The Rules Work
On Monday, the Senate voted 49 to 46 to begin debate on the legislative vehicle for the third coronavirus stimulus bill (HR 748). The effort failed. This is because Rule XXII requires an affirmative vote of "three-fifths of the senators duly chosen and sworn" (typically 60) to invoke cloture on a "measure, motion, or other matter pending before the Senate." Democrats voted against cloture to increase their leverage in negotiations with Republicans over what the bill will ultimately include. Democrats appear to have believed that doing so would force Republicans to concede to their demands.
After the vote, Majority Leader Mitch McConnell, R-Ky., criticized the Democratic effort as “mindless obstruction.” He asserted that the decision to vote against cloture delayed debate on HR 748 unnecessarily. According to McConnell, Democrats were “fiddling around with Senate procedure that could, if 1 Senator objected, take us all the way to the end of the week to solve this problem.”
But McConnell’s depiction of the procedural state of play was only half-right. Implicit in it is the assumption that the Senate can only begin debate on HR 748 by invoking cloture on the motion to proceed to its consideration or by unanimous consent. There is, however, another way. Republicans can speed up the process by enforcing the Senate’s existing rules.
Rule XIX
Republicans may limit Democrats’ ability to indefinitely filibuster the motion to proceed to HR 748 by strictly enforcing Rule XIX. Paragraph 1(a) of Rule XIX stipulates, “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.”
Overcoming a filibuster of a motion to proceed requires the Senate to remain in the same legislative day until the filibustering members have exhausted their ability to speak on the motion to proceed. Senate precedent defines a legislative day as a "day, which continues from the beginning of a day's session following an adjournment until another adjournment." A legislative day "is not effected in any way by a recess of the Senate." A legislative day only ends with the Senate's adjournment.
This is reached when those members who are committed to blocking the Senate's consideration of a particular bill have given the two speeches allotted to them on the motion under the Senate's rules. According to Senate precedent, "A Senator is not entitled to speak more than twice in the same legislative day on the same question and when called to order during his third speech will lose his right to the floor." At that point, the Presiding Officer may put the question (i.e., call for a vote) on the adoption of the motion to proceed. Approval of the motion to proceed is a simple-majority vote.
Precedents define floor actions that do not constitute speeches for the purposes of enforcing Rule XIX. In 1986, the Senate determined that several procedural motions and requests do not constitute speeches under Rule XIX. These include: parliamentary inquiries; appeals from rulings of the Chair; points of order; suggesting the absence of a quorum; withdrawal of appeals; requests for the yeas and nays; requests for a division vote; requests for the reading of amendments; and requests for division of amendments.
How Rule XIX Works
First, Republicans would move to proceed to HR 748. They would then keep the Senate in the same legislative day by recessing instead of adjourning and would strictly enforce the two-speech rule on filibustering senators. Republicans would also refrain from speaking on the floor, putting added pressure on Democrats to sustain the filibuster amidst mounting calls from their constituents to pass a bill.
Democrats could make repeated procedural motions to increase the burden on Republicans for keeping the Senate in session. If the Senate were to adjourn, a new legislative day would be created, and each member's allotment of two speeches under Rule XIX would be refreshed. But making procedural motions would terminate the filibustering senator's speech, thus hastening the moment at which Democrats will have exhausted its ability to delay adoption of the motion to proceed by filibustering via debate. While such motions can be made even when a senator has exhausted both speeches, Republicans can quickly dispose of them using a non-debatable motion to table.
Democrats may also suggest the absence of a quorum to get a reprieve from speaking. Yet Republicans can prevent the filibustering senators from delaying the adoption of the motion to proceed by immediately producing a majority. Once a senator has given two speeches, that member may not speak again. The Senate votes when there are no senators on the floor who wish to, and may, speak.
Why Rule XIX Works
Strictly enforcing Rule XIX is likely to overcome obstruction before all Democrats use the maximum number of speeches allotted to them under the rules (or resorts to the strategy of making motions ad infinitum). This is because continuing to filibuster the adoption of the motion to proceed imposes significant costs on Democratic senators, especially in this environment. Using the Senate's rules in this scenario forces Democrats to demonstrate their commitment to filibustering the motion to proceed to HR 748. To have even the chance of success requires each Democrat to hold the Senate floor for a prolonged period to wait out Republicans. The only way for Democrats to prevail in such a parliamentary showdown is for Republicans to relent and cease their effort to overcome the filibuster. That means Minority Leader Chuck Schumer, D-NY, will be forced to turn to less-interested or disinterested senators to sustain the filibuster once its most committed obstructionists have used their allotment of speeches.
Such calls from the leadership for active participation in the filibuster by rank-and-file members will be likely to precipitate internal dissent within the Democratic caucus for two reasons. First, Republicans' determination to prevail will become increasingly apparent as Democrats who are committed obstructionists lose their ability to speak on the Senate floor. At that point, the near-inevitability of defeat is likely to diminish the willingness of less-interested or disinterested Democrats to sustain the filibuster due to the effort's futility.
Second, the novelty of the parliamentary showdown and the nature of the underlying bill - to respond to the Coronavirus pandemic - will attract considerable media attention. This attention will increase as the committed obstructionists lose their ability to filibuster, and less-interested or disinterested senators are called upon to sustain the effort. Increased media scrutiny is thus likely to increase the costs of filibustering for the rank-and-file Democrats who are least willing to bear them.