Senate Democrats’ Latest Crazy Filibuster Idea

 

While you’ve been busy watching football or digging out of snowstorms, both House and Senate Democrats have been working overtime to find a way of enacting a partisan federal takeover of America’s elections. They are desperate to get a bill to the president’s desk.

And they are almost there. But that last hurdle is a doozy.

Please stick with me here because this is a sordid tale of brazen politics and a power grab that is unfolding before us that may blow up the Senate.

Let’s start with the House.

Last Wednesday, House Democrats pulled an interesting stunt. On a strictly partisan vote, they replaced the text of a bill that had already passed the House and Senate (as amended), HR 5746, which regarded extending NASA’s leasing authority. In its place, they substituted the bill with the language from their highly partisan election “reform” bills, the so-called Freedom to Vote Act (HR 1) and the Freedom to Vote: John R. Lewis Act (HR 4). Both bills had previously passed the House on a strictly partisan vote but stalled last year in the 50-50 Senate because of the filibuster.

These bills, both of dubious constitutionality, would impose federal requirements that would undermine the integrity of our elections and help make it easier for Democrats to “win.”

And you know what the filibuster is. That pesky Senate Rule XXII requires a three-fifths supermajority to end debate and bring a matter to a final vote.

Why did House Democrats do this? Amending a bill that had already passed the Senate became, technically, a “message” back to the Senate. That means Democratic Senate Majority Leader Charles Schumer of New York can bypass any filibuster on a “motion to proceed.” The rules still require 60 votes to end debate on the bill, but it is one less hurdle for Schumer to navigate. The vote will be on whether to accept the House’s rewrite substitution amendment to a bill that used to be about NASA.

It was legislative sleaze on steroids. And this is where it may get fascinating.

Democratic Sen. Tim Kaine of Virginia, who you may remember was Hillary Clinton’s 2016 running mate, has been leading a Senate Democratic discussion on ways to circumvent around or through the Senate’s rules (XXII) to pass the bill with only 51 votes. While Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona support the Freedom to Vote acts, they oppose changing the filibuster on legislation.

Now, according to an interesting article in The Hill, Kaine and his cohorts are eyeballing another Senate rule. Rule XIX, clause 1a, the so-called “two-speech rule”:

When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and 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 (emphasis added).

Let’s unpack this. First, the presiding officer can’t ignore a senator seeking recognition (although the majority leader has the first right of recognition under Senate precedents). Second, no senators can be interrupted without their permission. And third, senators are technically limited to speaking twice on any one question during a “legislative day.”

It’s that third issue that Kaine and his cabal have zeroed in on. A legislative “day” is not the same as a calendar day — it can extend for several days, so long as the Senate never technically adjourns for the day (it stays in recess).

But the problem is that pesky “speaking twice on any one question.” Any motion, including offering an amendment, counts as a “question.” Senate Democrats are trying to figure out whether they have the energy and willpower to run out the clock, exhausting or curtailing the Republican party’s ability to offer debatable motions and force a final vote that only requires a simple majority.

Can they do that? No one knows. This is uncharted territory. And it may blow up the Senate in the process.

One former Senate GOP aide, James Wallner, a purported procedural expert, thinks the Democrats can pull this off.

I don’t think so. And The Hill’s discussions with an unnamed senior Senate Democratic aide outline three good reasons.

First, the Senate’s two-speech rule is rarely, if ever, enforced. After all, the Senate has long exalted the right of “unlimited debate.” I’m unaware of any presiding officer’s act to deny a senator recognition to debate a matter, barring time limits under some “unanimous consent” agreement, budget and reconciliation rules, or post-cloture requirement. None of these exceptions apply to this amended NASA bill.

Second, it doesn’t deter any senator’s ability to offer an endless array of debatable motions and amendments. Each one would restart the counter on the two-speech rule back to zero. You can bet that Republican Senate Minority Leader Mitch McConnell of Kentucky has already conjured up a whole series of such motions and amendments. McConnell is arguably the U.S. Senate’s leading expert on elections. And he’s no slouch on Senate procedure, either.

Thirdly, which party would wear the other out faster? From The Hill:

The third problem is that Republicans would only need a few senators to tie up the floor, while Democrats would need to muster all 50 members of their caucus plus the vice president as the tie-breaking vote to repeatedly counter Republican motions noting the absence of a quorum, motions to adjourn and other procedural motions designed to hold up legislative business.

Kaine’s real strategy here may be to see if he can force a “talking filibuster” to wear out senators. But that won’t work.

Let’s consult Republican Sen. Chuck Grassley of Iowa, who stands to return as the Senate’s president pro tempore if he wins reelection this fall and the GOP captures a majority:

“The confusion between the Mr. Smith Goes to Washington image of a filibuster and the cloture rule has led many commentators, members of the media, and even President Biden to suggest there was a time when senators had to speak non-stop to prevent the Senate moving to a final vote with a simple majority. That has never been the case. Since 1806, it has always required a super-majority to end debate on legislation if some senators believe further consideration is needed, meaning not just debate but for offering amendments as well. Don’t forget, cloture motions limit not just debate but the right to offer amendments and receive an up or down vote. This is an essential tool for senators to represent their states regardless of party.”

It might be one thing if Schumer, Kaine, President Joe Biden, and their Democratic colleagues have strong public support behind their efforts to undermine free and secure elections. But they don’t. And Biden’s poll numbers, along with those of his party, continue to decline as this debate continues. Biden’s job approval has descended to 33%, and there’s been a 14-point shift over the past year toward the GOP in party identification. Nearly three-fourths of voters support photo ID requirements to vote, including most Black voters, which the Democrats’ bill would practically eliminate.

I get why the Democrats want new federal election rules designed to benefit them amidst declining political fortunes, based on their success at the presidential level in 2020 (congressional and other elections, not so much). But I continue to be amazed at the Democrats’ dogged efforts to push their intensely partisan election reform power grab while approaching a political abyss in November.

If I were Schumer, I’d be looking at an exit strategy on election reform and changing the subject. And fast.

To what, you ask? Good question. The best exit strategy might be to see how fast a bipartisan group of senators can come up with reforms to the 19th century Electoral Count Act, which almost everyone agrees needs fixing. Offering that as a substitute and sending the bill right back to the House would be a nice trick if it can be achieved. Doubtful, but I see no other good way out for Schumer that doesn’t smell like defeat. And even that may not pass the smell test.

The clock is ticking.

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Ricochet editors have scheduled this post to be promoted to the Main Feed at 7:43AM (PT) on January 19th, 2022.

There are 19 comments.

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  1. Doug Kimball Thatcher
    Doug Kimball
    @DougKimball

    If the Dems follow through on this maneuver, it will be great theater.  I like the visual of a series of lone Republicans, reading from the proposed law, discussing the constitutional merits, citing the various poll data and bravely holding back the majority from a massive power grab from the states.  I’d love to hear them discuss recent State legislation as contrasted with Blue state election law.  Heck, we may even hear about the potential for irregularity as evidenced in 2020.  It will be a fun time.  Buy some popcorn and settle in.  The Mr. Smiths are back in town and ready to talk!

    • #1
  2. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Kelly D Johnston:

    But I continue to be amazed at the Democrat’s dogged efforts to push their deeply election “reform” power grab while approaching a political abyss in November.

    If I were Senator Schumer, I’d be looking at an exit strategy on election “reform” and changing the subject. And fast.

    They can’t, because they’ve spent the last year ginning up the base to believe that the Republicans are trying to “overthrow Democracy”.  It’s all they have left.

     

    • #2
  3. Gary Robbins Reagan
    Gary Robbins
    @GaryRobbins

    I love your mastery of the arcane rules of the Senate.  I agree that the Democrats are trying to pull a fast one.  

    I have no huge problem with a talking filibuster, if a majority of the Senate (50+1) voted to change the rules to permit it.  I am not a happy camper at the notion of Schumer springing a talking filibuster on the Senate without 51 votes.

    I do not care for either of the Democrat bills.  These were bills for the purpose of making a point, not enacting a new law.  I do not support federalizing elections.    

    I hope that we can fix the Electoral Count Act.

    Once again, an incredible post.

    • #3
  4. Nohaaj Coolidge
    Nohaaj
    @Nohaaj

    Cheaters cheat, liars lie, democrats are low-life, manipulating scum. 

    • #4
  5. Kelly D Johnston Coolidge
    Kelly D Johnston
    @SoupGuy

    Gary Robbins (View Comment):

    I love your mastery of the arcane rules of the Senate. I agree that the Democrats are trying to pull a fast one.

    I have no huge problem with a talking filibuster, if a majority of the Senate (50+1) voted to change the rules to permit it. I am not a happy camper at the notion of Schumer springing a talking filibuster on the Senate without 51 votes.

    I do not care for either of the Democrat bills. These were bills for the purpose of making a point, not enacting a new law. I do not support federalizing elections.

    I hope that we can fix the Electoral Count Act.

    Once again, an incredible post.

    I am grateful for your kind and thoughtful comments.

     

    • #5
  6. Ekosj Member
    Ekosj
    @Ekosj

    I don’t know … Their legislative Jiu Jitsu is pretty powerful.   Wasn’t it some similar arcana that brought ObamaCare into the world?  Where was McConnell’s Kung Fu then?  And despite years of promising to undo it … it’s still here.  I have a bad feeling about this.  

    This is an existential crisis for Republicans.   But I truly believe McConnell is happier in the minority.   He never has to deliver anything but can “fundraise” non-stop off Dem craziness.   I’m not sure McConnell fully appreciates the urgency.

    • #6
  7. Roberto, [This space available for advertising] Member
    Roberto, [This space available for advertising]
    @Roberto

    Kelly D Johnston:

    It might be one thing if Schumer, Kaine, President Biden, and their Democratic colleagues have strong public support behind their efforts to undermine free and secure elections. But they don’t. And Biden’s poll numbers, along with those of his party, continue to decline as this debate continues. Biden’s job approval has descended to 33 percent, and there’s been a 14-point shift over the past year towards the GOP in party identification. Nearly three-fourths of voters support photo ID requirements to vote, including most black voters, which the Democrats’ bill would practically eliminate…

    If I were Senator Schumer, I’d be looking at an exit strategy on election “reform” and changing the subject. And fast.

    I don’t think he will. There was an interesting article that came out a while back claiming that none of this is actually intended to succeed, the voting “reform”, the elimination of the filibuster etc.

    Schumer is a savvy enough politician to know all of this absurdity is a non-starter with the public at large. He at least can count and realizes that Sinema and Manchin are not on board with any of the crazier ideas being proposed so it is all dead on arrival anyway. The point of  this is to appease the base with grand gestures. It’s clear the base of the party has wildly unrealistic ideas about what can be achieved with such narrow control of Congress, so if he can’t give them what they demand he can at least give them a grand show.

    So if that is the goal then why is it the goal? Schumer can also read polls and knows that the Democrats are heading for a shellacking in the midterms.

    The House is clearly done for, Pelosi is  gone as speaker after the midterms.

    But that doesn’t mean Schumer can’t save something in the Senate if he can make certain the base is not utterly demoralized and shows up for the midterms, thereby keeping a  shellacking from becoming a bloodbath.

    • #7
  8. Gary Robbins Reagan
    Gary Robbins
    @GaryRobbins

    In the Arizona Legislature, a bill has to be “read” three times on the floor before it becomes law.  There is also the “single issue” rule that bills need to have only a single issue, or they violate the State Constitution.  (An authorized large prison violated this rule, and the half-built prison was found to be unconstitutional by the appellate courts.  The solution was a whole bunch of remediation measures to get the votes to complete the prison.) 

    There is a deadline for bills to clear committees, so it is not at all uncommon towards the end of the session for more powerful legislator to tell a new member, “excuse me but I need your bill [as a vehicle],” and then to wipe out all of the prior language with a “strike all” amendment and a new text being substituted.  The only thing the old bill and new bill have in common is that they have the same bill number,  But remember, that new bill is ready to be voted on as that bill number has already been “read” twice and is ready for its third and final reading.

    There is also something called the “COW” which stands for the “Committee of the Whole” meaning that the bill is in a “committee” of all of the 30 State Senators, or 60 State Representatives, so that a bill can be changed on the floor.  The details of this are a bit beyond me.

    Neither God nor Man is safe when the Arizona Legislature is in session.”

    • #8
  9. genferei Member
    genferei
    @genferei

    Why would the polls matter if they can fix the elections? And how will the public find out – from corporate media? Any objections will be censored on social media and “fact” “checked” to death. And then the FBI steps in…

    Even if we treat it all as a game – as they do on the Hill – the upside for the Dems is bigger than the downside for the GOPe.

    It’s a lock.

    • #9
  10. Gary Robbins Reagan
    Gary Robbins
    @GaryRobbins

    genferei (View Comment):

    Why would the polls matter if they can fix the elections? And how will the public find out – from corporate media? Any objections will be censored on social media and “fact” “checked” to death. And then the FBI steps in…

    Even if we treat it all as a game – as they do on the Hill – the upside for the Dems is bigger than the downside for the GOPe.

    It’s a lock.

    If.

    • #10
  11. Douglas Pratt Coolidge
    Douglas Pratt
    @DouglasPratt

    They used the Covid plague to institute Calvinball rules on the election so they could get rid of Trump, and then they immediately tried to write all those “emergency” changes into law.

    Thanks for an excellent post, good morning coffee read.

    • #11
  12. Henry Racette Member
    Henry Racette
    @HenryRacette

    Great post, Kelly. Once again, I appreciate your realpolitik perspective.

    • #12
  13. Gary Robbins Reagan
    Gary Robbins
    @GaryRobbins

    Douglas Pratt (View Comment):

    They used the Covid plague to institute Calvinball rules on the election so they could get rid of Trump, and then they immediately tried to write all those “emergency” changes into law.

    Thanks for an excellent post, good morning coffee read.

    I agree and disagree.  I think that all of the emergency rules were adopted due to a once a century pandemic, which had the effect of hurting Trump.  As of November 2020, the vaccines were not out and I did not eat outside of the office until after I had been double vaccinated.  The notion of standing in line at the polls looked very, very scary.

    However, I will grant you that the Democrats want to write all of those one-time emergency changes into law.  I wholly agree with you that that would be a power grab of the highest order.

    I also love hearing the ins and outs of skullduggery at the capitol.  Kelly’s posts are an absolute delight.

    • #13
  14. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Roberto, [This space available… (View Comment):

    Kelly D Johnston:

    It might be one thing if Schumer, Kaine, President Biden, and their Democratic colleagues have strong public support behind their efforts to undermine free and secure elections. But they don’t. And Biden’s poll numbers, along with those of his party, continue to decline as this debate continues. Biden’s job approval has descended to 33 percent, and there’s been a 14-point shift over the past year towards the GOP in party identification. Nearly three-fourths of voters support photo ID requirements to vote, including most black voters, which the Democrats’ bill would practically eliminate…

    If I were Senator Schumer, I’d be looking at an exit strategy on election “reform” and changing the subject. And fast.

    I don’t think he will. There was an interesting article that came out a while back claiming that none of this is actually intended to succeed, the voting “reform”, the elimination of the filibuster etc.

    Schumer is a savvy enough politician to know all of this absurdity is a non-starter with the public at large. He at least can count and realizes that Sinema and Manchin are not on board with any of the crazier ideas being proposed so it is all dead on arrival anyway. The point of this is to appease the base with grand gestures. It’s clear the base of the party has wildly unrealistic ideas about what can be achieved with such narrow control of Congress, so if he can’t give them what they demand he can at least give them a grand show.

    So if that is the goal then why is it the goal? Schumer can also read polls and knows that the Democrats are heading for a shellacking in the midterms.

    The House is clearly done for, Pelosi is gone as speaker after the midterms.

    But that doesn’t mean Schumer can’t save something in the Senate if he can make certain the base is not utterly demoralized and shows up for the midterms, thereby keeping a shellacking from becoming a bloodbath.

    Schumer is fighting hard to gain something at this time, because it looks like he will be in a primary contest with what’s-her-name (AOC? OAC? whatever).

    • #14
  15. Unsk Member
    Unsk
    @Unsk

    Gary:

    “I wholly agree with you that that would be a power grab of the highest order.”

    Gary, is this really you? I am glad you came to your senses.

    • #15
  16. Ekosj Member
    Ekosj
    @Ekosj

    Don’t rest on your laurels about this just yet.   These are the quarterly averages.   I thought I heard some talking head say that the December monthly numbers showed it was back to a dead heat.

    • #16
  17. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Unsk (View Comment):

    Gary:

    “I wholly agree with you that that would be a power grab of the highest order.”

    Gary, is this really you? I am glad you came to your senses.

    Remember, he wanted them to take control of Congress. 

    • #17
  18. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    I find it interesting that the Democrats are so clearly signaling that the “voting rights bill” is an evil that would be very bad for voters and for the republic. We don’t need to actually read the bill to know it is really bad. Otherwise the President would not have needed to lie so prolifically last week in promoting it (not just shading the truth, but outright lies). Proponents cannot point to any need for the bill (none have cited any real instances of citizens being unreasonably restricted in their ability to vote). If the bill were reasonable, politicians would not be exerting such extraordinary efforts to pass it while disclosing so little of its actual content. Procedural sleight of hand would not be needed. Even though I have virtually no insight into the actual content of the bill, the actions of the Democrats tell me it is something really, really bad. 

    • #18
  19. Stad Coolidge
    Stad
    @Stad

    Nohaaj (View Comment):

    Cheaters cheat, liars lie, democrats are low-life, manipulating scum.

    You are being too kind . . .

    • #19
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