Hitchhiker’s Guide to the ‘talking filibuster’ and SAVE Act

The passage of the SAVE Act is of great importance to President Trump and many Republicans in Congress.

In his State of the Union address, the president implored lawmakers to “pass the SAVE America Act to prevent illegal aliens and other unauthorized persons from voting in our sacred American elections.”

The House last month approved the plan, which would require proof of citizenship to vote, by a vote of 218-213. But as is often the case, the obstacle is the Senate. Especially the Senate filibuster.

That’s why some Republicans are trying to save the SAVINGS Act.

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It is important to note that President Trump never requested that the Senate change the filibuster in his State of the Union address. But in a post on Truth Social last week, President Trump said, “Republicans MUST TAKE THE MOVEMENT TO SAVE AMERICA, PASSIONATELY and at the cost of everything.”

Once again, the president didn’t delve too far into questions about tackling the filibuster. But “MUST” and “at the expense of everything” is a pretty clear instruction from the Commander-in-Chief.

That’s why House Republicans and some GOP senators are making a big push to change the filibuster or handle the filibuster differently in the Senate.

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It is rare for members of one body of Congress to tell another how to apply their rules and procedures. But the SAVE Act’s strongest conservative advocates 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 change. Or at least advocate for Senate Republicans to insist that Democrats engage in what they call the “talking filibuster” and not sideline the legislation. It takes 60 votes to end a filibuster. The Senate does this by “initiating cohesion.” The Senate first used the cloture clause to stop the filibuster on March 8, 1917. Before this vote, the only method to end the filibuster was exhaustion; This meant the senators eventually ran out of gas and stopped debating.

So let’s explore what a filibuster is, what it isn’t, and dive into what Republicans are talking about when they talk about a talking filibuster.

The leading feature of the Senate is unrestricted debate. But ironically, the “debate” that sustains most bills is not debate. This is just a group of 60 MPs signaling to their leaders behind the scenes that they will block things. Nobody needs to go out on the field to do anything. Opponents of the bill will demand that the majority vote cloture even if the law has a 60-year term. Each cloture vote takes three to four days to process. So this inherently slows down the process and is effectively a fraud.

Sen. Cory Booker, D-N.J., gave a record-breaking 25-hour speech last year; but this was not a “rogue” in the strict sense of the word. (Chip Somodevilla/Getty Images)

But how about we talk about bandits? Yes, senators sometimes take the floor and talk for too long. Therefore, there is a provision for “unlimited debate” in the Senate. Senators can generally talk as much as they want, unless there is a time agreement where all 100 members give the green light.

Therefore, it is difficult to define a “rogue”. You won’t find the word “filibuster” anywhere in Senate rules. And because senators can talk all they want, they can argue that it’s insulting to suggest they’re “going rogue.” They are simply exercising their right to speak on the floor in the Senate.

But real banditry is a delay. For example, last year’s record-breaking 25-hour, 8-minute speech against the Trump administration by Sen. Cory Booker, D-N.J., was not technically a filibuster. Booker began his speech on the evening of March 31 and ended on the night of April 1. When Booker finished his speech, the Senate voted to confirm Matt Whittaker as Ambassador to NATO. The Senate was already supposed to vote on Whitaker’s nomination on April 1. So all Booker’s speech did was delay the confirmation vote by a few hours. But not really.

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In 2013, Sen. Ted Cruz, R-Texas, spent more than 21 hours at the podium in his quest to defund Obamacare. But despite Cruz’s ramblings (and his reading of Dr. Suess’s song “Green Eggs and Ham”), the Senate was already deadlocked for a procedural vote around 1 p.m. the next day. This automatically ended Cruz’s speech. So this wasn’t really banditry either.

Which brings us to the “talking” filibuster, which is essentially throwing the Senate’s gearboxes off the rails. A talking thug is what most Americans think of, thanks to Jimmy Stewart’s iconic scenes in the Frank Capra classic “Mr. Smith Goes to Washington.”

Many senators are “going rogue” by forcing the Senate to take two cloture votes spread over days to handle even the simplest of matters. This extends the process by nearly a week. But if proponents of a particular bill have the votes to eliminate the filibuster through cloture, it’s over.

Sen. Ted Cruz, R-Texas, was at the podium for more than 21 hours in 2013. (Kayla Bartkowski/Getty Images)

So what happens if a senator or a group of senators delays things with long speeches? This can only take so long. And it could potentially eliminate the need for the Senate to take ANY cloture vote that would require 60 years.

Republicans who advocate passage of the SAVE Act believe they can bypass cloture, and thus the need for 60 votes, by getting opponents of the SAVE Act to speak out. And speak. And speak.

Once they are done speaking, the Senate can vote up or down on the SAVINGS Act. Passage requires a simple majority.

Senate Rule XIX(19) states that “no senator shall speak more than twice on any question debated on the same legislative day.”

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Easy enough, right? Two conversations a day. You speak twice on Monday, then you have to wait until Tuesday? Democrats would eventually run out of energy with 47 senators caucusing with their party.

But it’s not that simple. Note the part about two conversations per “question”.

So, what is a “question” in Senate parlance? This could be the bill itself. There may be a change. There could be a movement. And for the record, the Senate usually makes a “first degree” amendment followed by a “second degree” amendment. So, if you’re scoring at home, that could mean six (!) speeches per senator per day on any given “question.”

Do you have any questions?

It may be up to Senate Majority Leader John Thune, R-S.D., to have the Senate “adjourn” or “adjourn.” (Tom Williams/CQ-Roll Call, Inc. via Getty Images)

But wait. There is more.

Note that Rule XIX means “legislative day.” Legislative day and calendar day are not the same thing. One key difference is that the Senate “adjourns” and “adjourns” every night. If the Senate “adjourns” its Monday session, a new legislative day will begin on Tuesday. However, if the Senate goes on recess, the legislative day from Monday will be transferred to Tuesday.

It may be up to Senate Majority Leader John Thune, R-S.D., to have the Senate “adjourn” or “adjourn.” The creation of a new “legislative day” hinders GOP efforts.

Moreover, any fraudulent fans who speak out may object to Thune’s request for a postponement. If the Senate votes to continue the session, that would move Monday’s legislative day to Tuesday.

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Pro tip: Watch to see if the procrastination and vacation scenario plays out. If a vocal filibuster supporter tries to block the Senate from adjourning, that could signal whether the GOP has a chance to finally pass the SAVE Act. If this test fails, the SAVINGS Act will likely lapse.

We haven’t even mentioned a tradition that most Senate Majority Leaders follow to lock down the outlines of a bill when proposing cloture to end debate.

It is a Senate tradition to recognize the Senate Majority Leader who is the first to take the floor for debate. So Thune and its predecessors are “filling in” what is often called the “fix tree.” The change tree determines how many changes are in effect at any given time. Think of the basic bill as a “chest.” A “branch” is for the first change. A “branch” from this branch is the second change. Majority leaders often fill out the amendment tree with “filler” amendments without changing the subject of the bill. It then initiates coagulation to break the banditry.

This tactic curbs the universe of changes. This prevents the other side from making controversial changes to change the bill. But unless Thune invokes cloture to end debate, the Senate will have to consider amendment after amendment, filling out the tree again and again, and voting on those amendments. This scenario plays out during a “talking” thuggery. Not when Thune controls the process by filing the clot and “filling the tree.”

Forcing a filibuster to speak out could well prevent Sen. Markwayne Mullin (R-Okla.) from being confirmed as Secretary of Homeland Security. (Anna Moneymaker/Getty Images)

That’s why Thune suspects a thug talking to pass the SAVE Act.

“This process is more complex and risky than people currently assume,” Thune said.

In fact, the biggest “benefit” of filing coagulation may not even be overcoming a rogue, but preventing changes through management of the tree. Republicans are preparing for any changes Democrats might propose.

“If you don’t think Democrats have a bill of amendments talking about who won the 2020 election, talking about the Epstein files; if you don’t think Republicans have a cover full of these amendments that they’re ready to put their votes on record, then I’ve got a bridge to sell you,” said George Washington University political science professor Casey Burgat.

Additionally, forcing a filibuster for days prevents the Senate from passing the DHS funding bill. This does not mean that Sen. Markwayne Mullin (R-Okla.) has been confirmed as Secretary of Homeland Security.

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That’s why some Republicans are reluctant to push the talking filibuster. And despite pressure from the president, that could happen at the expense of the SAVINGS Act.