The Hitchhiker’s Guide to the 'talking filibuster' and the SAVE Act
· Fox News
Passage of the SAVE Act is of paramount importance to President Trump and many congressional Republicans.
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In his State of the Union speech, the president implored lawmakers "to approve the SAVE America Act to stop illegal aliens and other unpermitted persons from voting in our sacred American elections."
The House approved the plan to require proof of citizenship to vote last month, 218-213. But, as is often the case, the hurdle is the Senate. Specifically the Senate filibuster.
So some Republicans are trying to save the SAVE Act.
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It’s important to note that President Trump never called for the Senate to alter the filibuster in his State of the Union address. But in a post last week on Truth Social, President Trump declared that "The Republicans MUST DO, with PASSION, and at the expense of everything else, THE SAVE AMERICA ACT."
Again, the president didn’t wade into questions about overcoming a filibuster. But "MUST DO" and "at the expense of everything else" is a pretty clear directive from the Commander in Chief.
That’s why there’s a big push by House Republicans and some GOP senators to alter the filibuster – or handle the filibuster differently in the Senate.
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It’s rare for members of one body of Congress to tell the other how to execute their rules and procedures. But the strongest conservative advocates of the SAVE Act are now condemning Senate Republicans if they don’t do something drastic to change the filibuster to pass the SAVE Act.
Some Senate Republicans are ready to push for changes. Or, at the very least, advocate that Senate Republicans insist that Democrats conduct what they’re referring to as a "talking filibuster" and not hold up the legislation from the sidelines. It takes 60 votes to terminate a filibuster. The Senate does that by "invoking cloture." The Senate first used the cloture provision to halt a filibuster on March 8, 1917. Prior to that vote, the only method to end a filibuster was exhaustion – meaning that senators finally just run out of gas and quit debating.
So let’s explore what a filibuster is and isn’t – and dive into what Republicans are talking about when they’re talking about a talking filibuster.
The Senate’s leading feature is unlimited debate. But ironically the "debate" which holds up most bills is not debate. It’s simply a group of 60 lawmakers signaling to their leaders offstage that they’ll stymie things. No one has to go to the floor to do anything. Opponents of a bill will require the majority tee up a cloture vote even if legislation has 60 yeas. Each cloture vote takes parts of three to four days to process. So that inherently slows down the process – and is a de facto filibuster.
But what about talking filibusters? Yes, senators sometimes take the floor and talk for a really long time. Hence, the "unlimited debate" provision in the Senate. Senators can generally speak as long as they want, unless there’s a time agreement, greenlit by all 100 members.
That’s why a "filibuster" is hard to define. You won’t find the word "filibuster" anywhere in the Senate’s rules. And since senators can just talk as long as they want, they might argue that suggesting they are "filibustering" is pejorative. They’re just exercising their Senate rights to speak on the floor.
However, a true filibuster is a delay. For instance, the record-breaking 25 hour and 8 minute speech last year by Sen. Cory Booker, D-N.J., against the Trump administration was technically not a filibuster. Booker began his oratory on the evening of March 31, ending on the night of April 1. Once Booker concluded, the Senate voted to confirm Matt Whittaker as NATO Ambassador. The Senate was supposed to vote on the Whitaker nomination on April 1 anyway. So all Booker’s speech did was delay that confirmation vote by a few hours. But not much.
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In 2013, Sen. Ted Cruz, R-Texas, held the floor for more than 21 hours, in his quest to defund Obamacare. But despite Cruz’s verbosity (and a recitation of "Green Eggs and Ham" by Dr. Suess), the Senate was already locked in to take a procedural vote around 1 pm the next day. That automatically ended Cruz’s speech. Thus, that truly wasn’t a filibuster either.
So, this brings us to the "talking" filibuster which actually gums up the Senate gearboxes. A talking filibuster is what most Americans think of, thanks to the iconic scenes with Jimmy Stewart in the Frank Capra classic, "Mr. Smith Goes to Washington."
Most senators "filibuster" by forcing the Senate to take two cloture votes – spread out by days – to handle even the simplest of matters. That elongates the process by close to a week. But if advocates of a given bill have the votes to break the filibuster via cloture, the gig is up.
But what happens if a senator – or a group of senators – delays things with long speeches? That can only last for so long. And it could potentially truncate the Senate’s need to take ANY cloture vote, needing 60 yeas.
Republicans who advocate for passage of the SAVE Act believe they can get around cloture – and thus the need for 60 votes – by making opponents of the SAVE Act talk. And talk. And talk.
And once they’re done talking, the Senate can vote – up or down – on the SAVE Act. Passage requires a simple majority.
Senate Rule XIX (19) states that "no senator shall speak more than twice upon any one question in debate on the same legislative day."
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Easy enough, right? Two speeches per day. You speak twice on Monday, then you have to wait until Tuesday? Democrats would eventually run out of juice with 47 senators who caucus with their party.
But it’s not that simple. Note the part about two speeches per "question."
Well, what’s a "question," in Senate parlance? That could be the bill itself. It could be an amendment. It could be a motion. And just for the record, the Senate usually cycles through a "first degree" amendment and then a "second degree" amendment. So, if you’re scoring at home, that could be six (!) speeches per senator, per day, on any given "question."
Questions?
But wait. There’s more.
Note that Rule XIX refers to a "legislative day." A legislative day is not the same as a calendar day. One basic difference is if the Senate "adjourns" each night versus "recessing." If the Senate "adjourns" its Monday session, then a new legislative day begins on Tuesday. However, the legislative day of "Monday" carries over to Tuesday if the Senate "recesses."
It may be up to Senate Majority Leader John Thune, R-S.D., whether the Senate "adjourns" or "recesses." The creation of a new "legislative day" inhibits the GOP effort.
Moreover, talking filibuster proponents could object to a request by Thune to adjourn. If the Senate votes to stay in session, that forces the legislative day of Monday to bleed over to Tuesday.
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Pro tip: watch to see if the adjournment vs. recess scenario unfolds. If a talking filibuster supporter tries to prevent the Senate from adjourning, that could signal whether the GOP has a shot at eventually passing the SAVE Act. If that test fails, the SAVE Act is likely dead in the water.
We haven’t even talked about a custom practiced by most Senate Majority Leaders to lock down the contours of a bill when they file cloture to end debate.
It’s a Senate custom to recognize the Senate Majority Leader first on the floor for debate. So Thune and his predecessors often "fill" what’s called the "amendment tree." The amendment tree dictates how many amendments are in play at any one time. Think of the underlying bill as a "trunk." A "branch" is for the first amendment. A "sprig" from that branch is the second amendment. Majority leaders often load up the amendment tree with "filler" amendments, not changing the subject of the bill. He then files cloture to break the filibuster.
That tactic curbs the universe of amendments. That blocks the other side from engineering controversial amendments to alter the bill. But if Thune doesn’t file cloture to end debate, then the Senate must consider amendment after amendment, repeatedly filling the tree and voting on those amendments. This scenario unfolds during a "talking" filibuster. Not when Thune is controlling the process by filing cloture and "filling the tree."
This is why Thune is skeptical of a talking filibuster to pass the SAVE Act.
"This process is more complicated and risky than people are assuming at the moment," said Thune.
In fact, the biggest "benefit" to filing cloture may not even be overcoming a filibuster, but blocking amendments via management of the tree. Republicans are bracing for amendments Democrats may offer.
"If you don't think Democrats have a laundry list of amendments, talking about who won the 2020 election, talking about the Epstein files – if you don't think they have a quiver full of these amendments that they're ready to get Republican votes on the record, then I’ve got a bridge to sell you," said George Washington University political science professor Casey Burgat.
Plus, forcing a talking filibuster for days precludes the Senate from passing a DHS funding bill. That’s to say nothing of confirming Sen. Markwayne Mullin, R-Okla., as Homeland Security Secretary.
That’s why there’s a reluctance by some Republicans to push the talking filibuster. And it could come at the expense of the SAVE Act – despite the president’s push.