A ‘Talking Filibuster’ would waste the Senate’s rarest resource — floor time

Time is not fungible.  The time you spend reading this column cannot be “reclaimed.”  It is gone and it won’t be back.

 Which is why the “talking filibuster” proposal for the United States Senate is such an awful idea.

I wrote the first paragraph fully aware of the jests it will bring forth — thank you for underscoring my point by posting a comment along the lines of “That’s five minutes I will never get back.” You are correct. You won’t get it back. Hold that thought. It applies to the United States Senate too.

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Another debate has come around about the rules of the United States Senate. The debate is welcome provided it occurs in columns and in studios and doesn’t take up “floor time” in the Senate. “Floor time” in the Senate is a subset of time, a particularly valuable subset. It, too, cannot be gotten back once it passes.

“Floor time” in the Senate is a precious commodity. It is the “rare earths minerals” of the legislative process. Nothing, absolutely nothing, gets done in the Senate unless it is done out in the open, on the Senate floor, after every procedural hurdle is crossed, and there are many such hurdles. The Senate’s rule book evolved over the 161 years since the Civil War ended to protect the rights of the minority party as well as some prerogatives of individual senators. These rules are many and obscure, but they all act together to slow down everything the Senate and thus the Congress does.

The Senate is anti-majoritarian and purposefully so. It was an essential element to the founding of the country. The only part of the Constitution that cannot be amended is the makeup of the Senate. Article V ends with the absolute statement “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Thus, states like Delaware and Wyoming get two seats in the Senate and so does California. In a recent interview, former President Obama said this needed to be amended, but the former Constitutional Law professor had forgotten Article V. The Framers set up the Senate to “check” the population-driven House. The two senators per state provision? That cannot be amended without the consent of every state.

Among the Senate’s many traditions is one protecting “unlimited debate,” a feature, not a bug, woven deep into the institution’s fabric. The House has strict time limits on debate but not the Senate. Everything procedural done in the Senate must proceed by unanimous consent or, lacking that, very, very slowly if at all.

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For most of our country’s history, the Senate is where milestone legislation is forged because the tradition of unlimited debate and the rules protecting the power of the minority party force compromise.

That is a good thing. The Senate’s rules on debate and legislation force those compromises or, when an important compromise doesn’t appear, an impasse becomes visible to the public that may tilt elections depending on just how much visibility is generated by the deadlock, and how that deadlock appears to the electorate. The Senate doesn’t have to be passing bills to move the country’s debates forward.

Democrats tried to argue in 2024 that the Republicans had blocked legislation necessary to close the border. Their argument not only failed, it failed spectacularly, and President Donald Trump and a 53-47 Republican Senate and a GOP House majority resulted from the November 2024 election. Voters are smart.

(It also turned out that legislation wasn’t necessary to close the border. President Trump did that without any new grant of authority from the Congress.)

Whenever one group of activists from either side of the political spectrum really, really, really want something, the Senate rule requiring 60 votes to proceed to consideration of a bill causes heartburn among those activist groups and the senators who agree with them. That 60 vote threshold is routinely called “the filibuster.” Like clockwork, calls from the most frustrated Democrats or the most frustrated Republicans are issued to do away with or at least “reform” the filibuster whenever frustration over stalled legislation peaks.

Right now, many Republican senators really, really want to pass the “SAVE Act” — the “Safeguard American Voter Eligibility Act” — and some of them are demanding that Majority Leader John Thune either do away with the rules which protect the minority party by ending the filibuster, or at least change the rules under which the filibuster operates. Utah Senator Mike Lee is arguing for such a change right now. Lee wants to require that filibusters be “talking filibusters.”

The Wall Street Journal’s Kimberly Strassell explained at length why the “talking filibuster” is a spectacularly bad idea and I recommend her work to you. (The Journal is a sister publication to this one.) Strassel’s piece is dispositive on why the talking filibuster is a terrible idea. But I have a shortcut to the “No. Not now. Not ever. No” answer on the talking filibuster.

14 years ago, it was Oregon Democrat Jeff Merkley who was arguing for “The Talking Filibuster” in a December 12, 2012, memo to his 99 colleagues. (Merkley routinely scores as among the ten most liberal members of the Senate.) If Merkley is arguing for a rules change, just vote no. It’s that easy.

“When the filibuster is used routinely, it becomes an instrument of mass legislative destruction,” Merkley argued more than a decade ago. The Republicans were in the minority then, and they used the filibuster to slow down or stop President Obama’s legislative agenda. “This paralysis is unacceptable,” Merkel argued.

Not only was that “paralysis” not unacceptable. It was urgently needed, and bravo to then-GOP Senate Leader Mitch McConnell for organizing the Republican caucus to block the radical agenda of former President Obama, the man who used his party’s fleeting 60 vote majority to inflict Obamacare on a trusting nation.

Merkley argued and argued in 2012, but he did not persuade. The legislative filibuster — the 60 vote threshold — remains in place and there is no “talking filibuster.”

Eventually, the late Harry Reid, then the Majority Leader of the Senate, would invoke “the nuclear option” to change the Senate’s rules on voting on judicial nominees to a simple majority vote. The result of Reid’s raw power play was the most spectacular backfire in Senate history, with 3 nominees of President Trump confirmed to the Supreme Court with less than 60 votes.

Senator Mitch McConnell warned Reid not to change the rules. Reid ignored him, and we have the “originalist” majority on the Court as a result.  Every time a progressive vents over a Supreme Court decision, remind them it is all because of Harry Reid.

 Which brings me back to “floor time” in the United States Senate. Candid proponents of the talking filibuster will admit a change to their vision for the Senate would eat up huge gobs of the very limited “floor time.” The majority leader of the Senate controls the calendar and thus the floor time. A talking filibuster would wrest that control from him or her and vest it in the minority party for slabs of the time the Senate is in session. “Like sands in the hourglass” the hours and then days and weeks the Senate would have to do its business would slip away.

Business that includes lifetime appointments to the federal courts. There are at present 37 total vacancies on the federal courts. Only 3 of the 37 have nominees, but President Trump never met a judicial vacancy he didn’t try to fill because he knows that serious judges are the cement holding his domestic policy agenda in place. He and the judicial nominations team have to pick up their pace and when they do, every federal district court judicial nominee will require at least two hours of floor time and every appellate court nominee will require up to 30 hours of floor debate. If there is a retirement — or two — from the Supreme Court this spring? Thirty hours of debate after cloture for each would be required and would begin only after what would inevitably be excruciatingly long and contentious hearings and procedural maneuvers.

That’s just the time required for judges and justices. Every nominee to every job requiring Senate confirmation will take time as well, from two hours for the obscure appointees to 30 hours for the highest profile Cabinet nominees. If President Trump is to continue to staff the Executive Branch, he’s going to need Majority Leader John Thune to control floor time in the Senate.

President Trump and Majority Leader Thune have worked very well together since “45” returned as “47.” The enormously successful “Working Families Tax Cut,” aka the “One Big Beautiful Bill,” is the best evidence of that, but so too are the 11 of 12 appropriations bills the president has signed — a triumph of “regular order” not seen in decades. The enormous expenditure of funds to rebuild the military has just begun. It absolutely needs another National Defense Authorization Act (“NDAA”) and another Department of War funding bill. These and other urgent, but ordinary, business of the Senate is all before the Senate GOP.

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Should the “talking filibuster” ever make it through a rules change — very, very unlikely, but concede that point for a moment — the GOP will regret it as much as the Democrats rue the “Reid Rule” changing the votes needed for judicial confirmation. The “talking filibuster” would haunt the GOP conference just as the ghost of Harry Reid haunts the Democrats’ every conversation about the Supreme Court.

Reclaim your reading time now, but if the topic of the “talking filibuster” comes up, remember it was originally a Democrat idea put forward in service of Barack Obama’s hard left vision for the country. And just say, “No.”