Legislative Procedure is a Washington-based blog that focuses on legislative strategy and parliamentary procedure.

Wall Street Journal Gets Senate Rules Wrong

Wall Street Journal Gets Senate Rules Wrong

A recent Wall Street Journal editorial criticized what it dubbed as “the Democratic resist-at-all-costs strategy” of opposing President Trump’s executive- and judicial-branch nominees in the Senate. It concluded by implying that Democrats would block action on all presidential nominees if they regain the majority in the November elections. 

Setting aside the question of how a Democratic majority would process presidential nominations in the future, the Journal’s indictment of the Democrats’ all-out obstruction is based on an incorrect reading of the Senate’s rules. As such, it overstates the Democrats’ ability to obstruct nominations while overlooking the Republicans’ complicity in delaying the confirmation process.

First, consider the Journal’s claims regarding the Democrats’ ability to obstruct presidential nominations. Using the recent nomination of Brian Benczkowski to head the Criminal Division in the Department of Justice as a paradigmatic case to illustrate Democratic obstruction more generally, the Journal’s editorial asserts that once a nominee clears committee, “a senator can object to a floor vote. That leads to a cloture vote, which triggers 30 hours of debate.”

But that’s not how the confirmation process works under the Senate’s rules. Specifically, Rule XXXI governs the Senate’s proceedings when it considers presidential nominations. Notably, it makes no mention of a senator’s right to object to a floor vote, or otherwise veto it single-handedly. Instead, a nomination is placed on the Senate’s Executive Calendar once it clears committee. The Executive Calendar is the list of nominations and treaties that are eligible to be considered during Executive Session. (“Executive Session” simply denotes the Senate’s procedural posture when it considers international treaties and presidential nominations. “Legislative Session” refers to the Senate’s posture when it is considering legislative business.) 

Once on the Executive Calendar, any senator may offer a non-debatable motion to proceed to Executive Session to consider that particular nomination under the Senate’s rules and precedents. Because the motion to proceed to Executive Session can’t be debated, the Senate votes on it as soon as a senator makes it. In short, no one senator, or group of senators representing less than a majority, can object to, or otherwise block, the vote.

And the Journal’s claims are still incorrect after the Senate has decided to begin debate on a nominee. While its claim that “a senator can object to a floor vote” after the Senate has decided to begin debate on a nominee is correct, that’s only when another senator asks unanimous consent to schedule the vote. Significantly, objecting to such a unanimous consent request does not mean that the objecting senator can veto a floor vote under the rules. Senators’ leverage in such circumstances only exists when other senators attempt to schedule votes by unanimous consent. That leverage declines considerably if the majority instead strictly enforces the rules.To be fair, the Journal does acknowledge this point, conceding that an objection leads to a cloture vote. 

As hinted at by the JournalRule XXII empowers Senate majorities to end debate on a question by filing cloture. And while 41 senators could block cloture in the past, they can no longer do so today thanks to Democrats utilizing the nuclear option in 2013 to lower the threshold for invoking cloture on all nominations (other than for the Supreme Court) from three-fifths of senators to a “majority-vote.” The 2013 nuclear option eliminated the supermajority filibuster for most nominations. Republicans followed suit in 2017, using the maneuver to eliminate the minority’s ability to filibuster Supreme Court nominees.

Yet despite these changes, the Senate’s rules allow senators to delay the process after cloture has been invoked – by dragging out the time permitted under the rules before a final confirmation vote is required.The Journal acknowledges this when it asserts, that a cloture vote “triggers 30 hours of debate.” But it is wrong to then imply that invoking cloture triggers 30 hours of debate that must elapse before the Senate can finally vote on confirmation.

Rule XXII is very clear on what happens during post-cloture debate. It stipulates that,

“no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks.”

Rule XXII also prohibits dilatory motions and empowers the Senate’s Presiding Officer to decide procedural questions without debate. Finally, and most importantly for our purposes here, the rule explicitly states that the 30 hours of debate time that is in order after cloture has been invoked is a ceiling, not a floor.

“After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof.”

Let’s review the rules governing the confirmation process in the context of the Benczkowski nomination. The Journal’s assertion that “a senator can object to a floor vote” does not apply to the Senate voting on whether to begin floor debate on his nomination once it was reported by the Judiciary Committee. Furthermore, no one member, or group of members representing less than a majority, could have prevented senators from voting to invoke cloture on his nomination. Lastly, Rule XXII clearly stipulates that 30 senators would have been required to participate in delaying his confirmation after cloture had been invoked if it was strictly enforced by Republicans.

Still, the fact remains that the confirmation process has slowed in recent years, including the process used to confirm Benczkowski. Clarifying why this is the case leads to my second point. As I argue here, Republicans are complicit in the Senate’s slow pace in confirming Trump’s nominees. Put simply, Republicans are also to blame for the status quo, contrary to the Journal’s claims. Specifically, the way in which Majority Leader Mitch McConnell, R-Ky., and his Republican colleagues have structured the confirmation process this Congress has empowered Democrats to delay work on presidential nominees. The implication of this is that Republicans could speed things up. All they need to do so is to enforce the Senate’s existing rules governing the confirmation process.

In review, the rules governing post-cloture time are as follows: Once the Senate votes to end debate on a nomination, that nominee remains before the Senate “to the exclusion of all other business until disposed of.” The rules also limit post-cloture time to no more than 30 hours and stipulate that “no senator shall be entitled to speak in all more than one hour on … the matter pending before the Senate” during that period. Notably, the rules do not require post-cloture time to last for 30 hours; a confirmation vote can occur earlier if no senator wants and is able to speak.

Yet Republicans regularly move to waive these provisions by unanimous consent. For example, McConnell and his colleagues routinely ask unanimous consent immediately after the Senate votes to invoke cloture on one of Trump’s nominations that it instead “proceed to legislative session for a period of Morning Business with senators permitted to speak therein for up to 10 minutes each.” In other words, instead of keeping the nomination in question pending before the Senate to speed up the confirmation process, Republicans seek Democrats’ permission to suspend consideration. And they have done this on 7 out of the 15 nominees on which cloture was filed between January 1 and March 19 of this year.

Senate Republicans also lock in confirmation votes, usually for the following day and sometimes even several days later, despite the fact that the rules don’t require 30 hours to transpire after cloture has been invoked. In doing so, they effectively make 30 hours the minimum, rather than the maximum, time that must elapse before a nominee can be confirmed.

Another reason why Republicans are complicit in delaying the confirmation process is that they routinely make it easier for Democrats to impede the nomination process by asking unanimous consent that all time “during recess, adjournment, morning business, and leader remarks count post-cloture” for the nominee in question. Post-cloture time is only required under the Senate’s rules only if a senator wants to speak. By letting such time run when the Senate isn’t in session, Republicans make it possible for Democrats to delay nominees without speaking. They have done this on 9 of the 15 nominees on which cloture was needed between Jan. 1 and March 19 of this year.

Republicans also slow down the confirmation process themselves by preventing the Senate’s presiding officer from calling a vote whenever a member isn’t speaking on the Senate floor. The Senate’s precedents state, “When a senator yields the floor and no other senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote.” In other words, the Senate should vote immediately on a nominee if no one is speaking.

Yet Republicans routinely prevent the Senate from doing so by suggesting the absence of a quorum whenever they finish giving a speech on the floor. Doing so effectively suspends Senate business until another member comes to the floor to speak. While the Senate is in a quorum call, the Presiding Officer can’t call a vote on the nominee under consideration. From January 1 to March 19, 13 Republicans ended their speeches by suggesting the absence of a quorum during the consideration of one of Trump’s nominations on 20 different occasions. By preventing the presiding officer from calling for a vote in these situations, Republicans are effectively delaying Trump’s nominees.

The consequence of the Journal's misrepresentation of the rules is to absolve Republicans and blame only Democrats for the Senate’s delay in confirming President Trump’s nominees. But a correct reading of the rules instead demonstrates clearly that both sides are to blame.

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