Republicans Don’t Need Cloture to Overcome SAVE America Act Filibuster

The central issue in the Senate this week is whether Republicans can overcome Democratic opposition to the SAVE America Act (HR 7296) by requiring a talking filibuster, rather than relying on the usual cloture process. Majority Leader John Thune, R-SD, recently announced that the Senate would take up the bill this week. The House passed the election overhaul bill on February 11, 218-213. President Trump declared the legislation his “No. 1 priority” and has threatened not to sign any bill into law until Congress passes it.

The SAVE America Act has stalled in the Senate because Republicans lack the votes to overcome Democrats’ objections. The bill passed the House along party lines, with just one Democrat supporting it. And Democrats are expected to filibuster it in the Senate.

The bill’s supporters want Thune to force Democrats to mount a talking filibuster on the Senate floor. However, Thune says “the votes aren’t there for a talking filibuster” and argues the tactic is “more complicated and risky” than people assume. He also warns that this approach will derail the GOP agenda and force Republicans to cast politically damaging amendment votes ahead of November’s midterm elections.

Yet it is a lot easier for Republicans to advance the SAVE America Act by requiring a talking filibuster than Thune claims. Republicans can overcome Democrats’ obstruction by enforcing the Senate’s existing rules and practices rather than relying on cloture and unanimous consent to manage the floor debate. And they can do so without derailing their agenda or having to cast tough votes on Democratic messaging amendments.

Filibuster 101

The filibuster allows senators to prevent a vote in the Senate by speaking on the floor. Senate precedents state that the presiding officer can’t call a vote on the pending question if a senator is speaking or seeking recognition to speak. “When there is a debatable matter before the Senate and debate is not limited, a senator who has been recognized may proceed without interruption.” Thus, filibustering requires a senator to speak on the floor to block a vote. Senate precedents also stipulate, “As long as a senator has the floor. the presiding officer may not put the pending question to a vote. But when a senator yields the floor and no other senator seeks recognition, and there is no order of the Senate to the contrary, the presiding officer must put the pending question to a vote.”

Senators may lose the right to speak due to limitations on debate in the Senate rules (e.g., the cloture rule), statutory provisions (e.g., the 1974 Budget Act), and unanimous consent agreements. In recent decades, Senate majorities have relied on cloture and unanimous consent to manage floor debate and structure the amendment process. And they have used cloture exclusively to end filibusters of general legislation such as the SAVE America Act.

The Cloture Process

Rule XXII’s cloture process empowers a super-majority of the Senate to end debate over the objections of a minority of its members who would like to continue speaking on (or filibustering) the underlying question. The ruler requires three-fifths of senators duly chosen and sworn (typically 60) to invoke cloture (i.e., to end debate). By extension, the rule allows 41 senators to prevent the Senate from invoking cloture.

Senators can’t filibuster cloture itself. Senate precedents stipulate, “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.” Senate majorities have come to rely on the cloture process to end filibusters and advance their agenda in recent decades because it gives them a predictable way to overcome minority obstruction.

The majority’s increased reliance on cloture has led to the pervasive assumption that 60 votes are required to pass legislation in the Senate. Cloture gives the minority significant leverage over the majority because it takes more votes (typically 60) to end debate than to pass a bill (typically 51). Senate minorities have typically been able to use cloture to prevent the majority from passing legislation over their objections because the majority has only rarely constituted a super-majority of the chamber’s membership and has therefore been unable to muster the required votes to invoke cloture on a party-line basis. But by relying on cloture to advance its agenda, the majority allows 41 senators to prevent the Senate from voting without having to filibuster.

Cloture Alternatives

Senate majorities don’t have to use cloture to end minority obstruction. They can instead use debate limitations in statutory rules, such as the Budget Act of 1974, to pass filibuster-proof reconciliation bills. And they can waive the Senate’s permissive debate rules by unanimous consent.

When these procedural options are unavailable, the majority can limit the minority’s ability to filibuster indefinitely through a war of attrition. Before the Senate adopted the cloture rule and other debate limits, this method enabled majorities to pass legislation over minority objections.

Waging a war of attrition works because filibustering senators bear the costs of speaking. Senate precedents require a senator to stand on the Senate floor and talk to filibuster. They stipulate that “a senator may keep the floor as long as he or she remains standing and continues to debate.” A filibustering senator may yield to other senators for questions. But he or she must remain standing when doing so.

While a war of attrition also imposes costs on the majority, it is illogical to assume that those costs outweigh the costs it imposes on filibustering senators. This is because filibustering requires more effort than not filibustering. Common sense – and Senate history – suggests that delivering a floor speech for hours takes more effort than waiting nearby for that speech to end. A war of attrition also imposes opportunity costs on all senators by preventing them from acting on other legislative priorities and requiring them to remain in the nation’s capital instead of going home on the weekends. But only the filibustering senators bear those costs, along with the extreme physical toll of holding the floor by talking. Finally, a war of attrition imposes political costs on filibustering senators by associating them directly with the obstruction of popular issues, thanks to televised Senate floor proceedings.

The Takeaway

Republicans do not need cloture to overcome Democratic opposition to the SAVE America Act. They can instead require Democrats to maintain a talking filibuster, making it harder to block a vote. In this situation, Democrats bear a greater burden than Republicans.