Republicans propose using standing order to nuke Senate rules

Senate Republicans are threatening to go nuclear if Democrats do not support a deal to lower the maximum amount of debate time that presidential nominations can receive after cloture is invoked. The chairman of the Rules Committee, Roy Blunt, R-Mo., announced yesterday that his panel will consider a proposal to change the rules before the end of March. Blunt warned his Democratic colleagues that the Republican majority would force the issue if they tried to block the plan, stating, “I think this is something we will deal with one way or another.” John Barrasso, W-Wy., acknowledged that if Democrats refused to support the change, “then we’re going to have to look at other alternatives.” Barrasso added that one of those alternatives was the nuclear option.

Under Rule XXII (i.e., the cloture rule) once the Senate votes to end debate on a nomination, the nominee remains before the Senate “to the exclusion of all other business until disposed of.” The rule limits post-cloture debate time to no more than thirty hours. It also stipulates that “no senator shall be entitled to speak in all more than one hour on … the matter pending before the Senate” during that period. Notably, the rule does not require post-cloture time to last for thirty hours; a confirmation vote can occur earlier if no senator wants to speak and is able to do so.

According to reports, Republicans plan to use a standing order to lower the maximum amount of post-cloture time for nominees from thirty hours to eight hours. (It would not apply to Supreme Court, Circuit Court, or cabinet-level nominees.) A standing order is adopted on a simple-majority vote of the full Senate and is permanent unless a sunset date is explicitly stated in it. Republicans believe that they will need the support of seven Democrats to overcome a potential filibuster on the Senate floor. Rule XXII requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate,” including standing orders.

Yet the way in which Republicans’ propose to change Rule XXII would itself violate that rule if only sixty senators vote to end a filibuster of the standing order. This is because Rule XXII makes an exception for “a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting…” Consequently, invoking cloture on any proposal to change the Senate’s rules, including a standing order, requires a two-thirds majority (usually sixty-seven), not the three-fifths majority (usually sixty) as claimed by Republicans.

By distinguishing their proposal from the nuclear option, Republicans are paradoxically claiming that it does not change the rules, and thus should be treated differently, while making a case publicly for why it is necessary to change the rules. Technically speaking, the standing order, if adopted, would not amend the text of Rule XXII. That rule would still authorize up to thirty hours of post-cloture debate time on all presidential nominees. The standing order would instead create a new precedent signaling that the Senate’s Republicans and seven of its Democrats have chosen to ignore Rule XXII with regard to post-cloture debate time moving forward.

Approving a standing order to lower post-cloture time for most nominees by first invoking cloture on it with less than two-thirds of those senators who are present and voting is therefore synonymous with the nuclear option as threatened by Blunt and Barrasso. The nuclear option is defined as any time the Senate acts to create a new precedent by explicitly violating, changing, or otherwise ignoring its Standing Rules.