I’ve explained why the “talking filibuster” will lead Republicans into a quagmire. I’ve also answered objections to that argument and explained why Harry Reid’s actions in 2013 show how even modest changes to the filibuster will turn out. If there’s one thing senators and their senior staff love, though, it’s football. So borrowing from the great Judge O’Scannlain, here’s a football analogy.
There are generally, in football, two ways to advance the ball on offense: Running and passing. Let’s say that the NFL, concluding that passing plays are more dramatic, changes the rules to allow only two running plays per offensive player per game. Once that limit is reached, no more running will be allowed.
What would happen when a team has each member of its offense make two running plays? Would the game end because they can’t run the ball anymore? Of course not. They’d just start passing.
It’s the same with the filibuster. There are two main ways to attack a bill: speaking and amending. (If you want to draw out the analogy further, you can say that motions are like special teams, I suppose.) The Senate Rules limit speeches to two per member on a question. This is like the two running plays per player. But, as with football, speaking is only half of the main offensive capability: there is no more restriction on amendment than there is on passing in my NFL hypothetical. Under Senate Rules you can attack a bill with unlimited amendment regardless of the restrictions on speech.
“But no!” The proponents of the Talking Filibuster Quagmire might say. “Each amendment is itself a speech. Therefore it’s not unlimited: each member gets two speeches or two amendments.”
You will look for a long time in the Senate Rules to see where it says that amendments are speeches. They don’t.
Of course the rules aren’t everything: in the Senate, precedent stands on equal footing. Perhaps there’s precedent on point? Turns out there is. In 1986, Robert Byrd set a precedent that parliamentary inquiries, appeals from rulings of the chair, points of order, suggestions of the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments are not subject to the two-speech restriction.
One might argue that since amendments are not on that list, they’re actually excluded, and the question is ambiguous; after all, you speak when you offer an amendment and the rule says “no Senator shall speak.” Therefore amendments could be speeches. The problem is that, per Riddick’s, “the two speech rule requires not a mechanical test but the application of the rule of reason.” So the question is not whether amendment is on that list or whether it involves words coming out of a senator’s mouth, but rather whether it’s reasonable to call the offering of an amendment “speaking.”
Refer back to the analogy. This is like the defending team going to the referee and saying that the “two-run rule” also prevents passing because you also run in order to catch the ball. That would be absurd.
So just as a team that can’t run will simply pass, Democrats who can’t speak will simply amend. Nothing in the rules prevents that, and preventing it would require changing the rules via precedent to say that “no Senator shall speak” means that “no Senator shall offer an amendment.”
This is no different from changing the rules via precedent to turn 60 into 51.
Another point: There’s a misconception out there that forcing the talking filibuster is the offensive position; it’s not. The filibuster is the attack and it doesn’t stop until it succeeds. Unlike in football, you don’t switch up offense and defense after four failed speeches or amendments. It’s more like if the team on offense got to keep running plays until it scores.
In such a situation, such a team would never get tired and give up, because with unlimited time and unlimited plays, it will eventually score. If anyone will get tired and bored it will be the Sisyphean defenders. This is why “they’ll get exhausted and fold” just doesn’t fly in a true filibuster under the rules, with unlimited amendment and motion. Why would the filibusterers give up when playing indefinitely means they win?