SAVE America, SAVE the Senate

Americans across partisan, racial, generational, or ideological lines overwhelmingly support the principle that American elections should be decided by Americans and that voters should prove who they are. While more than 70 percent of Democrats nationally support requiring an ID to vote, Democrats in Congress oppose it and are fighting the SAVE America Act, which embodies such policies. The House passed the bill, but Senate rules are different and create unique roadblocks. Still, Majority Leader John Thune has shown a spotlight on Democrats’ opposition to what so many Americans support and has avoided more radical steps that would undermine the Senate in the long run.

Senate Rules

The Declaration of Independence, soon to be 250 years old, says that the purpose of government is to secure inalienable rights. The Founders knew that this purpose requires certain powers and that those powers require limits, such as “checks and balances,” that prevent too much power from ending up in too few hands. These include a national legislature with two houses (most around the world have one) that are designed to handle legislation differently.

One difference between the House and Senate stands out from the rest. It is said that the House is designed for action while the Senate is designed for deliberation. While passing a bill in either house requires a simple majority, bringing up a bill for debate or setting up that final vote requires the same simple majority in the House but a supermajority (today, 60 votes) in the Senate. That means a smaller group of Senators, too few to defeat a bill outright, can prevent it from passing by preventing a final vote altogether. That’s what Senate Democrats have vowed to do to the SAVE America Act.

Senate Republicans have two basic options. First, if Democrats use Senate rules to block the SAVE America Act’s passage, Republicans can still use those rules to expose Democrats’ extreme position and the massive distance between them and most Americans on this important issue. Second, Republicans can try to go outside Senate rules and pass the SAVE America Act anyway.

Leader Thune has chosen the first option. Knowing they are way out of step with most Americans, Democrats tried to avoid even debating the SAVE America Act. They would have filibustered even a motion to proceed to the bill, but Thune found a creative way to get the bill before the Senate anyway. Last December, the Senate unanimously passed a small bill on a completely different subject. The House kept the Senate bill number, deleted the rest, inserted the SAVE America Act language, and voted 218-213 to pass it, sending it back to the Senate as a House “message” rather than a new bill. Why? While a motion to proceed to a new bill is debatable, which means Democrats can filibuster, a motion to proceed to a House message is not. Bingo, the SAVE America Act becomes the Senate’s current business without a filibuster.

The “Talking Filibuster”

Now what? Is there a way to bring the SAVE America Act up for a final vote without a Democratic filibuster? Some activists want Thune to try forcing what they call a “talking filibuster.” Here’s how it might work. Senate Rule 19 includes several provisions aimed at maintaining civility during Senate floor debates. These include the rule that “no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate.” The theory is that the Majority Leader can keep the Senate in a single legislative day and, when Democrats run out of speech opportunities, call for a vote on the SAVE America Act.

Rule 19’s own features explain why the Senate has never used it to avoid or break a filibuster. First, a “legislative day” ends when the Senate adjourns. Second, the two-speech limit applies to every “question in debate,” including not only the bill but also any amendments Democrats offer or motions they make. Third, while Rule 19 limits the number of speeches per Senator, it does not limit their length.

Let’s implement these Rule 19 features. Keeping the Senate in session without adjourning requires a “quorum,” or a majority of Senators, present. Normally, the Senate presumes a quorum to be present, even when only a few Senators might be physically present. But any Senator can request a live quorum call (some activists wrongly claim that only the Majority Leader can do this) to determine whether a quorum exists. All Senators must come to the floor and register their presence. If a real quorum is not present, and steps to bring more Senators to the floor are unsuccessful, the Senate must adjourn, and the legislative day ends.

Since Republicans, not Democrats, want to keep the legislative day open, they must ensure there is a live quorum whenever Democrats call for one. This means that nearly every Republican must always be on or near the Senate floor. Only a few Democrats, however, need to be there at any one time.

Then there’s the “question in debate” problem. Every amendment Democrats offer and every motion they make create another opportunity for two speeches per Senator. Democrats will not have to speak only on the SAVE America Act; they can speak to any issue they think will help them politically, or try to force votes on amendments that will put Republicans in a tough position. Finally, Rule 19 limits the number of speeches per Senator on each of these questions, but not the length of those speeches.

Consider this hypothetical. Suppose Democratic staffers have been busy dreaming up topics for amendments and drafting speeches on who-knows-what. They have lined up two 30-minute speeches per Senate Democrat on each of a dozen amendments and motions. Do the math: that’s 564 hours of debate time. Republicans would have to keep the Senate in continuous, round-the-clock session for 23 calendar days – and that’s assuming no more Democratic speeches and none from Republicans.

The “Nuclear Option”

Some activists have suggested a different strategy, often called the “nuclear option,” a parliamentary maneuver that would reinterpret Senate rules to get a particular result. The Majority Leader would first make a motion to concur in, or agree to, the House message containing the SAVE America Act language that has already been made the Senate’s current business. A motion to concur is debatable, and Democrats will filibuster. This is where the “nuclear option” would be deployed.

The Majority Leader would raise a point of order, or a question of procedure, arguing that consideration of the House message would involve very limited debate and no amendments. The presiding officer would rule against the point of order because it is inconsistent with existing rules, and after the Majority Leader appeals that ruling, the full Senate would vote along party lines to reject it. This would allow the Senate, after a specific amount of debate, to avoid filibuster and obstructive amendments and vote on the SAVE America Act language.

This is a Rubicon that should not be crossed. Pretending that written rules that say one thing actually mean something else is a bad way to run any institution, let alone the Senate. Worse, using such parliamentary sleight of hand would effectively neutralize the extended debate central to the Senate’s role in the legislative process. That role, frustrating as it can be, is one of the limits on government power on which our liberty depends. The ends do not justify the means.

Senator Chuck Schumer tried this when he was the Majority Leader in 2022. He used the same “House message” strategy to make the John R. Lewis Act, which would have radically changed our election system, the Senate’s current business. When he made the short-debate-no-amendments point of order and appealed the presiding officer’s negative ruling, however, Senators Joe Manchin (D-WV) and Kyrsten Sinema (I-AZ) voted with the 50 Republicans to reject Schumer’s move. Forty of the Republicans who voted just four years ago to protect extended debate serve in the Senate today, and Thune knows enough of them would refuse to flip-flop now that this “nuclear option” gambit would fail.

The path Thune has chosen includes elements of both the nuclear option and talking filibuster. He took the steps necessary to put the House message before the Senate, but the Senate chose not to go further and fundamentally change the Senate by attempting the nuclear option. Putting the House message before the Senate shone a spotlight on the principle the bill embodies and opened extensive opportunity for robust debate, without attempting the unworkable and untested “talking filibuster.” He made the most of this situation without causing long-term harm to the Senate.

Thomas Jipping is a Senior Legal Fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom. He served for 15 years on the Judiciary Committee staff of Senator Orrin G. Hatch (R-Utah).