You’ve heard the old saying where there’s a will, there’s a way? According to Daniel Horowitz, this is also true in this Senate fight over border wall funding. But it would take an awful lot of ‘will’ on the part of Republicans to make it happen.
Essentially, he’s saying that Republicans can win this fight by a simple majority without resorting to using the nuclear option. But it’s a plan that could possibly take weeks on end before it finishes.
Here’s how it works, according to Horowitz:
Senators don’t need unanimous consent to bring up a bill. The lack of unanimous consent or 60 votes doesn’t table a bill. It’s just that opposing senators in the minority can request to be recognized and continuously hold the floor. In recent years, majority parties have never made the minority do that. Sometimes it makes sense to pre-emptively achieve an agreement because the majority just can’t afford to chew up endless days on debate of a single issue. But sometimes there are issues worth fighting for. Either way, this is the end of the line for the 115th Congress.
How do you get Democrats to stop talking? This is where Senate Rule XIX, “the two-speech rule,” comes into play. The rule explicitly prohibits individual senators from speaking “more than twice upon any one question in debate on the same legislative day.” Given that Republicans preside over the chair and control the floor, they can refuse to officially adjourn, opting only to recess temporarily, and keep the Senate in the same legislative day indefinitely. This will ensure that even the Democrats who are willing and able to speak for a long time will eventually be forced to relent.
This never happens and is never enforced, because Republicans never force Democrats to hold the floor in the first place and McConnell simply won’t bring up legislation without a unanimous consent agreement or without 60 votes to ultimately shut off debate. But if he forced the minority to hold the floor and enforced Rule XIX, Democrats would exhaust themselves very quickly. This is a strategy laid out by James Wallner, an expert on Senate procedure who is currently completing a manuscript on the history of the Senate.
Wallner points out that Democrats do have the ability to challenge rulings of the chair and bring up points of order or call for quorum calls as means of prolonging their floor time, but Republicans can dispense with their motions with 51 votes. Eventually, Democrats would run out of steam and exhaust their two speeches per member. This would theoretically take several days or weeks, but it all depends on the determination of each side. If Republicans keep them in session day and night and over the weekends and make them hold the floor, Democrats would eventually run out of options to block a majority vote to proceed with the border wall funding continuing resolution.
This strategy is even stronger in optics than in the raw technicalities. Actually forcing Democrats to publicly hold the floor in such a dramatic and unusual way, particularly on a government funding bill, will make the Democrat speech-givers look like utter fools and obstructionists during Christmas…
The bottom line is that with control of the chair, 51 votes, and sheer conviction (and coffee), a majority party can assert its will, especially with the pressure of a minority filibuster causing a government shutdown. This is how the civil rights bills passed. Republicans with convictions should recognize that having sovereign borders is the civil rights issue for all Americans, rooted in the entire social compact underpinning our federal government.
Man I’m exhausted just after reading that. Can you imagine Republicans putting up this kind of fight against Democrat obstruction? It would no doubt be epic, but I just don’t see these half-hearted Republicans fighting this hard for anything. They’d cave before even considering a plan like this. So no, I’m not going to hold my breath.
As an aside, if they were going to fight this hard and for that long, I’d say send the bill back over to the House and let’s fully fund the border wall to the tune of the 15 or 20 billion still needed. And maybe add in a full Obamacare repeal. Yeah, I could get behind that.
In any event, there is some negotiating going on right now:
Pence, Mulvaney, Kushner now mtg with Schumer in his office
— Chad Pergram (@ChadPergram) December 21, 2018
Oh wait, it just ended and it sounds like they probably didn’t get very far.
Pence/Kushner/Mulvaney mtg w/Schumer concludes. Pence remains at the Capitol to potentially break a tie on procedural vote to call up House-passed CR with wall money
— Chad Pergram (@ChadPergram) December 21, 2018