Conservatives in the House and Senate are clamoring to revive the “talking filibuster” as a way to pass the SAVE Act, a bill that requires proof of citizenship for voting nationwide and may or may not be a good idea for Republicans. The argument goes that the Senate’s existing presumption of debate amounts to a “zombie filibuster” and that Republicans should make Democrats talk, exhaust them, and then pass the bill because the 60-vote threshold doesn’t apply if debate simply ends.
This strategy misapprehends the true nature of the filibuster as a countermajoritarian check, and not a mere procedural gimmick. Perhaps more importantly it would not put Democrats in a political corner, but rather present them with many political opportunities while requiring significant and unilateral rule changes by Republicans.
How would this work in practice?
First, John Thune would move to proceed to the SAVE Act. Democrats would filibuster that motion, which is debatable (i.e. subject to filibuster). Under the theory of the talking filibuster, each Democrat would have two speeches to give on the question of the motion to proceed. So wait out 94 speeches and the Senate is on the bill, right?
Not so fast. Chuck Schumer will suggest the absence of a quorum, meaning Republicans would need to provide a “live quorum” of 51 senators at all times for the 94 speeches. He will move to adjourn whenever he senses that Republicans may be below 47 present votes — and an adjournment, starting a new legislative day, resets the clock on the talking filibuster. Republican efforts to shut down these tactics as dilatory will require their own mini nuclear options.
Another possibility for Thune is to do what Schumer did in 2022 and simply move to “concur in a message” from the House, which is a procedural trick involving ping-ponged legislation that allows the Senate to skip the motion to proceed.
Let’s say Republicans wait out the Democrats or take advantage of an available House message and get on the bill. They will quickly find themselves bogged down in a quagmire because, absent the invocation of cloture, senators enjoy the right of unlimited amendment.
Thune could try to preempt this by “filling the amendment tree” and offering his own amendments, but each of those would be a separate question, itself allowing the Democrats 94 speeches. Once Thune’s second-degree amendment is disposed of (after 94 speeches), its slot in the amendment tree would be open, therefore allowing Democratic amendment. So Thune would need to fill it again, resetting the question and giving Democrats 94 more speeches. Therefore simply keeping the amendment tree filled could allow for unlimited Democratic debate absent a rule change. Given that amendments need to be disposed of in order to get at the underlying measure, this would amount to an impractical self-filibuster.
That would counsel in favor of following regular order and not filling the tree. But then any Democrat who’s recognized will simply offer and call up his own amendments. Because cloture has not been invoked, there is no germaneness requirement, so the amendments can literally be on anything Democrats want. For example, Bernie Sanders could offer an amendment to give every family a $5,000 tax credit for each child. Thune would need to move to table these amendments, forcing vulnerable Republicans to post a majority on this and every other nasty messaging amendment Democrats can offer in an endless vote-a-rama. If they table the amendment, they’ve taken money out of the pockets of working families. If they don’t table it, they give Democrats 94 more speeches on a potential poison-pill amendment and have signaled that the bazaar is open. Who knows what kinds of amendments can get 51 votes from all Democrats and a handful of Republicans; it could end up the SAVE Ukraine Act after amendment.
Rather than forcing Democrats on a death march over illegal aliens voting, Democrats would be able to force Republicans on a series of death marches on popular issues of their choosing, each of which culminates in a vote by Republicans up for reelection.
The only way to stop this would be a rule change limiting the right of senators to offer amendments in a pre-cloture environment. This is what Schumer proposed in January 2022: He sought a point of order establishing that no amendments, motions, or points of order would be in order on the motion to concur in the House election-law message. This was correctly denounced by Republicans at the time as a nuclear option.
But let’s say that happens, too; the rules change and all that remains is two speeches per Democrat on the SAVE Act. At last, the Senate will have returned to Mr. Smith Goes to Washington. Republicans would still need to provide a live quorum to prevent either a quorum call or adjournment, so they will all sit there quietly while Democrats come and go as they please making speeches on topics of their choosing as an adoring media watches.
Will Republican voters be impressed to watch their senators sit there while Democrats harangue them about President Trump or Jim Crow laws or the cost of health care? Of course not; they’ll be bored and disappointed. On the other hand, Democrats will be animated by the tenacity of their legislative heroes. Recall that, in the movie, Jimmy Stewart wins. For this Republicans would nuke the amendment process?
There is a long-festering desire among the Republican base that its senators “fight harder,” but legislation is won or lost by strategy and tactics, not gameness. The talking-filibuster gambit will do nothing but throw Democrats into a briar patch. Far from putting Democrats on their back foot, it will allow them to seize the advantage at every stage while Republicans literally sit on their hands.
Most important, the enterprise is only remotely feasible following significant rule changes about motions and amendments, as Schumer recognized four years ago to the fury of every serving Republican at the time. Contrary to the proponents of the talking filibuster, it does require a nuclear option unless Republicans want to be stuck in an unwinnable vote-a-rama.
Republicans would be better off focusing on passing legislation that helps regular Americans going into the midterms, not generating pointless drama that will only help their opponents.