Given the bill’s right-wing priorities, it has little chance of attracting the Democratic votes it needs to pass the threshold to break a filibuster. This is the requirement in the Senate for 60 votes to end debate on legislation—known as invoking cloture—even though passing a bill only requires a bare majority.
Republican supporters of the legislation insist that they have found ways around the Senate rule. Notably, the current framework for a deal to end the DHS shutdown includes the potential passage of elements of the SAVE America Act through the party-line budget reconciliation process; but reconciliation is reserved for fiscal policy, and it’s unclear how Republicans would be able to do that here as SAVE America doesn’t involve taxation and spending (which the Byrd Rule, a provision of federal law, requires of reconciliation bills).
One strategy some Republicans have advocated to pass the SAVE America Act is simply lowering the cloture threshold. Trump has long been a proponent of this approach, repeating Sunday that senators should “Kill the Filibuster, and stay in D.C. for Easter, if necessary” to pass the SAVE America Act. He has argued for months that Democrats—who tried and failed to make a carve-out to the filibuster during the early days of the Biden administration—will kill the procedure the next time they take power.
Some Republican lawmakers seem to agree. “The split in the Republican conference right now is, do you believe Democrats will end it when they get the chance to do it, or not?” Sen. Ron Johnson of Wisconsin told reporters. “I happen to be in the camp believing what Democrats tell us … so we ought to beat them to the punch.”
Sen. John Cornyn of Texas, who defended the filibuster when Democrats tried to create a carve-out and is in a primary runoff against Texas Attorney General Ken Paxton for his seat, cited his belief that Democrats will eventually end the precedent as he announced his change of heart. In an op-ed in the New York Post, he gave his support to “whatever changes to Senate rules that may prove necessary” to pass the SAVE America Act and funding for DHS. “Process matters, but outcomes matter more,” he wrote. “The Democrats’ assault on election integrity and national security must be stopped.”
The only two Democratic senators who voted against the carve-out—Joe Manchin and Kyrsten Sinema—have since left the upper chamber. Sen. Brian Schatz of Hawaii, who is widely expected to have a major leadership role the next time Democrats hold the Senate, was noncommittal about what a future Democratic Senate would do to the filibuster when The Dispatch asked him about it late last year.
But there are enough Senate Republicans who are in favor of the filibuster to keep it intact, for the moment. “I want to be recorded in the pages of history [as] defending the institution,” Sen. Thom Tillis of North Carolina told TMD. “I want the Democrats to own this if it ultimately has to happen.”
Another course some hardline senators and members of the Republican base have called for is a “talking filibuster”—forcing Democrats to hold the floor and speak against the bill until they can’t anymore. This strategy wouldn’t require a rule change, but whether it is procedurally sound is unclear.
The theory, as the Conservative Partnership Institute’s Rachel Bovard has argued, rests on Senate rules limiting each senator to two speeches on a given question. Democrats could speak at length, but they couldn’t sustain the filibuster forever—after all, they’ll have to use the bathroom sometime. Once every Democrat has spoken twice, the Senate could move to final passage and approve the SAVE America Act with 51 votes.
But GOP senators do not all agree with this interpretation of Senate rules.
“If they bring up amendments, if they bring a procedural, it resets the two-speech rule,” Sen. James Lankford of Oklahoma told TMD. “And so, it’s not just: two speeches, everybody speaks twice, and then it’s over. It could be an infinite number of two speeches.”
The strategy Republicans have come closest to pursuing would simply exhaust Democrats through extended debate until enough cross the aisle and vote for cloture. At a press conference last week, Sen. Mike Lee of Utah argued for repurposing the process used to pass the Civil Rights Act of 1964. The Senate debated that legislation for 60 working days until it finally reached the requisite number of votes to invoke cloture, which at the time was 67. “The members who had been opposing it for that long got worn down—not just physically exhausted, but they also became tired of opposing a bill that was getting more popular as people saw more about it and as they saw that the arguments against the bill weren’t working and weren’t good,” Lee said.
Republican senators voted to open debate on SAVE America last week, and the Senate has been considering it since then. But it is unlikely that leadership will undertake the campaign that Lee has called for. There are several other pieces of legislation that the Senate will need to tackle in the near future, including DHS funding, FISA reauthorization, supplemental funding for the war with Iran, and perhaps a second reconciliation bill. Monday night’s confirmation of Sen. Markwayne Mullin as DHS secretary already interrupted consideration of the election bill.
Trump has said the bill would mean that Democrats “probably won’t win an election for 50 years,” and Lee has warned that Republicans could lose power “likely for a long time” without it. But the concern it is said to address—noncitizen voting—is exceptionally rare.
States have conducted reviews of their voter rolls and found confirmed cases of noncitizens casting ballots in the single digits. Data from a federal citizenship verification program show that just 0.04 percent of voter verification cases flagged noncitizens, according to the Bipartisan Policy Center. And though other types of voter fraud occur, none are at the scale that could swing an election.
The extra burdens that the bill would place on people to prove their citizenship could backfire on Republicans. As Dispatch contributor Stephen Richer points out in his piece for the website today, the easiest way people can prove their citizenship is with a passport, but not all Americans have passports, and many Republican voters today, namely the less educated and less affluent, are less likely to have them.
“This is interesting as to who has these documents, but the notion that this is going to be the magic bullet for either party is, I think, much overblown,” Richer told TMD.
