Overcoming Democrat Obstruction in the Senate

January 7th, 2019

The past two years have seen record obstruction from Senate Democrats against the confirmations of President Trump’s nominees. Democrats continue to demand cloture votes — the 60 vote requirement — on nearly all nominees, even those that a majority of the Senate does not oppose.

Invoking cloture adds an extra day to the consideration of every nominee, in the form of thirty hours of extra debate time. Under the Senate’s rules, Democrats could be forced to talk during all thirty hours, if they want to use them. However, Senate Republicans have so far been loath to require it.

Senate Democrats continue to obstruct President Trump’s nominees, largely because they have been able to do so without consequence. It follows that Democrats will continue to obstruct as long as they can do so for free. However, if Senate Republicans responded to Democrats with measures designed to enhance the costs of obstruction, they might find they are able to overcome it with much greater ease.

As former Senate majority leader Trent Lott (R-Miss.) once observed, “there are only two rules in the U.S. Senate — exhaustion and unanimous consent. And the second only applies when the first has been reached.” In other words, the more physical and procedural consequences Democrats face as a result of their obstruction, the less likely they are to engage in it.

What follows are three strategies for leveraging the existing rules of the Senate to apply procedural consequences to Democrat obstruction.

  • Stay in session beyond 2.5 days a week.

The McConnell Senate is notorious for its short work weeks, which begin Monday at 5:30p and end by noon on Thursday. Forcing the Senate to stay in session makes things harder on members, and thus, increases the leverage that Republicans have over obstructionist tactics. Former Majority Leader Harry Reid frequently used this tactic to great success. He kept the 2009 Senate in late on Thursday evenings, sometimes until 10:30 or 11p, to force filibustering senators concede or be personally responsible for keeping their colleagues in DC. He also kept the Senate in on several weekends toward the end of the year, in an effort to beat back GOP opposition to Obamacare. Ultimately, the 2009-2010 Senate spent nearly 2,500 hours in session. Contrast that to the McConnell Senate of 2015-2016, which only worked 1,850 hours

  • Enforce the one-hour rule post cloture (Rule XXII)

Rule XXII is clear that the allotted 30 hours of post-cloture debate time represent a maximum, not a floor (or, 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. Invoking the plain text of Rule XXII against obstructionist Democrats would look 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. If only five or six Democrats were willing to do that, rather than thirty, Leader McConnell could call a live quorum, bring senators to the floor, and move to a confirmation vote well before all thirty hours were expended.

  • Limit the Senate’s use of endless quorum calls, and enhance the use of live quorum calls.

There are only three things ever happening on the Senate floor: a speech, a vote, or a quorum call. Unfortunately, the Senate spends the majority of its time in endless “fake” quorum calls, designed to keep the floor locked into inaction, rather than processing the pending question. In the absence of a quorum call or any senator seeking recognition, the Senate will immediately vote on the pending nomination. Instead of wasting time in fake quorum calls, Leader McConnell could be forcing senators to the floor and forcing them to actively filibuster the pending question. If they do not, he could move to it immediately.