Policy Memo
Topline
Extended debate has been the defining feature of the Senate for more than 200 years; it can be frustrating, but it protects liberty by keeping too much power from ending up in too few hands.
America’s founders argued that protecting liberty requires structuring government the right way, including built-in limits on government power. To this end, they intentionally designed the Senate and House of Representatives differently, with the Senate serving as the more deliberative counterpart to the action-oriented House. First by tradition and then by rule, extended debate, or the “right of Senators to speak on the floor at great length,” quickly became “the single most defining characteristic of the Senate as a legislative body.”1 The Senate has regulated, but has never abandoned, this limit on power, which both parties have used to their advantage.
The Safeguard American Voter Eligibility (SAVE) Act, S.1383,2 would require proof of American citizenship to register for, and to vote in, federal elections. In Gallup polls, more than three-quarters of Americans support such policies,3 with strong support across all demographic categories, including two-thirds of Democrats and more than 80% of political independents. Democrats in both the House and Senate, however, strongly oppose it. On February 11, 2026, the House of Representatives voted 218-213 along party lines to pass S.1383 and send it to the Senate.
In the Senate, debate on a pending bill must be brought to a close, using one of two methods, before a final vote can occur.4 Unanimous consent means that the two party leaders have agreed on the length of debate and a time for the final vote. Without that cooperation, Senate Rule 22 requires 60 votes on a motion to invoke cloture, or end debate, on any pending “matter.” A filibuster occurs when an attempt to end debate, such as a cloture vote, fails. Rule 22, with its supermajority cloture requirement, protects extended debate as a significant feature of the Senate’s legislative process.
Three cloture votes in March 2026 related to the SAVE Act failed along party lines.5 Since Democrats lack the votes to defeat the SAVE Act outright, they have been preventing passage by blocking a final vote altogether. In a Truth Social post on July 25, 2026, President Donald Trump demanded that Republicans “Terminate the Filibuster…and PASS THE SAVE AMERICA ACT, and everything else.”6
Trump first called for abolishing extended debate only a few months after his first inauguration, demanding in social media posts that Republicans “change the rules now to 51%.”7 His argument was the same as today: “If Republicans are going to pass great future legislation in the Senate they must immediately go to a 51 vote majority not senseless 60.”8 At a political rally in Phoenix, Arizona, on August 22, 2017, he said: “Look, the Senate, we have to get rid of what's called the filibuster rule. We have to. And if we don't, the Republicans will never get anything passed.”9 Trump’s position is that the party that controls Congress and occupies the White House should be able to get whatever it wants and that any obstacles should be removed.
America’s founders took the opposite view, designing our system of government to prevent the very consolidation of power that Trump advocates. This Legal Report looks at abolishing extended Senate debate in two ways. First, it explains how that should not be the goal at all. Extended Senate debate has been an important part of the Framers’ design and an integral feature of the Senate since the Founding. The Senate has regulated extended debate but has never, as Trump is demanding today, abandoned it altogether. Doing so might facilitate Republican legislative priorities today, but it would do the same for Democrats when they next control the legislative and executive branches.
Second, this report concludes that the only means of abolishing extended Senate debate, the so-called “nuclear option,” would have negative consequences of its own. The established process for changing Senate rules occurs under public scrutiny and debate, guaranteeing that any change is supported by a wide bipartisan consensus. This is how the Senate established and has amended Rule 22 in the past. Using the nuclear option to bypass this established process, a slim partisan majority could change how the Senate operates without having to change Senate rules, virtually guaranteeing ongoing partisan retaliation.
Differently Designed Houses. “If men were angels,” James Madison wrote in 1788, “no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” After all, he asked, “what is government itself, but the greatest of all reflections on human nature?”10 These controls will be necessary as long as human nature remains unchanged. Protecting liberty requires maintaining those controls.
The primary external control is the “Republican Form of Government”11 guaranteed by the Constitution, in which government power comes from “the consent of the governed.”12 The people not only choose those who lead them but, President George Washington explained as he left office, “[t]he basis of our political systems is the right of the people to make and to alter their constitutions of government.”13
Internal controls include the separation of government power into three branches,14 with checks and balances between them, and a national legislature comprised of two houses designed differently in both composition and operation. The much larger House represents population and, with two-year terms; its members are much more responsive to the people. Senators have six-year terms, with only one-third facing re-election every two years, and, with equal state representation, is much smaller than the House.
The two chambers also differ in operation. Frequent elections, Madison explained, guarantee that the House has “an immediate dependence on, and an intimate sympathy with, the people15 but also make it susceptible to “sudden and violent passions”16 and more likely to make “hasty and intemperate resolutions.”17 With less frequent elections and representing different interests, Madison explained at the 1787 Philadelphia convention, the Senate can proceed “with more coolness, with more system, and with more wisdom.”18 The Senate, therefore, can be the more “temperate” body, able to consider legislation in a way that allows the “cool and deliberate sense of the community” to prevail.19
These differences have long found practical expression in the familiar image of a cup and saucer. As the story goes,20 Thomas Jefferson had returned from serving as U.S. Minister to France and questioned the need to divide Congress into two houses. George Washington, it is said, poured hot tea from a cup to cool in the saucer to represent the House’s hot legislative action being cooled and tempered by the Senate.21 Extended debate, in fact, is the single most important feature that “differentiates the Senate from the House of Representatives.”22 Senators of both parties, at least while in the minority, have used the cup-and-saucer analogy to defend extended Senate debate.23 Some examples:
Senate Tradition and Rules: 1789-1806. Understanding extended debate in the context of the Senate’s design and operation requires a careful look at three periods. The first began with creation of the Senate and House and, in April 1789, their exercising the constitutional authority27 to establish procedural rules. The original Senate28 and House29 rules provided for a motion that asked: “Shall the main question be now put?”30 It allowed the Senate to decide whether to bring up a pending measure for a final vote. The House still has the rule,31 which had also been used by the British Parliament,32 the Continental Congress,33 and the Confederation Congress.34
While adopting this motion had the practical effect of ending debate on a pending measure, that was not its purpose.35 Thomas Jefferson’s Manual of Parliamentary Practice explains36 that “[t]he proper occasion” for it “is when a subject is brought forward of a delicate nature as to high personages…or the discussion of which may call forth observations which might be of injurious consequences.”37 Senate rules did not limit debate per se because of the consensus that debate was important for the Senate to play its deliberative role and that Senators should observe certain norms when participating in debate.
Jefferson’s Manual states that “[n]o one is to speak impertinently or beside the question, superfluously or tediously.”38 During those early years, sometimes called the “dignified Senate”39 period, “the body observed dignity and restraint in debate, and did not consider talking to consume time a parliamentary instrument appropriate for the Senate.”40 The idea that “a minority of Senators could hold unlimited debate on a topic against the majority's will was unknown.”41
Senate Tradition and Rules: 1806-1917. The next period began with the Senate revising its rules in 1806. At Vice President Aaron Burr’s suggestion, the Senate dropped the previous question rule because it had almost never been used.42 Without a rule designating a particular vote threshold, traditional parliamentary practice required unanimous consent for bringing a pending measure to a vote.43 “[T]he practice of exploiting the rules (or lack thereof) to block Senate action failed to take root in the original Senate....It was widely assumed in these first decades that measures would be brought to a vote for final consideration and that a simple majority would be sufficient for ending debate on even the most controversial legislative business."44
That assumption gave way as some Senators began using extended debate to disrupt, rather than facilitate, Senate action. This new use of extended debate, however, had a practical limitation. Senators could prevent the Senate from voting on a bill they opposed for only as long as they held control of the Senate floor, delaying Senate action but rarely preventing it altogether.
Experience without the previous question rule prompted the Senate to consider whether it needed a rule to limit debate after all. On June 12, 1841, before debate on the Fiscal Bank bill began, Senator Henry Clay (Whig-KY) acknowledged that Senators had a right to speak but urged his colleagues to debate the merits of the legislation, rather than engage in a contest of “brutal physical force; in seeing who [can] sit out the other, or consume the most time in useless debate.”51
A month later, as debate dragged on, Clay complained that “the minority here control the action of the Senate” and can “obstruct the majority in the dispatch of all business of importance.”52 He said he would support a rule that would “give to the majority the control of the business of the Senate”53 by preventing “long and unnecessary speeches.”54 Senator William King (D-AL), another Fiscal Bank opponent, said: “I tell the senator, then, that he may make his arrangements at his boarding house for the winter.”55
The sides were forming. Senators who had begun using extended debate to disrupt or prevent Senate action could use the same tactics to fight any restriction on extended debate. Clay backed down when his own party leaders said that limiting debate “would lead to a break down in relations.”56 Subsequent proposals fared no better,
Senate Tradition and Rules: 1917-present. President Woodrow Wilson had asserted the United States’ neutrality when World War I began in August 1914 and resisted softening that position even after Germany resumed submarine warfare.62 On February 25, 1917, Wilson received news of the so-called Zimmermann Telegram, describing the German effort to establish an anti-American alliance with Mexico. The next day, speaking to a joint session of Congress, he asked for statutory authority to arm American merchant vessels with defensive weapons and naval gun crews.63
Rep. Henry Flood (D-VA), chairman of the House Foreign Affairs Committee, introduced the bill Wilson requested later that day. With the 64th Congress’ March 4 final adjournment date looming, the House voted 403-13 to pass the bill on March 1, 1917. Senator Robert M. LaFollette (R-WI) and 10 colleagues, six Republicans and five Democrats, opposed the bill and set out to prevent its passage by running out the legislative clock.64 Senators individually spoke at length and yielded the floor among themselves through the night of March 3. In addition, they objected to repeated requests for unanimous consent by Senator Gilbert Hitchcock (D-NE) to set a specific time for a final vote on the bill and utilized other parliamentary motions and objections.
In addition to the compelling wartime circumstances, Wilson’s support, and near-unanimous House passage, the bill had broad public support65 and at least 75 Senators, 45 Democrats and 30 Republicans, indicated they would vote for it.66 When the armed ship bill expired at noon on March 4, 1917, Wilson issued a statement from the White House that said:
The Senate has no rules by which debate can be limited or brought to an end, no rules by which dilatory tac tics of any kind can be prevented . . . . The Senate of the U.S. is the only legislative body in the world which cannot act when its majority is ready for action . . . . The only remedy is that the Rules of the Senate shall be so altered that it can act.67
Even under this unique combination of circumstances, however, the Senate chose to regulate rather than abandon extended debate. Wilson convened the Senate in extraordinary session68 on March 5 and, three days later, the Senate voted 76-3 to pass Senate Resolution 5, introduced by Senator Thomas Martin (D-VA). It amended Senate Rule 22 so that “two-thirds of those voting” could end debate on “any pending measure.”69 The Senate has amended Rule 22 three times regarding its coverage and vote threshold:
These revisions have several common features. First, they each followed the established process for amending Senate rules: a resolution specifying the proposed change, consideration by the Senate Rules Committee, and a debate and recorded vote by the full Senate. Second, each revision had wide, bipartisan support. Amending Senate rules, especially regarding a core definitional feature such as extended debate, changes how the Senate operates across the board; wide agreement on the ground rules is important, even while differences may run deep along party lines while operating under those rules. Third, Rule 22 and its amendments regulated, rather than abandoned, extended debate.
Bipartisan Benefits of Extended Senate Debate. Extended debate empowers the minority and, therefore, frustrates the majority. The benefits of extended debate, however, are entirely bipartisan and both parties have, when in the minority, used it to forces changes to legislation or to prevent passage of legislation they lacked the votes to defeat outright.75 For example:
The 116th Congress opened in January 2017 with a 55-45 Democratic majority in the Senate. In April, 10 days after the Senate confirmed Trump’s nomination of Neil Gorsuch to the Supreme Court, 61 Senators signed a letter defending “the right of Members to engage in extended debate on legislation before the United States Senate.”78 They noted “the unique role the Senate plays in the legislative process” and urged opposition to “any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation.” Twenty-seven of the signers, 15 Democrats and 12 Republicans, serve in the Senate today:
Mark Warner (VA)
Amy Klobuchar (MN)
Martin Heinrich (NM)
Jeanne Shaheen (NH)
Kirsten Gillibrand (NY)
Brian Schatz (HI)
Cory Booker (NJ)
Maria Cantwell (WA)
Mazie Hirono (HI)
Maggie Hassan (NH)
Tammy Duckworth (IL)
Tim Kaine (VA)
Jack Reed (RI)
Ed Markey (MA)
Sheldon Whitehouse (RI)
Lisa Murkowski (AK)
Roger Wicker (MS)
Jerry Moran (KS)
John Boozman (AR)
Thom Tillis (NC)
Shelley Moore Capito (WV)
John Thune (SD)
Bill Cassidy (LA)
Chuck Grassley (IA)
John Kennedy (LA)
Todd Young (IN)
Mike Lee (UT)
Trump’s social media posts demand “terminat[ing] the filibuster” by “chang[ing] the rules now,” but never indicate how that could be done or whether doing so might have any negative consequences. The objective is for a simple majority, unobstructed by a filibuster, to bring up and pass any legislative measure. Three methods have been either suggested or attempted.
Regular Order. The first is the process outlined in the Senate rules themselves, which would begin with a resolution to amend Rule 22 in a way that would allow for simple-majority cloture on legislation. This is the process used when the Senate adopted, and later amended, its cloture rule. As noted above, Rule 22 requires two-thirds of Senators voting for cloture on a proposed rules change. Needless to say, if Republicans lack the 60 votes needed for cloture on the SAVE Act, they will not have 67 votes for cloture on abolishing that 60-vote requirement altogether.
Constitutional Option. Advocates have been arguing for the constitutional option for more than a century but have never actually implemented it. The theory behind it is that the Senate’s authority to determine its procedural rules is always a present authority that cannot be bound by rules established in the past.79 The Senate begins a new two-year Congress, the theory goes, without any binding written rules, governed instead by traditional parliamentary principles, including a simple majority able to call the previous question. This continues until the Senate adopts its own rules, either through regular order or by acquiescing to the rules used in the previous Congress by operating under those rules.80 This argument was first made by Senator Thomas Walsh (D-MT) during the 1917 special session81 and is credited by some with pressuring the Senate to adopt Rule 22 through regular order.82
Nuclear Option. While regular order and the constitutional option would actually change Senate rules, Republicans cannot use the former because they lack the votes for cloture and can no longer use the latter because the window for doing so at the beginning of this Congress has closed. This leaves, for the moment anyway, the nuclear option as the only possibility for a simple majority to abolish extended debate by eliminating the 60-vote cloture requirement on legislative matters. Rather than change Senate rules through the established process, however, the nuclear option involves a parliamentary maneuver that would change the interpretation, but not the language, of Rule 22.83
The nuclear option has been used several times in the past,84 and the best way to explain it is by one of those examples. In 2013, with a Democrat in the White House, Democrats had a 52-vote Senate majority. President Barack Obama wanted to fill three vacancies on the 11-member U.S. Court of Appeals for the D.C. Circuit, the court with jurisdiction over most challenges to executive branch agency regulations. Republicans defeated a cloture motion on each one.85
“Amendment Under the Guise of Interpretation.” Democrats were thus able to achieve the same result by interpretation that they could not achieve by amendment. Rule 22 says the same thing today as it did before November 2013, but the Senate has voted to pretend that the words mean something else. This is the way that the Supreme Court sometimes treats the Constitution, changing the meaning of its words without changing the words themselves. Dissenting from a 1937 Supreme Court decision, Justice George Sutherland wrote that the "judicial function...does not include the power of amendment under the guise of interpretation.”89
The Framers argued that our written Constitution may be changed only through the established amendment process, not through interpretation.
More importantly for this analysis, the Framers expressed the same view regarding Senate rules. Jefferson’s Manual, for example, advocated “a code of rules…formed for the use of the Senate, the effects of which may be accuracy in business, economy of time, order, uniformity, and impartiality.”92 In fact, he argued, “[i]t is much more material that there should be a rule to go by, than what that rule is; that there may be an uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members.”93 The Senate Rules Committee itself quotes this very passage at the opening of the “History” section of its website.94
In addition, the Framers emphasized that written rules with stable meaning were especially important for the minority. Only through “strict adherence” to those rules can the minority party be protected against abuses suggested by “large and successful majorities.”95 The first section of Jefferson’s Manual, titled “The Importance of Adhering to Rules,”96 opens with this quote from Arthur Onslow, who served as Speaker of the British House of Commons from 1728 to 1761:
“[N]othing tended more to throw power into the hands of administration, and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority, and that they were, in many instances, a shelter and protection to the minority, against the attempts of power.’’97
The Senate itself, in its website section on Senate rules, notes Jefferson’s emphasis on written rules protecting against “arbitrary and inconsistent parliamentary rulings.”98 The vote threshold for cloture is a number, not a word or phrase with subjective or opaque language. It would be difficult to find a more “arbitrary and inconsistent” ruling than saying that 60 = 51.
The process leading to the 1949 amendment to Rule 22 is also instructive. During a special session of the 80th Congress, the House passed H.R.29, an anti-poll tax bill, and Southern Senators began speaking at length when the Senate Rules Committee reported it favorably. Senator Kenneth Wherry (R-NE) filed cloture on a motion to proceed to the bill’s consideration99 and Senator Richard Russell (D-GA) made a point of order that the words “pending measure” in Rule 22 did not include motions to proceed. President pro tempore Arthur Vandenberg (R-MI) sustained the point of order100 even though, as a Senator, he supported the anti-poll tax legislation and thought Rule 22 should apply to all legislative matters.
Vandenberg acknowledged that unlimited debate on motions to proceed would mean that, as a practical matter, “the Senate has no effective cloture rule at all.”101 Just as the Senate cannot pass a bill if it cannot vote on passage, the Senate cannot consider a bill if it cannot proceed to it. Vandenberg, however, did not act as if the political ends justified the parliamentary means. Rather, he explicitly opposed what is today called the nuclear option:
“the rules of the Senate as they exist at any given time and as they are clinched by precedents should not be changed substantively by the interpretive action of the Senate’s Presiding Officer, even with the transient sanction of an equally transient Senate majority.”102
If Senate rules prove problematic, Vandenberg said in a Senate floor speech on March 11, 1949, they should be changed “by the direct and conscious action of the Senate itself, acting in the fashion prescribed by the rules. Otherwise, no rule in the Senate is worth the paper that it is written on.”103 When a substantive change is accomplished instead by sustaining the presiding officer’s parliamentary ruling, he argued, “the rules, hereafter, mean whatever the Presiding Officer of the Senate, plus a simple majority of Senators voting at the time, want the rules to mean.”104 That is not only the effect, but the intention of the nuclear option.
The Consequences. Extended debate is “the Senate’s most well-known procedure”105 and perhaps the most important feature distinguishing it from the House. It is, therefore, a key component of the “internal controls” needed to protect our liberty. The Senate itself has repeatedly decided that extended debate, which both parties have used to their advantage when in the minority, should remain part of the chamber’s legislative process. Abolishing extended debate, especially by use of the nuclear option, would have devastating consequences.
First, abolishing extended debate would eliminate the Senate’s unique role as a limitation on government power. It would instead endorse the opposite idea that achieving immediate political objectives is more important than anything else, that those ends would justify even the means of fundamentally changing the very nature of the Senate as an institution. The separation from the House that the Framers built in would be erased, and even the slimmest partisan majority would have no obstacles to any legislative objective.
Second, the nuclear option would, as Vandenberg suggested, neuter the very idea of written rules providing clarity and stability. In its operation as a legislative body, the Senate would be whatever a current majority might want it to be. There would no longer need to be any consensus, let alone a bipartisan one, about the foundational rules for the institution.
Third, using the nuclear option to change the current meaning, but not the text, of Senate rules also removes the protection for the minority that the rules are supposed to provide. Like extended debate specifically, protection of minority rights in general is one of the ways that the Senate differs from the House. Our liberty requires maintaining, not undermining, those differences.
Fourth, this consolidation of power would practically guarantee that the other party will pursue the same objective, using the same nuclear option, when it achieves a Senate majority. Since Rule 22 was first adopted in 1917, control of both legislative and executive branches has shifted from one party to the other no less than 10 times. In fact, since 1969, neither party has maintained such dual-branch control for more than four years.
Fifth, abolishing extended debate would make it impossible for either party to meaningfully participate in the development of legislation or to prevent the passage of legislation that it opposes. While extended debate is supposed to be an incentive for the parties to engage, the purpose of abolishing extended debate, as Senator Ed Markey (D-MA) has put it, is to “get…the [other party] out of the way.”106
Sixth, abolishing extended debate would make impossible not only stopping undesirable new legislation but the repeal or drastic revision of past legislative achievements. To use an obvious example, if abolishing extended debate would allow passage of the SAVE Act, what would prevent Democrats, once they control Congress and occupy the White House, from repealing it?
Seventh, partisan division over particular legislation is one thing, but there should be bipartisan agreement on the basic procedural ground rules that both parties must follow. Using the nuclear option to abolish extended debate would not only empower slim partisan majorities to pass more and more extreme versions of legislation, but to alter (at least temporarily) the foundational rules and procedures that govern the entire institution.
Eighth, unlike regular order, which the Senate has used in the past to amend Rule 22 in full public view, the nuclear option would do something as profound as determine what kind of legislative body the Senate will be (at least for a two-year Congress) outside of public debate and scrutiny.
Ninth, it would render inoperative the provision of Rule 5 that “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” The nuclear option operates outside of those rules and allows a slim partisan majority to effectively “make it up as they go along.”
Finally, using the nuclear option to re-interpret Rule 22 may eliminate an obstacle to passing legislation, but it leaves the cloture process in place. Any Senator, joined by at least 15 colleagues, can still file a cloture motion that will force the Senate to take a cloture vote even though it no longer serves any purpose but delay and obstruction. This is exactly what happened in the wake of Democrats using the nuclear option in 2013 to abolish nomination filibusters. The Senate has taken 1,097 cloture votes on nominations since November 21, 2013, 90 percent of all such votes in American history. Cloture votes are recorded votes, and each recorded vote requires the presence of all Senators and consumes an average of at least 45 minutes. Those gratuitous cloture votes on nominations took up more than 100 eight-hour days of Senate time. The same thing will happen with legislation.
President Trump and others who want to abolish extended Senate debate say Republicans should do it before Democrats do.107 Just as both parties have used extended debate to their advantage when in the minority, however, both parties will use the lack of extended debate even more aggressively. All that Republicans will have accomplished would be the claim that they radically changed Senate, and thereby compromised our liberty, before Democrats did.
Protecting liberty requires maintaining controls on the power of government, including a national legislature divided into two legislative chambers that are designed to operate differently. For more than 200 years, this design has included both tradition and rules that provide Senators a greater opportunity to debate than House members enjoy. Even when Senators began using extended debate offensively to prevent passage of legislation they could not defeat outright, the Senate regulated, but did not abandon, this crucial feature of its institutional operation.
Extended debate empowers the minority and frustrates the majority. Both parties have been on both sides of this divide, using extended debate to prevent passage of legislation they opposed and calling for its elimination in order to pass legislation they support. Doing so would irreparably damage the structure of our system of government, thereby weakening the protection for our liberty that such controls on government provide. In addition, the only way at the moment to abolish extended debate – the so-called “nuclear option” – would create its own problems. It would, in effect, require pretending that Senate rules do not necessarily mean what they clearly say, in this case that “three-fifths of Senators duly chosen and sworn” actually means 60 votes in a 100-member Senate.
The Framers placed the foundational principle of limiting government as a necessary protection for liberty ahead of any particular political objectives of the moment. One test of commitment to this position is whether it applies across the board, to one’s own interests as well as to those of others. It appears that many of the Democrats, and some of the Republicans, who pledged in 2017 to oppose any weakening of extended debate have since reversed themselves, now preferring certain political objectives over extended debate.
The Framers’ plan for protecting our liberty involves designing a system of government with built-in controls or limits on power. Our leaders need to embrace and defend that design now more than ever. The short-term political ends do not justify the long-term means of weakening protections for our liberty.