Senate Democrats are still hunting for ways to duck the chamber’s 60-vote legislative filibuster and enact major election reform legislation in the face of unyielding opposition to softening the rule from moderate Sens. Joe Manchin and Kyrsten Sinema.
One of the options being discussed is a return to the so-called “talking filibuster,” which would require Republican opponents of the bills to physically hold the floor to prevent the Senate from taking a vote.
“If a minority wants to block the action of a majority, then the minority must take and hold the floor to try to convince colleagues [and] the American public the majority is going in the wrong direction,” Sen. Tim Kaine (D-Va.) said last week during an interview with the Richmond Times-Dispatch.
Kaine then suggested that whenever debate is concluded, no matter how long it takes, the legislation can then be passed with a simple majority — giving Democrats who control the 50-50 Senate the opportunity to approve the measures with Vice President Kamala Harris casting the 51st vote.
“Theoretically, you do not need a rules change to pass a bill that’s on the floor, you just have to allow debate to occur,” Kaine said, according to The Hill.
Another Democratic senator confirmed to The Hill that their colleagues are reviewing the idea of forcing Republicans to mount a talking filibuster to block the legislation.
“We’ve discussed it,” the lawmaker told the outlet, explaining that Republicans would be forced to occupy the Senate floor to thwart a vote.
One problem with attempting to force the talking filibuster, Democrats say, is that the tactic hasn’t been attempted in years and there is uncertainty how it would play out procedurally. Votes for cloture, the formal procedure ending debate, are so routine now that many senators are not even on the floor during the quorum call.
James Wallner, a former Senate Republican aide and expert on chamber procedures, agreed that Democrats could pass the voting legislation with 51 votes if they’re willing to allow a lengthy floor battle to play out.
“Democrats don’t need 60 votes at all. They’re in 51-vote territory. They can move to table any amendments that Republicans offer to the bill,” Wallner told The Hill.
“The easiest way to get to final passage on this bill is to put it on the floor and have Vice President Kamala Harris or Majority Leader Schumer or any other senator start to make points of order against any senator who tries to speak more than twice,” he added.
Wallner was referring to Senate Rule XIX, which stipulates that “no senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate.”
If Senate Majority Leader Chuck Schumer (D-NY) enforces the rule, Wallner explained, “eventually, common sense tells you, the minority can’t speak forward. So if the majority is determined to prevail in this instance, they’re going to prevail. Why? Because they have more votes. That’s the way it works.”
However, a Senate Democratic aide noted to The Hill that the two-speech rule is rarely enforced and Republicans can circumvent the process by introducing a series of debatable motions that would allow each senator to speak two more times.
“This requires a more aggressive presiding officer,” the aide said. “The parliamentarian is not going to advise the presiding officer, ‘Nobody seems to be seeking debate so bring the question.’ It will have to be affirmatively sought by the presiding officer.”
Another issue with the strategy is that while Republicans would only need a few senators to occupy the Senate floor, Democrats would have to be ready to marshal all 50 members of their caucus and the vice president to counter the variety of motions GOP lawmakers could introduce in the absence of a quorum to adjourn or stymie legislative business.
“Are you going to allow people to do quorum calls or not? It’s hard to stop people from being able to put in quorum calls,” the Democratic aide said.
“This requires a lot of energy expended by senators,” the aide added. “The majority is going to have to keep pushing this. The majority leader is going to want to devote the floor time to doing this and the recent Senate has not shown the willingness to put in long weeks, let alone long extended periods of debate.”
The Senate is expected to begin debate on the legislation Tuesday, and Schumer has vowed to force a vote on changing the filibuster rule once a planned vote to end debate fails on Wednesday. Senate Republicans are united against both bills, calling them an unconstitutional power grab by Democrats.
“I’m going down to Washington and we are going to debate voting rights. We are going to debate and, in the Senate, you know we need 60 votes to break a Republican filibusters … but since we only have 50 Democrats in our razor-thin majority, the only path forward on this important issue is to change the rules to bypass the filibuster,” Schumer said at a National Action Network event in New York on Monday.
“Right now, there are two Democrats who don’t want to make that happen,” Schumer added. “But the fight is not over, far from it.”
In statements last week, Manchin (D-WV) and Sinema (D-Ariz.) argued that passing significant legislation along party lines and by narrow margins will only worsen already deep political divisions in the US.
