Vice President Can Force Senate to Act
Senators return to Washington this week after Majority Leader Mitch McConnell, R-Ky., shortened the August recess due, in part, to Democrats’ “historic obstruction” of President Trump’s nominees. But taking such drastic action was probably unnecessary. The Senate could have likely kept its August recess had Republicans been willing to instead enforce the rules governing post-cloture debate time on nominations. The Vice President could have provoked such action by taking the initiative to enforce the rules himself. This is because the Vice President’s role as the Senate’s Presiding Officer can be utilized to prevent cost-free delays on the president’s executive and judicial nominations after cloture has been invoked.
Post-Cloture Debate Time
Senate minorities are unable to single-handedly block a confirmation vote for a presidential nomination after both Democrats and Republicans used the nuclear option to limit the filibuster in 2013 and 2017, respectively. Taken together, they lowered the threshold for invoking cloture (end debate) on all nominations from three-fifths of senators (typically 60) to a majority vote (typically 51).
Yet the Senate’s rules still permit members to delay the process after cloture has been invoked by dragging out the time permitted before a final confirmation vote. Republicans have accused Democrats of abusing this provision of Rule XXII by forcing the maximum amount of time (30 hours) to pass before letting the Senate vote on each nominee.
Rule XXII specifies the procedures that govern the Senate floor after members vote to invoke cloture. It stipulates,
“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.”
The rule also prohibits dilatory motions and empowers the Senate’s Presiding Officer to decide procedural questions without debate. Finally, the rule establishes a ceiling (not a floor) of up to thirty hours of debate time. The rule does not require thirty hours to transpire before a vote.
“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."
It thus takes unanimous consent to require thirty hours before a final confirmation vote absent members willing to speak on the floor for their allotted time under the rules. It does not take thirty hours if the rules are strictly enforced and senators are unwilling to use their allotted time.
The Senate regularly waives these provisions by unanimous consent even though doing so makes it possible for members to consume thirty hours of post-cloture time without having to speak on the Senate floor for one hour each.
Members may also slow down the confirmation process without speaking on the floor by putting the Senate in a quorum call. According to the Senate’s precedents, “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” (716). In other words, the Senate should vote immediately on a nominee if no one is speaking or seeking recognition to speak. Yet members effectively prevent the Senate from doing so whenever they finish giving a speech on the floor by suggesting the absence of a quorum. This effectively suspends the Senate’s business until another member comes to the floor.
Vice President’s Post-Cloture Powers
Absent a unanimous consent order stipulating otherwise, the Vice President can prevent senators from easily delaying a vote during consideration of a nomination post-cloture by suggesting the absence of a quorum after speaking.
It is not in order to suggest the absence of a quorum after a roll call vote has established a quorum’s presence and no subsequent business has intervened. During post-cloture consideration of a nomination, the cloture vote establishes a quorum. And debate isn’t considered business pursuant to the Senate’s precedents. Consequently, a senator is technically prohibited from putting the Senate in a quorum call after speaking. Should a member suggest the absence of a quorum anyway, the Vice President can take the initiative to rule it dilatory and thus out of order. According to the Senate’s precedents, “The Chair has exercised the authority under cloture to hold a request for a quorum dilatory, and this ruling was sustained on appeal” (p. 311).
Finally, the Vice President has the authority to determine if a quorum is present during post-cloture debate by counting the senators present. Consequently, delaying a vote by suggesting the absence of a quorum works only if senators refuse to show up. If senators show up but do not vote, they can be counted as present.
Once confronted with a Vice President determined to end unnecessary delays of the Senate’s business, Republicans supposedly concerned about “historic obstruction” would presumably refrain from suggesting the absence of a quorum. In this hypothetical scenario, a Democrat would then have to be present to suggest the absence of a quorum (or speak). But once a Democrat shows up to do so, the Vice President can count him or her as present, thereby establishing a quorum in a narrowly divided Senate. If a Democrat does not show up, there is no quorum call because the Senate operates as if a presumptive quorum is always present.
According to the Senate’s precedents, “Until a point of order has been raised, the Senate operates on the assumption that a quorum is present, and even if only a few senators are present, a measure may be passed or a nomination agreed to” (1038). In other words, the Senate assumes a quorum is always present unless a member shows up to make a point of order. But if a member does show up, then the Vice President can count him or her as present. And in a narrowly divided Senate, the addition of one member could make all the difference in establishing a quorum.