Democrats tie ‘talking filibuster’ gambit to Senate’s two-speech rule

Proposed change lacks support of full caucus

Senate Majority Leader Charles E. Schumer, D-N.Y., holds his new conference following the Senate Democrats' caucus meeting on voting rights and the filibuster on Tuesday. (Bill Clark/CQ Roll Call)
Senate Majority Leader Charles E. Schumer, D-N.Y., holds his new conference following the Senate Democrats' caucus meeting on voting rights and the filibuster on Tuesday. (Bill Clark/CQ Roll Call)
Posted January 18, 2022 at 7:25pm

Senate Majority Leader Charles E. Schumer plans to try to implement a “talking filibuster” rule that would allow the chamber’s voting rights debate to be brought to a close by just a simple majority once Republicans have run out of turns to speak.

But the New York Democrat’s proposal announced Tuesday evening lacked buy-in from the entire caucus, meaning its implementation will likely be blocked as early as Wednesday.

“Once members of the minority party have exhausted all of their speaking rights and defended their position on the Senate floor, the debate will have run its course, and the Senate will move to vote on final passage at a majority threshold,” Schumer told reporters late Tuesday.

He described the proposal, which would come up for a floor vote after the GOP rejects the majority leader’s motion to invoke cloture on a voting rights measure, as being “restorative” of a long-standing Senate rule known colloquially as the two-speech rule.

Under the provisions of Rule 19, “no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”

Legislative days conclude when the Senate formally adjourns at the end of a session day, but they do not end if the Senate merely recesses overnight, so the two-speech limit can technically extend indefinitely. And there is an argument to be made that no change in rules or precedents is needed to get to a simple majority vote through strict enforcement of Rule 19.

James Wallner, a legislative procedure expert now at the R Street Institute, made that argument in 2017, saying Republicans could have used the rule to get to a confirmation vote for President Donald Trump’s Supreme Court nominee without changing the Senate precedents.

“Doing so simply requires the Senate to remain in the same legislative day until the filibustering members have exhausted their ability to speak on the nominee in question,” Wallner wrote in a Heritage Foundation report.

If Democrats were to invoke the two-speech rule without changing the rules to make it easier to use, there is no shortage of ways the Republicans could seek to extend the debate through procedural motions and efforts to debate them.

Schumer’s remarks indicate the Democrats intend to try to set a new precedent to speed that process along.

Virginia Sen. Tim Kaine was among the Democrats to speak alongside Schumer following a Tuesday evening caucus meeting. He said it was an important opportunity for senators to make their positions known.

“We all get to decide the kind of senator we want to be,” Kaine said.

Ahead of the meeting, Sen. Joe Manchin III, D-W.Va., reiterated his support for a more expansive actual debate on the Senate floor, but he said again that he was against a talking filibuster provision that would eliminate the current 60-vote requirement to limit debate. He argued that it would give one party too much power if it controlled the White House and both chambers of Congress.

“The only thing we have is the filibuster,” he said.

Manchin, speaking ahead of the Democratic caucus meeting Tuesday, said he was not concerned about the possibility of a primary challenge as a result of his opposition to eliminating the 60-vote threshold to limit debate.

“I’ve never run in an election I wasn’t primaried,” he said. “This is West Virginia, it’s rough and tumble. So, bring it on.”