Existing Senate rules can help the majority overcome minority obstruction of measures that can’t be amended as well as legislation that is no longer open to amendment.
Paragraph 1(a) of Rule XIX states, “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.”
That the majority chooses not to utilize this option suggests that its rank-and-file members are unwilling to bear the costs required to overcome a minority filibuster.
The implication of their inaction is that the costs of utilizing existing rules and practices to limit the minority’s ability to obstruct and the likelihood that the majority will utilize them to do so are inversely related.
Strictly enforcing the two-speech rule (Rule XIX) is likely to overcome minority obstruction of measures that can’t be amended, or are no longer open to amendment, before every member uses the maximum number of speeches allotted to them under the rules.
This is because continuing to filibuster imposes significant costs on the minority. The strategy forces its members to demonstrate their commitment to filibustering the underlying bill.
To prevail, the minority must hold the Senate floor for a prolonged period of time in an effort to wait out the majority. The only way for the minority to prevail in the parliamentary showdown is for the majority to relent and cease its efforts to overcome the filibuster.
The novelty of the showdown will also attract considerable attention. Increased media scrutiny further increases the costs for one side or the other in the parliamentary battle.
The showdown will not last forever given that the costs are not equally distributed between the two sides in the fight, the finite willingness of senators to expend effort, and ever-greater public attention.
This is literally how the Senate worked before it adopted the cloture rule in 1917.
It is incorrect to assert that Senate majorities are powerless in the face of minority obstruction.
The nuclear option is the lazy way out. And it is destructive of the Senate as an institution. It also breaks the existing rules (Rule XXII). Senators should not go nuclear in my opinion. The underlying question doesn't matter. It is a bad idea.
If senators want to do something big, they need to put in the effort to succeed. If they are unwilling to put in the effort, then they shouldn't do the big thing. That goes for senators in the majority and the minority.
Before people jump to destructive maneuvers, Republicans should stop asking for the Democrats' permission to vote and instead enforce Rule XIX. What's wrong with a debate? That's why we have the Senate. If people agree with Democrats, they will likely win. If not, they won't.
But one thing is for sure. You can't win if you don't try. That is the problem with Senate Republicans. They haven't learned this lesson. If all majority parties managed the Senate like they do today, the Civil Rights Act of 1964 never would have passed.
