Democrats are trying again to get voting rights legislation (HR 5746) through the Senate. Republicans blocked their first two attempts by voting against taking up the Freedom to Vote Act (S. 2747) on October 20 and the John R. Lewis Voting Rights Advancement Act (S. 4) on November 3. But Republicans cannot stop the Senate from debating – and voting on – voting rights legislation this time because it is attached to a House message, and a motion to proceed to its consideration is non-debatable under Rule VII. And Rule XIX limits how many senators may speak once that debate starts. The rule stipulates that each senator may speak twice on “any one question” on the same legislative day. And a Senate majority determines when a legislative day ends. When senators have given two speeches (as defined by the Senate’s precedents), they may not speak again. The Senate votes when there are no senators who wish to, and may, speak.

Yet Democrats claim they cannot use Rule XIX to pass voting rights legislation. However, considering how the strategy could work in practice demonstrates that Democrats can use Rule XIX to limit Republicans’ ability to filibuster voting rights legislation indefinitely. All Democrats must do is keep the Senate in the same legislative day until Republican senators have exhausted their ability to speak on it. This is reached when those Republicans committed to blocking the Senate’s consideration of the bill have given the two speeches allotted to them under Rule XIX. When that happens, the Senate’s presiding officer must put the question (i.e., call for a vote) on the bill.

HOW IT WORKS

Democrats must prolong the current legislative day once the debate begins by keeping the Senate in session. A new legislative day would commence once the Senate reconvened if Democrats adjourned the Senate instead of recessing it. At that point, every Republican would get two new speeches under Rule XIX.

Democrats would strictly enforce the two-speech rule as they prolong the legislative day. Note: Any Democratic senator could enforce Rule XIX, as well as Vice President Kamala Harris. Republicans could make repeated procedural motions to increase the burden on Democrats for keeping the Senate in session. But making most procedural motions would terminate the filibustering senator’s speech, thus hastening the moment at which Republican opponents of the legislation will have exhausted their ability to delay an up-or-down vote on the bill.

While Republicans can make these motions after they have spoken twice in a debate, Democrats can nevertheless dispose of them easily using a non-debatable motion to table. Republicans may also suggest the absence of a quorum to get a reprieve from sustaining a talking filibuster. But Democrats can also prevent the filibustering senators from delaying the vote easily by immediately producing a quorum.

Democrats can use Rule XXII creatively to shorten the time filibustering senators can delay the vote. That is, they can file cloture on the bill each day. However, doing so guarantees that Republicans will use a minimum of two speeches each calendar day. Moreover, cloture automatically interrupts a senator’s speech when it ripens one hour after the Senate convenes. Democrats can therefore use cloture to limit the first speech of each day to one hour and requires the senators filibustering to use another speech after the cloture vote. For example, assume ten Republicans are willing to filibuster the voting rights bill. Each senator is capable – physically and psychologically – of giving two five-hour speeches. In this example, the time needed to overcome the filibuster totals 100 hours (ten senators at ten hours each). Now assume ten senators are willing to filibuster the bill, that each senator can give two five-hour speeches, and cloture is filed on the bill each day. The time now needed to overcome the filibuster is sixty hours (ten senators at six hours each).

By enforcing Rule XIX, Democrats are likely to overcome Republicans’ filibuster before every senator who opposes the legislation uses the maximum number of speeches allotted to them under the rules (or resorts to the strategy of making motions ad infinitum). This is because continuing to filibuster a vote on the bill imposes significant costs on Republicans (as does their sustaining the strategy of making motions ad infinitum). Moreover, enforcing Rule XIX requires Republicans to demonstrate their commitment to filibuster the bill under conditions that Democrats can determine (e.g., late at night and on weekends).

Success requires Republicans to wait out Democrats by holding the Senate floor for a prolonged period. That is, Republicans win only if some Democrats relent, dropping their support for the effort to overcome the filibuster. Consequently, Republican leaders must then turn to less-interested – or disinterested – senators to sustain the filibuster once the party’s staunchest opponents of the bill have used their allotment of speeches. Calls for the active participation of rank-and-file Republicans will be likely to precipitate internal dissent within the GOP for two reasons. First, Democrats’ determination to prevail in the debate will become increasingly apparent as the Republicans’ committed to filibustering begin to lose their ability to speak on the Senate floor. And the near-inevitability of defeat is likely to diminish the willingness of less-interested – or disinterested – Republicans to sustain the filibuster due to the futility of their effort.

Second, the novelty of the parliamentary showdown will attract considerable media attention. This attention will increase as staunch Republicans lose their ability to filibuster, and less-interested – or disinterested – senators are called upon to sustain the effort. Increased media scrutiny is thus likely to increase the costs of filibustering for the rank-and-file Republicans least willing to bear them.

THE TAKEAWAY

The filibuster is not preventing the Senate from passing voting rights legislation. Democrats can use the rules to overcome Republican opposition and get the bill through the Senate. The Senate’s present debate is not about minority obstruction. It is about enhancing the majority’s ability to efficiently control the legislative process inside the Senate.

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