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Talking Filibuster: Enforcing “Two Speech Rule” Will Not Fix Broken Senate

Mr. Smith: a great work of fiction; a lousy way to govern (image via mueredecine on flickr)

It is often heard in response to Republican abuse of the filibuster that the solution is to make them actually talk until they can’t talk any longer, and then pass the bill with a simple majority. There are a variety of problems with this solution, in addition to potentially preventing the Senate from passing more than two bills all year.

Sometimes, people point to the “Two Speech Rule” to show that any filibuster must come to an eventual end. This rule would let every Senator actually filibustering the action speak only twice. From the Congressional Research Service:

Rule XIX places no limit on the length of individual speeches or on the number of Senators who may speak on a pending question. It does, however, tend to limit the possibility of extended debate by its provision 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.” This provision, commonly called the “two-speech rule,” limits each Senator to making two speeches per day, however long each speech may be, on each debatable question that the Senate considers. A Senator who has made two speeches on a single question becomes ineligible to be recognized for another speech on the same question on the same day.

The “day” during which a Senator can make no more than two speeches on the same question is not a calendar day, but a legislative day. A legislative day ends only with an adjournment, so that, whenever the Senate recesses overnight, rather than adjourning, the same legislative day continues into the next calendar day. A legislative day may therefore extend over several calendar days. The leadership may continue to recess the Senate, rather than adjourning, as a means of attempting to overcome a filibuster by compelling filibustering Senators to exhaust their opportunities of gaining recognition.

Sounds great, right? Keep the Senate open all day and night! If you have, say, 45 Senators filibustering a bill, and each can only speak twice for, say, 8 hours at a time, then, after 720 hours (30 days) of continuous debate, the minority would be out of chances to speak. Well, it is not that easy. A senator gets two speeches on each debatable question, so a way to get more opportunities to speak is to offer debatable amendments or motions. . .:

Senators rarely invoke the two-speech rule because they generally do not believe that there is any need to do so. Sometimes, however, they may insist that the two speech rule be enforced, as a means of attempting to overcome a filibuster. On such occasions, nevertheless, Senators often can circumvent the two-speech rule by making a motion or offering an amendment that constitutes a new and different debatable question. For example, each Senator can make two speeches on each bill, each first-degree amendment to a bill, and each second-degree amendment to each of those amendments as well.

In recent practice, the Senate considers that being recognized and engaging in debate constitutes a speech. The Senate, however, does not consider “that recognition for any purpose [constitutes] a speech.” Currently effective precedents have held that “certain procedural motions and requests were examples of actions that did not constitute speeches for purposes of the two speech rule.” These matters include such things as making a parliamentary inquiry and suggesting the absence of a quorum. Nevertheless, if a Senator is recognized for a substantive comment, however brief, on the pending question, that remark may count as a speech.

So, the filibustering minority can get more chances to speak by introducing more debatable amendments and motions.

Add to this the issue of the quorum. The Senate needs a quorum, a majority of all senators, to conduct business, so the majority wanting to pass the measure by overcoming a filibuster would need to effectively be in the Senate at all times or send the Sergeant at Arms to gather up the senators. So, filibustering senators can farther delay action by “suggesting the absence of a quorum,” forcing a roll call and forcing a reading of amendments in full:

There are ways other than debate by which Senators can delay and sometimes even prevent the Senate from voting on a question that it is considering. For example, each amendment that is offered on the Senate floor must be read in full before debate on it can begin, although the Senate usually agrees by unanimous consent to waive the reading. In addition, quorum calls can be demanded not for the purpose of confirming or securing the presence of a quorum, but in order to consume time.

A Senator who has been recognized can “suggest the absence of a quorum,” asking in effect whether the Senate is complying with the constitutional requirement that a quorum—a majority of all Senators—be present for the Senate to conduct business. The presiding officer normally does not have the authority to count to determine whether a quorum actually is present (which is rarely the case), and so directs the clerk to call the roll.

In theory, is it possible for a determined majority to overcome a filibuster waged by an equally determined minority without using cloture? It technically might be if the majority were prepared to effectively live in the Senate for 90 days straight to pass a single bill. It would require enduring speeches, multiple amendments, bill readings, quorum calls, etc., waiting until the minority essentially used up every option they had to delay the vote. In short, it would be almost impossible. The best hope would probably be that, after some long period of time, the minority might slip up some how and accidentally allow the final vote. Of course, filibustering is infinitely easier on the minority party, they only need to have a few members present to consume time. The majority, on the other hand, needs to ensure–all day and night–that there is a quorum. Making your opposition filibuster might be a way to try to shame a minority, but it is not a path to passing bills or fixing the issue of our broken Senate.

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Talking Filibuster: Enforcing “Two Speech Rule” Will Not Fix Broken Senate

It is often heard in response to Republican abuse of the filibuster that the solution is to make them actually talk until they can’t talk any longer, and then pass the bill with a simple majority. There are a variety of problems with this solution, in addition to potentially preventing the Senate from passing more than two bills all year.

Sometimes, people point to the “Two Speech Rule” to show that any filibuster must come to an eventual end. This rule would let every Senator actually filibustering the action speak only twice. From the Congressional Research Service:

Rule XIX places no limit on the length of individual speeches or on the number of Senators who may speak on a pending question. It does, however, tend to limit the possibility of extended debate by its provision 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.” This provision, commonly called the “two-speech rule,” limits each Senator to making two speeches per day, however long each speech may be, on each debatable question that the Senate considers. A Senator who has made two speeches on a single question becomes ineligible to be recognized for another speech on the same question on the same day.

The “day” during which a Senator can make no more than two speeches on the same question is not a calendar day, but a legislative day. A legislative day ends only with an adjournment, so that, whenever the Senate recesses overnight, rather than adjourning, the same legislative day continues into the next calendar day. A legislative day may therefore extend over several calendar days. The leadership may continue to recess the Senate, rather than adjourning, as a means of attempting to overcome a filibuster by compelling filibustering Senators to exhaust their opportunities of gaining recognition.

Sounds great, right? Keep the Senate open all day and night! If you have, say, 45 Senators filibustering a bill, and each can only speak twice for, say, 8 hours at a time, then, after 720 hours (30 days) of continuous debate, the minority would be out of chances to speak. Well, it is not that easy. A senator gets two speeches on each debatable question, so a way to get more opportunities to speak is to offer debatable amendments or motions:

Senators rarely invoke the two-speech rule because they generally do not believe that there is any need to do so. Sometimes, however, they may insist that the two speech rule be enforced, as a means of attempting to overcome a filibuster. On such occasions, nevertheless, Senators often can circumvent the two-speech rule by making a motion or offering an amendment that constitutes a new and different debatable question. For example, each Senator can make two speeches on each bill, each first-degree amendment to a bill, and each second-degree amendment to each of those amendments as well.

In recent practice, the Senate considers that being recognized and engaging in debate constitutes a speech. The Senate, however, does not consider “that recognition for any purpose [constitutes] a speech.” Currently effective precedents have held that “certain procedural motions and requests were examples of actions that did not constitute speeches for purposes of the two speech rule.” These matters include such things as making a parliamentary inquiry and suggesting the absence of a quorum. Nevertheless, if a Senator is recognized for a substantive comment, however brief, on the pending question, that remark may count as a speech.

So, the filibustering minority can get more chances to speak by introducing more debatable amendments and motions.

Add to this the issue of the quorum. The Senate needs a quorum, a majority of all senators, to conduct business, so the majority wanting to pass the measure by overcoming a filibuster would need to effectively be in the Senate at all times or send the Sergeant at Arms to gather up the senators. So, filibustering senators can farther delay action by “suggesting the absence of a quorum,” forcing a roll call and forcing a reading of amendments in full:

There are ways other than debate by which Senators can delay and sometimes even prevent the Senate from voting on a question that it is considering. For example, each amendment that is offered on the Senate floor must be read in full before debate on it can begin, although the Senate usually agrees by unanimous consent to waive the reading. In addition, quorum calls can be demanded not for the purpose of confirming or securing the presence of a quorum, but in order to consume time.

A Senator who has been recognized can “suggest the absence of a quorum,” asking in effect whether the Senate is complying with the constitutional requirement that a quorum—a majority of all Senators—be present for the Senate to conduct business. The presiding officer normally does not have the authority to count to determine whether a quorum actually is present (which is rarely the case), and so directs the clerk to call the roll.

In theory, is it possible for a determined majority to overcome a filibuster waged by an equally determined minority without using cloture? It technically might be if the majority were prepared to effectively live in the Senate for 90 days straight to pass a single bill. It would require enduring speeches, multiple amendments, bill readings, quorum calls, etc., waiting until the minority essentially used up every option they had to delay the vote. In short, it would be almost impossible. The best hope would probably be that, after some long period of time, the minority might slip up some how and accidentally allow the final vote. Of course, filibustering is infinitely easier on the minority party, they only need to have a few members present to consume time. The majority, on the other hand, needs to ensure–all day and night–that there is a quorum. Making your opposition filibuster might be a way to try to shame a minority, but it is not a path to passing bills or fixing the issue of our broken Senate.

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Jon Walker

Jon Walker

Jonathan Walker grew up in New Jersey. He graduated from Wesleyan University in 2006. He is an expert on politics, health care and drug policy. He is also the author of After Legalization and Cobalt Slave, and a Futurist writer at http://pendinghorizon.com