Examination of a Potential Talking Filibuster Rule in the Senate
Recently, I wrote an article on (i) why the vote and time requirements to overcome a filibuster are such effective tools for the minority to oppose legislation and (ii) potential procedural options on how to eliminate the filibuster. Subsequent news reports have indicated that if Democrats were to win the Senate in the 2020 elections, they would likely not have enough support in their caucus to obtain the 50 votes to eliminate the filibuster. As such, some have suggested a talking filibuster as a compromise. A talking filibuster would require those filibustering to go through the pain of being near the Senate chambers around the clock. The goal of requiring a talking filibuster would be to maintain the filibuster, but hopefully limit the filibuster’s use to only the most controversial matters.
I will discuss how such a rule would need to be structured. Paradoxically, even though a talking filibuster would preserve the filibuster rule in some format, it would likely require a bigger change in Senate rules than simply eliminating the filibuster.
I will not repeat my full description of the existing filibuster rule and its effect, but, in short, Senate Rule XXII (i) allows a single senator to require the Senate to devote 30 hours of floor time to vote on a legislative matter (i.e., not a nomination) and (ii) requires 60 senators to support a cloture vote for a legislative matter to pass. In theory, a filibuster means the minority is constantly speaking on the Senate floor, but, in practice, this does not happen as a filibuster is much more painful for the majority. To overcome a filibuster without a 60-senator cloture vote ending the filibuster, the majority needs to ensure a quorum is always present (else the minority could further delay by ending Senate business for the day). As such, 50 majority senators need to be present near the Senate floor around the clock (i.e., sleep on cots). Conversely, only one minority senator needs to speak at a time. With this disproportionate number of senators needing to sacrifice sleep, the threat of a filibuster, without an actual filibuster, is enough to effectively kill legislative proposals that do not have support from a 60-senator supermajority.
Thus, the talking filibuster would try to flip the disproportionate hardship of filibustering. It would no longer require majority senators to be present, but instead require that minority senators be present to filibuster.
Consequently, the new talking filibuster rule would at least have to modify the quorum requirement as that is what requires the majority senators to be present around the clock. While the Constitution requires a quorum be present in the Senate, Senate rules assume that a quorum is present unless a member specifically questions the presence of a quorum through a quorum call. Currently, the Senate rules allow a quorum call to be made at any time. To implement a talking filibuster, the Senate would have to modify its procedures during a talking filibuster to mirror the U.S. House of Representatives rule that a quorum call may only be considered when a matter is being voted upon. With the change, filibustering senators could no longer force the majority to be present.
Even with this change, the majority would still need at least one senator present at all times to preside over the Senate and object to any attempts by the minority to avoid the talking filibuster rules through a unanimous consent request (or otherwise use unanimous consent to pass legislation favored by the minority).
How Many Minority Senators Need to Be Near the Senate Floor
The Senate would also need to determine how many minority senators must be present near the Senate floor during a talking filibuster. If a filibuster occurred under the current rules, without a quorum requirement, at least two senators would need to be present. As mentioned above, the majority would need at least one senator to preside and object to any minority unanimous consent requests. Likewise, the minority would need at least one senator present to object to any majority unanimous consent requests and to occupy the Senate floor.
Likely, the most efficient way to determine how many senators need to be present would be to require a cloture vote before implementing the talking filibuster requirements. If the cloture vote gets at least a simple majority support, any senator that votes against cloture would then officially be considered in the minority. The number of minority senators in the vote could then be used as the basis for setting who must participate in the talking filibuster.
In applying this mandatory participation, there would likely have to be slightly different procedures for a talking filibuster based on whether the cloture vote gets the 60-senator supermajority necessary, under current rules, to limit a filibuster to 30 hours of debate. If the cloture vote fails to get a 60-vote supermajority, the talking filibuster can only end by (i) minority senators no longer participating in a talking filibuster, with the measure immediately being eligible for a final vote (i.e., majority prevailing) or (ii) a simple majority of senators voting to end the talking filibuster and no longer consider the measure (i.e., minority prevailing). Regarding procedures if a cloture vote succeeds as there are at least 60 votes in support, there would be 30 hours of a talking filibuster followed by a final vote on the measure. However, the talking filibuster would automatically end if minority senators do not participate in a talking filibuster.
Fully requiring every minority senator to attend these talking filibuster though could be susceptible to manipulation in voting. Senators that actually support a measure could vote against cloture (i.e., officially be in the minority) and intentionally not attend the talking filibuster, with the goal of immediately ending it. Thus, to prevent such manipulation, the number of minority senators that must be present during a talking filibuster should likely be set at 80%.
I will note that this requirement is still subject to manipulation in situations when fewer than 40 senators oppose cloture. As an illustrative example, a single senator could be the only senator truly opposing cloture and wanting to filibuster. Even one senator manipulating the vote to oppose cloture could prevent the opposing senator from obtaining the 80% presence to continue a talking filibuster.
However, I could not think of any other way to both ensure that (i) the true supporters of a filibuster must participate in a talking filibuster and (ii) preserve each individual senator’s right to filibuster and slow down the Senate calendar. Hopefully, the difficulty of senators explaining to their constituents (especially in a 30-second advertisement) that their vote against a matter was not true opposition would curtail manipulative voting.
How to Ensure Minority Senators Are Near the Senate Floor
The greatest issue with implementing rules for a talking filibuster is how to set an enforcement mechanism for ensuring minority senators are near the Senate floor. Likely, the only way to ensure senators are near the floor would be to require them to take some official action on the Senate floor. The most likely way to accomplish this would be to require periodic, mini-quorum call votes whenever a talking filibuster is ongoing. At least 80% of minority senators would need to be present. If not, the measure would automatically be eligible for a final vote in the full Senate.
The issue with this is that it would potentially conflict with the general quorum requirement. As there would be a recorded vote and an official Senate action, the constitutional quorum requirement for a full quorum would potentially come into play and minority senators would potentially have the right to require a full quorum be present.
If the Senate does not want to test the constitutionality of the mini-quorum call without a full quorum being present, it could again follow an example from the House rules. The House often opts not to meet as a full chamber, but instead meets in the House chamber as a Committee of the Whole. There, the House often debates and amends legislation with a much lower quorum requirement than the full House. Specifically, even though every Representative is a member of the Committee of the Whole, only 100 Representatives are required for a quorum.
Likewise, the Senate could establish a Committee of the Whole to conduct talking filibusters with a reduced quorum requirement.
Implementing a talking filibuster would likely be most effective through creating a new Committee of the Whole with procedures for a talking filibuster. The full Senate rules would specify that a 60-senator cloture vote (3/5th) would immediately enter the Senate into a Committee of the Whole to consider the measure. After 30 hours of debate in the Committee of the Whole, the measure would automatically be eligible for a final vote in the Senate. The Committee of the Whole’s rules would specify that there would be quorum-calls every hour. If 80% of the senators who voted against cloture are not present, the committee would immediately discharge the measure and it would be eligible for a full Senate vote.
For a cloture vote without 60 votes, but simple-majority support, the Senate would immediately enter into a Committee of the Whole to consider the measure. The Committee of the Whole’s rules would specify that there would be quorum-calls every hour. If 80% of the senators who voted against cloture are not present, the committee would immediately discharge the measure and it would be eligible for a final vote in the Senate. However, if a simple majority of all senators vote to end the talking filibuster, the Committee of the Whole would table the measure, effectively killing the measure.
These rules would maintain the ability of senators to filibuster, but also limit its use by making a talking filibuster (i) as painful as possible for the minority, (ii) as painless as possible for the majority, and (iii) limiting constitutional challenges to the procedures. However, in setting these procedures, the Senate would be creating heavily restrictive rules for debate that create precedents for majority control of proceedings on the Senate floor. As such, a talking filibuster would likely not be a panacea for preserving the spirit of the filibuster without majorly changing the nature of Senate procedure.
After publishing this article, I saw that others have suggested implementing a talking filibuster rule by requiring 41 senators to oppose cloture for a filibuster to continue (i.e., requiring 41 minority senators continually to occupy the floor or else a cloture vote would succeed). The advantage of this suggestion is it’s much more elegant than my solution, requiring a minimal change to the Senate Rules (and I wish I had thought of it). The main disadvantages are that it (1) would likely still require the majority to be near the Senate floor or else minority senators could win a motion to adjourn and (2) would not address the ability of the minority to delay for the 30-post-cloture hours without actually having to hold the floor.
Similarly, after I published this article, others have suggested implementing a talking filibuster rule by eliminating the unanimous consent requirement to consider a bill (i.e., forcing the minority to debate the underlying bill). However, I do not believe making that change would have much impact. For a senator to withhold unanimous consent, a senator must stand on the Senate floor and object. The only difference with eliminating the unanimous consent requirement is that the minority would also have to talk on the floor instead of just be on the floor, which is not a big difference. The major impediment to overcoming a filibuster through requiring that a majority have a quorum present at all times and the minority only needing one senator present at a time would still apply.
 Fifty votes with the vice-president’s support is the minimum number of votes in a winning simple-majority vote and 59 votes is the maximum number of votes in a losing supermajority cloture vote. Thus, if there is the minimum amount of support to prevent a successful cloture vote to end debate, up to 9 senators of the 59 that actually support cloture could manipulate the vote by intentionally voting against cloture. As a percentage, 9 out of 50 is 82%, which I rounded to 80%.