The Talking Filibuster is a Middle Ground

Senators Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) have been crystal clear that they think the Senate’s 60-vote requirement to cut off debate and bring a matter to a final, up-or-down vote is sacrosanct. They say they want speed bumps, so the majority needs to get input and buy-in from the minority. 

Everyone is acting like that’s the end of the line for the crucial legislation to protect Americans’ freedom to vote and the integrity of our elections. It doesn’t need to be.

We can meet the red lines both senators have laid out, enhance the values they say they prize and still restore the Senate and create a pathway to get important things done, including the critical voting rights legislation. We don’t need to touch the 60-vote threshold to cut off debate at all – we need to bring back the talking filibuster as a separate, alternative approach to finishing legislation.

Most importantly, by restoring balance to the Senate, the talking filibuster will allow the Senate to do what it’s supposed to do: deliberate and debate potential solutions to the nation’s challenges.

From the very first Senate rules in 1789 through today, when no senator seeks recognition to speak, the chair can call a vote on the matter being debated. That rule is why filibusters historically were like the “Mr. Smith Goes to Washington” version. If senators gave up the floor, a simple majority vote to pass the measure could be called. The rules provided lots of opportunity for debate, and if senators wanted to prevent a vote they could do so, but only if they were willing to work for it.

Unfortunately, changes in rules and procedures have rendered it impossible to exhaust debate in most situations. As the Senate evolved, and senators began spending most of their days in office buildings and home states rather than on the floor, the talking filibuster faded away, eventually done in for good by the 1975 cloture rules change that allows “filibustering” senators to simply object to a vote and disappear. But calling the vote when no senator seeks recognition is still a part of Senate procedure, and is in fact still occasionally used when bills are “voice voted” on the floor. 

One reason the Senate is so gridlocked today is that the two pathways for finishing bills – exhausting debate and cloture – balance each other.  Until the late 20th century, the filibuster was very rarely used successfully to veto legislation, with the shameful exception of civil rights bills. Instead, it was used as leverage by the minority to shape legislation on the floor.  That leverage was constrained by the minority’s willingness to stand and deliver for as long as it took.  Sadly, denying equal rights to Black Americans met that standard for some senators, but most bills eventually got negotiated. 

When we lost that balance between exhausting debate and cloture, cloture was converted from an occasional tool for avoiding gridlock into a de facto supermajority requirement on everything,  creating massive gridlock. Both sides have learned that the majority, not the minority, pays the political price when the Senate is gridlocked. In the 58 years from the creation of cloture in 1917 through the rules change in March 1975, there were 131 cloture votes. In the 46 years that followed, through late 2021, there were 2,312. At the same time, the number of amendments has cratered. If you are an institutionalist, you cannot help but be appalled at what has become of this institution.

Manchin and Sinema are right that the path back for the Senate from today’s partisan gridlock is not to end debate by majority vote. Instead, it’s to restore the option of exhausting debate. By reinvigorating the talking filibuster and another 233-year-old rule limiting senators to two speeches on a given issue, the Senate can restore the balance that has been missing and has turned the filibuster from a tool empowering the minority to shape bills into a veto producing “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good,” as predicted by Alexander Hamilton when he warned against supermajority requirements.

A reinvigorated talking filibuster would dramatically improve the conditions for negotiation in the Senate. The minority would retain massive leverage.  If every senator in today’s minority spoke twice for five hours each time, that would produce a minimum of 500 hours of debate.  That would be 100 hours longer than the longest debate in Senate history. If the minority is willing to invest that time, the majority would have a strong incentive to negotiate because weeks or months of floor time are a precious and scarce commodity. And with a reinvigorated talking filibuster, the minority will once again have the incentive to negotiate in order to avoid the pain of actually speaking at great length on the Senate floor, something missing with today’s secret, silent, filibuster.

Restoring the filibuster also returns debate to the public arena. Our democratic republic depends on the voters seeing what their representatives are doing and then deciding whether they want more of the same or something different. Today, they don’t see the Senate doing much of anything. There are few bills on the floor, few amendments. The gridlock of the Senate forces us into a handful of huge bills, cobbled together behind closed doors. If senators consider more bills, more amendments and have to hold the floor and explain their positions to the American people, they can decide whether to reward or punish their senators for their actions.

Most importantly, by restoring balance to the Senate, the talking filibuster will allow the Senate to do what it’s supposed to do: deliberate and debate potential solutions to the nation’s challenges. Today, while partisan state legislatures are giving themselves the power to throw out election results, our gridlocked Senate is unable to respond. China is telling the world that the gridlock in the United States government is proof that their system works better than ours. Lots of people can imagine horrible things they’d like to veto in the minority. But let’s recognize that the Senate status quo is a disaster for our nation.

We can and must do better for the American people. Restoring the filibuster to its historic role complements and will reinvigorate the other pathway to completing bills, 60-vote cloture, by spurring more negotiation. It is fair to both the majority and the minority, and in fact, Senator Merkley has introduced versions of this plan in both the majority and the minority. 

No Senator signed up simply to be the human resources department for whichever administration is in office, voting endlessly on nominations. Senators are supposed to be here to legislate, to deliberate and debate and ultimately to vote. Let’s preserve the 60-vote cloture rule, and also restore the pathway to exhaust debate so the Senate can get to work for the American people.

Mike Zamore is the chief of staff to Senator Jeff Merkley.