– The Washington Times
Senate Republicans have enough support in their ranks to pass a voter ID bill, but to break a Democratic blockade, they likely need to resort to an old-fashioned talking filibuster.
The talking filibuster has largely gathered dust since the 1960s, when it was used during debate on landmark legislation, such as the Civil Rights Act, the Voting Rights Act and the Fair Housing Act.
Brushing off the tool would give Republicans a shot at passing the SAVE America Act, which requires proof of citizenship to register to vote and a photo ID to cast a ballot, with a simple majority vote.
Passage is far from a guarantee, however, given the complicated procedure involved.
“It works great in movies,” said Sen. Roger F. Wicker, Mississippi Republican.
Mr. Wicker was referring to “Mr. Smith Goes to Washington,” the 1939 film in which the title character talks on the Senate floor for 23 hours to make a point about corruption. His filibuster prompts a fellow senator to make a public confession.
In practice, exercising the talking filibuster is much more complicated, especially in a debate over a bill.
Each senator is allowed two speeches on the bill, but they also get up to two speeches for every motion or amendment brought up during the debate. Current rules do not limit those.
Senate Majority Leader John Thune, South Dakota Republican, has warned that a talking filibuster could tie up the floor indefinitely.
Democrats fiercely oppose the SAVE America Act. They say that checking citizenship and requiring a photo ID to vote is a scheme to disenfranchise minority voters. Republicans argue that the document requirements would prevent fraud, such as double voting, voter impersonation and noncitizen voting.
Sen. Mike Lee, Utah Republican and the bill’s lead sponsor, gave a presentation to his Republican colleagues last week in hopes of persuading them to enforce the talking filibuster to circumvent the 60-vote threshold to invoke cloture and end debate.
Mr. Lee refers to the current 60-vote requirement as the “zombie filibuster,” which has allowed senators to block legislation without ever speaking on the floor in opposition.
President Trump has often called for Republicans to eliminate the filibuster to pass election integrity legislation and other Republican priorities blocked by the Democratic minority.
The only way to do that is with enough Republicans willing to deploy the “nuclear option” to change the Senate rules and advance bills with a simple majority vote rather than the three-fifths vote that is traditionally required.
“There aren’t anywhere close to the votes, not even close, to nuking the filibuster,” Mr. Thune said when asked about the pressure to do so to pass the SAVE America Act. “And so that idea is something, although it continues to be put out there, is something that doesn’t have a future.
“Is there another way of getting there? We’ll see,” he said, noting that his conference has been discussing alternatives.
Mr. Lee considers the talking filibuster to be the best next step because it is already an option under Senate rules.
“Enforcing the Talking Filibuster is NOT ‘eliminating’ the filibuster,” he said on social media. “It’s just enforcing the Senate’s rules and making Democrats opposed to the SAVE America Act actually *speak* if they want to filibuster. If we don’t do this now, we might as well prepare to lose.”
Mr. Lee’s hard-liner allies — including Sens. Ted Cruz of Texas, Ron Johnson of Wisconsin and Rick Scott of Florida — are on board with the idea, but they will have to win over nearly the entire 53-member Republican conference to make the plan work.
“I’m very open to that,” said Sen. Josh Hawley, Missouri Republican. “I’m not sure my colleagues are very enthusiastic about that.”
Sen. John Kennedy, Louisiana Republican, said “most people’s minds are open,” including his own, but they have a lot of questions about how it would work.
Sen. James Lankford, Oklahoma Republican, said Republicans “need to use what we can” to enact the SAVE America Act.
“But we also got to be able to work on a lot of things right now,” he said, noting that enforcing the talking filibuster on one bill “would take up a lot” of floor time and stall other bills.
Mr. Thune said Republicans need to consider that “opportunity cost.”
“There are some important things that we want to do — housing reform, market structure, permitting reform, maybe AI, farm bill, highway bill,” he said earlier this month. “The coin of the realm in the Senate is floor time.”
The bills Mr. Thune referenced would require bipartisan support to clear the 60-vote threshold, so part of the calculation may come down to Democrats’ willingness to cooperate.
The two parties are locked in an impasse over the Trump administration’s deportation force. Democrats blocked funding to partially shut down the Department of Homeland Security until they secure restrictions on federal immigration agents.
Other legislation is likely to take a back seat until that matter is resolved.
Meanwhile, Senate Republicans continue conversations about the talking filibuster for when they return to Washington next week.
Democrats argue that the talking filibuster would have the same effect as nuking it.
“We tried the exact same thing, but nobody mistook that for maintaining the filibuster,” said Sen. Brian Schatz, Hawaii Democrat. “That is going nuclear.”
He was referring to Senate Democrats’ effort to create a filibuster carve-out to pass President Biden’s voting overhaul bill, which would have created automatic voter registration and expanded mail-in voting.
Procedurally, that involved an effort to change the rules to limit amendments, motions or points of order on the bill, which Republicans argued was effectively nuking the filibuster. The effort failed because of opposition from Sens. Kyrsten Sinema of Arizona and Joe Manchin III of West Virginia, who were Democrats at the time.
Enforcing the talking filibuster would raise the same question about changing the rules to prevent Democrats from offering unlimited amendments or motions to extend their filibuster.
As Mr. Thune has pointed out, Republicans do not have enough votes for that.
That’s the “quagmire” behind the talking filibuster, as Michael A. Fragoso, a former chief counsel for Sen. Mitch McConnell and the Senate Judiciary Committee, explained in a National Review op-ed.
“Rather than forcing Democrats on a death march over illegal aliens voting, Democrats would be able to force Republicans on a series of death marches on popular issues of their choosing, each of which culminates in a vote by Republicans up for reelection,” he said.
Mr. Fragoso, now a fellow at the Ethics and Public Policy Center, said the SAVE America Act may not even be the same bill if Democrats can drum up a handful of Republicans to back their amendments.
“It could end up as the SAVE Ukraine Act after amendment,” he said.
• Lindsey McPherson can be reached at lmcpherson@washingtontimes.com.
