The Senate Has More Than One Way to Work
The ongoing debate among Republicans over how to advance the SAVE America Act is about more than the election overhaul bill. It is also a debate over how the Senate should make decisions more generally. Senators Mike Lee, R-Utah, and Rick Scott, R-Fla., want Majority Leader John Thune, R-S.D., to bring the election overhaul bill to the floor and force Democrats to hold the floor and talk to stop it from passing. Their strategy relies on the Senate’s existing rules to structure the debate and eventually reach an up-or-down vote on final passage without invoking cloture on the bill.
Thune and senators such as John Cornyn, R-Texas, and Thom Tillis, R-N.C., reject that approach as unworkable. They argue that debating the SAVE America Act on the floor serves no purpose because Republicans lack the 60 votes needed to invoke cloture, and that reality makes the alternative approach impractical.
Lee and Scott want to use Senate rules other than the cloture rule to overcome Democrats’ obstruction. In contrast, Thune views the Senate’s present reliance on cloture as the only way to overcome obstruction. This distinction frames the central divide in the dispute.
But the Senate does not have one fixed way of considering legislation. The real question is not whether the Senate can act without cloture, but which decision-making pattern senators choose to use to advance their priorities. While its rules and practices have remained relatively stable over time, the way senators use them has changed. The present process underpinning Thune’s preferred course of action - leadership control, negotiated unanimous consent agreements, filled amendment trees, and routine cloture - is only the latest way the Senate has organized its work. It is not the only way.
Three Patterns of Decision Making
Over time, Senate decision-making has generally followed three patterns: collegial, majoritarian, and structured consent. These patterns provide a useful framework for comparing the competing approaches to the SAVE America Act. These patterns show that the Senate has more than one way to debate legislation.
The Collegial Senate
The collegial pattern is the most open of the three. Committees play a central role in writing legislation and deciding which bills are ready for the floor. Once a committee reports a bill, senators usually agree to take it up without a major fight. The motion to proceed is not routinely treated as a separate opportunity to defeat the legislation before debate begins.
The floor process is decentralized. Rank-and-file senators participate directly in shaping the bill. They debate its provisions and offer amendments. Democrats and Republicans alike offer amendments, and the Senate often accepts or rejects them by voice vote or unanimous consent. Recorded votes are required when senators want to take a public position on an issue or get their colleagues on record opposing it. Party leaders help manage this process, but they do not determine every question the Senate will consider before the debate starts.
Cloture is available, but it is not the ordinary way the Senate ends debate. Senators instead reach a point at which no one seeks recognition during the debate. When that happens, they negotiate a unanimous consent agreement to schedule any remaining votes. If that is not possible, they use the Senate’s rules to exhaust the opposition.
The floor is consequential in the Collegial Senate. The bill the Senate begins debating may differ substantially from the one it ultimately approves.
The Majoritarian Senate
Floor debate in the Majoritarian Senate is centralized, partisan, and closed. The majority party crafts legislation under the direction of party leaders without consulting the minority party. Committees may still act, but the majority makes the pivotal decisions before major legislation reaches the floor. Legislation may also bypass committee consideration altogether.
The minority responds to being shut out of the process by trying to prevent the Senate from beginning debate on legislation. As a result, cloture on the motion to proceed is common. Votes to begin debate are largely partisan, with only the minimum number of minority votes needed to invoke cloture. When that happens, the fight over whether the Senate should debate a bill often serves as a substitute for the subsequent debate.
If the Senate successfully begins debate on a bill, the majority leader almost always tries to control the amendment process and frequently blocks unwanted proposals altogether by filling the amendment tree and filing cloture on the bill before senators have had a chance to filibuster it. Minority amendments are permitted only when the majority supports them or decides that voting on them will not harm its members politically or otherwise jeopardize final passage.
In the majoritarian pattern, the Senate floor is not consequential. The most important decisions are made in majority-party meetings. Senators ratify those decisions on the floor.
The Structured Consent Senate
The Senate often makes decisions in a way that falls between the collegial and majoritarian patterns. In contrast to the Collegial Senate, the legislative process in the Structured Consent Senate is not open to rank-and-file senators. And unlike the Majoritarian Senate, it does not entirely exclude the minority party. Instead, the majority and minority leaders negotiate the terms of the Senate’s floor debate in advance on behalf of their colleagues, creating a middle ground between the two approaches.
The leaders decide when the Senate will debate a bill, how long that debate will last, which amendments will be offered, and how they will be decided. The leaders then lock in those terms by unanimous consent. The resulting process may permit several amendments or none. What matters is that it is prearranged.
Structured consent gives both parties a role, but not every senator an equal one. The two leaders are the principal participants. Some senators secure votes on amendments by persuading their leader to include them in the unanimous consent agreement. Others are effectively excluded.
The majority leader has more leverage because the majority controls the agenda. The minority leader relies on minority senators’ ability to withhold consent or deny cloture. That helps explain why negotiated amendment votes sometimes have 60-vote thresholds. The rules do not always require that threshold. It is often part of the bargain.
Cloture may accompany structured consent, but it does not necessarily drive the process. Leaders can use unanimous consent to schedule votes and waive the delays associated with the cloture process. They can also file for cloture while continuing to negotiate an agreement to induce rank-and-file senators to accept its terms. In either case, the agreement - not extended floor debate - determines how the Senate gets to a final passage vote.
The Takeaway
Understanding how the Senate has made decisions over time can inform Republicans' choice regarding the SAVE America Act. Thune’s position assumes that the Senate must follow either the majoritarian or structured-consent patterns: negotiate consent before debate begins, or wait until Republicans have the votes to invoke cloture before committing scarce floor time to the bill. By contrast, Lee and Scott are asking Republicans to adopt a more open, conflict-driven process in which senators debate, offer amendments, and force opponents to sustain their obstruction. The choice is not simply procedural; it is about which decision-making pattern Republicans want to use.
Neither approach is dictated by the Senate’s rules. Each reflects a choice about who should control the process and how much uncertainty senators should tolerate. Cloture offers predictability, but it empowers 41 senators to block a final vote without holding the floor. By contrast, a talking filibuster creates uncertainty and exposes senators to unwanted amendments, but it also makes obstruction visible and allows lawmakers to use the Senate’s other rules to advance their priorities.
The question is therefore not whether the Senate can debate the SAVE America Act without cloture. It has debated bills using the collegial pattern before, and its rules still allow it to do so. The question is whether today’s senators are willing to use a different pattern of decision-making - and accept the risks that come with it - to advance the election overhaul bill. That is the final choice the Senate must make. That is the choice at the center of this debate.