Democrats Don't Need Cloture to Debate Voting Rights

The Senate voted 50 to 50 not to invoke cloture (i.e., end debate) on a motion to proceed to the For the People Act of 2021 (S. 2093). Senators must vote to proceed to a bill before they can debate it formally on the Senate floor. The Senate did not begin debate on S. 2093 because Rule XXII stipulates that “three-fifths of the Senators duly chosen and sworn” (typically 60) are required to invoke cloture on it.

Democrats accuse Republicans of preventing the Senate from debating S. 2093. The failed cloture vote has boosted calls for Democrats in the Senate to use the nuclear option to eliminate the filibuster (i.e., Rule XXII’s 60-vote requirement to invoke cloture on legislation). The nuclear option refers to instances when a majority of senators vote to ignore, circumvent, or otherwise change the Senate’s Standing Rules in direct violation of those rules.

But Democrats do not have to change the rules to begin debate on S. 2093. This is because they do not have to use Rule XXII to end debate on a motion to proceed to it. The Senate’s existing rules and practices empower a majority to vote on a motion to proceed over a minority’s objections.

Democrats can approve the motion to proceed to S. 2093 over Republican opposition by strictly enforcing Rule XIX. The rule stipulates 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." Enforcing the rule requires Democrats to keep the Senate in the same legislative day until the Republican senators who are willing to filibuster S. 2093 have exhausted their ability to speak on the motion to proceed to it.  According to Senate precedent, a legislative day is 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.

The Senate votes on the motion to proceed when the Republicans committed to filibuster have given the two speeches they are allotted on the motion to proceed under Rule XIX. At that point, the Senate's Presiding Officer can put the question (i.e., call for a vote) on adopting the motion to proceed. Adoption of the motion to proceed is a simple majority vote.

If no senator seeks recognition (i.e., no longer wants to, or is able to, speak), the Presiding Officer must put the question. The Senate’s precedents stipulate, "when a Senator yields the floor, and no other Senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote.”