Elon Musk has joined a chorus of conservatives pushing for Senate Majority Leader John Thune, R-S.D., to force Democrats into a talking filibuster in order to pass the SAVE America Act, which requires proof of U.S. citizenship and photo ID to vote in federal elections.
“The filibuster rule is meant to allow senators to present their arguments before a bill is passed. It is NOT intended to require 60 votes to pass anything at all!” Musk said on social media. “STOP THE ABUSE OF THE FILIBUSTER NOW. Either senators must talk or they must pass the bill to SAVE AMERICA!”
Musk was responding to a post from Sen. Mike Lee, R-Utah, who said it is “great” that Thune decided to force a vote in the Senate on the SAVE America Act. But, Lee pointed out, “A vote isn’t enough; President Trump and the American people are calling on us to PASS this bill,” and “for that reason, senators wanting to filibuster it must be required to speak.”
The battle in the Senate is a procedural one, but it is the result makes all the difference. On the one hand, Republicans can bring the bill to the floor, essentially symbolically (as the outcomes are almost always predetermined), and inevitably lose because there are not 60 votes to reach cloture. On the other hand, they can force Democrats to actually stand and speak for hours, either holding the floor in perpetuity or relenting and allowing the bill to pass with a simple majority vote.
The “talking filibuster” is what most Americans think of when they picture a filibuster: former Sen. Strom Thurmond, D-S.C., holding the floor for 24 hours and 18 minutes in speaking against the Civil Rights Act of 1957. The cloture-based filibuster often allows those in the majority to claim they tried to get something passed, while blaming the minority for nothing ever happening.
As The Federalist CEO Sean Davis said, “This is classic failure theater from Thune. He doesn’t want to do the work of forcing Democrats to maintain a real filibuster, so he’s just going to file cloture on their zombie filibuster, which will fail. Then he can immediately move on to what he really cares about: passing corporate welfare for K Street. Failure theater from do-nothing Republicans should be mocked and condemned, not praised.”
The “talking filibuster” was the norm in the Senate until 1917, as Chronicles Magazine points out, when the cloture rule was introduced. However, while the cloture rule became more regularly used, it did not replace the talking filibuster — which is still a rule that can be invoked.
It would take discipline on the part of both Republicans and Democrats if either side is to win. Democrats would need to make sure they never yielded the floor, because the moment they stop speaking they would lose it. Republicans would need to table amendments offered by Democrats until they are so exhausted they are forced to yield.
With the Senate in a state of gridlock, the talking filibuster appears to be the only way to pass much of the Trump administration’s agenda.
