A 'talking filibuster' isn't going to solve the Senate's problems

President Joe Biden threw his significant political weight this week behind an effort to reform the Senate’s filibuster process, telling ABC’s George Stephanopoulos that “you have to do it what it used to be when I first got to the Senate back in the old days. You had to stand up and command the floor, you had to keep talking.”

Biden’s endorsement of the so-called “talking filibuster” — in which senators would be forced to actually hold the floor and speak while they sought to delay a vote to end debate — will provide further momentum to the proposal, which has been previously backed by the likes of Democratic Sens. Dick Durbin (Illinois) and Joe Manchin (West Virginia).
The goal is simple: To find a middle ground between the liberal left, which wants to get rid of the legislative filibuster entirely and moderate Democrats like Manchin and Arizona’s Kyrsten Sinema, who are adamantly opposed to doing just that.
    And it might work! After all, if all 50 Democrats vote for a change to the Senate rules on the filibuster — and Vice President Kamala Harris breaks the tie — well, then, the change is made.
      But a talking filibuster is just window dressing on the broader problem of the lack of bipartisanship in the Senate. It won’t solve the fundamental problem — and it could, actually, block up the chamber’s work even more.

        Start here: The current filibuster system — in which a senator doesn’t have to actually do the whole Mr.-Smith-goes-to-Washington talking filibuster in order to slow attempts to hold final votes on legislation they don’t like — was actually put in pace to keep the business of the Senate moving.
        In a series of post-Watergate reforms in the mid-1970s, the Senate agreed to lower the threshold to invoke cloture — a parliamentary term meaning to end the unlimited debate in the body and set a final vote on a measure — from a supermajority (67 senators) to three-fifths of the chamber (60 senators). But because they believed such a move would raise the number of filibusters, the Senate also put a dual-track system in place.
          “No longer would a filibuster delay all Senate business. Instead, new Senate procedure would create a dual-tracking system that allowed the body to toggle between different bills so that a bill facing a filibuster was ‘kept on the back burner’ until a vote for cloture could be successful. This meant that no one observing the Senate would likely realize that a bill was being filibustered, since no one had to take the floor and stay there. This significantly reduced the public relations disincentive to filibuster and made it practically invisible to the public and the media. The talking filibuster had died; all a senator needed to do was indicate an intention to filibuster in order to move a bill to the end of the queue or ‘the back burner.‘”
          If the talking filibuster was reinstated, so too would be the rule that no other Senate business — judicial confirmations, Cabinet confirmations etc. — could be conducted while the chamber was being held by someone in the process of filibustering. Meaning that for as long as the filibuster could go, the Senate would be at a complete legislative stop. Nothing could or would get done.
          Which then raises this question: How long could a filibuster go?
          While the common perception of the filibuster is a lone senator holding the floor for as long as they (and their bladder) can hold out, it’s actually not in the Senate rules that only one senator can speak during a filibuster. According to a 2017 Congressional Research Service report on Rule 19, which governs filibusters:
          “Rule XIX places no limit on the length of individual speeches or the number of Senators who may speak on a pending question. It does, however, tend to limit the possibility of extended debate by its provision that ‘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.’ This provision, commonly called the two-speech rule, limits each Senator to making two speeches per day, however long each speech may be, on each debatable question the Senate considers. A Senator who has made two speeches on a single question becomes ineligible to be recognized for another speech on the same question on the same day.”
          So every senator who wanted to participate in a filibuster could speak twice every single legislative day. That’s still not easy — since the filibustering group would have to have someone speaking 24 hours a day for as long as they could do it — it’s not entirely out of the realm of possibility that a few senators could hold the floor for a considerable amount of time.
          “Depending on how it’s structured – the critical question, as with anything Senate-related – a small group of senators could talk for days or even weeks,” tweeted Punchbowl News’ John Bresnahan on Tuesday night. “How does that get reformers any closer? It doesn’t.”
            Then finally, there’s this: Once the talking filibuster is over, Democrats would still need 60 votes to end debate and proceed to a vote. (Unless, of course, they change the legislative filibuster rules to allow cloture to be invoked by a simple majority.) So yes, a talking filibuster would force much more of a logistical imposition on the senators who participated in it. But a few hoarse voiced and tired senators aside, it wouldn’t actually change much of anything.
            In short: A talking filibuster sounds like an appealing compromise. It evoked, for many Americans, what the filibuster should be. But dig a little and you see that the talking filibuster doesn’t have much actual effect unless its accompanied by other Senate rules changes that, at least at present, seem very unlikely to have majority support.

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