I have some more observations on the never-ending “talking filibuster” caper.
1. The president has made it clear that he wants the SAVE America Act to pass. The problem is that the version he’s pushing on Truth Social is not the actual bill (which he says is “watered down”). The president’s version of the bill doesn’t just require voter ID and proof of citizenship to register; it also prohibits most mail-in ballots, men in women’s sports, and child mutilation.
Those are worthy goals, and if you’re going to blast the filibuster, you might as well get as much as you can — if you must sin, sin boldly. But we’re reliably informed that no one is trying to abolish the filibuster: If Republicans just had the courage to force a “talking filibuster,” they could pass the SAVE America Act both without Democrats and with the filibuster, somehow, still intact.
I have explained at length why this doesn’t work and would get Republicans stuck in a legislative quagmire. The Senate rules are designed to allow a committed minority to hold out indefinitely, which is why the gambit only works if you’re willing to bypass Senate procedure and nuke the filibuster. Chuck Schumer realized this four years ago when he proposed some modest rule changes to force an effective “talking filibuster” in order to get his election takeover.
Let’s assume, though, for the moment, that the proponents of the “talking filibuster” are right. Perhaps over the weekend, Elvis will mount his unicorn, ride up to John Thune, and explain how it’s really a viable tactic. What to make of the president’s suggestion? It manages to render the “talking filibuster” proposal even less possible.
The problem is that the SAVE America Act is a “message” that came over from the House and does not include the president’s three new priorities. (It came over as a message to prevent the Senate from needing to do a preliminary “talking filibuster” on the motion to proceed.) So, if Thune does what the bill’s proponents want and he moves to concur in the message and then wears down the Democrats in their filibuster, he won’t be passing the bill the president wants but rather the “watered-down” one, according to the president, that the House has passed.
In order to get the president’s additional priorities, Thune would have to move to concur with an amendment that includes them. He won’t be able to fill the amendment tree because that amounts to a self-filibuster, so Republicans would need to defend the substitute against the full panoply of Democratic amendments and speeches. Only after breaking that filibuster would Republicans be able to move to break the filibuster of the (amended) bill.
At this point, breaking a filibuster on the motion to proceed looks better, because at least that motion can’t be amended, unlike the substitute.
The Senate will either need to take two death marches on a new, third version of the bill or face two filibusters-by-amendment on the message. And then, of course, the House will need to pass whatever passes again with its ever-shrinking Republican majority.
The other possibility is for the House to find another vehicle with which to send a second message with a third version of the bill (the “SAVE America and Our Girls Act”?), but even that depends on an appropriate shell being available to the House.
In sum, the “talking filibuster” caper has no chance of success for a variety of reasons. But even if it somehow could work, the result would not be the bill the president wants. Getting such a bill would make an impossible process doubly so absent the House’s starting over at the drawing board.
2. Which gets to the point of it all: nuking the filibuster. It’s the real way to get the president’s bill, which he seems to understand. (So, too, does Ken Paxton.) “Talking filibuster” proponents consistently deny this for whatever reason. But they do occasionally let the mask slip when confronted with the cold legislative reality of certain defeat, arguing that, well, at least Senate Republicans should try.
Donald Trump isn’t going to give Senate Republicans a participation trophy. The storied “base,” as well, has been worked into a lather that this bill must pass or democracy as they know it is over. They won’t be giving out “effort grades” like some liberal private school. To the president and his supporters, failure is not an option.
Which is why the underlying question in this debate has always been whether legislation passes at 60 or 51. The president and his supporters want the latter; Senate Republicans seem to want the former, as does a current majority of the Senate. “Talking filibuster” proponents can’t have it both ways: either it happens under the “current rules” and the bill fails (because things pass at 60 votes), or they change the rules and move the Senate to 51.
3. The “talking filibuster” crowd’s occasional acknowledgement that this is just failure theater points to other interesting Senate dynamics.
The general view of Senate leadership (in both parties) is that of Macbeth: “If it were done when ’tis done, then ’twere well / It were done quickly.” In other words, if you’re going to lose, lose fast. There is work to be done, and floor time is precious, so take the vote and move on. This is why four years ago, when he was in the same posture as “talking filibuster” proponents are today, Schumer just took a vote and went on to something else rather than eat up his own floor time to prove a point.
On the Republican side, this never satisfies the right flank. Where’s the fight? The base demands a fight! Some conservative senators want to charge the legislative guns at Balaklava. Why shouldn’t they be allowed to?
It’s a romantic view that misunderstands the realities of the legislative process. Lord Tennyson won’t be writing any poems about 51 Republicans sitting around for weeks listening impotently to Democratic speeches about Jeffrey Epstein.
Why would they sit around? Won’t Republicans boldly press the case against aliens’ voting? It’s an “80–20 issue” after all. Well, they could, but that amounts to filibustering their own bill. Recall that the strategy is to force Democrats to wear themselves down; debate gives them a lifeline. Furthermore, each Republican is limited to two speeches as well, so the bill’s proponents will get only a few of bites at the debating apple under their own proposed rules.
And won’t Democrats have to make their speeches about defending illegal aliens’ voting? Not really. The last time there was a real honest-to-God talking filibuster, in 1988, it included episodes such Mitch McConnell’s and Dan Quayle’s debating the merits of Purdue basketball. Eventually it degenerated into a debate over Robert Byrd’s quorum-enforcement tactic of having Bob Packwood arrested. This all annoyed Byrd, whose threatened corrective mechanism was none other than enforcement of the two-speech rule. Therefore the most recent practice is that you get two speeches on whatever you want, not strictly on the question before the Senate.
No one credibly knows how the messaging here would play out, but it’s a safe bet that each Democrat is prepared to rake in millions through Act Blue as he or she boldly attacks the president. It will probably be an in-kind contribution to the presidential campaigns of Cory Booker, Ruben Gallego, and Mark Kelly. On the other hand, will our donors and activists be enthused to watch Republicans just sit there? That doesn’t look like fighting.
There is also some historical precedent from McConnell’s successful campaign-finance filibusters of 1988 and 1994. Both times, Democrats thought he was building his party’s gallows, because campaign-finance regulation is a very popular issue. George Mitchell went so far as to say, in 1994, that McConnell had doomed his party in the impending midterms. Republicans won eight seats, and Bob Dole took the majority. There’s a Spanish saying that the Devil knows more because he’s old rather than because he’s the Devil. Perhaps proponents of the “talking filibuster” should get the thoughts of the last senator who actually did the thing they’re proposing?
So, on one side of the ledger, there is a loss of floor and committee time (just as we’re moving again to circuit judges, a DHS secretary, and a Fed chairman), coupled with a possible media and fundraising boon for Democrats. On the other side, there is the satisfaction for certain Republicans of knowing that at least they tried. That and $3 will get you an iced coffee at Cups.
4. When it comes to the “talking filibuster,” Schumer is the dog that didn’t bark. Normally he is incapable of not telegraphing his moves. The man can’t read the morning paper without sending out a Dear Colleague letter saying that he’s going to the sports section first. So far as I can tell, he hasn’t said a word about the “talking filibuster” even as he unfairly maligns the SAVE America Act.
Schumer may be notoriously attention-hungry, but he’s also a smart man. (He scored a 1,600 on his SATs.) He has shown the capacity to keep his powder dry when necessary. For example, when House Republicans impeached Alejandro Mayorkas a couple of years ago, the Senate’s right flank spent weeks gaming out their trial strategy, going down every possible procedural rabbit hole to have a comprehensive, coordinated plan of attack. When the impeachment reached the Senate and Republicans rejected Schumer’s orderly-trial proposal, he simply got up and moved that the conduct wasn’t impeachable and therefore the articles should be ruled out of order. It was a surprise attack, and it worked.
So, too, here. When Schumer is reticent, ask yourself why. It’s because he doesn’t want to get in the way of red-on-red violence and because he doesn’t want to tip his hand on the tactics he will employ if Republicans hand him the floor to show how hard they’re willing to fight.
When Schumer goes to bed each night, he prays for two things: for Clarence Thomas to be the longest-serving Supreme Court justice in history, and for a talking filibuster.