Voter ID debate takes the Senate floor

WASHINGTON—For the first time in nearly a year, the Senate is debating the SAVE America Act, a bill that would implement federal reforms to voting. Republicans on the floor say they’re championing common sense. Democrats say they’re blocking the Republican Party from stripping away the right to vote.

And with the Republican leaders using atypical chamber procedures, there is no end to the impasse in sight. The Senate is often called the cooling saucer of democracy, where lawmakers iron out differences in a clear, methodical manner. The reality looks a little different.

“I would say that what we’re seeing now is much more like theater than genuine deliberation. It’s two sides talking past each other,” said James Wallner, a former Senate staffer and current senior fellow at the Foundation for American Innovation.

But it’s theater that Republicans hope to leverage into actual passage of a controversial bill. Public polling indicates roughly 83% of Americans support implementing photo identification in order to vote—one of the bill’s major components, along with citizenship proof requirements. But the SAVE America Act has been gridlocked in the Senate. Sen. Mike Lee, R-Utah, is hopeful that a war of attrition might work.

“In the case of the Civil Rights Act of 1964 … they stayed on that for 60 days,” Lee told me in a news conference Thursday afternoon. “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. … We can do that with a much simpler bill, a more popular bill, that has a mere 10-vote cloture deficit.”

The Civil Rights Act was debated using a filibuster, but that’s not how the SAVE America Act is being considered. The Senate floor has been open for debate for three days but, for the most part, with no votes scheduled.

Senate Majority Leader John Thune employed a unique strategy to get to this point. First, he attached the SAVE America Act as an amendment to a separate bill the House was considering. S.1383 was originally the Veterans Accessibility Advisory Committee Act. Instead, the House attached the SAVE America Act to it and sent it to the Senate as a “message” without formally voting on it. The message system cleared some procedural hurdles for the bill to get to the floor for debate.

Next, Thune filled what’s colloquially called the amendment tree. He added three amendments that the White House wants: a ban on mail-in ballots, a ban on men competing in women’s sports, and a ban on transgender surgeries for minors. Then he filled the rest of the tree with amendments that block any further amendments, rendering Democrats unable to offer anything. Instead, both parties are trading hourlong blocks of time in which senators give floor speeches, mostly to an empty chamber. But unlike a filibuster, they get to recess and go home at any time. Thune is calling it an “extended debate.”

“It’s a nonsensical strategy,” Wallner said. “The Senate is either debating or it’s voting. There is no special period. When they say extended debate, maybe they’re referring to the expectation that this may go on for a while, but that’s still just the Senate debating legislation.”

Instead, for large portions of each day this week, the Senate has been in session but quiet, with a chyron on C-SPAN often reading “waiting for a senator to speak.”

Although the chamber might appear stalled, some analysts say this is the most productive debate the Senate has undertaken in years. But it might not matter in the end. The bill is unlikely to reach 60 votes, and Thune is unwilling to lower the 60-vote threshold. Some conservatives worry that Thune’s support for the bill is simply for show.

“The conservative movement has been asking Senate Republicans and John Thune in particular to take this process seriously, so I think starting it is a win,” Rachel Bovard, the Conservative Partnership Institute’s vice president of programs, told me. “The question now is: How seriously are they going to take the process?”

One strategy would be to use a “talking filibuster,” allowing senators from either party to hold the floor as long as they want, and then taking a vote after everyone is exhausted. The practice is already part of Senate rules but has rarely been used since the cloture rule was introduced in 1917. Since then, the mere threat of a filibuster has been sufficient to prevent bills from even coming to the floor.

The other option would be for the GOP to work with Democrats on a bill that can achieve 60 votes. But for that, Republicans would also have to work on new text.

Meanwhile, other legislation is piling up. Democrats and Republicans are still negotiating a potential deal to fund the Department of Homeland Security, and on Thursday, a Senate committee moved forward Sen. Markwayne Mullin’s nomination to be the next DHS secretary. The chamber must also soon consider the annual farm bill. Thune could table the SAVE Act debate for each of these matters, but doing so would reduce the pressure on senators to get it across the finish line.

Most filibusters are used by an opposing party to block legislation. In this case, Republicans are using the lengthy floor speech time to promote it. Wallner said it’s an unusual strategy.

“It seems odd to me. The first six speakers on the bill were all Republicans,” Wallner said. “If you’re complaining about Democrats filibustering, why are you talking on the floor? Step one: don’t talk. Make them do it.”

President Donald Trump has consistently urged the Republican Senate majority to invoke what’s called the nuclear option: eliminate the filibuster entirely, allowing legislation to pass by a simple majority vote. But Senate Republicans say they don’t have enough support for that. They also don’t want to abandon the filibuster themselves: The filibuster forces the majority to work with the minority on bipartisan consensus, which has helped the GOP in the past when the Democratic Party was in charge.

“The concept that the Founders had for the United States Senate was that it would be one body that was majoritarian and one that wasn’t,” Thune said on Tuesday. He added that the Senate’s structure provided “more of a methodical way of solving the country’s problems, and generally, in ways that ensure that there are bipartisan majorities in which to accomplish that.”

Despite the return to consistent debate on the floor, at some point, Thune will close the floor and file cloture, requiring 60 votes. And as of this week, he does not have enough support for the SAVE America Act as it currently stands. But there could be some leeway with Senate Democrats.

“Look, I’m not going to speculate on details,” Senate Minority Leader Chuck Schumer told reporters on Tuesday. “Our objection, as Democrats, is not to a photo ID. … Our objection is it’s a voter suppression bill.”

Thune has not indicated when he’ll close the debate period on the bill, although the floor is open for debate for as long as he wants. At this point, the majority could be looking at trimming down the bill to a more palatable version for Democrats.

“Right now, I want to get it passed that you need a photo ID to vote, you need to be a citizen to vote, and I’ll work with anybody,” Majority Whip John Barrasso, R-Wyo., told reporters Thursday afternoon. “If there is 60 votes for photo ID, that would be a success.”

Bovard from the Conservative Partnership Institute said that any movement is good for the health of the chamber. In 2019, former Senate Majority Leader Mitch McConnell, R-Ky., brought a Middle East security bill to the floor four separate times. The first three cloture votes failed, but by the fourth, he had whipped 60 votes.

“The Senate makes time for what it prioritizes,” Bovard said. “Thune’s responsiveness to his voters is an encouraging sign. Yes, the Senate should be deliberating. The floor should be open for amending and debating and negotiating and building consensus around issues that matter to the country. So if this is the new era that we’re entering, I’m completely for it.”