Senate Democrats' Latest Crazy Filibuster Idea

Led by Hillary Clinton's 2016 VP nominee, Democrats are eyeballing a strategy to tire out GOP Senators to bypass a filibuster to enact their partisan election reform bills . It likely won't work.

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 has already passed the House and Senate (as amended), HR 5746, the “NASA Enhanced Use Leasing Extension Act of 2021.” 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 John Lewis Voting Rights Enhancement 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 the Senate Majority Leader Charles Schumer (D-NY) 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.

US Senator Tim Kaine (D-VA), 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 Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) support the Freedom to Vote and Voting Rights Enhancement Acts, they oppose changing the filibuster on legislation.

Now, according to an interesting article in TheHill.com, 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 Senator 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 (they stay 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 GOP’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 TheHill.com’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 Senate Republican Leader Mitch McConnell (R-KY) has already conjured up a whole series of such motions and amendments. McConnell is arguably the US 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 TheHill:

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 US Sen. Chuck Grassley (R-IA), 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 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.

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 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.

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.