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Ed Whelan of National Review on Monday published a two-part rebuttal to my argument against the Senate’s effort to nuke their post-cloture 30-hour rule. The Senate is scheduled to start that very process Tuesday afternoon.
Part one of Whelan’s argument focuses exclusively on whether or not the Senate has the right to change its rules, or, as it is about to do, create a precedent in violation of those rules. I refer you to Twitter for the bulk of my rebuttal to part one. Suffice to say, nowhere in my original piece do I dispute the notion that the Constitution grants the Senate affirmative authority over its rules. The issue is not one of constitutionality, but rather, one of prudence.
I assert that it is unwise, for the reasons outlined in my original piece and in the Twitter thread. Whelan seems to suggest that because it is constitutional it, therefore, should be done. He also uses procedural examples from Senate expert Marty Gold, which basically represent an unclear and apples-to-oranges comparison in this case. But again, I refer you to the thread, which remains un-rebutted by Whelan.
Whelan and I come at this from two fundamentally different viewpoints. Whelan is concerned with outcomes—in this instance, confirming as many judicial nominations as possible. I am concerned with long-term consequences; chief among them the Senate’s ability to protect the rights of those with minority viewpoints, and to act as a check on an unruly majority and an overly empowered executive.
I will take each of his assertions one at a time.
1. A vote cannot be called during the post-cloture 30 hours because, after speaking, each senator returns the Senate to a quorum call, which prevents the presiding officer from calling a vote.
This is a fundamental misunderstanding of how the Senate operates. Quorum calls technically exist to summon senators to the floor to address pending business. Recall the scene in Frank Capra’s “Mr. Smith Goes to Washington” where Senator Jefferson Smith, frustrated that nobody is in the chamber to hear his speech, asks for a quorum call to force all senators to return to the chamber.
The modern Senate uses quorum calls to filibuster action on the Senate floor. To understand how this works, consider there are only three things that happen on the Senate floor: a speech, a quorum call, and a vote. Thus, when senators finish speaking, traditionally they “suggest the absence of a quorum” to return the Senate to stasis. If they did not, and no other senator is seeking recognition, the Senate immediately could move a vote on the pending business. (I’ve written more about quorum calls here.)
As to Whelan’s specific objection, it is easily overcome. The last senator to speak simply does not return the Senate to a quorum call. The majority leader then summons a live quorum to the floor and moves to the vote. (I’ve also written more about how this would work here.)
Moreover, there is the technical point that, post-cloture, only one quorum call is in order. Further quorum calls are considered dilatory. So, Whelan’s point that each senator returning the Senate to a quorum call blocks the Senate moving to a vote is technically incorrect on that point as well.
Hence, when there are no longer any senators seeking recognition, the Leader calls a live quorum. Senators gather. A vote is held.
2. If my argument is that senators are lazy, then I should support the nuclear option to reduce 30 hours of debate to two.
This is only true if a) I am exclusively concerned with outcomes, that is, confirming as many judges as is humanly possible (I’m not; I’m more concerned with consequences) and b) if I thought reducing hours of debate would actually speed up confirmation (I don’t).
Senators are indeed lazy, as I lay out in my original piece. The fact that they’d rather diminish the integrity of the Senate’s rules by nuking them instead of using them is a case in point.
However, the proposed rules change, Senate Resolution 50, would simply gag senators without speeding anything up. Its practical effect will be to codify the Senate’s laziness.
Whelan claims that the Senate resolution would speed up confirmations for “most” nominations by reducing the 30 hours to two hours.
But the proposal leaves the 30 hours in place for Supreme Court nominations, circuit court judges, and nominees to boards like the Federal Reserve. The proposal then divides that time equally between the majority and the minority (each get 15 hours).
Ironically, this actually locks in longer consideration of these nominees than currently exists. Under existing rules, 15 hours of debate takes 15 different senators (and fewer than 15 if not enough senators show up to debate). Under Senate Resolution 50, all 15 hours have to run, regardless of who shows up to debate, assuming the Democrats do not yield back time (and, after the GOP goes nuclear, why would they?).
In other words, existing rules allow the 30 hours to be shortened if properly exercised. The 30 hours under existing rules represent a ceiling. Senate Resolution 50, for the nominations that are exempt from the rules change, actually locks in 30 hours as the floor, meaning they must be run regardless of whether or not they are even used.
There is also the small fact that the Senate still only works 2.5 days a week, and that is unlikely to change, regardless of what the Senate does to its rules. (The 2.5 day work week may be the one de facto rule of the Senate that is untouchable.)
3. Whelan cannot “make heads or tails” of my argument that Trump’s political appointees will not be as easily confirmed.
Senate Resolution 50 shortens the 30 hours for district judges and sub-Cabinet nominations. Most of these confirmations are processed right now in larger packages, by unanimous consent. Last Congress, the Senate confirmed 714 individual nominations (this number excludes military promotions), of which 182 were done by roll call votes. Critically, 532 nominations were confirmed by voice vote or unanimous consent.
That is, the Senate last Congress confirmed most of their nominees via consent.
If the 30-hours are nuked, it seems reasonable to conclude that Democrats will withhold any consent for these nominations, requiring each of them to processed individually on the floor.
As Whelan points out, there are thousands of nominees, particularly at the lower level. Without these giant consent packages, Senate Republicans would need to prioritize nominations for floor time. If given the option between a Trump political appointee who will serve for the next two years, or a judge who will have a lifetime appointment, it seems obvious which one is going to get floor time, and which one is not.
4. Finally, the legislative filibuster. I argue that normalizing nuclear behavior on the judicial filibuster puts the legislative filibuster at risk. Whelan calls this “speculative” and asserts that judicial filibusters and legislative filibusters are totally separate and the state of one does not, and should not, impact the state of the other.
This gets to the crux of our disagreement. Whelan is concerned solely with outcomes—in this case, confirming as many judicial nominees as possible. He does not appear to give any consideration to what happens to minority rights in the Senate as a result.
I would argue that the last point—the state of minority rights in the Senate—is the essential one. This is especially true for conservatives, of which Whelan is one. Conservatives are always in the minority, even when Republicans are in the majority.
The Senate is distinct from the House in that its rules empower a robust minority. Dissent in the Senate—be it from the opposing party, or one or two members who disagree with their majority—is a high bar to overcome in the upper chamber. The Framers designed it that way, as a means of checking a rowdy majority (otherwise known as the House) and standing up against too powerful an executive.
Republicans have used these rights just as much as Democrats. Senator Cory Gardner (R-Colo.) withheld consent on Department of Justice nominees to force a conversation with Attorney General Jeff Sessions over marijuana laws. Senator Mike Lee (R-Utah) used his rights to make a lonely, but ultimately successful, quest to oppose the nomination of Chai Feldblum to the Equal Employment Opportunity Commission.
Under the contemplated rules change, most of Gardner’s nominees would be confirmed after two hours. Lee could have been blocked from speaking on the Chai Feldblum nomination if the majority leader yielded back all time (Senate Resolution 50 allows the leaders to control the post-cloture debate time).
Minority rights are central to the Senate regardless of who is in power. But, for Republicans, minority rights become even more important when they are in the minority. (And again, conservatives are always in the minority.)
Ultimately, the issue we should be concerned with here is less about the judicial or legislative filibuster. It’s more about using nuclear tactics on Senate rules. Once the Senate normalizes going nuclear on its rules as a practice, this will then naturally applied to rules of any kind, including rules that govern legislation.
It’s already happening. This isn’t a perfectly correlated example, but it’s one worth noting. Last month, Majority Leader Mitch McConnell (R-Ky.) created a new precedent on the War Powers Act to prevent Republican senators from offering amendments. In this particular instance, McConnell used the opening of an ambiguous statute to gag the amendment process. In other words, he created a precedent to further constrain the Senate as it relates to the legislative process.
The more the Senate normalizes a practice of nuking every rule in its path, or creating a precedent to curtail legislative options, it’s only a matter of time before the Senate’s rules become even more meaningless as the Senate descends to a pseudo-majoritarian version of the House. So much for the “world’s greatest deliberative body.”
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Photo credit: Andrew Harrer/Bloomberg