Thune Is Lying. Current Senate Rules Do Not Make SAVE America Act Passage Impossible.

Senate Majority Leader John Thune has argued that passing the SAVE America Act in the face of a threatened talking filibuster would be procedurally impossible. His reasoning is simple. Senate rules, he says, allow unlimited debate and unlimited amendments. If both claims were true, the conclusion would follow. A determined minority could bury the bill in speeches and amendments until the majority surrendered.

But the claims are not true. Debate is not unlimited. Amendments are not unlimited. Both are bounded by long-standing Senate rules and practices that any experienced majority leader understands. The real question is not whether the Senate rules make passage impossible. The real question is whether the majority is willing to use the tools already available to it.

Begin with debate. The phrase “unlimited debate” is often used as shorthand for the Senate filibuster. But the phrase is misleading if taken literally. Senate Rule XIX contains what is called the two speech rule. Under this rule, a senator may speak only twice on the same question during the same legislative day unless the Senate grants permission to speak again. That rule matters because it imposes a structural limit on how often a senator can take the floor on the same matter.

The limit becomes clearer once we understand the concept of a legislative day. A legislative day is not the same thing as a calendar day. The legislative day begins when the Senate adjourns and ends when it adjourns again. If the Senate recesses rather than adjourning, the legislative day continues. That means a legislative day can extend across many calendar days. In principle it could extend for weeks or months.

Now consider what follows from these two rules taken together. Each senator receives two speeches per legislative day on a given question. If the legislative day continues without adjournment, senators eventually exhaust their speeches. They can no longer rise repeatedly on the same matter. Debate can continue for some time because the Senate has many members, but it cannot continue indefinitely through repetition by the same speakers.

The history of the Civil Rights Act of 1964 illustrates how leadership choices shape the length of debate. When the bill reached the Senate floor, Southern Democrats launched one of the longest filibusters in congressional history. Majority Leader Mike Mansfield faced a strategic choice. He could attempt to exhaust the filibustering senators physically by keeping the legislative day open for extended periods. Or he could allow the Senate to adjourn each evening and begin a new legislative day the next morning.

Mansfield chose the second path. By adjourning each day he allowed senators to receive two new speeches every day. Debate therefore continued for roughly sixty days. This choice was deliberate. Mansfield was not trying to crush the filibuster through exhaustion. His goal was to allow debate to unfold while building the bipartisan coalition necessary to reach the two thirds cloture threshold required at the time.

This historical episode shows something important. The duration of a filibuster depends heavily on how the majority structures the legislative day. Mansfield allowed the day to reset because his strategy required prolonged debate. But a majority leader who wishes to limit speeches can simply keep the legislative day open. In that case the two speech rule steadily constrains the supply of available speeches.

The second claim made by Thune concerns amendments. Here the misunderstanding is even greater. Many observers imagine the Senate floor as a place where senators can rise endlessly and offer amendments one after another without constraint. In reality Senate procedure uses a structure known as the amendment tree. This structure determines how many amendments may be pending at any given time.

The easiest way to understand the amendment tree is through analogy. Imagine a literal tree with branches. Each branch represents a possible amendment slot. Once every branch is occupied, the tree is full. When the tree is full, no additional amendments are in order. Senators must first dispose of an existing amendment before another can be offered.

For a typical Senate bill, the full amendment tree contains 15 theoretical amendment positions. The precise configuration depends on whether the first amendment is a first degree amendment, a substitute amendment, or a motion to strike. But the central point does not change. The number of amendment slots is finite. Once the slots are filled, the Senate cannot consider additional amendments until one of the existing amendments is resolved.

This procedural structure has an important consequence. The majority leader enjoys priority recognition on the Senate floor. When multiple senators seek recognition, the presiding officer traditionally recognizes the majority leader first. Because of this privilege, the majority leader can offer amendments sequentially and occupy the available slots in the amendment tree before the minority has a chance to act.

This tactic is known as filling the amendment tree. Once the tree is filled, the minority cannot offer additional amendments unless the majority chooses to allow it. The amendment queue is effectively closed. The Senate must vote on or dispose of the existing amendments before any new amendments can be proposed.

Both parties have used this tactic repeatedly. During the Obama administration, Majority Leader Harry Reid filled the amendment tree frequently in order to block Republican amendments. Later, when Republicans controlled the Senate, Majority Leader Mitch McConnell used the same tactic to block Democratic amendments. In many of those cases the minority received zero amendment votes.

Understanding this practice clarifies why the phrase unlimited amendments is misleading. The Senate does not allow an endless stream of amendments to accumulate simultaneously. The amendment tree imposes a cap. If the majority fills the tree and refuses to open it, the minority cannot force votes on new amendments.

Suppose the Senate were debating the SAVE America Act and the majority filled the amendment tree at the outset. What would follow? Democrats could continue to debate the bill. They could attempt procedural maneuvers. But they could not keep offering amendment after amendment because there would be no available slots in the amendment tree.

Could Democrats force amendment votes in other ways? In theory yes. If the majority voluntarily withdrew an amendment, a slot would open. If the majority agreed by unanimous consent to set aside the amendment tree, the minority could offer amendments. Or if the majority lost a procedural vote, the amendment structure might shift. But absent those events, the amendment queue would remain closed.

In practice this means the number of amendments Democrats could realistically force is small. If the majority maintained strict control of the amendment tree, Democrats might receive no amendment votes at all. If leadership allowed a few votes for political reasons, the number might rise to three or five. Only if the majority repeatedly opened the amendment tree or lost procedural discipline would the number approach ten or more.

Notice how different this is from the image suggested by the phrase unlimited amendments. The real system looks more like a controlled pipeline than an open floodgate. The amendment tree limits how many amendments can exist at once. The majority leader can occupy those positions. And once they are occupied, additional amendments cannot be offered.

At this point a puzzled reader might ask a natural question. If these limits exist, why do journalists and commentators often repeat the language of unlimited debate and unlimited amendments? Part of the answer is rhetorical convenience. The Senate is famous for protecting minority rights, and the phrase unlimited debate captures that tradition in simplified form. But another part of the answer is more practical. The amendment tree is technical. Many reporters covering the Senate have never studied it in detail.

This creates an informational asymmetry. When a majority leader says amendments are unlimited, few journalists ask the obvious follow up question. Why not fill the amendment tree? Yet that question points directly to the procedural reality. The Senate rules provide mechanisms for limiting amendments. The issue is not the absence of tools. The issue is whether the majority is prepared to use them.

The same pattern appears with debate. A determined minority can certainly prolong debate for a significant period. The Senate has one hundred members, and each receives two speeches per legislative day. But if the legislative day continues long enough, the supply of speeches eventually runs out. The majority does not need to win sixty votes for cloture to impose some limits on debate. Rule XIX already imposes them.

Seen in this light, the procedural landscape becomes clearer. Debate is bounded by the two speech rule. Amendments are bounded by the amendment tree. Both constraints have existed for decades and have been used by both parties. Neither constraint guarantees swift passage of legislation. But both demonstrate that the Senate rules do not create an infinite procedural battlefield.

What then explains Thune’s warning? The most plausible explanation concerns political discipline rather than procedural possibility. Since 1975 the Senate has largely operated under what is commonly called the silent filibuster. Senators no longer need to physically hold the floor for days or weeks. Instead a minority can signal its intent to filibuster and the majority agrees to assemble 60 votes for cloture. This modern arrangement isn’t an actual rule but a tradition and requires almost no effort from the minority. A talking filibuster would be different. Senators would need to remain on the floor, speak, coordinate shifts, and physically sustain the debate. That takes time, and time is the Senate’s most valuable currency. Modern senators devote enormous portions of their schedules to fundraising. A prolonged talking filibuster interferes with that routine. It forces senators to remain in the chamber instead of dialing donors or attending campaign events. Leadership would need to keep members present, fill the amendment tree quickly and keep it filled, and table or defeat whatever hostile amendments reach the floor.

Modern senators aren’t used to having to work this much. A conference that fractures internally may lose procedural votes. Senators who wish to offer their own amendments may pressure leadership to open the amendment tree. Others may resist the long hours required to maintain control of the floor. If enough members break ranks, the amendment structure can unravel and the minority can gain additional opportunities.

This is the scenario that likely worries the majority leader. It is not that the Senate rules make passage impossible. It is that enforcing the rules requires discipline and effort. The uncomfortable possibility is that Leader Thune himself may not wish to run the Senate this way, or he may believe that enough members of his conference would refuse to do the work. Either way the obstacle is not procedural impossibility. It is a reluctance to perform the demanding part of the job. Senators have not truly had to do that work since the silent filibuster culture took hold in the 1970s, when disco was still fashionable. What Thune describes as a procedural barrier is better understood as a test of whether modern senators are willing to do the job the institution once required of them.

In the end, the Senate remains what it has always been, an institution whose rules create opportunities rather than outcomes. The majority has tools. The minority has tactics. If the majority wants the SAVE America Act to pass badly enough to do the work required to defeat a talking filibuster, the bill will inevitably pass. The minority does not possess a procedural weapon that can permanently stop a determined majority that is willing to hold the floor, fill the amendment tree, and keep voting until the bill is adopted. What the minority can do is raise the cost. It can slow the process, force long hours, and demand sustained discipline. But delay is not defeat. More than 85% of the American people and the president are demanding that the Senate secure our elections now. If the majority treats that demand with the seriousness it deserves, and if it is willing to expend the time and effort required by the institution it serves, then the SAVE America Act will pass. The only real question is whether the majority is willing to do the work.

PS: Contrary to Senator Thune’s false claims that I am being paid to support the Save America Act — I am doing this completely for free. Securing our elections would be payment enough.

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