The Senate’s arcane rules have never been more popular.
The Senate’s 44 standing rules, usually obscured by their more popular precedents or made irrelevant by routine waivers, are suddenly getting some love.
The rules haven’t changed or made a sudden showy reappearance on C-SPAN. In fact, it’s the opposite. Conservatives are getting irritated with the Senate Republicans refusal to use the rules against obstructionist Democrats, or even acknowledge that they can.
As the Daily Caller reported this week, Senate Republicans are allowing Democrats to consistently drag out debate time on each of President Trump’s nominees — without any consequence.
As it relates to nominations, the filibuster has been eliminated. So, what’s the excuse? If you listen to Senate leadership, the issue is Democrat demands to run the full 30 hours of post-cloture time. Specifically, this means that after the Senate votes to end debate on a nomination, Democrats are laying claim to the 30 hours of debate allowed under the rules before a final vote is taken.
But for a party that’s claiming debate time, there is very little debate actually happening. That’s because Republican leadership is simply allowing Democrats to have the time for free, not requiring them to speak.
Could Democrats be forced to speak? Absolutely. Moreover, in doing so, Senate Majority Leader Mitch McConnell (R-Ky.) could whittle that 30 hours down to 20, or 10, or two.
The Senate rules allow for this. The text of paragraph two in Rule XXII is clear — there is to be “no more than” 30 hours of debate time after the Senate invokes cloture (that is, ends debate). Critically, that 30 hours represents a maximum, not a right.
Rule XXII also stipulates that, once cloture is invoked, each senator may only speak twice and for no more than a total of one hour.
If McConnell was invoking the full terms of Rule XXII against obstructionist Democrats, it would look something like this:
A Democrat senator would come to the floor to speak against a nomination after cloture has been invoked. He or she would be taken off their feet — that is, made ineligible to speak for any more time on the nomination — after one hour. To keep the time running, another senator would have to come to the floor to speak. Then another, then another, for a total of thirty Democrat senators.
What if, after five or six hours of speeches, no more senators could be found to speak? At that point, Leader McConnell could call a live quorum, bring senators to the floor, and move to a confirmation vote well before all 30 hours were expended.
It’s unclear why the Senate Republicans have not enforced these rules against a party so deliberately employing a stall tactic.
Certainly, Democrats would be within their rights to argue that controversial nominees deserve more debate time. But this argument falls flat when one actually considers the margins of some of these votes. In the last two months, cloture was invoked overwhelmingly on a handful of nominees, indicating that they were hardly controversial. Yet Democrats demanded — and were given — all 30 hours of post-cloture debate time, and not forced to use it.
The policy consequences of failing to confirm these nominees are mounting. Russ Vought, now deputy director at the Office of Management and Budget was just confirmed last week, after waiting over a year. Likewise, the number two officers at the Department of Labor, the Environmental Protection Agency, the Department of Education, and the Office of Personnel Management are still unconfirmed. So are the chiefs for the criminal and civil rights divisions at the Department of Justice.
These are the positions that are supposed to oversee the president’s agenda at various agencies. As it stands, without political supervision, career bureaucrats are consistently undermining the president’s directives. The Senate’s laziness is directly obfuscating the president’s ability to implement his agenda.
There are electoral consequences as well. As I’ve written, the Senate Republicans’ 2.5-day workweek allows vulnerable Democrats four extra days on the campaign trail. In a midterm cycle where 25 Democrats are seeking re-election but only five Republicans are (only one of whom is truly vulnerable) this is a breathtakingly valuable gift to Democrats.
The Senate rules allow for obstruction, and an empowered minority is one of the key criteria that differentiates the Senate from the House. But the Senate rules also allow the majority to fight back, to raise the cost of obstruction and make an obstinate minority think twice about employing such tactics.
This Republican majority is allowing Democrats to delay confirmation of their party’s nominees without cost, or so much as a blink of an eye. The Senate majority knows the rules. Their failure to engage them threatens not only the president’s agenda, but the fate of the Republican majority in November.
This post was originally published on March 6, 2018 in The Hill.