The Rules Aren't The Problem

This week, Senate Democrats returned to Capitol Hill without a clear path forward for advancing critical pieces of President Joe Biden's agenda like the Build Back Better Act reconciliation bill (HR 5376) and the John R. Lewis Voting Rights Advancement Act (S. 4) through their evenly divided chamber. 

Democrats’ inability to debate these issues like these has prompted their supporters to push for changing the Senate's rules to prevent Republicans from using the filibuster to block discussion of legislation supported by a majority of senators. For example, pro-elections reform organizations point to last month’s successful effort to exempt debt-limit legislation from the filibuster in a recent letter and call on Democrats to create a similar filibuster carve-out for the voting rights bill.

Majority Leader Chuck Schumer, D-N.Y., acknowledged the growing frustration with the Senate and pledged that senators would vote on beginning debate on the voting rights bill before the Martin Luther King, Jr. holiday on January 17. And Schumer threatened Republicans that Democrats would move to eliminate the filibuster if they used it to prevent the Senate from taking up the bill. 

Notwithstanding the credibility of Schumer’s threat – and the evidence suggests that he does not have the votes needed to eliminate the filibuster – Democrats do not have to change the Senate’s rules to overcome Republicans’ efforts to obstruct legislation like the Build Back Better Act and voting rights reform. This is because the filibuster is not presently preventing senators from debating Biden’s agenda on the Senate floor. Senators cannot filibuster the effort to begin debate on the Build Back Better Act because it is a reconciliation bill. And while senators can filibuster the voting rights bill, the Senate’s current rules empower Democrats to overcome that obstruction.

The Motion to Proceed 

The Senate begins debate on legislation when a simple majority of senators present and voting - typically 51 - approve a motion to proceed to its consideration. Any senator can offer a motion to proceed to legislation on its Legislative Calendar (i.e., the list of all legislation eligible for floor debate). However, senators in both parties have generally deferred to the Senate’s majority leader to make motions to proceed to legislation since the 1950s.

Motions to proceed to legislation are almost always debatable. There is no specific, pre-determined limit in the Senate's rules on how long senators can speak on the motion during floor debate. However, there are exceptions to this general rule. For example, Rule VIII stipulates that motions to proceed to legislation unrelated to the Senate’s rules are non-debatable during the first two hours after the Senate convenes following an adjournment. Rule XXVIII prohibits debate on motions to proceed to conference reports. And the 1974 Budget Act limits debate on motions to proceed to reconciliation bills.

When the Senate is considering a debatable motion to proceed, its presiding officer cannot order a vote on it if a senator is speaking or seeking recognition to speak. But the presiding officer must call a vote on the motion if no senator is speaking or seeking recognition to speak. (Senators routinely prevent the presiding officer from calling a vote if there is no senator ready to talk once they stop speaking by suggesting the absence of a quorum.)

Filibusters and Motions to Proceed

Senate majorities have several procedural tools at their disposal to overcome filibusters of motions to proceed. These tools include invoking cloture on the motion (Rule XXII) and enforcing the two-speech limit on senators during its debate (Rule XIX).

Rule XXII

Senate Rule XXII empowers a supermajority of senators to invoke cloture (i.e., end debate) on a motion to proceed even though a senator may be speaking or seeking recognition to speak. Under the current cloture rule, any senator may file a cloture motion (signed by 16 senators) to end debate on a motion to proceed. Senators must then wait one calendar day before voting on the cloture motion. Rule XXII stipulates that the Senate votes one hour after it convenes following that intervening day. If three-fifths of the senators duly chosen and sworn – typically 60 – vote for cloture, the Senate then enters a period of post-cloture debate time which can last up to 30 hours. Finally, the Senate votes on the motion to proceed at the end of the 30 hours or whenever a senator is not speaking or seeking recognition to speak, whichever comes first. At that point, a simple majority of senators present and voting – typically 51 – is required to adopt the motion to proceed.

Rule XIX

The rules do not require Senate majorities to use the cloture process to overcome a filibuster. And senators have other procedural tools at their disposal to overcome such obstruction and begin debate on legislation. For example, Senate majorities may enforce Rule XIX’s two-speech limit on senators during a motion to proceed debate. 

Rule XIX stipulates that senators may speak twice on the Senate floor on any question on the same legislative day. The Senate defines a legislative day as the period lasting from the beginning of a “session following an adjournment until another adjournment.” Legislative days can therefore last for multiple calendar days.

According to the terms of Rule XIX, a senator may not speak again on the Senate floor after they have spoken twice on a motion to proceed. And the Senate's precedents require the presiding officer to call a vote whenever there are no senators on the floor who wish to, and may, speak.

Democrats can therefore use Rule XIX to force senators opposed to taking up voting rights reform legislation to mount a talking filibuster to delay the Senate from voting to begin debate on the motion to proceed to its consideration. That filibuster would end when the senators committed to preventing debate on the underlying bill have given the two speeches allotted to them under Rule XIX. When that point is reached, the Senate’s rules and practices require its presiding officer to call a vote on taking up the bill.

The Takeaway

The process by which senators choose the bills to debate on the Senate floor suggests that Democrats do not have to eliminate the filibuster to advance key pieces of President Biden’s agenda through the Senate. Changing the rules unilaterally is therefore unnecessary. Moreover, doing so will not help Democrats move the Build Back Better Act because senators cannot filibuster reconciliation bills. And while senators can filibuster legislation like the voting rights bill, they cannot do so indefinitely under the Senate's current rules. Democrats could have already voted to begin debate on the voting rights bill if they spent less time complaining about the Senate’s rules and more time using them to achieve their goals.