State Of Play On The Talking Filibuster
In response to Democratic demands related to the Department of Homeland Security (DHS) funding package, conservative Republican members such as Rep. Anna Paulina Luna (R-FL) demanded that the Senate take up H.R. 22, the SAVE Act, which requires states to verify voter identification through an ID. The legislation appears to have broad Republican support, but it has stalled in the Senate due to the 60-vote threshold for cloture in the Senate. To force the Senate to take a vote on the legislation, Rep. Luna stated her intention to vote against the minibus funding package that the Senate had recently returned to the House. In exchange for a vote in favor of the minibus, Senate Majority Leader John Thune (R-SD) reportedly agreed to follow the “standing” or “talking” filibuster to pass the SAVE Act. Now, Republicans are pushing for either the SAVE Act or similar legislation, such as the SAVE America Act, to be considered under the talking filibuster.
History of the Filibuster
The filibuster has been a tool that legislators have used for over a hundred years. In fact, a senator used a long speech to delay consideration of a bill in the first session of the first Congress in September of 1789. In 1917, the Senate adopted Rule 22, which instituted the “cloture” procedure, allowing for a vote to end debate. At the time, the vote threshold was a 2/3 majority. In 1975, that was changed to 60 votes, where it remains today. While a simple majority is needed to pass a bill, effectively, 41 members of the Senate can hold up a final vote by refusing to end debate.
Since 1975, when the threshold was changed from 2/3 to 60 votes to invoke cloture, the use of cloture motions to defeat filibusters has been steadily climbing. In the 118th Congress, Senators voted on 241 cloture motions. So far in the 119th Congress, Senators have voted on 228. In recent history, filibusters have largely not been long speeches and occupied floor time, but rather stand-alone up or down votes on cloture motions. Now in practice, negotiations and debate happen off the floor, usually between party leaders.
The filibuster has been reformed over time, particularly on nominations. In 2013, Senate Majority Leader Harry Reid (D-NV) invoked the “nuclear option,” lowering the vote threshold on cloture motions to 50 on all nominations before the Senate, except for those to the Supreme Court. In 2017, Senate Majority Leader Mitch McConnell (R-KY) extended that threshold to the Supreme Court. In 2022, Senate Democrats attempted to lower the threshold for voting rights legislation but were defeated. In 2025, Senate Democrats accused Majority Leader Thune of invoking the nuclear option by allowing nominations to be considered en bloc as opposed to individually.
Political State of Play
Currently, the status quo is for Senators to filibuster by up or down votes and not by holding the floor. A long filibuster takes away floor time that otherwise could be used for other priorities or nominees and requires significant physical effort on both the majority and the minority. For example, the filibustering party must hold the floor by continuously speaking, while the majority party must be able to answer a quorum call and prevent the minority from adjourning the Senate. Despite the constraints, a “talking filibuster” is still possible.
Under the Senate rules, when the Senate is currently considering a motion, bill, amendment, or anything they may vote on, any Senator is allowed to offer two speeches for an unlimited time. When no Senator seeks recognition to debate, it is the duty of the presiding officer to call a vote on whatever the underlying question is. To avoid this, the Senate generally sits in a quorum call unless a Senator is willing to come to the floor and speak. During a quorum call, the clerk calls the names of Senators to establish that they have enough members present to conduct business. In this instance, the clerk never finishes calling each Senator’s name, effectively putting the Senate in limbo until it is ready to move on to something else, usually at the direction of the majority leader. This prevents a scenario where the presiding officer is required by rule to put something to a vote.
Conservatives are proposing to abandon the practice of phantom filibusters, in which no Senator is speaking, and return to a live filibuster where determined Senators are required to hold the floor to delay action. This would not change the number of Senators required to invoke cloture, but it would be a significant departure from recent Senate tradition. Majority Leader Thune, along with other Senators, has been skeptical of using this process, equating it to “nuking” the filibuster.
Should the Senate decide to abandon recent practice and return to a talking filibuster, it would not enter a quorum call while considering legislation, in this case, the SAVE Act or the bill it will ride on. Instead, they would alert the Democrats that they intend to immediately proceed to a vote if no one debates, and any Senator can begin this process, even without the approval of Majority Leader Thune. Democrats could then employ several tactics to delay the vote. As aforementioned, each Senator receives two speeches of unlimited time on each legislative day on every question. If a Senator offers an amendment, each amendment poses a new question for which Senators receive two speeches per legislative day. Majority Leader Thune could fill an amendment tree, blocking amendments to the legislation, but Democrats could then move to table the amendments in the tree, albeit by a simple majority vote without debate. In practice, a committed faction could delay legislation for months, seriously disrupting Republican priorities.
Election Year Implications
Democrats oppose this break in tradition because they know it requires tremendous efforts to stop legislation they strongly oppose. It also forces them to take an affirmative defense against a policy position that an August 2025 Pew poll says 83% of Americans support, during a midterm year. Republicans are also wary of the talking filibuster because of how much time it takes up when it could be used for other legislation or nominees. Senators are also required to maintain a quorum during a talking filibuster; otherwise, the filibustering party can adjourn the Senate, not only allowing them a physical reprieve but also starting a new legislative day, which means each Senator gets two speeches. Undertaking this endeavor also opens the Republicans to voting on non-germane amendments on Democratic priorities. This can be a political problem for vulnerable incumbents such as Sen. Susan Collins (R-ME) and possibly boosts the popularity of incumbents that Republicans are targeting, such as Sen. Jon Ossoff (D-GA). Both sides will feel additional pain from consistently having to remain in Washington and away from constituents during an election year. Currently, it appears that Majority Leader Thune is unlikely to allow a talking filibuster, but that attitude could change depending on how the next few weeks and months play out.
