Posted on 02/05/2026 8:18:27 AM PST by MtnClimber
The modern US Senate operates under a belief that is nearly universal and almost entirely false. Major legislation, we are told, requires 60 votes to pass. Without those votes, the chamber is paralyzed. Bills stall. Leaders shrug. The minority is said to have spoken. This belief is repeated so often that it has taken on the status of constitutional fact. I assumed it was true. It is nothing of the kind.
There is no rule of the Senate, no clause of the Constitution, and no settled historical practice that requires 60 votes for the passage of ordinary legislation. The 60 vote threshold is not law. It is not structure. It is not even tradition in any deep sense. It is a managerial norm that arose from convenience, risk aversion, and a post Reid Senate that prefers predictability to deliberation. It persists only because leaders choose to treat it as binding.
This matters now because Senate Republican leadership has an opportunity to prove otherwise. Majority Leader John Thune has promised to give the SAVE Act an up or down vote. Under the actual rules of the Senate, that vote requires only a simple majority. If leadership is willing to govern under the rules as written, the SAVE Act can pass. No rule changes are required. No nuclear option is necessary. No reconciliation gimmicks are involved. What is required is stamina and the willingness to abandon a fiction.
Start with first principles. The Constitution establishes no supermajority requirement for ordinary legislation. Article I, Section 5 provides that a majority of each House constitutes a quorum to do business. The natural implication is that once a quorum is present, the business of legislating proceeds by majority rule. Supermajorities are specified where they are required, for treaties, for veto overrides, for constitutional amendments. The absence of such a specification for ordinary bills is decisive.
The filibuster is not constitutional. It is a procedural artifact that developed accidentally in the 19th century and hardened slowly through custom. Even then, it was never understood as a standing requirement that a bill must clear a supermajority threshold before it could pass. The traditional filibuster was a delaying tactic, not a veto. It allowed a determined minority to slow the Senate down, not to stop it indefinitely.
Cloture, the mechanism now treated as the gateway to all legislation, was introduced only in the 20th century. Senate Rule XXII permits the Senate to end debate early by a 3/5 vote. That is all it does. It does not say that debate must be ended before a vote can occur. It does not say that legislation cannot pass without cloture. It offers the majority an option, not an obligation.
Historically, cloture was rare. For decades after its adoption, it was invoked sparingly and only in moments of extreme obstruction. The Senate functioned, passed major legislation, and conducted its affairs without assuming that a 60 vote consensus was a prerequisite for action. The idea that every bill must clear cloture before passage is a recent invention.
To see why, consider how debate actually works under standing Senate rules. When the majority leader calls up a bill, that bill becomes the pending business of the Senate. The next order of business is final passage. Debate may continue, but only so long as a senator is actively speaking and seeking recognition. Silence ends debate. Exhaustion ends debate. There is no automatic requirement that debate be brought to a close by a vote.
The traditional talking filibuster is not a metaphor. It is a physical process governed by precedent. A senator who wishes to delay a vote must remain standing, must speak continuously, and must remain in the chamber. The senator may not sit, may not leave, may not yield the floor, and may not pause in a way that relinquishes recognition. These constraints are real. They are enforced by the presiding officer.
Each senator is also limited in how many times they may speak on the same question. Once those opportunities are exhausted, or once no senator seeks recognition, debate ends by operation of rule. At that point, the Senate must proceed to a vote. That vote is decided by a simple majority.
What about procedural obstruction. Opponents may attempt to delay by offering dilatory amendments, moving to adjourn, or raising parliamentary motions. None of these maneuvers requires 60 votes to defeat. Each can be tabled or rejected by a simple majority. There is no procedural escape hatch once the majority commits to staying on the floor and moving forward.
This is not a loophole. It is how the Senate worked for most of its history. The modern assumption that a determined minority can block legislation indefinitely without cost is a departure from that history, not its fulfillment.
Importantly, this process applies to all legislation. There is nothing unique about the SAVE Act in procedural terms. Border security bills, energy legislation, regulatory reform, and statutory changes of every kind are eligible to be brought to the floor and passed under these rules. The Senate does not refrain from doing so because it is prohibited. It refrains because leadership has chosen a different model of governance.
That model emerged gradually, and it hardened after Democrats weakened the filibuster for nominations under Harry Reid. The Senate became managerial. Floor time was minimized. Bills were negotiated off floor. Leaders sought certainty rather than persuasion. Senators flew in late and left early. Cloture first legislating became the norm not because it was required, but because it was convenient.
A talking filibuster disrupts that convenience. It is unpredictable. It requires physical presence. It decentralizes control. Individual senators gain visibility. Media narratives cannot be fully scripted. For leadership accustomed to managing outcomes rather than fighting for them, this is an unwelcome prospect.....SNIP
Dear FRiends,
We need your continuing support to keep FR funded. Your donations are our sole source of funding. No sugar daddies, no advertisers, no paid memberships, no commercial sales, no gimmicks, no tax subsidies. No spam, no pop-ups, no ad trackers.
If you enjoy using FR and agree it's a worthwhile endeavor, please consider making a contribution today:
Click here: to donate by Credit Card
Or here: to donate by PayPal
Or by mail to: Free Republic, LLC - PO Box 9771 - Fresno, CA 93794
Thank you very much and God bless you,
Jim
John Thune needs to grow a spine. When real debate ends and is used to delay a vote, Thune needs to table the useless talker and call for a vote. Who cares if the ‘RATs scream?
Pass it like the Demonicrats passed Commiecare. In the dead of night, through “reconciliation.”
You are exactly right. Today’s Democrat leaders are bulldogs. Quite stupid. But also bulldogs. On the other hand, most Republican leaders remind me of effete British noblemen. (Trump and Vance excepted).
We are now in a golden era. The GOP controls the White House and both Houses of Congress. Use that power, or lose it.
RINO Thun doesn’t have the balls. He’s owned by the uniparty
The stupid party is about ready to do it again. They are retiring to get those fat pensions and the Dems are just going to walk in and destroy America. Trump is only thinking of himself and that massive ego of his.
The dirty little secret is that Republicans don’t have the 51 votes necessary to pass the bill.
Majority Leader Thune is doing the job he was elected to do...provide cover for his party members.
If Republicans don’t have 51 votes, we still need the vote so we know which Senators to get rid of.
Snatching defeat from the jaws of victory is their game plan.
so Chuck Schumer stuttered through some statement
and the democrats think nonwhites are too stupid to get an ID ?
I don't think they believe that. It is a convenient reason to have a process where it is easy to cheat.
The US Senate and its self-anointed elites continue to destroy this country through its stupid rules. This article describes one of them. Another is the blue slip, a hold over from when senators were elected by their State legislatures and thus represented the state. It made sense then as the State knew what lawyers were good for the State. Now it is simply a politico holding up judicial nominations. Another is the absolute idiotic rule that one senator can hold up legislation or a nomination. No one senator should have that power.
The filibuster is conservative.
Conservatism opposes the intrusion of government into private life. The fewer laws passed, the less intrusion, and the more conservatism. Any feature or arrangement that reduces the possibility of passing laws is a conservative reality and trying to undercut it is anti-conservative.
The SAVE Act benefits the people. That cannot be allowed by the uniparty.
You are chasing an imaginary political party.
The laws about elections aren’t going to be changed because the GOP doesn’t want them to be changed.
Just deem it passed. Worked for Pelosi.
Please do this Thune and the rest of you gutless bastards. Let the democrats SQUEAL like stuck pigs. Stick it in their faces like they did with obamacare. Walk down the sidewalk with a cartoonishly large gavel. Then, let the democrats find their America hating judge to block it, then let SCOTUS tell the democrat judge to shove it.
These people should start acting like patriots.
This one is important, get it done. Today.
If Republicans don’t have 51 votes, we still need the vote so we know which Senators to get rid of.Which is exactly what John Thune is tasked to prevent by his members.
As is Mike Johnson. 🫤
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.