Senate Rules Can Limit Talking Filibuster

The Senate considers the SAVE America Act this week. Lacking votes to invoke cloture over Democrats’ objections, Republicans can still force an up-or-down vote by making Democrats sustain a costly talking filibuster.

In the absence of cloture, the Senate can’t vote on the SAVE America Act if a senator is speaking or seeking recognition to speak. The debate continues if there are senators who wish and are able to speak. The Senate’s presiding officer must call a vote on the legislation when no senators are available to speak on the floor.

Republicans can speed up the path to a vote by strictly enforcing the Senate rules on filibustering senators. These rules limit the number of speeches a senator can give and restrict the content of their remarks. If a senator breaks these rules, they lose the right to join the filibuster. Once no Democrats are left to sustain the filibuster, the Senate can vote on the legislation.

The Two-Speech Rule

The majority can limit a minority’s ability to filibuster indefinitely by strictly enforcing Senate Rule XIX during floor debate. Paragraph 1(a) of that rule states, “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.” The majority can apply Rule XIX’s two-speech cap to an entire debate because a legislative day is not the same as a 24-hour calendar day. Senate precedent defines legislative day as a “day, which continues from the beginning of a day’s session following an adjournment until another adjournment.” Significantly, a legislative day “is not effected in any way by a recess of the Senate.” A legislative day only ends with the Senate’s adjournment.

To limit a talking filibuster, the majority can keep the Senate in continuous session or choose to recess rather than adjourn to keep the debate in a single legislative day. The talking filibuster continues until the filibustering senators have exhausted their ability to speak on the underlying question. As Senate precedents state, "a senator is not entitled to speak more than twice in the same legislative day on the same question and when called to order during his third speech will lose his right to the floor." Once each senator attempting to obstruct the question has given their two speeches allowed under Rule XIX, the filibuster ends, and the presiding officer may then call a vote.

Limitations on Floor Remarks

Rule XIX also restricts what filibustering senators can say during floor debate. Paragraph 1(b) requires their remarks to be germane (or relevant) to the debate topic for the first three hours of each calendar day. Paragraph 2 forbids any senator from suggesting, either directly or indirectly, that another senator or senators have acted with conduct or motives unworthy of a senator. And paragraph 3 prohibits senators from referring disrespectfully to any state of the Union.

Senators lose the right to participate in debate when they violate these provisions of Rule XIX. Senate precedents state, “a senator may be called to order under Rule XIX, either by the presiding officer or by a senator, for transgression of the rules by the use of objectionable language,” And they can be called to order at any point. According to precedent, a senator “has a right to call another senator to order under Rule XIX without the latter yielding for that purpose.” Paragraph 4 of the rule stipulates that when a filibustering senator is called to order, he “shall take his seat, and may not proceed without leave of the Senate.” While senators may appeal the presiding officer’s decision to call them to order, the majority can quickly table their appeal using a nondebatable motion.

The Takeaway

Republicans can move the SAVE America Act forward without 60 votes by forcing a talking filibuster and enforcing Rule XIX. This strategy both limits how many times each Democrat can speak and restricts their remarks. If Democrats violate these rules, they lose their right to participate in the debate. As the number of eligible Democratic speakers decreases, an up-or-down vote becomes inevitable. The majority controls the process by holding Democrats to strict debate rules, gradually exhausting their ability to delay final action.