WASHINGTON — Senate Republicans this week agreed to dramatically shorten the time allotted for debate on most presidential nominees, further eroding its purpose, as described by James Madison, to proceed with “more coolness, with more system, and with more wisdom” than the House of Representatives.
Scott McLean, a professor of politics at Quinnipiac University, says it is yet another sign of the hyper-partisan times driving Capitol Hill.
“The Senate is increasingly taking on similar characteristics of the House. It is more partisan, more ideological and Senate rules are not designed for that kind of environment. The rules are meant to prevent that from happening, and yet it is happening anyway,” McLean says.
Gary Rose, a professor of politics at Sacred Heart University, sees a danger in weakening filibuster and cloture rules that historically provided a brake on the legislative process that allows the minority party an opportunity to be heard.
“Of all places, the Senate should be the chamber for deliberation,” he says. “The whole purpose of the filibuster was to prevent a stampede.”
The Senate voted largely along party lines to reduce, from 30 hours to 2 hours, the time allowed for debate when cloture is invoked on most presidential nominees. It passed over the objections of all the Democrats and two Republicans — Mike Lee of Utah and Susan Collins of Maine.
Senate Majority Leader Mitch McConnell sought the change to speed the confirmation process complaining that Democrats were abusing the rule to deny President Donald Trump his nominees. Democrats opposed the rule change saying presidential nominees should not be rubber stamped by the Senate.
“Now we’ll spend less time debating the qualifications of these nominees than it takes to watch the average baseball game,” complains Senator Richard Blumenthal. “Unsatisfied with ramming through a record number of ideologically extreme nominees, the Republicans have now unilaterally changed the rules to further pack the courts with a slate of jurists who don’t represent the vast majority of Americans.”
Whether there are 30 or 2 hours of post-cloture debate can have an impact. Elliot Mincberg, a senior fellow at People for the American Way, points out that senators have changed their mind on nominees during the 30-hour debate time that Republicans voted to eliminate.
Two Trump judicial nominees — Thomas Farr and Ryan Bounds — overcame the cloture hurdle in 2018 but during the allotted 30 hours of debate found there was insufficient support among Republicans to get them confirmed. Rather than reject them directly, the Senate did not hold a confirmation vote.
“It’s very important to point out that these 30 hours that are provided for under long-standing Senate rules are critical in taking a good hard look at some of these Trump nominees,” Mincberg said, in an NPR interview.
Lee issued a statement saying the Senate shouldn’t break its own rules for a short-term gain that could have lasting effects.
“The Senate’s rules protect the rights of the American people by balancing the competing interests of majorities, minorities and individual senators,” Lee said. “They facilitate the compromise and accountability that are essential to the governing of a large, diverse nation. At this unusually divided moment in our history, Americans need the Senate to serve its deliberative function in our constitutional system.”
James Wallner of the R Street Institute says in a Roll Call podcast that as the Senate continues to erode its governing rules it becomes harder and harder for them to perform their primary function — to adjudicate the concerns of the citizens. And, their willingness to go down this road demonstrates their lack of interest in actually doing the job they were elected to do.
“You need rules to do that — to help regulate the process,” he says. “You are seeing now with this repeated (erosion of rules) no desire to adjudicate or debate.”
Senate’s Rule 22, which was adopted in 1917, required a two-thirds majority vote to invoke cloture — setting a time limit on further debate on the issue before the Senate. Initially, there were 100 hours of debate allowed — enough time for each senator to have an hour of time to speak. In 1975, the Senate changed the rule to reduce from 66 votes to 60 votes the majority needed to invoke cloture and in 1985 it reduced from 100 hours to 30 hours the post-cloture debate time.
Without cloture, any Senator has the right to speak on the floor for as long as they like – allowing for a filibuster where they can stall action indefinitely. In the first 50 years of the filibuster, it was used only 35 times.
A true filibuster — where a Senator continues to speak without relinquishing the floor — remains a rarity but the mere threat has a “profound and pervasive effect” on how the Senate operates, according to the non-partisan Congressional Research Service.
“In the face of a threatened filibuster, for example, the majority leader may decide not to call a bill up for floor consideration or may defer calling it up if there are other, equally important bills the Senate can consider and pass with less delay. Similarly, the prospect of a filibuster can persuade a bill’s proponents to accept changes in the bill that they do not support but that are necessary to prevent an actual filibuster,” CRS writes.
The most recent efforts to weaken Rule 22 began in 2013, when Democrats held the Senate majority. They got rid of the supermajority requirement for limiting debate on most nominees, including most federal judges, to overcome Republican obstruction to President Barack Obama’s nominees. When Senate Republicans returned to the majority with President Donald Trump in office, they changed the rule to require a simple majority for Supreme Court nominees — allowing for Neil M. Gorsuch’s confirmation.
Rose says the latest rule change should come as no surprise given how partisan Congress has become. While it may not threaten the Republic, both parties should be wary that what comes around goes around. “All of this can boomerang after the next election,” he says.
McLean says the Senate needs to decide whether they want to be the deliberative body or not. If they do want to retain their historic role as a brake on impulsive politics, he suggests they actually deliberate. Rather than shrink from the threat of filibusters, he says Senate leaders should call their bluff.
“I think they ought to actually stand in the Senate and continue talking while they have the floor in the traditional way. If Senators have to give up some of their fundraising time and cable television time you will see the filibuster happen less and less,” he says.