Save the SAVE America Act by Enforcing the Senate’s Rules, Not Nuking Them

Debate over the SAVE America Act (H.R. 7296) has exposed a growing fault line on the political right over the future of the Senate filibuster. Some conservatives now contend that advancing the bill requires abolishing the legislative filibuster—using the “nuclear option” to discard one of the Senate’s central procedural constraints. At the same time, other conservatives in both the House and Senate argue that the problem is not the filibuster itself, but what Sen. Mike Lee (R-Utah) calls the “zombie filibuster.”

The distinction turns on how debate actually functions in the modern Senate. Historically, a filibuster required senators to hold the floor and continue speaking to delay a vote. Although the cloture process[CW1] —allowing a supermajority (nominally 60 senators) to limit debate—was introduced in 1917, it was initially used sparingly. Over time, however, the Senate drifted into a different equilibrium: the mere threat of extended debate carried the same practical effect as actually holding the floor. As a result, the Senate came to treat a 60-vote threshold as a prerequisite to proceeding. This practice, the “zombie filibuster,” allows obstruction without effort.

The SAVE America Act provides a useful catalyst for revisiting this dynamic. While the bill raises legitimate drafting and implementation concerns, its policy objectives—voter ID and citizenship verification—are popular. The more consequential question is institutional: will the Senate respond to controversy by discarding its rules, or by reviving the original talking filibuster through enforcement of existing rules. That choice will shape Senate governance long after the fate of this particular bill is decided.

Much of the current debate treats the filibuster as a single rule that can either be preserved or abolished. That framing is mistaken. There is no discrete “filibuster rule” in the Senate. The filibuster is a strategic consequence of how the Senate’s rules govern debate and of two foundational features: most pending questions are debatable, and the Senate lacks a majoritarian motion to end debate.

It is the reason the Senate is a deliberative body rather than a majoritarian assembly. For most of its history, the Senate operated on the assumption that debate could continue as long as senators wished to speak. The traditional talking filibuster was not an innovation or reform; it was the original form of extended debate, with roots in parliamentary practice that long predate the modern Senate.

A misunderstanding of voting thresholds often compounds confusion about the filibuster. Final passage of legislation in the Senate requires only a majority vote. The 60-vote threshold applies not to passing a bill, but to invoking cloture under Senate Rule XXII—a separate procedural motion that limits debate. If debate ends through other means, the Senate may proceed to a vote by simple majority.

Understanding how debate ends requires attention to the rules themselves. Under Senate Rule XIX, when a question is debatable, each senator may speak twice on that question during a single legislative day, with no time limit on each opportunity. Debate is therefore generally unlimited, constrained only by the two-speech rule and by senators’ willingness to continue speaking. If debate is exhausted and no senator seeks recognition, the presiding officer must put the pending question to a vote.

Senators recognized that continuing to speak could indefinitely delay a vote, turning extended debate into a means of preventing the Senate from reaching a decision even when a measure commanded majority support. Over time, this dynamic evolved into a powerful minority tool—not because it guaranteed success, but because it raised the costs of proceeding.

Those costs are not theoretical. Even if senators cannot speak indefinitely, holding out long enough can make continued consideration prohibitively expensive for the majority. The Senate has finite time in a two-year Congress, and leadership must weigh every hour spent on one bill against other priorities. In practice, determined minorities have often been able to force majorities to abandon legislation simply by making the price of waiting too high.

Once a bill reaches the floor, the costs increase further. Amendments create additional opportunities for debate, as each amendment opens new chances for senators to speak twice. The majority can move to table amendments—a non-debatable motion requiring only a simple majority—but doing so requires roll-call votes, which consume time. Keeping the Senate on the same legislative day can intensify the pressure, but it imposes heavier burdens on the majority than on those engaged in extended debate.

The asymmetry is significant. Senators conducting a talking filibuster need only maintain a limited presence to keep debate alive. The majority, by contrast, must keep a quorum near the floor at all times. If it fails to do so, opponents can force a quorum call, and without a quorum present, the Senate must adjourn—ending the effort.

Extended debate also carries opportunity costs beyond time. A talking filibuster cedes control of the floor to the minority, blocks consideration of other legislative business, and forces the majority to choose between persistence and paralysis. Attempts to wait out filibusters have often been undertaken to demonstrate opposition rather than to secure passage.

Given these realities, it is not surprising that modern Senate practice has gravitated toward a different equilibrium. Over the past several decades—particularly since the two-track system was introduced in 1970—the minority has routinely relied on the threat of extended debate, while the majority has treated cloture as the default mechanism for advancing legislation. As a result, debate rarely occurs in the open, and few measures reach final passage without a unanimous consent agreement or a successful cloture vote.

Because waiting out a talking filibuster is costly, and unanimous consent agreements on contentious legislation is hard to obtain, Senate leaders have increasingly chosen a third path, filing cloture before debate even begins. Negotiations move off the floor while the cloture petition ripens, and the Senate moves onto other business.

The result is a notable inversion of Senate tradition. Senators no longer filibuster by speaking, and majorities rarely insist that they do. Extended debate exists in theory, but not in practice. The modern filibuster has become a procedural abstraction—raising costs without requiring effort, and blocking action without deliberation.

This arrangement is convenient for both sides. The majority can manage floor time while counting votes. The minority can obstruct without holding the floor. But convenience comes at an institutional cost. When debate is displaced by procedure, the Senate stops being a deliberative chamber and becomes a smaller House with longer terms where outcomes are settled by procedural math.

Calls to abolish the legislative filibuster respond to this dysfunction by escalating it. Nuking the filibuster would resolve a short-term challenge by discarding a long-standing structural safeguard. Enforcing the rules already on the books offers a different path. It restores the original talking filibuster—not by inventing new procedures, but by reestablishing the connection between debate and decision.

The choice presented by the SAVE America Act is therefore larger than the bill itself. It is a choice between abandoning the Senate’s deliberative framework or recommitting to it. The former trades durability for expediency. The latter accepts that governing in the Senate is meant to be difficult, but also that the rules, when enforced as designed, still allow the chamber to act.