The ‘World’s Greatest Deliberative Body’? Yeah, Right.
(Editor's Note: This piece first appeared in The Bulwark on March 15, 2019.)
It’s hard to imagine the Senate being any more dysfunctional than it already is. And yet here we are. Reports indicate that Republicans, frustrated by how long it takes to confirm presidential nominations, are threatening to change the rules to make it harder for all senators to delay the process. But instead of fixing the process, their proposed plan will make things even worse in the upper chamber. Specifically, it will reduce senators’ ability to review presidential nominations while empowering Mitch McConnell and Chuck Schumer to decide who gets to speak on the Senate floor. Breaking the rules to pass the plan will also make it easier for future majorities to use the nuclear option to eliminate other rules that periodically frustrate them like the legislative filibuster.
The proposal, authored by Roy Blunt of Missouri and James Lankford of Oklahoma aims to make it harder for senators to delay the confirmation process after the Senate has invoked cloture on a nominee but before a final vote. Rule XXII (i.e., the cloture rule) currently limits post-cloture debate time to no more than 30 hours and stipulates that “no senator shall be entitled to speak in all more than one hour” during that period. The Blunt-Lankford proposal would cap that period at two hours for nominations to fill some executive-branch and judicial positions. The lower cap would not apply to Supreme Court, Circuit Court, or Cabinet-level nominees. However, the proposal stipulates that for nominations to fill those positions “the period of post-cloture consideration shall be equally divided between the majority leader and the minority leader.”
Changing the Senate’s rules to facilitate the confirmation of presidential nominations subject to the two-hour cap limits significantly the ability of senators to express their concerns about a nominee if they do not serve on the relevant committee of jurisdiction or in leadership. Under current practice, the majority has an incentive to end debate preemptively thanks to Democrats using 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” and Republicans using it in 2017 to lower it for Supreme Court nominees. Consequently, today’s majorities are less likely to allow meaningful debate to occur on a nominee before cloture is invoked if doing so decreases the chances that he or she will be confirmed.
And yet, Rule XXII at least guarantees senators time after cloture has been invoked to raise their concerns. By reducing that time to two hours, the Blunt-Lankford proposal effectively eliminates the ability of rank-and-file senators to participate in the confirmation process.
The proposal also authorizes McConnell and Schumer to parcel out debate time to senators of their choosing and, by extension, empowers them to prevent senators with whom they disagree from speaking on the Senate floor. It also allows them to do away with debate altogether by yielding back the time under their control.
Passing the Blunt-Lankford resolution will also have unintended consequences for how the Senate considers legislation. The nuclear option is intoxicating to senators when they are in the majority. By its very nature, its use undermines the Senate’s rules and, therefore, weakens the legislative filibuster. If Republicans go nuclear in the coming weeks, it would be the third time since 2013 that a majority has changed the rules by breaking them and the second time since 2017. This suggests that Senate majorities use the nuclear option more frequently as they grow accustomed to its use. Its repeated use also makes it harder for senators to explain to their constituents why they are unable to overcome a filibuster and pass meaningful legislation.
More broadly, the Blunt-Lankford proposal reflects a growing unwillingness on the part of all senators to tolerate dissenting views when it is inconvenient for them to do so. Routine practices like bypassing committees, filling the amendment tree, and filing cloture preemptively on the first day of debate (before a filibuster can occur) demonstrate that both parties are willing to ignore the rules of the Senate whenever they get in the way. Senators today see the rules as a means to an end rather than as an essential mechanism allowing them to form reliable expectations about the future. That, in turn, makes it less likely that they will compromise in the present. This dynamic is why post-cloture debate time is even an issue today. Republicans used it to delay the confirmation process in 2013 after Democrats nuked the filibuster. And Democrats are likewise using it to delay the process after Republicans nuked the filibuster in 2017.
Republicans may have the votes to force the Blunt-Lankford proposal through the Senate in the coming weeks. However, recent experience with the maneuver suggests that their doing so will not fix the confirmation process. Instead, their actions risk making it even worse.