Sen. Mike Lee, R-Utah, is looking at ways to revive an arcane tool to overcome the Senate filibuster in an effort to secure a vote on his election security bill that would ban noncitizens from voting in federal elections.
Lee is engaged in conversations with the White House and Senate Republican leadership to reinstate what is known as the talking filibuster, an alternative strategy to end debate and force a vote on certain legislation without needing to secure support from 60 senators. Doing so would allow Lee to use the original structure of a filibuster that requires senators to be present on the floor and actively talking in order to stall a vote.
Those Senate rules were updated in 1917 to allow for an alternative route known as invoking cloture, which would allow senators to vote on ending debate so long as they had significant support — which requires 60 votes under current rules.
Cloture has since become the norm in the Senate because it expedites voting schedules, although it often requires a bipartisan vote to pass any one piece of legislation. In the past year, that’s halted several Republican bills central to their agenda but that have failed to garner Democratic support.
Now, Lee is pushing Thune to invoke the talking filibuster rather than using cloture to advance his bill — which would force Democrats to speak continuously on the floor in order to block it.
“It requires harder work on the part of the Senate, but it also reflects the fact that this is part of what enables and facilitates the idea of the talking filibuster,” Lee told the Deseret News. “We’ve grown so accustomed to cloture that we’ve forgotten that it’s not the only tool in the shed.”
Lee noted that utilizing the talking filibuster would not permanently change the rules and that cloture votes could still be considered the norm for other legislation. In fact, Lee said it’s still not the favored option because a talking filibuster could take weeks of debate just to schedule a vote — compared to cloture votes that take only a few days.
“There can be no delusional belief that this would be a quick process,” Lee said. “This could end up taking weeks to run its course depending on the amount of energy and resolve on the part of those who wish to continue debate.”
Senate Majority Leader John Thune, R-S.D., said any decisions to use alternative filibuster rules were still premature, telling reporters on Tuesday there “weren’t any commitments made” to do so. Lee confirmed that no decisions had been made.
This contradicts what Rep. Anna Paulina Luna, R-Fla., said the night before — that the White House had “made assurances” to schedule a vote on Lee’s bill to ban noncitizens from voting in federal elections in exchange for her vote to reopen the government.
“We’ve got some members, as you know, who expressed an interest in that, so we’re going to have a conversation about it,” Thune said.
Thune warned that changing the rules to reinstate what is known as the “standing filibuster” would take up hours on the Senate floor that could be used to pass other legislation central to Republicans’ agenda. A standing filibuster differs from current rules by requiring that senators who oppose certain legislation physically talk in order to delay a vote — which could take up to 940 hours of debate time under current margins, Thune said.
“It ties up the floor indefinitely, so it means you’re not doing other things,” Thune said. “So there’s always an opportunity cost.”
Thune’s skepticism comes after Luna and a handful of other congressional Republicans said she got “assurances” from the Trump administration to implement the standing filibuster and that Thune himself was “considering that.”
That guarantee prompted Luna to vote in favor of the $1.2 trillion spending package to reopen the government, which the Florida Republican previously threatened to tank unless Lee’s SAVE America Act was included as an amendment. The SAVE America Act would enact stricter requirements for voting in federal elections, including photo identification to cast a ballot.
Lee had also urged his Republican colleagues in the House to reject the spending deal unless it included his SAVE America Act as well as other language to fund the Department of Homeland Security for the full fiscal year.
Luna acknowledged her conversations with the White House about changing filibuster rules may have been preliminary, telling reporters on Tuesday that her agreement with President Donald Trump wouldn’t “technically remove the filibuster, but it’s a workaround.”
“I think I might have told you guys about some internal conversations that slipped that I probably shouldn’t have, but to my understanding, this is a very real thing that’s on the table,” Luna said, adding her conversations have been directly with the president rather than with Thune.
Thune reiterated promises that he would bring the SAVE Act to the floor for a vote, although timing on that is not yet clear. Thune said on Tuesday it would be considered “whenever we can work it in.”
Still, the legislation faces an uphill battle in the Senate as Democrats are adamantly opposed to it. Without changes to the filibuster, Lee would need at least seven Democrats to cross party lines to advance.