The Great Anchor is dedicated to the proposition that political institutions matter.

Jeff Flake doesn't have to go gentle into that good night

Jeff Flake doesn't have to go gentle into that good night

(Editor's Note: This piece first appeared in the Washington Examiner on November 15, 2018.)

In a famous poem, Dylan Thomas urges his father, "Do not go gentle into that good night ... Rage, rage against the dying of the light." 

Thomas’ poem is about light and darkness, life and death. It’s also about men acting in the face of inevitable change. “Wise men,” who know it is their time, do not go gentle. Nor do “good men,” saddened by the frailty of their deeds, go gentle. Understandably, “wild men,” who realize too late their fate, do not go gentle into that good night. Even “grave men” rage against the dying of the light. In the poem, Thomas prays that his father will likewise resist the inevitability of death with all his might. 

One wonders what Thomas would make of the men and women who serve in the Senate these days. They do not rage. They do not fight. They instead go gently into the night, to their own irrelevancy. The irony is that in doing so, senators consent to a situation that they have it in their power to change. As senators, they belong to a storied institution, the past members of which helped to write the course of history by their actions. Unlike the doomed men in Thomas' famous poem, senators can rage against the coming night. All they have to do is fight. 

That senators have the power to resist becoming irrelevant makes their present inaction in the face of that irrelevancy all the more perplexing. Take, for example, Sen. Jeff Flake, R-Ariz., who recently announced he would try to force Senate action on legislation, co-authored by Sen. Christopher Coons, D-Del., to protect special counsel Robert Mueller. Flake’s plan to do so was to ask unanimous consent to start a debate on his proposal. 

Predictably, Senate Majority Leader Mitch McConnell, R-Ky., objected to Flake’s request. In response, Flake has threatened to oppose efforts to confirm more of President Trump’s judicial nominees, a top priority for McConnell, until the majority leader drops his objection to beginning debate on the Mueller protection bill. Put simply, Flake wants a vote and hopes that delaying the confirmation process will give him leverage to persuade his colleagues that he should get one. 

While a similar effort failed to force action on trade legislation last summer, Flake appears to believe that his gambit will work this time around given the limited time remaining in the 115th Congress to confirm judges. 

Leverage is important. The Senate’s present dysfunction stems, in part, from the fact that its members have forgotten how to use it. But there are easier ways for Flake to force a vote on his proposal. Flake has the power to get what he wants. He doesn’t need McConnell’s permission to act. 

Specifically, Flake has two tactics at his disposal that he may use to force Senate action over McConnell's objections. If used correctly, each option gives him leverage to extract concessions in negotiations with the majority leader over when and how the Senate will ultimately deal with the Mueller protection bill. 

First, Flake may offer his proposal in amendment form when the Senate takes up must-pass legislation to fund the government next month. McConnell will surely try to prevent him from doing so. However, Flake can ignore McConnell's efforts to block his amendment and merely offer it anyway. This is because McConnell ultimately needs Flake's cooperation to prevent a floor vote on the proposal. 

That is, McConnell needs Flake to go gentle into that good night. 

Significantly, neither McConnell, nor anyone else for that matter, has the power to stop Flake from offering his amendment on the Senate floor. Flake can rage against his irrelevancy with all his might, but only if he chooses to do so. 

If Flake ignores McConnell's attempt to block his amendment and offers it anyway, the presiding officer will rule that the amendment is not in order according to the Senate's past practice — though not its standing rules. At that point, Flake can appeal the ruling and request a vote. Doing so will force his colleagues to take a position on a procedural question directly related to the Mueller protection legislation (i.e., should Flake’s amendment be made pending). 

Alternatively, Flake may move to proceed to his Mueller protection bill. While this tactic requires more steps than merely offering an amendment to legislation already under consideration, it nevertheless enables Flake to force a vote over McConnell’s objections. To work, Flake must first ensure that his proposal is on the Senate’s legislative calendar and thus eligible for floor consideration. Flake may then make a motion to proceed to its consideration. Under the Senate’s standing rules (and precedents) any senator may move to proceed to a measure. It is not only the majority leader’s prerogative. 

Motions to proceed are debatable. That means senators opposed to Flake’s effort may prevent a vote on it by filibustering it. Even so, there are two ways to force a vote over such objections once the motion to proceed is pending before the Senate (i.e., after Flake makes it). First, Flake may try to overcome a McConnell-led filibuster of his proposal by filing cloture on the motion to proceed. As with the motion to proceed, cloture motions can be made by any senator. Under Rule XXII, Flake only needs 15 other senators to join him in signing the cloture petition to set up a vote. 

Flake may also move to table (i.e., defeat) his own motion to proceed after making it. His doing so likely appears counter-productive. After all, isn't Flake trying to force action on the legislation? On closer inspection, motions to table offer Flake some advantages in this scenario. The most important benefit is that they are not debatable. 

Consequently, Flake can use a tabling motion to trigger an immediate vote. Since the tactic is designed to give Flake leverage in negotiations over when and how the Senate will consider his proposal, demonstrating that McConnell does not have the votes to table his motion to proceed is helpful. Of course, a majority of senators must vote not to table the motion for Flake to derive any leverage from the maneuver. 

Using these tactics, or threatening to use them, to force a vote on a Mueller protection bill is a better source of leverage than threatening to delay the confirmation process, because it relates directly to the issue on which Flake wants the Senate to act. In short, these tactics keep the debate focused on protecting Mueller instead of blocking judges. 

Moreover, vowing to oppose judicial nominations does not give Flake as much leverage as it appears. A quick review of the Senate’s roll-call vote record reveals that most judicial confirmation votes over the last two years have been bipartisan. Less than 16 percent were confirmed on a party-line vote. In contrast, almost 85 percent were approved on a bipartisan basis, many with overwhelming, even unanimous, support. Consequently, Flake needs help from another Republican as well as from every Senate Democrat for his threat to work. 

People concerned about congressional dysfunction should cheer Flake’s efforts, if for no other reason than to support a senator fighting to maintain his relevancy. While Flake may not be fighting with all his might, he is at least trying. That is more than can be said for most of his colleagues. 

The Senate’s decline is not inevitable. Senators have it in their power to resist the coming night. All they have to do is rage with all their might. 

Real Purpose of the Senate: To Check the Actions of the House

Real Purpose of the Senate: To Check the Actions of the House

Anticipating Trouble

Anticipating Trouble