Honest proponents of the Talking Filibuster Quagmire will admit that it’s not just “applying the rules” but would actually require some rule changes to succeed. They simply dispute that these small changes in Senate procedure amount to a “nuclear option.” As Chuck Schumer understood four years ago, you can’t force a talking filibuster to resolution without limitations on motions and amendments, so you need to change the rules. And as we learned from Harry Reid in 2013, modest changes to established rules don’t stay modest for long.
I have explained in general terms what those rule changes would look like, but the more you dig, the more land mines you find. For example, in a cloture-free world, you have the possibility of “clay pigeon amendments,” or amendments that can be divided into multiple smaller amendments at the request of a senator. (Think of it like an amendment MIRV.) You also have motions to commit, readings of the amendments, and motions to proceed to executive business. In other words, Democrats are painting on a wonderfully blank canvas in their obstruction.
A typical response is that all of these motions and amendments will simply be tabled; this is “fight harder” wishcasting in its distilled form. The actual tactics involved change depending on who you’re talking to, but the strategy boils down to “we have the numbers, therefore it will work if we try hard enough.” It’s a tried-and-true strategy inherited from the likes of Publius Quinctilius Varus down to Joseph Bonaparte. You would be forgiven for wondering whether the successful passage of the SAVE America Act, under the “fight harder” theory, is actually the point.
The only way to extricate yourself from the Talking Filibuster Quagmire is to use your majority to change Senate procedure and end the parliamentary guerrilla warfare. Chuck Schumer understood this and moved to short-circuit those delay tactics and force debate on the underlying question. Whether such a move is ex ante in the form of a point of order or ex post in the form of a precedent is immaterial to the fact of Senate procedure having been changed.
Ok, fine, so there will be some small rule changes — sorry, changes in Senate procedure through precedent, i.e., rule changes — so what? If we want the Senate to stay the same, things must change.
The problem is that you can’t fix a broken egg. We know from recent experience what happens when you change Senate procedure to effect the will of the majority in contravention of established practice. When Harry Reid invoked the nuclear option in 2013, it was a relatively modest affair. All he did was move the cloture threshold from 60 to 51 for judges and presidential appointees. Supreme Court justices still took 60 votes, and everyone needed 30 hours of post-cloture time. The minority retained ample rights, but the D.C. Circuit needed its judges. Was that so big a deal?
Mitch McConnell told him that it was — and that Democrats would regret it. They did. By 2017, it only took 51 votes for the Supreme Court, too. By 2019, most post-cloture time was reduced to a mere two hours. Now, Majority Leader Thune can get hundreds of nominees appointed at the same time. If Reid was right that the majority can have its way, why shouldn’t the majority, well, have its way? The logic is as inexorable as legislative gravity.
It’s the same with the Talking Filibuster Quagmire. Schumer understood that his modest proposal was anything but modest and welcomed it. So did Kyrsten Sinema, who opposed it (along with every Republican).
In the end, that’s the nature of the dispute: is the Senate a super-majoritarian institution or not?
The legalistic tricks here exist in service of the proposition that it is not. If they succeed and make the Senate majoritarian, then the Senate Rules will soon accommodate that outcome more broadly. The Senate Rules have no independent moral value beyond the outcomes they facilitate, and the Senate as a body would be foolish to maintain Byzantine impediments to majority rule. Parliamentary sorcery should not stand in the way of policy outcomes if the majority has the power to enact them.
This is not theoretical. In the face of complaints from “experts” on the right, this is exactly what the Senate concluded in the wake of Reid’s nuclear option: If the principle is majority rule, we should have majority rule.
I don’t think there are 50 Republicans willing to take that philosophical plunge into majoritarianism, which is why the Democrats will very likely prevail here. (Always be the Viet Cong in a quagmire.) The question skeptical Republicans need to ask is how they will make their views known.
Right now, the arguments are jumbled — one suspects intentionally so. Defenders of the filibuster say they won’t get rid of it, but there’s no harm in talking, while its opponents say they have no intention of getting rid of the filibuster but want passage of the SAVE America Act with a simple majority.
If this continues, Senate Republicans will stumble into the quagmire and lose. The loss won’t be because it takes 60 votes to pass consequential legislation in the Senate, but rather because Republicans simply weren’t willing to fight harder. The proponents of a majoritarian Senate will have made their theoretical point while also making political hay against their enemies within the Republican Conference.
Republicans who want to preserve the unique features of the Senate as a supermajoritarian institution probably need to find an opportunity to vote on the question. Then the inevitable failure of the SAVE America Act will have been due to the application of Senate Rules and the supermajority requirement for most legislation, and not a lack of Republican will to power.
That every Democrat will vote with them will be a fitting irony given the Republicans who have changed their views on this question since Schumer put them to it four years ago.