WASHINGTON (The Hill): Senate Democrats are scrambling for a Plan B to pass voting rights legislation after Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) announced last week that they would not vote to change the Senate’s filibuster rule despite the pleading of President Joe Biden.
Now some Democrats are discussing a novel approach to circumventing a Republican filibuster that may allow voting rights legislation to pass with 51 votes without changing the Senate’s rules.
These Democrats, including Sen. Tim Kaine (D-Va.), are exploring the possibility of forcing Senate Republicans to actually hold the floor with speeches and procedural motions.
They hope that the Republican opposition may tire itself out after a few days or weeks and that Senate Majority Leader Charles Schumer (D-N.Y.) may be able to then call for a simple-majority vote on final passage and skip the formal procedural vote — known as cloture — on ending debate.
“There are a couple of paths here. Do we go down the path and do a long debate until it’s done and then have a simple debate?” Kaine told reporters last week.
“We wouldn’t need a rules change to pass the bill by simple majority if the debate is over. Theoretically you do not need a rules change to pass a bill that’s on the floor, you just have to allow debate to occur,” he added.
The strategy has gained more attention from Senate Democrats in recent days as it’s become crystal clear that Sinema and Manchin won’t vote for a more straightforward rules change to lowering the procedural threshold for ending a filibuster from 60 votes to 50.
A second Democratic senator confirmed that colleagues are reviewing the idea of forcing Republicans to stage a talking filibuster to block voting rights legislation.
“We’ve discussed it,” said the lawmaker who explained that if Republicans don’t occupy the floor with speeches and procedural motions, voting rights legislation should be allowed to come up for final passage under the Senate’s rules.
The problem with this approach, according to Democrats familiar with the discussion, is that it hasn’t been attempted in decades and no one is quite sure how it would play out procedurally.
Cloture votes to end debate in the Senate have become so routine that it’s become second-nature to expect the floor is being tied up in debate when a controversial bill is pending.
More often, the floor is usually empty or has only a few members milling about while the clerk reads off the roll of senators’ names during a quorum call.
James Wallner, a former Senate Republican aide and expert on Senate procedure, says that Democrats could pass voting rights legislation with a simple-majority vote if they’re willing to put up with a lengthy battle on the floor.
“Democrats don’t need 60 votes at all. They’re in 51-vote territory. They can move to table any amendments that Republicans offer to the bill,” he said.
“The easiest way to get to final passage on this bill is to put it on the floor and have Vice President Kamala Harris or Majority Leader Schumer or any other senator start to make points of order against any senator who tries to speak more than twice,” he added, referring to Senate rule XIX.
That rule states that “no senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate.”
Wallner said this applies to making various motions, which also counts as speech under the rule. He also noted that Schumer could stretch out “a legislative day” by several days or weeks to enforce Rule XIX.
He argued that if the two-speech rule is enforced, Republicans would eventually exhaust their ability to debate and hold up a final vote on voting rights legislation or any other bill.
“Eventually, common sense tells you, the minority can’t speak forward. So if the majority is determined to prevail in this instance, they’re going to prevail. Why? Because they have more votes. That’s the way it works,” he added. “The question is are they determined to prevail and this is where you basically get into a resolve fight. This is how the Senate worked prior to 1917.”
Wallner mapped out the strategy in a recent article for Reason.
A senior Senate Democratic aide, however, said that while this strategy might sound promising in theory, it would be difficult to execute because the Senate’s two-speech rule isn’t usually enforced by the chair and the minority can circumvent it by offering a slew of debatable motions that would set up new questions to debate, allowing each senator two more speeches.
“There are several problems,” the aide cautioned.
“This requires a more aggressive presiding officer,” the source explained. “The parliamentarian is not going to advise the presiding officer, ‘Nobody seems to be seeking debate so bring the question.’ It will have to be affirmatively sought by the presiding officer.”
In other words, the Senate has gotten into the habit of assuming a debate is taking place on a pending matter even if nothing is happening on the floor.
It has become a matter of course to hold a cloture vote to formally end debate and proceed to a final up-or-down vote unless a senator makes a successful request for unanimous consent to pass a measure without a vote or with a voice vote.
The second problem, the Democratic aide pointed out, is that the minority party can stretch out the two-speech rule by constantly offering new motions.
“The two-speech rule is hard to make work because you can always offer another amendment or bring up a new debate proposition and then get two more speeches out of that. And once again the parliamentarian doesn’t look to enforce it again so it would have to be presiding officer causing the parliamentarian to do something they don’t traditionally do.”
The third problem is that Republicans would only need a few senators to tie up the floor while Democrats would need to muster all 50 members of their caucus plus the vice president as the tie-breaking vote to repeatedly counter Republican motions noting the absence of a quorum, motions to adjourn and other procedural motions designed to hold up legislative business.
“Are you going to allow people to do quorum calls or not? It’s hard to stop people from being able to put in quorum calls,” the Democratic aide added. “This requires a lot of energy expended by senators. The majority is going to have to keep pushing this. The majority leader is going to want to devote the floor time to doing this and the recent Senate has not shown the willingness to put in long weeks, let alone long extended periods of debate.”
Wallner, the former Senate Republican aide, says these problems can be overcome if Democrats have enough energy and discipline to repeatedly vote down Republican motions.
“They can table at any point anything before the Senate so the Democrats are literally in simple-majority territory right now,” he said.
Schumer gave Senate Democrats a procedural head start on the voting rights legislation by bringing it straight to the floor as a message from the House. That maneuver enabled him to skip having to muster 60 votes to end debate on a motion to proceed to the legislation.
The Democratic leader as of now appears inclined to go ahead and hold a simple-majority vote to eliminate the 60-vote procedural threshold — even though that vote is doomed to fail because Sinema and Manchin won’t support it.
Schumer on Monday indicated that he wants to go ahead and hold a vote on changing the Senate rule, even though he only has 48 “yes” votes at most.
“I’m going down to Washington and we are going to debate voting rights. We are going to debate and, in the Senate, you know we need 60 votes to break a Republican filibusters … but since we only have 50 Democrats in our razor thin majority the only path forward on this important issue is to change the rules to bypass the filibuster,” he said at a National Action Network event in New York.
“Right now, there are two Democrats who don’t want to make that happen. But the fight is not over, far from it,” he said.