“Let the Senate Be the Senate Again”

Inside the push to reignite Senate deliberation.

Life as a senator is pretty nice.

You have a driver to take you wherever you want to go. A coterie of aides at your beck and call. You make $174,000 a year (well over double the national average), plus a nice pension. How about job security? At most, you only risk termination every six years; more accurately, unless you are one of a handful of senators from a competitive state, the job is pretty much yours until you choose to give it up.

At your workplace, Capitol Hill, the world bends around you. People hurry out of your way in the halls. Lunch is served for each party multiple times a week. (Yesterday, Republicans had roast beef.) A specialized subway system takes you from your office building to the Capitol, then a “Senators Only” elevator take you to the Senate floor. No need to rush: every vote will be held open until you get there. Even outside the Capitol, you move through life with ease: it sure sounds nice to skip airport lines like a member of Congress, doesn’t it?

You also don’t have to do that much.

The Senate is the upper chamber of the legislative branch, and yet it spends less and less time legislating. Once a forum where the nation’s most pressing issues were discussed, it is now rare for the Senate to debate a hot-button bill. And when bills do get considered, the process is highly structured. The Senate was designed to allow every individual senator unlimited opportunities to debate and amend every bill, which can create — in theory — drawn-out sessions, hectic schedules, and votes forced at any hour. It was supposed to be freewheeling, deliberative, and time-intensive.

Instead, senators have largely forked over their rights to control debate and amendments to their party’s leaders. Debates are held in tidy blocs, and votes are scheduled in advance. Unlike in the House, which is controlled by majority fiat, rank-and-file senators have all sorts of ways, according to the rules, to force votes on bills or amendments they want to see considered. But they don’t. Because if they do it, someone else can do it to them, and who wants to vote on an amendment by Rand Paul when you could be happily flying home for a three-or-four-day weekend?

“Senators got very comfortable,” Rachel Bovard, the vice president of the Conservative Partnership Institute and a former Senate Republican staffer, told me in an interview. “And they still are very comfortable with that schedule… They build their whole travel schedule and fundraising and all these things around this predictability of the floor, when it is, by nature, inherently unpredictable.”

Senators spend a lot of time in public calling for action on this issue or that, but almost never force debate themselves, in order to preserve this predictability — and because it’s possible they might get rewarded politically more for talking about an issue than getting something done on it (especially if that “something” ends up being a compromise).

Bovard is part of a band of conservative activists who have been trying to urge the Senate to change its ways, to embrace the unpredictability of deliberation, and try a new strategy to force legislation through — no matter how long it might take.

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These activists are trying to upend the Senate’s complacent culture with the hope of passing President Trump’s top legislative priority, the SAVE America Act, which would require individuals to provide proof of citizenship when registering to vote and photo ID when casting a ballot. (Trump has also called for the measure to be expanded to limit mail-in voting and to ban transgender participation in women’s sports and gender reassignment surgeries for children.)

It’s possible you’ve already spotted the issue: in the Senate, it takes 60 votes to end debate on most pieces of legislation (or, in Senate parlance, to “invoke cloture.”)

Or, at least, that’s how journalists like me normally put it. The truth is a little bit more complicated.

In the original Senate, there was no way to end debate on legislation. Senators would simply talk and talk; once no one else wanted to speak, the chamber would move on to a vote. This eventually became frustrating for majorities (and presidents), who accused minorities of “filibustering.” Thus, the “cloture rule” was created in 1917, allowing a supermajority of senators to cut off debate at any time. (“Cloture” comes from the French word for “closure,” as in closing off debate.)

But it’s still possible to end debate on legislation naturally, just by exhausting the other side, until nobody wants to (or can) speak anymore. This is a way for the Senate to advance to final consideration of a bill without needing 60 votes. But it does take a lot of time and effort. This is what it means for a majority to force a minority into a “talking filibuster.”

There are a few things we know about how this would go. Under Senate Rule XIX, every senator can only give two speeches per “question” per legislative day. (Each bill or amendment considered by the Senate creates another “question.”) Legislative days aren’t the same as calendar days: theoretically, the Senate majority could simply not adjourn at the end of a calendar day, and stay in the same legislative day, in an attempt to deplete the number of speeches available to the minority.

Beyond that basic structure, though, it’s anyone’s guess how this would go. If all 47 Democrats managed to give two Cory Booker-style 24-hour speeches, the talking filibuster could theoretically last for 2,256 hours, or 94 days. But not all Democrats have a Cory Booker-style talk-a-thon in them. (Remember, 16 Senate Democrats are in their 70s or 80s.) Let’s say the 47 Democrats average out at about five hour per speech per senator. That would bring them to 470 hours, or about 20 days.

Each Democrat would also be able to offer amendments to the SAVE America Act; every new amendment would be a new “question,” which means it would unlock two more speeches from each Democrat. Theoretically, this multiplies the number of days Democrats could drag things on for, although you would have to imagine there’s a cap at which they simply couldn’t talk any more, even if they still have more amendments to propose. It’s just that nobody knows where that cap is, and the modern Senate — as we’ve discussed — likes its predictability.

This would basically create a test of stamina between the two parties. Even among Republicans, there’s a big divide about whether or not the GOP would be able to win this war of attrition. Having spent the last few days talking to conservatives on both sides of that divide, the most striking thing has been that both sides are absolutely certain that they’re right, either that the “talking filibuster” would surely grind Democrats down before long, or that it’s a battle Republicans would never win.

Republicans who don’t think it’s possible to pass the SAVE America Act this way argue that talking filibusters are actually harder on the majority than the minority. At any time, Democrats could suggest the absence of a quorum, which is 51 senators. If no quorum is present, the legislative day can end, and everyone would be allowed to go home and get some rest (and the two-speech count would reset). So Republicans would always need to have a majority of senators nearby the Senate floor, sleeping in cots in the Capitol for 20 or 30 or 90 straight days. Democrats would only need the one senator speaking, and maybe a few others, while the rest of their party would be comfortably sleeping at home until it’s their turn every few days.

“You need 50 Republicans more or less at hand at all times to prevent Democratic shenanigans,” Michael Fragoso, the former chief counsel to then-Senate Republican Leader Mitch McConnell, told me. “And they don’t need that, they only need maybe a third of that. They can cycle through people. Republicans can’t.”

Supporters of the talking filibuster strategy believe that, even if it means some nights sleeping in cots, it is still easier to linger nearby (the Republicans’ task) than to talk (what Democrats have to do). “Do you think it’s gonna be harder to stand up and talk for 20 hours, or hang out near the Capitol and wait for that person to finish talking?” James Waller, another former Senate Republican staffer, said. “Like, put yourself in that position. Which one would you rather do?”

Proponents also believe the Senate rules offer answers to every concern. The chamber’s presiding officer could unilaterally block Democrats from triggering all those tiresome quorum calls, Wallner told me. And recorded votes can only be forced if 20 senators ask for one, Wallner pointed out: so Democrats would need a solid contingent of members on the floor, too, if they want to force amendment votes.

Back and forth like this it goes, with each side bringing up procedural tricks that they say fortify their position. “In this age of AI, you could have ChatGPT write a 10,000-page amendment, and it takes unanimous consent to waive the reading of the amendment, and so [Democrats] could tie things up indefinitely that way,” Fragoso raised. The hypotheticals go on and on.

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Trump has made the SAVE America Act priority No. 1 for congressional Republicans, which has put pressure on Senate Majority Leader John Thune (R-SD) to at least consider the talking filibuster strategy. Sen. Mike Lee (R-UT) — who both Bovard and Wallner used to work for — has been the ringleader of this effort.

Thune doesn’t believe a talking filibuster can work (for all the reasons laid out above), but he also can’t afford for Trump to think that he’s not trying to pass the SAVE America Act. So the Senate has technically been considering the bill for the past week, which is highly unusual by modern standards, in which the Senate basically never just moves on to a piece of legislation and stays there, allowing for open-ended deliberation without a plan for what will happen next. (Normally, the Senate Majority Leader will try to invoke cloture on a bill almost immediately after bringing it up, moving to end debate on the legislation before debate can even happen.)

In ultimate Senate fashion, this has created a very structured sort of middle ground. In theory, the chamber is experimenting with actual, free-flowing deliberation — but they’ve also been barely been discussing the SAVE America Act, and Republicans keep adjourning each day, and also making speeches themselves, which means they aren’t forcing Democrats to try to hold the floor at all hours (or forcing themselves to remain nearby).

Republicans aren’t moving off of the SAVE America Act (at least not yet), but they also aren’t forcing a talking filibuster of it. They’ve just created an unusual days-long period where everybody gets to look like they’re fighting about SAVE America, while still getting their normal sleep each night. A true talking filibuster scenario would also allow Democrats to force amendment votes on the legislation, an obvious political risk for Republicans. But Thune has blocked off Democrats’ ability to offer amendments, preventing truly open deliberation.

“I would say that, currently, the Senate floor is more open than it’s been in a decade,” Bovard told me. “And it’s not even that open, right?

I spent all day yesterday at the Capitol, dipping in and out of the Senate press gallery to watch the majesty of deliberation in process. I saw senators speak about AI, and wildfires, and the fact that March is Deep Vein Thrombosis and Pulmonary Embolism Awareness Month. Only a few mentioned the theoretically pending business of the SAVE America Act.

Republicans moved away from consideration of the bill to confirm a new Trump nominee, and then to hold a procedural vote on DHS funding. Democrats also managed to get the Senate off track by forcing a vote on the Iran war. I watched from inside the chamber as the new senator from Oklahoma, Alan Armstrong, was sworn in (and got to see him learn that he had inherited the chamber’s “Candy Desk”). Throughout most of this, the chamber was basically empty. Senators would lazily amble in for pre-scheduled votes, walk up to the two desks set up at the front of the chamber for Democrats and Republicans, glance down at a piece of paper telling them how to vote, vote accordingly, and leave.

A talking filibuster is hard, for the majority and the minority. On Tuesday, I didn’t see any willingness on either side for senators to disrupt their usual routines, or to give the SAVE America Act the singular focus or urgency that Trump is demanding from it.

Later this week, the Senate is poised to hold an up-or-down vote on photo ID as part of a Republican amendment to the bill. Then, at some point, Thune is expected to call off the “debate” and hold a cloture vote, knowing it will fail.

The senators I spoke to Tuesday didn’t seem especially familiar, or interested, in their own chamber’s rules, or how they could be used to force votes on legislation. I asked Sen. Richard Blumenthal (D-CT) if he would be open to Democrats attempting a talking filibuster to push through any bills if they recapture the Senate majority.

“You mean changing the rules?” Blumenthal asked.

Not necessarily, I replied. Just throwing the floor open to extended debate under the current rules, in an effort to force a vote on something.

“Well, I’m all in favor of debate and deliberation, but I would oppose changing the rules to enable passing the SAVE America Act,” he said.

What about without a rules change? Just having unstructured debate, even for a Democratic bill?

“Debate for its own sake? Reading the phone book on the floor?” Blumenthal asked. Maybe, if that’s what senators choose to do, I said. “I don’t know,” Blumenthal said.

Sen. Raphael Warnock (D-GA) similarly declined to discuss the idea. “The consequences of passing [the SAVE America Act] are too important for me to be focused on a procedural matter,” Warnock told me.

Republicans also didn’t want to get into the weeds of procedure, even to discuss the obvious implications of actions they were calling for. Sen. John Kennedy (R-LA) has been calling for the SAVE America Act to be included in a reconciliation bill, which can be advanced with 51 votes — but which have to be related to the budget. It now appears that Republicans will try this strategy, although it may require overruling the Senate parliamentarian, who is tasked with interpreting the chamber’s reconciliation rules.

When I asked Kennedy yesterday if he would be willing to overrule the parliamentarian, he told me it was a “ridiculous hypothetical question,” even though it’s a very real decision that Republicans will likely have to face soon.

At the end of the day, the talking filibuster is a strategy to force through a bill when 60 senators aren’t on board, but 51 senators are highly committed to it. President Trump is highly committed to the SAVE America Act, but it doesn’t seem like there are enough Republican senators committed enough to the bill to disrupt their routines for it, leading to the extended, yet strangely passive, debate now taking place on the Senate floor.

It’s possible that before anyone can ever try a talking filibuster, that the legislative filibuster will merely be eliminated. Bovard views a talking filibuster as the best way to prevent that: she believes that once senators start talking, they will get tired — but that this will create the incentives for compromise that are currently missing, precisely because senators will want to go home badly enough that they will start looking for consensus, through the iterative process of debating and amending and debating and amending.

“People need a catharsis,” Bovard told me. “They need to be able to look at the Senate and see that senators are trying to work through their differences, that they’re using the chamber as it was designed, as a consensus-building institution that sometimes is playing hardball with things like a talking filibuster, or sometimes it’s just allowing people to vote and to work through their issues and to persuade each other and to come to some kind of agreement.”

“That, I think, is the only thing that is going to save the legislative filibuster, if people see their concerns really reflected, and they see their senators actually trying to work together through through hard issues,” she said.

“So a lot of us are just saying, ‘Let the Senate be the Senate again.’”