The Senate’s ability to confirm presidential nominations and pass legislation on a majoritarian basis during the 128-year period before it adopted the cloture rule to end debate in 1917 suggests that Democrats are not solely responsible for slowing down the confirmation process. By extension, Republicans (or any Senate majority) can speed up the confirmation process by using the Senate’s existing rules to force Democrats to obstruct.

How the Strategy Works

The majority would first move to proceed to consideration of a nominee. Motions to proceed to executive session to consider a particular nomination are not debatable. Senate consideration of a presidential nomination can therefore begin as soon as any senator makes a motion to proceed. Unlike with legislation, the minority cannot filibuster the motion to proceed to the nominee’s consideration. The majority would then keep the Senate in the same legislative day by recessing instead of adjourning and would strictly enforce Rule XIX’s two-speech limitation on any filibustering senators. Majority-party senators could also refrain from speaking on the Senate floor and refrain from suggesting the absence of a quorum to put added pressure on the minority to sustain the filibuster.

What constitutes a speech under Rule XIX?

According to Senate precedents, “The two speech rule requires not a mechanical test, but the application of the rule of reason.” Precedents define floor actions that do not constitute speeches for the purposes of the two-speech rule. Specifically, the Senate determined by vote in 1986 that the following procedural motions and requests do not constitute speeches for the purposes of enforcing the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for the reading of amendments, and requests for division of amendments. Senate has also determined by precedent that the two-speech rule does not apply when the Senate is operating under cloture.

The minority could make procedural motions in an effort to increase the burden on the majority for keeping the Senate in session. For example, if a filibustering senator successfully moved to adjourn, a new legislative day would be created, and senators’  allotment of two speeches under Rule XIX would be refreshed. Yet making procedural motions would also terminate the filibustering senator’s speech, thus hastening the moment at which the minority would have exhausted its ability to delay confirmation by filibustering via debate. While the Senate has determined in the past that some motions can be made even when a Senator has exhausted both speeches, a majority can easily dispose of them using a non-debatable motion to table.

The minority may also suggest the absence of a quorum in order to gain a temporary reprieve from speaking. However, the majority can prevent the filibustering senators from delaying a vote on confirmation by immediately producing a quorum.

The majority may enforce the requirement that debate be germane to the question before the Senate at the beginning of each day. Specifically, all debate must be germane to the specific question pending before the Senate for the first three hours of session after the Senate convenes. Paragraph 1(b) of Rule XIX stipulates, “At the conclusion of the morning hour at the beginning of a new legislative day or after the unfinished business or any pending business has first been laid before the Senate on any calendar day, and until after the duration of three hours of actual session after such business is laid down except as determined to the contrary by unanimous consent or on motion without debate, all debate shall be germane and confined to the specific question then pending before the Senate.”

Enforcing the germane-debate requirement thus forces filibustering senators to debate the nominee under consideration. They would be prohibited from using their floor time during  the first three hours of session to discuss unrelated issues. On a point of order, the Presiding Officer may call the filibustering senator to order and force the member to take his or her seat. At that point, the member will have thus used one of his or her two speeches. While the Presiding Officer’s ruling is subject to appeal, the appeal can be tabled by a simple-majority vote.

Senate precedents stipulate, “When the time arrives for a cloture vote, a Senator who has the floor will lose the floor and that Senator is not entitled to the floor after the cloture vote.”

Finally, the majority can further shorten the time that filibustering senators may delay confirmation by increasing the burden associated with obstruction by using an additional tool provided in the existing Standing Rules in conjunction with Rule XIX’s two-speech limitation. That is, the majority may file cloture on the contested nomination at the end of each calendar day. Doing so guarantees that a minimum of two speeches will be used each calendar day. Doing so has the effect of interrupting the filibustering senator when cloture ripens (i.e., when a cloture motion is eligible to receive a vote) one hour after the Senate convenes. This tactic effectively limits the first speech of the day to one hour and requires filibustering senators to use another speech after the cloture vote. Filing cloture each day thus reduces the time needed for a strategy based on Rule XIX’s two-speech limitation to work.

For example, assume that 10 senators are willing to filibuster the nominee and that each senator is physically capable of giving two five-hour speeches. The time needed to overcome the filibuster in this example totals 100 hours (10 senators at 10 hours each). Now assume that 10 senators are willing to filibuster the nominee, that each senator is capable of giving two five-hour speeches, and that cloture is filed on the motion at the end of each day. The time now needed to overcome the filibuster is 60 hours (10 senators at six hours each).

Increasing the Costs of Obstruction

Strictly enforcing the two-speech rule requires every individual Democrat to demonstrate their commitment to filibustering presidential nominations (or adjournment resolutions). Each member will have to hold the Senate floor for a prolonged period in order to wait out the Republicans. The only way for the minority to prevail in the parliamentary showdown is for the majority to relent and cease its efforts to overcome the filibuster.  

The minority leadership will be forced to turn to less-interested/disinterested senators to sustain the filibuster once the most committed obstructionists have used their allotment of speeches under Rule XIX. There are two reasons why such calls from the leadership for active participation in the filibuster by rank-and-file members will be likely to precipitate internal dissent within the minority, thereby making it harder for Democrats to sustain the filibuster. 

First, the majority’s determination to prevail will become increasingly clear as the minority’s committed obstructionists begin losing their ability to speak on the Senate floor. The inevitability of defeat is likely to diminish the willingness of less-interested/disinterested senators to sustain the filibuster due to the effort’s apparent futility. 

Second, the novelty of the parliamentary showdown will likely attract considerable media attention. This attention will only increase as the committed obstructionists lose their ability to filibuster and less-interested/disinterested Democrats are called upon to sustain the effort. Increased media scrutiny is thus likely to increase the costs of filibustering for the individual Democrats least willing to bear them.

It is important to note that strictly enforcing Rule XIX’s two-speech limitation in the manner detailed here imposes costs on rank-and-file senators in the majority party as well.  It requires them to quickly produce a quorum in order to shorten the time necessary for the strategy to work. Additionally, the majority must ensure that it can produce a simple majority when the Senate is in session in order to table any procedural motions that the minority may make.

Nevertheless, these costs can be managed in order to reduce the extent to which they would disrupt senators’ schedules. While recorded votes technically last for 15 minutes, majority leaders from both parties have routinely kept a vote open for longer when extra time was needed to allow a member to vote. Given this, the majority should be able to produce a simple majority of senators on the floor to table any superfluous motions made by the minority with only minor inconveniences.

Forcing votes on superfluous procedural motions also inconveniences minority-party senators who are not participating in the filibuster at that particular moment. As a consequence, any effort to exhaust the majority by making such motions will also impose costs on the minority. These costs are likely to exacerbate tensions within the minority between senators who are committed obstructionists and those who are less enthusiastic about participating in the filibuster. The recorded vote data on the confirmation process in the 115th and 116th congresses suggests that a considerable number of Democrats are not likely to become committed obstructionists if Republicans employ this strategy to confirm President Trump’s executive and judicial nominations.

The majority can also determine how long the Senate will remain in session each day. Late-night and weekend sessions are not required to eventually overcome the filibuster. The majority may move to recess at the end of each calendar day if it so chooses.

The costs of these requirements for individual Republicans should be weighed against the inevitability of victory and the desire to act on the underlying question. In short, the only way the minority may prevent an up-or-down confirmation vote by a simple-majority vote is for it to force superfluous recorded votes until such time as the majority breaks. However, the minority is unlikely to be able to sustain forcing superfluous votes ad infinitum in the face of a majority determined not to break. Moreover, it is likely that the strategy will only need to be implemented once. The minority is unlikely to bear the costs associated with filibustering presidential nominations once it realizes that the majority is determined to prevail and that, as a consequence, defeat is inevitable. 

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Topics: Legislative Procedure