Reporter's Notebook: GOP weighs 'nuking' filibuster to pass Trump's SAVE Act
You’ll hear volumes from congressional Republicans about the importance of passing the SAVE America Act in the coming days. The bill requires proof of citizenship to vote.
"We need to make it easy to vote and hard to cheat in America," said Sen. Jon Husted, R-Ohio.
"The SAVE America Act is an important bill," said Sen. Rick Scott, R-Fla., on Fox News. "So we’ve got to figure out how to get it passed."
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And that is the conundrum facing Senate Republicans — figuring out how to get it passed.
The SAVE America Act is the touchstone of President Donald Trump’s legislative agenda. In fact, the president warned he wouldn’t sign any other bill into law — except perhaps a DHS funding measure — until Congress aligns with his demands.
Republicans agree on the importance of the SAVE America Act, but Senate Majority Leader John Thune, R-S.D. is promising everything but passage.
"I will be bringing the SAVE America Act to the floor, and we will be having a full and robust debate," said Thune.
That’s because Republicans can’t break a Democratic filibuster.
"This is one of the worst things we've seen in America in a very long time," said Senate Minority Leader Chuck Schumer, D-N.Y.
"The real reason this president wants this bill to pass is to reduce the number of people voting in the November election," said Senate Minority Whip Dick Durbin, D-Ill.
It takes 60 votes to break a filibuster. Republicans only have 53 votes in the Senate. So some Republicans advocate parliamentary ballistics to obliterate the filibuster.
"I would nuke the filibuster to pass the SAVE America Act," said Sen. Roger Marshall, R-Kan.
Cold War rhetoric permeates this entire debate. In fact, conservatives implored Thune to launch a pre-emptive first strike to terminate the filibuster before Democrats again win control of the Senate — be it this fall or a decade from now.
"It's really about the only way I can see preventing them from nuking the filibuster once they gain the majority in the Senate," said Sen. Ron Johnson, R-Wis.
Other Republicans want to force Democrats to filibuster the old-fashioned way — until they’re exhausted.
"They should have to go hold the floor like it used to be in the old days. They can go and talk as much as they want. But sooner or later they're going to run out of time," said Sen. Josh Hawley, R-Mo.
If everyone finally fades after days or weeks of debate, then the Senate doesn’t need a test vote to break a filibuster — needing 60 yeas. That means they can pass the bill with a simple majority: 51.
Lots of Republican senators are now invoking the 1930s Frank Capra classic "Mr. Smith Goes to Washington." That’s where Jimmy Stewart plays an idealistic senator who filibusters until he collapses in the Senate chamber.
"They should have to go out there, hours on end, like a Jimmy Stewart moment," said Sen. Eric Schmitt, R-Mo.
But most Republicans reject the Jimmy Stewart approach. They’re not so much worried about unlimited debate during a talking filibuster, but the unlimited amendment process.
"The talking filibuster, I think will be a goat rodeo. I mean, it could take two or three weeks. The Democrats will tee up all kinds of problematic votes," predicted a skeptical Sen. Thom Tillis, R-N.C. "I haven't had anybody describe to me the project plan. Here are the number of days. This is how we counter people. We've got all of our political flanks covered. And this is how we succeed at the end."
But there won’t be an unlimited amendment process. While Thune will allow the debate to go on for a while (Fox is told perhaps a week or more, perhaps around the clock), he will maintain "ball control." Thune won’t immediately tee up a test vote to end debate, needing 60 yeas. But Thune will immediately block all amendments from both sides.
Like everything on Capitol Hill, it’s about the math. And while there will be a lot of talking about the SAVE Act and the talking filibuster, there’s not enough support on the GOP side of the aisle to unspool the Senate's filibuster rules and precedents.
"Many of us don't believe that we should undo the filibuster because it holds the rights of the majority. And one day we'll be back in the minority," said Sen. Shelley Moore Capito, R-W.Va. "It's a real splitter here."
Capito added that there was a "will" to deal with the SAVE America Act. But the parliamentary machinations it would take to blow up the filibuster to pass the bill do not exist.
"There's not enough numbers to get it done," observed Capito.
Trump and other conservatives are starting to dial up pressure on Thune.
"I think he's a wonderful person. I do," the president said of the South Dakota Republican on Fox News Radio. "But it’s not that he doesn't want to do it. He doesn’t think he can do it. And that's bad."
Despite criticism directed at Thune, some Republicans are defending him.
"It's not John Thune that's killing it. It's members of the Republican Party that are not convinced that a talking filibuster can be used to pass this," said Sen. Cynthia Lummis, R-Wyo. "It will be an infliction of tremendous delays on other matters before the U.S. Senate without the positive results of passage of the SAVE Act."
It’s significant that the president has not called out Thune over his reluctance to end the filibuster to pass the SAVE America Act. However, Trump routinely demanded that former Senate Majority Leader Mitch McConnell, R-Ky., do just that during his first term. The president often lambasted McConnell’s stewardship of the Senate, despite the Kentucky Republican establishing a new precedent to inhibit filibusters of Supreme Court nominees. McConnell’s maneuver on the filibuster assured the confirmations of Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
But so far, no sharp criticism of Thune.
Still, some Republicans believe Senate magic could salvage the SAVE America Act.
"I’ve seen John Thune pull rabbits out of his hat before," said Lummis. "And I'm hoping there's a rabbit in his hat on this one."
The Senate takes a test vote just to start debate on the bill Tuesday afternoon. That needs a simple majority. It’s possible that Vice President JD Vance may need to break a tie to launch debate on the bill.
But the Senate doesn’t have the votes to blow up the precedents like McConnell did with the Supreme Court in order to pass the SAVE America Act, nor are there the votes to execute a full-blown "talking filibuster," bypassing the need for 60 yeas.
Consider the firestorm that could rain down on Senate Republicans from their base if the GOP fails to pass the SAVE America Act. Trump has held his tongue so far, but it’s possible there could be recriminations from him, too.