators are busy and like the predictability of a stage-managed Senate floor. The amendment process itself is complex (often involving its own set of cloture procedures), which means that, as a practical matter, these amendment deals are reached by UC. The Republicans and the Democrats negotiate a list of amendments to vote on, and then everyone agrees to do it, and they vote.
The danger is that any one senator can derail an amendment package. Maybe he doesn’t want to vote on one of the other side’s amendments. Maybe he’s angry that his amendment isn’t included. There’s a host of strategic calculations that go into which amendments to include, and it’s not uncommon for the interests of an individual senator and those of the Conference to misalign. This has happened with increasing frequency, to the annoyance of the majority of senators who would like to vote on amendments.
Any one senator can also derail consensus legislation. Maybe he didn’t get exactly what he wanted out of it or maybe he just doesn’t like the bill, but plenty of legislation that has 60 or more votes gets bottled up because of a handful of objectors. This, too, annoys senators who want to get relatively noncontroversial things done.
Currently, senators lodge all of these objections to UC — on the Republican side — by calling in “holds” on proposed UC packages or requests that are circulated to all offices. Once the hold is called in, it’s up to the bill manager or sponsor or leadership to work with the objector to “clear” the hold. If they can, then the UC can proceed; if they can’t, hard cheese.
Here’s where there’s room for reform: This is currently a staff-driven process in many — perhaps most — respects. Legislative directors, sitting in their offices, call in holds to Cloakroom assistants. When I was an LD, I’d check with my boss before calling in a hold, although I probably didn’t need to. Indeed, other senators openly empower their senior staff to call in holds independently. The result is that the obstructive process is handled on the phone in Senate office buildings by staff, not on the floor by members.
Sometimes a UC proposal will come to a head and the bill proponent will seek UC in person, or “live.” In this case an objector will need to come to the floor and block it live as well. This, too, is a scripted process because neither side wants the constant risk of sneak attacks. But maybe they should?
In the old days, senators who wished to object to UC needed to be present to enforce their holds. Ohio Democrat Howard Metzenbaum would famously park himself on the floor as Christmas approached, blocking everything unless people gave him things he wanted. Jesse Helms, one of the most powerful senators of his day, would sit on the floor enforcing his holds for hours on end. If Jesse Helms could do it, Rand Paul can, too.
If senators were forced to protect their own holds in person, it would almost certainly increase the productivity of the Senate. The constant face-to-face interaction would likely lead to more compromise, on one hand, and less intransigence, on the other, because it’s very easy for a 30-year-old to say “no” over the phone to another staffer but very hard for most senators to say no to another senator’s face. It would likely yield more amendment packages because recalcitrant members would need to explain to all their colleagues, in person, why they are spiking the deal rather than just leaving it to staff to squabble.
Furthermore, executing a hold would require a personal time commitment exceeding the current staff-outsourced process. Senators would need to ask themselves whether the juice is worth the squeeze on a given hold, likely limiting their proliferation.
This proposal would be met with stiff opposition from some members and some staff. Senators, again, are busy people, and for all their complaining about the post-Reid Senate, they enjoy having predictable schedules and want to spend as little time on the floor as possible. At the same time, senior staff enjoy being involved in consequential negotiations and would resent being cut out of this piece of the legislative enterprise.
But if Republican senators agree with Senator Lee that the Senate needs to do more, they shouldn’t indulge capers to futz with the filibuster. Instead, they should try eliminating staff holds and see what that unlocks. Many of them yearn for a return to the “old Senate.” This would be a way to bring it back.