Earlier this week I explained the pitfalls of the so-called “talking filibuster” or the talking-filibuster quagmire. Most important, it’s impossible to get to the Mr. Smith Goes to Washington ideal absent further rules changes.
Senators generally enjoy unlimited amendment in addition to unlimited debate, which means that the talking part of the filibuster is only part of the problem and perhaps the less dangerous one. Since then some indirect objections and questions have been raised. Let me try to answer them, in composite form (like New York Magazine does), as best as they can be gleaned from late-night postings on X.
Hey, McConnell stooge, you act as though debate is always forever, but don’t you know there are procedural moves that limit amendment?
Well, sure, the main one is called cloture. Once cloture is invoked, no amendments are in order after 30 hours of consideration, and any amendments further need to be germane to the measure. This is a very specific design, and one that preserves the Senate’s traditional antimajoritarian nature while allowing for ultimate resolution. But invoking cloture takes 60 votes, and the inability to do so on the SAVE America Act is the whole problem. Thus, we have this search for a new move or trick to get us there.
Not so. Your leadership cronies were always able to find a way to prevent real conservatives from offering amendments. Leadership can do the same to liberals if only it were willing to fight harder.
It’s true that in recent years it has become difficult to offer amendment. The reason why is members try to offer amendments in a post-cloture environment. Because major legislation nearly always advances through the cloture process, the attendant amendment process is circumscribed. Amendments that are offered are typically a product of negotiation, often allowed in exchange for post-cloture time and almost always the result of a unanimous-consent package. Importantly, any one senator can oppose a unanimous-consent package and it’s not unusual for someone to blow it up. Indeed it’s not unusual for a senator seeking an amendment to be the one to blow a package up. So it’s not really accurate to say that leadership is adept at stopping amendments, so much as the legislative context in which amendments are typically attempted is not one that is conducive to amendment absent consent and all the challenges that entails. That’s not the legislative context envisioned by the talking filibuster.
Okay, but Republicans tolerated infinity amendments in reconciliation just last year. This is no different.
It’s very different. A budget-reconciliation vote-a-rama is essentially theater, governed by the strictures of the Congressional Budget Act of 1974. Because debate is limited to 20 hours in reconciliation, while consideration is not, there is essentially unlimited amendment but not unlimited debate. Importantly, because debate is over and consideration is not, senators can speak on the amendments only by consent. As a result there is typically unanimous consent allowing two minutes of debate per amendment. Furthermore, reconciliation amendments are cabined by their own rules and precedents. Most reconciliation amendments are either fake messaging amendments (like motions to instruct) or restricted by the terms of the Byrd Rule. The number of live-fire reconciliation amendments is vanishingly small. The minority is really just making campaign ads.
Outside of reconciliation and absent cloture, there are no such restrictions on amendments, and each one is a live round. Unlike the kayfabe of reconciliation, here senators will be voting on real amendments with real policy implications. They can be on any topic, and they are adopted on a simple-majority threshold. You see, Republicans could filibuster a Democratic amendment, but then they’d effectively be filibustering their own bill because the amendment needs to be disposed of first. The whole exercise here is avoiding the filibuster, so the amendments have to be at a simple majority. Furthermore each amendment is a new question to be debated. This means a Democrat offering first- and second-degree amendments will buy his side 188 more speeches of unlimited length divided among the 47 Democrats. This will continue indefinitely.
In reconciliation you break the minority by voting, which means everyone needs to be on the floor. In a pre-cloture world of unlimited amendment, only the Republicans will need to be on the floor (to prevent adjournment) while Democrats cycle through, debating the given amendment at their leisure. Only after up to 94 speeches of unlimited length will they have to vote — and then they can start the process over again.
If leadership knew what time it was, it would just force members to table each amendment, and eventually Democrats would get tired and break.
This is funny because it comes from the allies of Senate Republicans most averse to leadership forcing anything on members. Also good luck convincing Thom Tillis, Mitch McConnell, Lisa Murkowski, and Rand Paul to adhere to party discipline in, say, revoking the president’s IEEPA tariffs. That’s getting added to the SAVE America Act in an open-amendment process. Same goes for Obamacare subsidies, Ukraine aid, and perhaps restrictions on our Caribbean adventuring. Speaking as a supposed establishment scribe, nothing will give retiring establishmentarians more satisfaction than watching the right flank of the Republican Conference intone impotently about party discipline while they vote their consciences.
This boogeyman is a really a straw man, you RINO. If you were willing to fight harder you’d understand that Republicans can just stop this on the floor by setting precedents on the availability of amendments and speeches.
Well, then, now we’re not just talking about letting the rules play out, are we? In theory Republicans could set a precedent that further amendment is dilatory. They could do the same for motions. They could also set a precedent making it clear that only the measure under consideration is the question for debate. This would all cut off the parade of horribles caused by the unobstructed operation of the rules. Of course setting new precedents going forward, on a party-line basis, that significantly restrict the operational freedom of senators under the rules sure seems like a nuclear option.
This is an important point: Once you pull the thread, the talking-filibuster tapestry unravels. What’s being proposed is not just letting the rules play out as they would — but for Republican laziness and perfidy. Rather it’s a very significant series of rule changes in order to create the illusion of letting the rules play out naturally.
That’s not the nuclear option. Don’t you know anything? The nuclear option is when you violate expressed rules via precedent, such as saying that 60 really means 51.
That’s slicing the salami rather thin. The fact is that there are precedents on point here — and precedents carry the binding force of rules. For example a 1986 precedent held that the two-speech rule applies only to speeches, not motions or parliamentary inquiries. So that precedent (really a rule) right there would need to be scrapped to enforce two speeches. Furthermore because the rules only restrict amendment post cloture, traditional methods of textual construction would imply no such restrictions absent cloture. Thus, such a change by precedent would involve changing the current Senate rules.
Ok, if you’re so clever, what’s your plan?
Maybe there’s another way. Precedents have the force of rules going forward, but what if Republicans kept the Democrats to two speeches without setting precedent? In other words, this one time, Republicans use Senate procedure to avoid Democrats engaging in procedural chicanery and to keep them to two speeches on whether to pass the SAVE America Act.
To begin with, you’ll want to avoid a filibuster Spanish Civil War on the motion to proceed, so Republicans should get the House to send them a message with the SAVE America Act as the operative text. Leader Thune would then move to concur in the message. Of course messages are themselves amendable so he’d encounter the same problems I’ve been discussing. His way around it is to move to concur and offer a point of order that keeps debate to the SAVE America Act only for the SAVE America Act — that is not by setting precedent that will impair the rights of senators in the future.
So Thune could get up and say, “Mister/Madam President, I make a point of order that for this message from the House, with respect to H.R. ____, the only debate in order during consideration of the message be on the question of adoption of the motion to concur in the amendment of the House; further, that no further amendments, motions, or points of order be in order and that any appeals be determined without debate.” The two-speech rule would be enforced, and no rules would be changed.
That point of order language was easy to draft. Indeed, I didn’t even draft it. I took it from Chuck Schumer on January 19, 2022, when he sought to enforce two speeches in the service of his voting legislation. That point of order failed because every Republican voted against it along with Joe Manchin and Kyrsten Sinema. Before any Republicans continue down this road, they should probably check to see what they had to say about it in January 2022. Odds are that they called it “the nuclear option.”
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In the end, proponents of the talking filibuster are proposing a very dramatic course that will lead to significant rule changes. Once you get past the talking points and invective, it’s not clear that anyone has worked out the game theory of how, precisely, Republicans get from a motion to proceed to passage of the SAVE America Act beyond hand-waving and exhortations of will to power. Perhaps passage isn’t really the point?
We know that Democrats have worked it all out and identified the traps because Schumer moved to preempt them four years ago. This time he’ll be waiting in ambush.
Those who are advising senators, whether formally or informally, owe it to them to run down every scenario and permutation in the process, considering both the political cost-benefits and also the effects on the institution of the Senate. Once you do, it’s hard to see how the idea is any less objectionable today than it was four years ago.