Democrats and the Politics of Effort

Democrats’ refusal to use Rule XIX to pass voting rights legislation through the Senate demonstrates that enforcing the rule’s two-speech limitation on Republican senators imposes costs that they are unwilling to bear. These costs arise from the fact that Democrats must be able to produce 50 senators and the Vice President when the Senate is in session to table any procedural motions Republicans make (or to produce a quorum). 

Managing Costs

Democrats can reduce the extent to which a Rule XIX-based strategy would disrupt senators’ schedules. While recorded votes technically last for 15 minutes, both parties have routinely kept votes open for an extended period when they needed extra time to allow a senator to vote. Given this, Democrats should quickly produce a simple majority on the Senate floor with only minor inconveniences to table any superfluous motions made by Republicans. 

Forcing votes on superfluous procedural motions also inconveniences Republicans who are not participating actively in the filibuster at that moment. Consequently, any effort to exhaust Democrats by making such motions is costly for Republicans as well. It could therefore exacerbate any latent tensions between Senate Republicans who are committed to blocking the voting rights bill and those who are not.

Democrats can also determine how long the Senate is in session each calendar day. Late-night sessions and weekend sessions are not required. Democrats can instead recess the Senate at regular intervals while keeping the Senate in the same legislative day.  

Motions to recess are amendable, and Republicans could keep offering amendments to prevent the Senate from recessing when the Democrats want to suspend the legislative day temporarily. But Democrats can table those amendments with a simple majority. And repeatedly offering amendments to a motion to recess in a mini vote-a-rama imposes costs on Republicans. Each amendment terminates the filibustering senator’s speech, thereby hastening the point at which Republicans will have exhausted their ability to delay the recess. In addition, forcing recorded votes endlessly on superfluous amendments to a motion to recess also imposes physical and agenda costs on Republican senators. Those costs rise during overnight and weekend sessions, thus making it less likely that Republicans can sustain an effort to prevent the Senate from recessing.  

What Counts As A Speech?

Precedents define floor actions that do not constitute speeches for the purposes of the two-speech rule. Specifically, the Senate determined by a vote in 1986 that the following procedural motions and requests do not constitute speeches to enforce Rule XIX: 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.

But Democrats can quickly dispose of these procedural motions merely by showing up and casting a vote.

Costs vs. Benefits

Democrats should weigh the cost of showing up and casting a vote against the near-inevitability of victory (assuming they have the votes to prevail and are all equally determined to do so). The only way Republicans can prevent voting rights legislation from passing by a simple-majority vote in this instance is to force superfluous recorded votes until such time as enough Democrats lose the will to sustain the effort. However, Republicans are unlikely to sustain the practice of forcing excessive votes ad infinitum in the face of a Democratic majority determined to pass the bill.