SAVE America Act Reveals What Really Causes Senate Gridlock
The Senate’s ongoing impasse over the SAVE America Act shows what causes gridlock in the chamber: not the filibuster, not partisan polarization, and not ideological disagreement. Gridlock happens when senators on both sides of a debate are unwilling to expend the effort required to prevail.
The SAVE America Act passed the House earlier this year. Among other things, it requires voters to provide proof of citizenship when registering to vote and identification when casting a ballot. President Trump has repeatedly urged Senate Republicans to pass it. Senators Mike Lee, R-Utah, and Rick Scott, R-Fla., have called on Majority Leader John Thune, R-S.D., to force Democrats to hold the floor and talk to obstruct the bill.
Thune insists that Republicans cannot do so because they lack the 60 votes needed to invoke cloture. “There are not the votes to nuke the filibuster,” he recently observed, “and there aren’t going to be 10 Democrat votes to all of a sudden support the SAVE America Act.”
Thune’s argument reflects how senators understand gridlock today. According to this view, Democrats oppose the bill and can prevent Republicans from passing it because Republicans lack the votes to invoke cloture. But that is not what is happening.
But that is not what is happening.
The SAVE America Act “Debate”
Democrats are not filibustering the SAVE America Act. They are not holding the floor, offering amendments, forcing votes, or otherwise expending effort to prevent Republicans from passing it. Likewise, Republicans are not trying to overcome Democratic opposition. They are not forcing Democrats to debate. They are not making them hold the floor. And they are not keeping the Senate in session until Democrats exhaust their ability - or willingness - to obstruct.
Neither side is acting. That inaction causes gridlock and is the central point of this dispute.
The confusion arises from the tendency to treat the filibuster as a minority veto. Under this assumption, 41 senators can prevent the Senate from acting whenever they oppose a bill. Cloture requires three-fifths of senators duly chosen and sworn - typically 60 - to end debate. If the majority lacks 60 votes, the Senate can’t advance legislation.
Yet defeating cloture does not defeat a bill. It merely prevents the Senate from ending debate using the process spelled out in Rule XXII. Floor debate continues after a failed vote on cloture. And when no senator seeks recognition in the ensuing debate - or when no senator who seeks recognition is entitled to speak—the Senate’s presiding officer must call a vote on the bill.
A senator may delay that vote by speaking. Other senators may continue the delay by speaking after the first senator yields the floor. But no senator can speak indefinitely. As a result, filibustering imposes physical, political, and opportunity costs on the senators participating in it. The longer the debate continues, the more effort senators must expend to obstruct.
Senate Rules Make It Hard to Obstruct
The Senate’s rules increase the costs of obstruction. For example, Rule XIX limits senators to two speeches on the same question during the same legislative day. A senator who gives two speeches can’t speak again on that question until the Senate begins a new legislative day. Rule XIX, therefore, allows the majority to overcome obstruction by enforcing the two-speech rule and remaining in the same legislative day until opponents exhaust their allotted speeches.
That does not guarantee Republicans will pass the SAVE America Act. Democrats may be willing to expend the effort required to block it. But they must hold the floor and sustain their obstruction to do so. Conversely, Republicans may eventually conclude that passing the bill is not worth the time and effort required to overcome Democrats’ obstruction. If so, Democrats prevail because their commitment to defeating the bill exceeds Republicans’ commitment to passing it.
Alternatively, Democrats may be unwilling to sustain a prolonged filibuster. The most committed opponents may speak first. But as they exhaust their speeches, Democratic leaders would have to persuade less committed senators to take their place. Those senators would then have to publicly defend their opposition, speak for extended periods, remain near the floor, and cast repeated procedural votes.
If they refuse, the Senate votes. Republicans then prevail if they still have a majority.
Gridlock Happens When Senators Don’t Try
Gridlock happens when neither side in a debate is willing to test its commitment in this way. That is precisely what is happening now. Democrats say they oppose the SAVE America Act, but they are not required to take action to block it. Republicans say they support the bill, but they are unwilling to expend the effort required to pass it.
The result is bipartisan inaction masquerading as minority obstruction.
This phenomenon is not unique to the present Republican majority. Democrats govern the Senate the same way when they are in charge. They routinely blame Republican filibusters for their failure to pass legislation, even though Republican senators have not filibustered. Likewise, Democrats prefer to schedule a cloture vote, declare a bill blocked when cloture fails, and move on to other business.
Both parties benefit from this arrangement.
The minority can block legislation without bearing the costs of obstruction. Its senators do not have to hold the floor or explain their opposition at length. Instead, they merely announce that they will vote against cloture.
The majority also avoids the costs of legislating. Its senators do not have to remain in Washington at night or on weekends. They do not have to sit through prolonged debate, vote on amendments, or defend difficult procedural decisions. And they can blame the minority for the outcome while assuring their supporters that they did everything possible.
The Takeaway
Cloture did not create this dynamic. Instead, rank-and-file senators created it because it makes their jobs easier.
For most of the Senate’s history, majorities passed legislation without invoking cloture. Before the Senate adopted Rule XXII in 1917, it had no formal procedure to end debate over a senator’s objection. Yet the Senate still considered and passed consequential legislation. The majority prevailed when it was more committed to acting than the minority was to obstruct.
That remains possible today. A committed majority can use the Senate’s existing rules to make obstruction costly. It can also change those rules if its members believe the existing process makes passing legislation too difficult. But what it cannot do is remain inactive and credibly claim that a minority prevented it from acting.
The SAVE America Act impasse is therefore not evidence that the Senate’s rules make legislating impossible. It is evidence that senators do not want to expend the effort those rules require, which is the real cause of gridlock.
Gridlock is not caused by too much conflict. It is caused by too little action. Senators do nothing because doing something requires them to debate, vote, and accept responsibility for the result. In the end, that is a bipartisan choice - and it is the real reason the Senate remains stuck.