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Time is not fungible. The time you spend reading this column cannot be “recovered.” He’s gone and won’t come back.
That is why the proposal of “talking obstructionism” for the United States Senate It’s such a horrible idea.
I wrote the first paragraph fully aware of the jokes it will generate; thank you for underlining my point by posting a comment like “That’s five minutes I’ll never get back.” You’re right. You won’t get it back. Hold that thought. It also applies to the United States Senate.
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Another debate has arisen over the rules of the United States Senate. Debate is welcome as long as it occurs in columns and studies and does not take up “session time” in the Senate. “Sitting time” in the Senate is a subset of time, a particularly valuable subset. It also cannot be recovered once it passes.
“Session time” in the Senate is a precious commodity. They are the “rare earth minerals” of the legislative process. Nothing, absolutely nothing, is done in the Senate unless it is done openly, on the Senate floor, after all procedural obstacles have been overcome, and there are many such obstacles. Senate rules 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 stop everything the Senate and, therefore, Congress does.
The Senate is anti-majoritarian and is deliberately so. It was an essential element for the founding of the country. The only part of the Constitution that cannot be modified is the composition of the Senate. Article V ends with the absolute declaration “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Thus, states like Delaware and Wyoming gain two seats in the Senate and California does as well. 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 created the Senate to “check” the popularly driven House of Representatives. The two senators by state provision? This cannot be changed without the consent of all states.
Among the Senate’s many traditions is one that protects “unlimited debate,” a feature, not a bug, deeply embedded in the structure of the institution. The House has strict time limits on debates, but not the Senate. Anything procedural done in the Senate must proceed by unanimous consent or, failing that, very, very slowly, if at all.
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For most of our country’s history, the Senate is the place where legislative milestones are forged because the tradition of unlimited debate and rules that protect the power of the minority party force compromise.
That’s a good thing. The Senate’s rules on debate and legislation force such compromises, or when a major compromise fails to appear, an impasse becomes visible to the public that can tilt the election depending on how much visibility the impasse generates and how that impasse appears to the electorate. The Senate does not need to pass bills to move the country’s debates forward.
Democrats tried to argue in 2024 that Republicans had blocked legislation needed to close the border. His argument not only failed, but spectacularly, and the President donald trump and in the November 2024 elections, a 53-47 Republican Senate and a Republican majority in the House of Representatives were obtained. Voters are smart.
(It also turned out that no legislation was needed to close the border. President Trump did so without any new grant of authority from Congress.)
Whenever a group of activists on either side of the political spectrum really, really, really wants 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 commonly called “the filibuster.” Like clockwork, calls are made by the most frustrated Democrats or the most frustrated Republicans to eliminate or at least “reform” the filibuster every time frustration over stalled legislation peaks.
Right now, many Republican senators really want to pass the “SAVE Act” – the “Safeguarding American Voter Eligibility Act” – and some of them are demanding that the majority leader John Thune Or eliminate the rules that protect the minority party by ending the filibuster, or at least change the rules under which the filibuster operates. Utah Senator Mike Lee is advocating for that change right now. Lee wants to require filibusters to be “talking obstructionists.”
The Wall Street Journal’s Kimberly Strassell explained in detail why the “talking filibuster” is a spectacularly bad idea, and I recommend her work. (The Journal is a sister publication to this one.) Strassel’s article is decisive about why the talking filibuster is a terrible idea. But I have a shortcut for the “No. Not now. Never. No” answer to the talking filibuster.
Fourteen years ago, it was Oregon Democrat Jeff Merkley who championed “The Talking Filibuster” in a December 12, 2012 memo to his 99 colleagues. (Merkley routinely ranks among the ten most liberal members of the Senate.) If Merkley is advocating for a rule 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. Republicans were then in the minority and used the filibuster to slow or stop President Obama’s legislative agenda. “This paralysis is unacceptable,” Merkel said.
That “paralysis” was not only unacceptable. It was urgently needed and bravo for the then Senate Republican 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 impose Obamacare on an unsuspecting nation.
Merkley argued and argued in 2012, but did not convince. The legislative filibuster (the 60-vote threshold) remains in effect and there is no “talking filibuster.”
Eventually, the late Harry Reid, then the Senate majority leader, 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 crude power play was the most spectacular backfire in Senate history, with three of President Trump’s nominees confirmed for president. Supreme Court with less than 60 votes.
Senator Mitch McConnell warned Reid not to change the rules. Reid ignored it and, as a result, we have the “originalist” majority on the Court. Every time a progressive vents about a Supreme Court decision, remind them that it’s all because of Harry Reid.
Which brings me back to “session time” in the United States Senate. Sincere advocates of the parliamentary filibuster will admit that a change in their vision for the Senate would consume enormous amounts of the very limited “floor time.” The Senate majority leader controls the calendar and, therefore, the session time. A filibuster would take away that control and give it to the minority party for periods of time the Senate is in session. “Like sand in an hourglass,” the hours and then days and weeks that the Senate would have to do its work would slip away.
Business that includes lifetime appointments to the federal courts. There are currently a total of 37 vacancies in the federal courts. Only 3 of the 37 have nominees, but President Trump never filled a judicial vacancy he didn’t try to fill because he knows that serious judges are the cement that keeps his domestic policy agenda in place. He and the judicial nominations team have to speed up the pace and when they do, each judicial candidate for a federal district court will require at least two hours of debate time and each candidate for an appeals court will require up to 30 hours of floor debate. Whether there will be a Supreme Court retirement (or two) this spring? Thirty hours of post-closing debate would be required for each of them, and would only begin after what would inevitably be excruciatingly long and contentious hearings and procedural maneuvers.
That is just the time that judges and magistrates need. Each nominee for each job requiring Senate confirmation It will also take time, from two hours for little-known appointees to 30 hours for the highest-profile Cabinet nominees. If President Trump is going to continue staffing the Executive Branch, he will need Majority Leader John Thune to control the clock in the Senate.
President Trump and Majority Leader Thune have worked very well together since “45” became “47” again. The hugely successful “Tax cuts for working families“, also known as the “One Big Beautiful Bill,” is the best evidence of that, but so are the 11 of the 12 appropriations bills the president has signed: a triumph of “regular order” not seen in decades. The massive spending of funds to rebuild the military has just begun. Another National Defense Authorization Act (“NDAA”) and another War Department funding bill are absolutely needed. These and other urgent but ordinary Senate business are all before the Republican Party of the Senate.
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If the “talking filibuster” ever manages to pass a rule change (very, very unlikely, but let’s admit that point for a moment), the GOP will regret it as much as Democrats regret that the “Reid Rule” changes the votes needed for judicial confirmation. The “talking filibuster” would haunt the GOP conference in the same way that the ghost of Harry Reid haunts all Democrats’ conversations about the Supreme Court.
Reclaim your reading time now, but if the topic of the “talking filibuster” comes up, remember that it was originally a democratic idea presented in service of Barack Obama’s far-left vision for the country. And just say, “No.”
