Republicans Can End Shutdown Without Nuking Filibuster
Democrats are blocking Republicans’ efforts to approve the House-passed Continuing Appropriations and Extensions Act (HR 5371), which would fund the government until November 21. The Senate’s 53 Republicans have tried to advance HR 5371 throughout the shutdown by invoking cloture on the motion to proceed to its consideration. But Republicans haven’t succeeded because they need at least seven Democrats to invoke cloture (i.e., to end debate) on the motion. Under Senate Rule XXII, a three-fifths majority of senators duly chosen and sworn (typically 60 senators) must vote to end debate and proceed to an up-or-down vote on the motion over the objections of a minority of the chamber’s members.
President Trump recently called on Senate Republicans to nuke the filibuster to overcome Democrats’ obstruction and end the government shutdown. But Republicans don’t have to eliminate the filibuster to advance HR 5371. They can instead use Senate Rule XIX – the so-called “two-speech rule” - to stop Democrats from blocking the short-term funding bill indefinitely.
A Two-Speech Rule Stategy
Rule XIX stipulates, “No senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”
Using Rule XIX to advance the short-term funding bill requires the Republican majority to keep the Senate in session on the same legislative day until filibustering Democrats have exhausted their ability to speak on the motion to proceed. This is the point at which Democrats committed to blocking the short-term funding bill on the Senate floor have given the two speeches allotted to them under the Senate's rules. At that point, the presiding officer may put the question (i.e., call a vote) on the adoption of the motion to proceed. Adoption of the motion to proceed requires a simple majority vote.
Step One
The first step in using Rule XIX to end the government shutdown is for Majority Leader John Thune, R-SD, to move to proceed to HR 5371. Once the motion to proceed is pending business, Republicans must then keep the Senate in session on the same legislative day by recessing instead of adjourning whenever they want to take a break. This is because, unlike a calendar day, which ends after 24 hours, a legislative "day" ends only when senators vote to adjourn the Senate. Voting to recess the Senate does not end a legislative day. Republicans can therefore prolong a single legislative day by keeping the Senate in continuous session to debate the motion to proceed to HR 5371 or by voting to recess it temporarily rather than adjourning it.
Step Two
The next step is for Republicans to strictly enforce Rule XIX on Democrats who want to filibuster the short-term funding bill, while also refraining from speaking on the Senate floor themselves. Republicans can respond to Democrats’ speeches or comment on their continued obstruction on the Senate floor in the press.
To succeed, Republicans must be ready to table any motion Democrats make. Filibustering Democrats use up one of their two speeches when they make a motion. And Republicans can prevent Democrats from refreshing the number of speeches they are allotted under Rule XIX by changing the question before the Senate merely by tabling their motions.
Republicans must also require that any quorum calls be conducted live. Doing so prevents Democrats from giving themselves a reprieve from speaking on the Senate floor by suggesting the absence of a quorum.
Requiring Debate To Be Germane
And Republicans can enforce Rule XIX's germaneness requirements for debate on filibustering Democrats. Under the rule, all debate must be germane to the specific question pending before the Senate – in this case, HR 5371 – for the first three hours of session on each calendar day. Rule XIX stipulates that “after the unfinished business or any pending business has first been laid before the Senate on any calendar day, and until after the duration of three hours of actual session after such business is laid down except as determined to the contrary by unanimous consent or on motion without debate, all debate shall be germane and confined to the specific question then pending before the Senate.” By enforcing this part of Rule XIX, Republicans can require filibustering Democrats to limit their floor remarks to the motion to proceed with the short-term funding bill, rather than including their demands for negotiations over expiring premium subsidies for healthcare plans offered under the Affordable Care Act, as part of their speeches.
Republicans can raise a point of order if a filibustering Democrat violates this provision, and the presiding officer may call the Democrat to order and force them to relinquish the floor and take their seat. Rule XIX stipulates, “If any senator, speaking or otherwise, in the opinion of the presiding officer transgresses the rules of the Senate the presiding officer shall, either on his own motion or at the request of any other senator, call him to order; and when a senator shall be called to order he shall take his seat, and may not proceed without leave of the Senate.” And a filibustering Democrat ends one speech under Rule XIX whenever they are called to order by the presiding officer. While Democrats can appeal the presiding officer’s ruling, Republicans can table their appeal on a simple-majority vote.
Using Cloture Strategically
Republicans can also speed up the two-speech rule strategy to overcome Democrats’ obstruction of HR 5371 by filing cloture on the motion to proceed to its consideration on every calendar day that the filibuster persists. Doing so guarantees that Democrats will use a minimum of two speeches every calendar day. This is because a filibustering Democrat loses their right to the floor – and therefore uses one of their two speeches - when cloture ripens one hour after the Senate convenes on the next calendar day.
According to Senate precedents, “When the time arrives for a cloture vote, a senator who has the floor will lose the floor and that senator is not entitled to the floor after the cloture vote.” This effectively limits Democrats’ first speech each day to one hour. And it requires a Democrat to use their second speech after the failed cloture vote if they want to continue filibustering HR 5371.
Using cloture in conjunction with Rule XIX reduces the overall time required for the two-speech rule strategy to be effective. For example, assume there are ten Democrats who are willing to filibuster the motion to proceed to HR 5371 and that each senator can give two five-hour speeches. The time needed to overcome their filibuster in this example totals 100 hours (i.e., ten senators, each spending ten hours).
Now, assume ten senators are willing to filibuster the motion to proceed, and that each senator can give two five-hour speeches, and Republicans file cloture on the motion each day. The time needed to overcome the filibuster in this example totals sixty hours (i.e., ten senators at six hours each).
Two-Speech Rule Costs
The two-speech rule strategy works for Republicans because it imposes higher costs on Democrats than it does on them.
Democratic Costs
Strictly enforcing Rule XIX to advance HR 5371 requires Democrats to demonstrate their commitment to filibustering the motion to proceed to the short-term funding bill. As the filibuster persists, Minority Leader Chuck Schumer, D-NY, will have to turn to less-interested Democrats to sustain the filibuster once the most committed obstructionists in his caucus have used their allotment of two speeches. And throughout the filibuster, individual Democrats will have to hold the Senate floor for a prolonged period to prevail in the showdown by forcing Republicans to relent and cease their efforts to advance the bill.
Such calls from Schumer for the active participation of rank-and-file Democrats in the filibuster will likely precipitate internal dissent within the minority. This is because Republicans’ determination to advance HR 5371 at any cost will become increasingly apparent as the Democrats, who are most opposed to doing so, begin to lose their ability to speak on the Senate floor. And the growing sense of inevitable victory will further diminish the willingness of those Democrats not fully committed to the filibuster to sustain it.
The spectacle of the showdown will also attract additional media coverage as it unfolds and committed Democrats lose their ability to filibuster. Consequently, less-committed Democrats will be called upon to sustain the filibuster as more Americans pay attention to the struggle. Increased media scrutiny of the filibuster, therefore, increases the political costs on the filibustering Democrats, who are the least willing to bear them.
Republican Costs
The two-speech rule strategy imposes fewer costs on Republicans. It requires Republicans to show up on the Senate floor whenever Democrats suggest the absence of a quorum. And 51 Republicans must be available to table any motions filibustering Democrats may make to refresh their allotment of two speeches under Rule XIX.
The need to be in and around the Senate throughout the filibuster imposes some costs on rank-and-file Republicans. But those costs are considerably less than the costs Democrats must bear to sustain the filibuster. And Thune can reduce those costs by holding quorum calls and recorded votes open for more extended periods than the typical 15 minutes. Consequently, it should be relatively easy for Republicans to produce 51 votes on the Senate floor throughout the showdown.
Republicans can also determine how long the Senate will remain in session each day. Late-night and/or weekend sessions are not required for the two-speech rule strategy to work if rank-and-file Republicans are unwilling to show up when needed at inconvenient times.
Finally, Republicans should weigh the costs of successfully employing the two-speech rule strategy to advance HR 5371 against the inevitability of their victory. The only way Democrats can block adoption of the motion to proceed is by forcing superfluous recorded votes until the Republican determination to end the shutdown is exhausted. However, Democrats are unlikely to sustain forcing superfluous votes ad infinitum in the face of Republican determination.
The Takeaway
Republicans don't have to nuke the filibuster to overcome Democrats' obstruction of HR 5371. They can instead use Senate Rule XIX – the two-speech rule – to advance the short-term funding bill over Democrats' objections. The rule prevents senators from speaking twice on a question – in this case, the motion to proceed to HR 5371 – on the same legislative day.
The costs imposed on Democrats by enforcing the two-speech rule necessarily limit their ability to filibuster HR 5371, ensuring that Republicans can advance the measure if they are willing to expend the required effort. The fact that Republicans have refrained from enforcing the two-speech rule to overcome Democrats' obstruction of the motion to proceed and have instead entertained the nuclear option to make unilateral changes to the filibuster suggests that they are unwilling to expend the effort required to end the shutdown.
However, the fact remains that Democrats cannot prevent the Senate from advancing HR 5371 if Republicans are willing to expend the necessary effort to do so. The two-speech rule strategy is also consistent with the Senate's existing rules and practices. It does not require Republicans to use the nuclear option to eliminate the filibuster altogether (or create a carve-out).