There are rumblings about the Senate that the Republican majority might use the controversial nuclear option to confirm President Donald Trump’s nominees more quickly. Senator James Lankford of Oklahoma has introduced a resolution to make this possible, and it looks like the GOP will need to adopt it without the help of any Democrats, making another use of the nuclear option almost guaranteed. The move will help them fill up Executive and Judicial Branch vacancies more quickly, yet it will also do nothing to ease the acrimony in the Senate and further marginalize the minority party. This is a shame since both parties unanimously agreed to similar language in the 113th Congress when the Democratic Party held the majority.
Why are Republicans talking about changing the Senate’s procedures?
Today, Senate Republicans argue that the minority Democrats are slow walking the confirmation process and have been for two years. At the end of February, Majority Leader Mitch McConnell’s office published a post that said that the Senate had voted on cloture 128 times on Executive and Judicial Branch nominations in the first two years of President Donald Trump’s term; by comparison, it voted on cloture only 12 times for nominations in the first two years of President Barack Obama’s first term.
Even after cloture has been invoked, Senate rules provide 30 additional hours to debate the business at hand, meaning the minority (or the majority, for that matter) can delay voting on an issue. In this particular controversy, Republicans say that Democrats are dragging out post-cloture debate time. For instance, Senator Lankford, speaking on the time that passed between cloture and confirmation for uncontroversial Trump Administration nominees, described it as “an attempt to shut down this Senate and shut down this President to keep him from hiring his staff…There has never been a time that the Senate has tried to prevent an elected President from hiring his own team—until now” (Congressional Record, February 13, 2019, S1315).
How has the use of cloture for nominations changed in recent years?
Today, it takes a simple majority to invoke cloture on all nominations. Until November 21, 2013, in the 113th Congress, it took 60 votes to end debate on all nominations. On that day, the Democratic majority used the controversial nuclear option (more on that below) to reduce the supermajority to a simple majority to end debate on Executive Branch and Judicial Branch nominations (except for the Supreme Court). Then on April 6, 2017, the Republican majority used the nuclear option to the supermajority for Supreme Court nominations.
How did lowering the threshold for invoking cloture affect the practice?
After the nuclear option was used in 2013, the sheer number of cloture motions presented on nominations multiplied. Before the use of the nuclear option in the 113th Congress, cloture motions were presented for 26 nominees, or roughly 1 motion every 12.38 days. After the nuclear option, the number of motions more than quintupled: 150 were presented over the course of the rest of the Congress. That is about one every 2.71 days. Similarly, after the use of the nuclear option, the frequency of actual votes on cloture motions also increased. Before the nuclear option was used, they voted on 19 cloture motions, or 73.07 percent of all those presented. After, the Senate voted on 127, or 84.67 percent of all motions presented.
It is no coincidence that cloture motions and votes on them have increased since the use of the nuclear option. Now, Majority Leaders can readily produce a simple majority to invoke cloture on a nominee. They no longer need to woo minority party Senators to vote to end debate. Nor do they need to negotiate a unanimous consent agreement with the Minority Leader to expedite business. In a post-nuclear world, in the face of real or imagined filibuster by the minority, the majority can simply end debate on its own. Likewise, since the majority can end debate on its own, there’s little incentive for the minority party to cooperate much.
What changes are Republicans considering making to cloture this year?
Republicans are considering limiting post-cloture debate. To accomplish this, Senator James Lankford of Oklahoma has introduced S. Res. 50. This resolution would limit post-cloture debate on district court and most Executive Branch nominations to two hours. Nominations for department secretaries and other important positions, like seats on the boards of some independent agencies, like the Federal Election Commission and the Federal Communications Commission, would retain 30 hours of post-cloture debate. Supreme Court and federal appeals court nominees would also be unaffected.
Has the Senate experimented with changing post-cloture debate time before?
Yes, in the 113th Congress. At the beginning of the Congress, the Senate adopted a standing order (S. Res. 15) that reduced post cloture debate time to eight hours for Executive Branch positions (except for high-ranking officials, like Cabinet Secretaries) and two hours for district court nominees. The standing order expired at the end of that Congress, so since then, the Senate has had 30 hours of post-cloture debate time for all nominees.
Not surprisingly, evidence suggests that reducing the amount of post-cloture debate time did speed up the confirmation process. In the 113th Congress, the Senate invoked cloture on 72 district court nominees, and confirmed over half of those (38) on the same day; the rest (34) were confirmed on the following day. By contrast, in the 115th Congress, the Senate invoked cloture on 19 district court nominees. Only 6 were confirmed the same day (31.58 percent), and 7 were confirmed the following day (36.84 percent). For one nomination, 11 days passed between the cloture vote and confirmation.
|Table 1: Time Between Cloture and Confirmation of District Court Nominees in the 113th and 115th Congresses|
|Days Between Cloture and Confirmation||0||1||2||4||5||11|
|Number of Nominees Confirmed X Days after Cloture||113th Congress||38||34||–||–||–||–|
|Percentage of Nominees Confirmed X Days after Cloture||113th Congress||52.78%||47.22%|
The 113th Congress standing order seems to have sped up the confirmation process for positions eligible for eight hours of post-cloture debate time too. In the 113th Congress, the Senate invoked cloture on 53 nominees that were eligible for 8 hours of post-cloture debate time. A majority (31, 58.49 percent) were confirmed the same day, and another 15 (28.30 percent) were confirmed the following day. The longest any had to wait for confirmation was four days (3 nominees, 5.66 percent).
|Confirmation Time of Clotured Non-Cabinet-Level Executive Branch Nominations in 113th and 115th Congresses|
|Days Between Cloture and Confirmation||0||1||2||3||4||5||6||7||11|
|Number of Nominees Confirmed X Days after Cloture||113th Congress||31||15||3||1||3||–||–||–||–|
|Percentage of Nominees Confirmed X Days after Cloture||113th Congress||58.49%||28.30%||5.66%||1.89%||5.66%||–||–||–||–|
To be sure, some of the lengthier delays (in both Congresses) are due to congressional recesses: Cloture is invoked shortly before the Senate leaves town, and then the nomination is confirmed when they return. Nonetheless, those confirmations are still worth noting, since the rest of the government does not recess even though the Senate does.
(We examined the confirmation process in the middle of the 115th Congress. The statistics here represent the complete Congress.)
What will the confirmation process look like in the 116th Congress?
In the next couple weeks, if Senator Lankford’s proposal goes through, the pace of confirmation in the 116th Congress will start to look more like it did in the 113th Congress than the 115th. Like the 113th Congress standing order, Senator Lankford’s new proposal cuts post-cloture debate time to two hours for district court judges. Under Senator Lankford’s proposal, post-cloture debate time for Executive Branch nominations differs somewhat from that of the 113th Congress standing order. In the 113th Congress, debate time was 8 hours for Executive Branch nominees except for Department Secretaries and a handful of others. In the new proposal, post-cloture debate time for Executive Branch nominees would only be two hours, but more positions will maintain the current 30 hours of debate time. In addition to the positions excepted in the 113th Congress standing order, as noted above, it would except members of some independent agencies, like the Federal Election Commission and the Federal Communications Commission. Going forward, all else being equal, the confirmation of district judges should look substantially like the process in the 113th Congress. Confirming Executive Branch officials will speed up too. However, since the post-cloture debate time and the kinds of nominees excepted from the S. Res. 50 changes differ from the 113th Congress standing order, the process will probably not mirror the 113th Congress as much as it will for district court judgeships.
How will the Senate change its rules? What is the nuclear option?
To adopt this proposal through regular order, at least 7 Democrats would need to vote with all the Republicans to end debate on the resolution. S. Res. 50 is not drafted to amend the Senate rules; instead, it is a standing order. Cutting off debate on a standing order requires a supermajority of 3/5 of all Senators “duly chosen and sworn,” meaning 60 votes. (By contrast, ending debate on an actual change to the rules requires 2/3 of Senators “present and voting”—effectively 67, assuming all Senators vote.) If the Republicans coaxed 7 Democrats to end debate on the proposal, all they would need is a simple majority to adopt it.
Currently, there are no indications that 7 Democrats are willing to join the Republicans to end debate on this proposal. Senate Majority Leader Mitch McConnell has said that he would prefer to get 60 votes for cloture but indicated a willingness to take a Republican-only approach to adopting the resolution. If Republicans cannot convince 7 Democrats to join them to end debate, they would need to use the nuclear option to see this through.
The nuclear option is a way to change how the Senate operates without needing to invoke cloture successfully. In addition to the rules, the Senate has a large body of precedents, which are decisions of the presiding officer on how the rules should be interpreted and applied in a particular situation. To use the nuclear option, the Majority Leader makes a point of order that Senate precedent is X, though the precedent is most definitely not that. For instance, when the Democrats used the nuclear option in November 2013, Majority Leader Reid said, “I raise a point of order that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote” (Congressional Record; November 21, 2013; S8417). The presiding officer then overrules the Majority Leader, who then appeals the ruling of the chair. Appealing the ruling of the chair is a way for the entire Senate to vote on whether or not the Senate will be bound by the presiding officer’s decision. The Senate votes on the question “Shall the decision of the Chair stand as the judgment of the Senate?” The question is decided by a simple majority. If they majority says yes, what the Chair has decided remains in force; if not, the Senate is bound by the precedent the Majority Leader asserts in the point of order—even if the plain text of the rule says something else. Since it only takes a simple majority to establish a new precedent, the nuclear option can be used as an end run around the Rules at the expense of the Minority.
Senate Majority Leader Mitch McConnell reportedly has the votes to invoke the nuclear option to shorten post-cloture debate time. The process could unfold a few different ways but appealing the ruling of the chair would be feature in any scenario.
How will the Democrats react to the use of the nuclear option? What does that mean in the long run?
Using the nuclear option would be an efficient way for the Republicans to implement this standing order, but as the name suggests, the procedure is highly controversial. The Democrats would fume. They would also likely respond with hardball procedural tactics of their own, as is so often the case when one party feels that the other has wronged them. And in truth, the Republicans would say that they are using the nuclear option in response to unreasonable Democratic obstructionism. Since the majority’s response is usually to restrict the minority when it obstructs, the continued escalation will eventually result in a Senate where the minority is much weaker than it is today. Both parties will suffer, since both will be in the majority and minority at some point.
Aside from general concerns about how this will affect the role of the Senate minority, the way the nuclear option is deployed will also shape the future development of the Senate. As noted above, Senator Lankford has introduced a simple resolution to establish a standing order. A new precedent is essential to the nuclear option. Yet the Majority Leader will be virtually unlimited in his discretion in proposing a new precedent. In the parliamentary inquiry, he could say, without qualification, that the Senate precedent is that invoking cloture on a simple resolution takes a simple majority. Assuming the majority goes along with him, it is a short step to an even more majoritarian body. There is no reason to see why the Senate majority could not proceed to use resolutions to streamline how it schedules its business, which is exactly how the House does it. Notably, the House formerly required a supermajority to adopt special rules (resolutions to schedule business); a ruling by the Speaker confirmed the transition to a simple majority. (For the evolution of special orders, see Hinds’ Precedents, volume IV, §3152-3160.) Of course, the Majority Leader may not phrase his precedent so broadly, but this sets the Senate up to rely less and less on minority input in scheduling its business.
From an institutional perspective, it would have been wiser for Senate Minority Leader Chuck Schumer of New York to have been more cooperative in the confirmation of President Trump’s nominees and saved them for the most controversial figures that were worth a political fight. The general public is mostly unaware of these filibusters, and they will likely be unaware of the Republican response. These are not normal times, politically, but that does not mean these procedural actions will not have long-term consequences.
A properly functioning filibuster is a tactic designed to force the majority to moderate their legislative proposal enough to capture a number of Senators in the minority to get to 60 votes on cloture. As a tactic, the filibuster has a consensus-building effect on the legislative process and assures the minority will be able to influence legislation or nominations. But, when the filibuster becomes the actual strategy – that is – a weapon used to obstruct the Senate and prevent the President from filling critical vacancies in his Administration and the Judiciary, it is inviting a response that will eventually eliminate the most important tool traditionally used by the Senate minority to slow down controversial legislation and nominees.
Senator Lankford’s proposal certainly benefits the Republicans in the short term. Some might argue that the change is not in their long-term best interests, since they will inevitably be in the minority and will have to live with the consequences of their decisions. Not only do they know this but they escalated the fight themselves when they extended former Senate Majority Leader Harry Reid’s original nuclear option to Supreme Court nominees. The Senate is still dealing with the partisan radioactivity released by Reid’s original action and the Republicans have already experienced a post-nuclear minority, so that argument won’t likely persuade them, any more than it did in 2017, when they used the nuclear option for the Supreme Court. The filibuster as we’ve known it is one step closer to being done for and the Senate is in danger of abandoning its traditional role as defender of the rights of the political minority and becoming another majoritarian legislative body just like the House.