A ‘Talking Filibuster’ would waste the Senate’s rarest resource — floor time

Time cannot be changed. The time you spend reading this column is “irrecoverable.” He’s gone and won’t come back.

That’s why the “talking filibuster” proposal for the United States Senate is such a terrible idea.

I wrote the first paragraph fully aware of the jokes it would elicit – thank you for highlighting my point by posting a comment saying “This is five minutes I’ll never get back”. You are right. You won’t get it back. Hold this thought. This also applies to the United States Senate.

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Another controversy has arisen regarding the rules of the United States Senate. Debate is welcome as long as it takes place in columns and studios and does not expire “session time” in the Senate. “Meeting time” in the Senate is a subset of time, a particularly valuable subset. Once it passes, it cannot be taken back.

Senate “meeting time” is a precious blessing. They are the “rare earth minerals” of the legislative process. Nothing, absolutely nothing, is done in the Senate unless it is done in the open, on the Senate floor, after all procedural hurdles have been cleared, and there are many such hurdles. The Senate’s rule book has evolved over the 161 years since the end of the Civil War to protect the rights of the minority party as well as some of the privileges of individual senators. These rules are many and vague, but they all act together to slow down everything the Senate, and therefore Congress, does.

The Senate is anti-majority, and knowingly so. This was an important element in the founding of the country. The only part of the Constitution that cannot be changed is the composition of the Senate. Article V ends with the absolute statement that “no State shall, without its consent, be deprived of the right of equal suffrage in the Senate.” So states like Delaware and Wyoming have two seats in the Senate, and so does California. In a recent interview, former President Obama said it should be changed, but the former Constitutional Law professor forgot about Article V. The framers created the Senate to “check” the population-based House of Representatives. Two senators per state provision? This cannot be changed without the consent of each state.

Among the Senate’s many traditions is one that preserves “unrestricted debate,” not a flaw ingrained in the fabric of the institution. The House has strict time limits on debate, but the Senate has no such obligation. Anything procedural that happens in the Senate must proceed by unanimous consent or, failing that, proceed very, very slowly.

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For much of our nation’s history, the Senate is the place where landmark legislation is created because of its tradition of unrestricted debate and forcing compromise on rules that preserve the power of the minority party.

This is a good thing. The Senate’s rules for debate and legislation mandate these compromises, or when no significant compromise emerges, an impasse becomes publicly visible, which can skew the election depending on how much visibility the impasse creates and how that impasse appears to voters. The Senate does not need to pass bills to advance the nation’s debate.

Democrats tried to argue that Republicans were blocking legislation needed to close the border in 2024. Their arguments not only failed, but failed spectacularly, resulting in the November 2024 elections with President Donald Trump and a 53-47 Republican Senate and GOP House majority. Voters are smart.

(It also turned out that legislation was not required to close the border. President Trump did so without any new authority from Congress.)

When a group of activists from both sides of the political spectrum really, really, really want something, the Senate rule requiring 60 votes for a bill to be considered causes heartburn for these activist groups and the senators who agree with them. This 60-vote threshold is routinely referred to as the “filibuster.” Like clockwork, calls are issued from the angriest Democrats or the angriest Republicans to eliminate or at least “reform” the filibuster as frustration over legislative stagnation reaches its peak.

Right now, many Republican senators really, really want to pass the “SAVE Act” — the “Protecting American Voter Eligibility Act” — and some are demanding that Majority Leader John Thune either end the filibuster, eliminating the rules that protect the minority party, or at least change the rules under which the filibuster operates. Utah Senator Mike Lee is currently advocating for such a change. Lee wants to demand that the thugs become “talking thugs.”

Kimberly Strassell of the Wall Street Journal explained at length why “talking fraud” is an extraordinarily bad idea, and I recommend her work to you. (The Journal is a sister publication to this publication.) Strassel’s piece is definitive on why talking about fraud is a terrible idea. But I have a shortcut to the answer to the talking thugs: “No. Not now. Never. No.”

It was Oregon Democrat Jeff Merkley who championed the “Talking Filibuster” in a memo to 99 colleagues 14 years ago, on Dec. 12, 2012. (Merkley routinely ranks among the ten most liberal members of the Senate.) If Merkley advocates a rules change, vote no. It’s that easy.

“When the filibuster is used routinely, it becomes a tool of mass legislative subversion,” Merkley argued more than a decade ago. Republicans were in the minority at the time and used the filibuster to slow or stop President Obama’s legislative agenda. “This paralysis is unacceptable,” Merkel said.

Not only was “paralysis” unacceptable. This was urgently needed, and bravo to then-GOP Senate Leader Mitch McConnell for organizing the Republican party to thwart the radical agenda of former President Obama, who used his party’s provisional 60-vote majority to impose Obamacare on a trusting nation.

Merkley argued and argued in 2012 but failed to persuade. The legislative filibuster — the 60-vote threshold — remains in place, and there is no “talking filibuster.”

Eventually, the late Harry Reid, then-Senate Majority Leader, would invoke the “nuclear option” to replace the Senate’s rules for voting on judicial nominees with a simple majority vote. The result of Reid’s raw power play was the most spectacular backlash in Senate history; Three of President Trump’s nominees were confirmed to the Supreme Court by fewer than 60 votes.

Senator Mitch McConnell warned Reid not to change the rules. Reid ignored him, and as a result we have an “originalist” majority on the Court. Whenever there’s a progressive tone about a Supreme Court decision, remind them it’s because of Harry Reid.

Which brings me back to “floor time” in the United States Senate. Sincere advocates of the talking filibuster will acknowledge a change in their vision that it will consume much of the Senate’s very limited “session time.” The majority leader of the Senate controls the calendar and therefore the speaking time. A talking filibuster could take that control away from him and hand it over to the minority party for as long as the Senate is in session. The hours, days and weeks during which the Senate would have to do its job slipped away “like sand in an hourglass.”

Jobs involving lifetime appointments to federal courts. There are currently a total of 37 vacancies in the federal courts. Only 3 of the 37 have nominees, but President Trump has never faced a judicial vacancy that he hasn’t tried to fill because he knows that serious judges are the cement that keeps his domestic policy agenda in place. He and his judicial nomination team need to step up, and when they do, each federal district court judicial nominee will need at least two hours of speaking time and each appellate court nominee will need up to 30 hours of floor argument. What if there are a retirement or two from the Supreme Court this spring? Thirty hours of deliberation would be required following cloture for each, and would inevitably begin only after excruciatingly long and contentious hearings and procedural manoeuvres.

That’s just the time it takes for judges and magistrates. Nominations for any office that require Senate confirmation will also take time; from two hours for unspecified appointments to 30 hours for the highest-profile Cabinet nominees. If President Trump is going to continue staffing the Executive Branch, he will need Majority Leader John Thune to control Senate floor time.

President Trump and Majority Leader Thune have worked very well together since “45” reverted to “47.” The hugely successful “Working Families Tax Cut,” a.k.a. the “Big, Beautiful Bill,” is the best testament to this; but so did 11 of the 12 appropriations bills the president signed; This is a victory for “orderly order” not seen in decades. The massive expenditure of funds for the reconstruction of the army has just begun. It absolutely needs another National Defense Authorization Act (“NDAA”) and another War Department funding bill. This and other urgent but mundane business of the Senate is before the Senate GOP.

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If the “talking filibuster” can pull this off via a rule change — very, very unlikely, but if he concedes the point for a moment — the GOP will regret it as much as Democrats regret the “Reid Rule,” which changed the votes needed for judicial confirmation. Just as the ghost of Harry Reid haunts every time Democrats talk about the Supreme Court, the “talking filibuster” will haunt the GOP conference.

Now rewind your reading time, but if the subject of the “talking filibuster” comes up, remember that it was a Democrat idea originally put forth in the service of Barack Obama’s hard-left vision for the country. And just say “No.”