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January 11, 2016

MEMORANDUM
From: Senate Steering Committee
Re: Two-Speech Rule Strategy

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INTRODUCTION

This memo outlines one approach to enabling the Senate to complete its consideration of
the annual appropriations bills in a timely and orderly manner. Specifically, it develops a
strategy (consistent with existing Senate rules and precedents) to overcome minority
filibusters of the motion to proceed to individual appropriations bills.

To that end, the memo proposes strictly enforcing the so-called two-speech rule on
motions to proceed to appropriations bills.1 Doing so simply requires the Senate to
remain in the same legislative day until the filibustering members have exhausted their
ability to speak on the motion to proceed.2 This is the point at which those members who
are committed to blocking the consideration of the appropriations bill on the Senate floor
have given the two speeches allotted to them on the motion under the Senates rules. At
that point, the Presiding Officer may put the question (i.e. call for a vote) on adoption of
the motion to proceed.3 Adoption of the motion to proceed is a simple-majority vote.

1 COMM. ON RULES AND ADMINISTRATION, STANDING RULES OF THE SENATE, S. DOC. NO. 110-9,
at 14 (2007) (Rule XIX: Debate). Paragraph 1(a) of Rule XIX states, No Senator shall speak more than
twice upon any one question in debate on the same legislative day without leave of the Senate, which shall
be determined without debate.
2

FLOYD M. RIDDICK & ALAN S. FRUMIN, RIDDICKS SENATE PROCEDURE 714-715 (1992). Senate
precedent defines legislative day as a day, which continues from the beginning of a days session
following an adjournment until another adjournment, is not effected in any way by a recess of the Senate.
A legislative day only ends with the Senates adjournment.
3

RIDDICK & FRUMIN, supra note 2, at 782.According to Senate precedent, A Senator is not
entitled to speak more than twice in the same legislative day on the same question and when called to order
during his third speech will lose his right to the floor.

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In sum, each senator may only speak twice in the same legislative day on any one
question. Once a senator has given two speeches, that member may not speak again. The
Senate votes when there are no senators on the floor who wish to and may speak.4

The memo first briefly describes the problem experienced last year and lists the goals
necessary to avoiding it moving forward. It then recommends a strategic approach for
achieving those goals. Finally, it considers in detail how strict enforcement of the twospeech rule meets these objectives.

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PROBLEM & GOALS

Democrats have repeatedly prevented the Senate from taking up individual appropriations
bills over the past year. They filibustered (or threatened to filibuster) the motion to
proceed to these bills in order to extract concessions from the Republican majority on
funding levels and policy riders. Such obstruction prevented the Senate (and Congress)
from completing its appropriations work in a timely and orderly manner.

As a consequence, consideration of legislation funding the government was delayed until


the last minute when the appropriations bills were combined into a giant omnibus bill. At
that point, senators were confronted with a take-it-or-leave-it proposition that undermined
the deliberative process and made it impossible to adjudicate their concerns on the Senate
floor.

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Defining the problem in this way suggests the following two goals.
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Goal 1: Proceed to Appropriations Bills
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This goal is premised on the assumption that Democrats would find it more difficult to
filibuster an actual appropriations bill than a motion to proceed to that bill. The
implication is that the primary thing stopping the Senate from passing appropriations bills
is the ability of Democrats to filibuster the motion to proceed to their consideration.

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Goal 2: Pass Appropriations Bills (with Republican priorities included)
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4

RIDDICK & FRUMIN, supra note 2, at 783. According to Senate precedents, The two speech rule
requires not a mechanical test, but the application of the rule of reason. See Id. at 782-783. Floor actions
that do not constitute speeches for the purposes of the two-speech rule are defined in Senate precedents.
Specifically, the Senate determined by vote in 1986 that the following procedural motions and requests did
not constitute speeches for the purposes of enforcing the two speech rule: parliamentary inquiries, appeals
from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals,
requests for the yeas and nays, requests for a division vote, requests for the reading of amendments, and
requests for division of amendments. See CONG. REC. 101-2 (1990) at 17980-81. The Senate has also
determined that the two-speech rule does not apply when the Senate is operating under cloture.

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This goal is premised on the assumption that Democrats will attempt to filibuster an
appropriations bill (as opposed to the motion to proceed) if they oppose its funding levels
or if it includes controversial policy riders. For example, Democrats have repeatedly
signaled that they will block individual appropriations bills this year if they contain
controversial policies. The implication is that successfully proceeding to an
appropriations bill is itself not necessarily sufficient for passing that bill.

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STRATEGIC APPROACH

It is important that the strategy adopted to overcome minority filibusters of the motion to
proceed to individual appropriations bills also increase the majoritys leverage to pass
those appropriations bills on the back end.

Specifically, the strategy should increase the costs (both physical and political) on
individual Democrats for obstructing the Senates appropriations work. Doing so forces
them to bear the burden of blocking the consideration of specific appropriations bills. It
also makes the minoritys obstruction tangible for the American people, thereby
increasing the publics awareness of the Democrats efforts.

Implementing a strategic approach along these lines thus increases the likelihood that the
Senate will be able to complete its annual appropriations work in a timely and orderly
process while addressing Republican policy priorities.

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TWO-SPEECH RULE

Strictly enforcing the two-speech rule on the motion to proceed to appropriations bills
meets these objectives. Moreover, it is consistent with the Senates current rules and
precedents. In short, it would allow the Senate to proceed to appropriations bills on a
simple-majority vote without first having to invoke cloture on that motion. By enforcing
the rule and keeping the Senate in the same legislative day, the filibustering senators
would eventually run out of the two speeches they are allowed to give on the motion. At
this point, the Senate could vote to proceed to the appropriations bill.

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Overview
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I.
II.

Move to proceed to an appropriations bill


Do not adjourn the Senate
A. Keeps the Senate in the same legislative day
1. By recessing instead of adjourning
III. Enforce the two-speech rule on filibustering senators
A. Republicans refrain from speaking on the floor
1. Debate should occur in press/off the Senate floor
IV. Table all procedural motions
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A. Prevents filibustering senators from refreshing the number of speeches


they are allotted by changing the question
V. Force all quorum calls to go live
A. Prevents filibustering senators from delaying adoption of the motion by
suggesting the absence of a quorum
VI. Enforce the germaneness of debate requirements at the beginning of each day
A. All debate must be germane to the specific question pending before the
Senate for the first three hours of session after the Senate convenes5
1. Forces filibustering senators to debate the motion to proceed to the
particular appropriations bill under consideration
2. Precludes filibustering senators from speaking on other topics
a. This makes it more difficult for individual Democrats that
support the underlying appropriations bill to participate in
the filibuster
i. They could not use floor time during the first three
hours of session to talk about unrelated subjects
B. On a point of order, the Chair may call the filibustering senator to order
and force the member to take their seat6
1. The member thus uses up one of their two speeches
C. While the Chairs ruling is subject to appeal, the appeal can be tabled by a
simple-majority vote
VII. File cloture on motion at the end of each day (optional)
A. Guarantees that a minimum of two speeches will be used each calendar
day
1. The filibustering senator is interrupted when cloture ripens one
hour after the Senate convenes7
a. Effectively limits the first speech of the day to one hour
b. Requires a filibustering senator to burn another speech after
the cloture vote
5

Rule XIX: Debate supra note 1, at 14. Paragraph 1(b) of Rule XIX states, At the conclusion of
the morning hour at the beginning of a new legislative day or after the unfinished business or any pending
business has first been laid before the Senate on any calendar day, and until after the duration of three hours
of actual session after such business is laid down except as determined to the contrary by unanimous
consent or on motion without debate, all debate shall be germane and confined to the specific question then
pending before the Senate.
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Rule XIX: Debate supra note 1, at 14. Rule XIX, paragraph 4 stipulates, If any Senator,
speaking or otherwise, in the opinion of the Presiding Officer transgresses the rules of the Senate the
Presiding Officer shall, either on his own motion or at the request of any other Senator, call him to order;
and when a Senator shall be called to order he shall take his seat, and may not proceed without leave of the
Senate.
7

RIDDICK & FRUMIN, supra note 2, at 329. According to Senate precedents, When the time
arrives for a cloture vote, a Senator who has the floor will lose the floor and that Senator is not entitled to
the floor after the cloture vote.

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B. Reduces the time needed for the strategy to work


1. Ex. Assume there are ten senators who are willing to filibuster the
motion to proceed and that each senator is capable of giving two
five-hour speeches.
a. The time needed to overcome the filibuster in this example
totals 100 hours (ten senators at ten hours each)
2. Ex. Assume there are ten senators who are willing to filibuster the
motion to proceed and that each senator is capable of giving two
five-hour speeches, AND cloture is filed on the motion each day
a. The time needed to overcome the filibuster in this example
totals sixty hours (ten senators at 6 hours each)
VIII.Chair puts the question and the Senate votes
A. When no senator is present on the floor who has not spoken twice

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Democratic Participation
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Strictly enforcing the two-speech rule requires every individual Democrat to demonstrate
their commitment to filibustering the motion to proceed to the appropriations bill. Each
member will have to hold the Senate floor for a prolonged period in order to wait the
Republicans out.

The minority leadership will be forced to turn to less-interested/disinterested senators to


sustain the filibuster once the most committed obstructionists have given their allotment
of speeches. Such calls from the leadership for active participation in the filibuster by
rank-and-file members will be likely to precipitate internal dissent within the minority
party.

First, the majoritys determination to prevail will be increasingly obvious at the point
when the minoritys committed obstructionists begin losing their ability to speak on the
Senate floor. The inevitability of defeat is likely to diminish the willingness of lessinterested/disinterested senators to sustain the filibuster given the efforts futility.

Second, the novelty of the parliamentary showdown will likely attract considerable media
attention. This attention will only increase as the committed obstructionists lose their
ability to filibuster and less-interested/disinterested Democrats are called upon to sustain
the effort. Increased media scrutiny is thus likely to increase the costs of filibustering for
the individual Democrats least willing to bear them.

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Republican Participation
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The two-speech rule strategy outlined above requires Republicans to quickly produce a
quorum in order to shorten the time necessary for the strategy to work. Additionally, fifty!5

one Republicans must be available any time the Senate is in session in order to table any
procedural motions the Democrats may make.

The costs of these two requirements for individual Republicans should be weighed
against the inevitability of victory and the desire to get on individual appropriations bills.
Moreover, it is likely that the strategy will only need to be implemented once. The
minority is unlikely to bear the costs associated with filibustering the motion to proceed
to another appropriations bill once it realizes that the majority is determined to prevail
and that defeat is inevitable.

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