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Bringing Back The Talking Filibuster Could Do More To Save America Than Just Passing The SAVE Act

The talking filibuster is worth trying. It is worth a public accounting of whether this Senate, in this moment, for this American people, can deliver on its duties.

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Public pressure for the Senate to take up and pass the SAVE America Act, the Republican authored and promoted bill that will require voter ID and proof of U.S. citizenship to vote in our federal elections, has advanced to the point that an unlikely body has actually taken notice of the effort: the Senate itself.

Ensconced in six-year terms that are offset from the pressures of presidential elections, protected by rules and norms that in most circumstances require 60 out of 100 senators (that is to say, requiring some partisan crossover) to proceed to the point where a simple majority can pass a bill, and slowed by a consideration of one another’s personal time that borders on obscene, the Senate is often a bystander to its own functions.

Recent “innovations,” the various nukings and counter-nukings of rules that will be the enduring legacy of the Reid/Jentleson-McConnell/Stewart era, have further estranged the Senate from its purpose. Non-appropriations bills or bills that otherwise authorize and move hundreds of billions of dollars are relegated to “messaging” or “show-vote” status at best, or, more often, outright ignored. To paraphrase former Rep. Dave Brat (R-VA), if a bill doesn’t service the great donor spreadsheet in the sky, it doesn’t move. It is in this context that we should understand the debate in Republican circles about the revival of the talking filibuster.

Sen. Mike Lee (R-UT) and former Senate Steering Director Rachel Bovard have done an admirable and effective job of making the case for the use of this particular procedure in lieu of changing or ignoring any existing Senate rules. Unsurprisingly, the prospect of the Senate passing a bill has met internal and external resistance. Rachel Bovard, apparently an easier target to impugn both directly and indirectly has the naysayers beat on chapter and verse. The lack of technical engagement against her arguments is proof enough of her mastery that I do not need to demonstrate my own deficiencies in debating Senate arcana. Two arguments against the talking filibuster, and Bovard’s advocacy of it in particular, require some public discussion.

The first argument is one that masquerades as prudence, in Kimberley Strassel’s social media response to Rachel Bovard’s Federalist piece highlighting the flaws in Strassel’s arguments against the resuscitation of the talking filibuster. After all but conceding that her technical understanding of what was at stake was fatally flawed, Strassel states, “My piece is a foretelling of how this will more likely play out — which spoils the party punch.” To wit, Strassel does not believe that Senate Republicans will be able to hold together to force debate, act in concert against Democratic amendments to preserve the underlying bill, make effective arguments in their own defense, and deliver to 50 votes in favor that the co-sponsorship of the SAVE America Act suggests exist.

That is a bold pronouncement against the leadership ability of Majority Leader John Thune, R-SD, and President Trump for a start. But all senators should be offended that it is an acceptable professional parlor game to count their noses before the debate has begun. “They can’t because they won’t” may or may not turn out to be true. Presented as a reason to not take action, however, it points to an unacknowledged part of Bovard’s argument that deserves more attention, as it seeks to remedy the core of the problem in the Senate.

Bovard writes, “A talking filibuster — using the Senate as it was designed — provides a catharsis that may, in fact, reduce the pressure to ‘nuke’ the filibuster as the country is able to witness the chamber openly deliberate and negotiate on the issues that matter to them.”

That catharsis could prove more vital to our institutions than the SAVE America Act itself. Even senators that never experienced a pre-nuclear Senate know that something is wrong in their chamber. They have powers that they are all but forbidden to use. Their policy ideas are shelved without their consent. They not only cannot solve the biggest problems of the day, but they often are also unable to even discuss them in a legislative context. Doing the textbook version of their jobs, with the public pressure to provide results, would produce that rarest of things in our contemporary politics — a bona fide legitimate result. I differ with many of my colleagues in the conservative movement about the overall efficacy and desirability of legislative debate in achieving our goals. However, a culture of debate undoubtedly has the potential to produce its own norms and scramble factional and partisan plans. For those who have made a cottage industry of warning in dread tones about the pernicious influence of populism and creeping impulses towards imperialism, this new way forward should have at least some appeal.

When a longtime veteran of the institution is pleading for this catharsis, for the return of relevance to the institution, it should not be lightly dismissed. The talking filibuster is worth trying. It is worth failure and success. It is worth a public accounting of whether this Senate, in this moment, for this American people, can deliver on its duties.

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