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Rule change empowers leaders to silence senators

Republicans in the Senate want to change the rules to speed up the confirmation process for presidential nominations. Yet their proposal goes much further. It empowers the majority and minority leaders to choose which senators get to speak on the floor in certain circumstances.

Background

Republicans accuse Democrats of forcing the maximum amount of time to pass after cloture is invoked on President Trump’s nominees before the Senate can vote to confirm them. Rule XXII caps post-cloture debate time at 30 hours. Roy Blunt, R-Mo., and James Lankford, R-Okla., have proposed lowering that cap to 2 hours for nominations to fill some executive-branch and judicial positions. Note: The Blunt-Lankford proposal does not lower the cap for Supreme Court, Circuit Court, or Cabinet-level nominees. If adopted, it would change how the Senate debates these nominees after cloture is invoked. Specifically, section 1(b) of the resolution stipulates that for nominations to fill positions not subject to the 2-hour cap, “the period of post-cloture consideration shall be equally divided between the majority leader and the minority leader.” While this may sound innocuous, the provision empowers the two leaders to prevent senators from speaking on the Senate floor.

Who gets to speak?

Rule XIX requires the Senate’s Presiding Officer to recognize senators when they seek recognition.

“When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him.”

When two or more senators seek recognition at the same time, the Senate’s precedents stipulate that “priority of recognition shall be accorded the Majority Leader and Minority Leader, the majority [bill] manager, and the minority [bill] manager, in that order. ”The majority leader was first granted priority of recognition in 1937 as a result of a decision made by Vice President John Nance Garner (“Cactus Jack”). While both Democratic and Republican majority leaders have used their preferential recognition to periodically block votes on undesirable amendments in recent years, senators have not understood the 82-year-old practice to limit their ability to speak on the Senate floor.

Limiting who gets to speak

The Senate’s precedents also stipulate,

“Every Senator, in due time, has a right to recognition before the Senate acts on an issue unless by unanimous consent a limitation of debate is entered into which precludes him from such right.”

As this precedent suggests, senators suspend Rule XIX by unanimous consent periodically to place controls on debate time. When they do so, they usually divide the time allocated for debate between a proponent and opponent of the underlying question. After a senator is given control of debate time, he or she is empowered to tell the Presiding Officer which senators to recognize. Senators who control time do so when they yield to others when they seek recognition. If the senator in control of time chooses not to yield to another senator, the latter is not able to speak. According to precedent,

“Under a unanimous consent agreement which limits and assigns control of time, no Senator is entitled to be recognized and engage in debate unless yielded to by one of the Senators controlling time.”

While this procedural arrangement raises the possibility that a senator may be prevented from speaking on the floor, it also requires unanimous consent before it can take effect. Therefore, senators may defend their ability to speak by objecting to the request for unanimous consent.

Still, senators do not always object. This is because controlling time in this way is designed to ensure that senators on one side of a debate do not use up all of the available time before senators on the other side can speak. The procedural arrangement thus safeguards the ability of rank-and-file senators to speak on the floor.

Blunt-Lankford proposal empowers Senate leaders

By giving the majority and minority leaders control of post-cloture debate time, the Blunt-Lankford proposal empowers Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-NY, to prevent senators from speaking on the floor during a debate on a presidential nomination if they so choose.

Rule XXII already includes provisions to ensure that senators are able to speak after cloture has been invoked. While this caps post-cloture debate time at a maximum of 30 hours, it stipulates that “no senator shall be entitled to speak in all more than one hour” during that period. Moreover, it guarantees senators who want to speak, but were unable to do so in the allotted time, 10 minutes before a nominee’s final confirmation vote.

The Blunt-Lankford resolution would change all of this. Specifically, it authorizes McConnell and Schumer to parcel out debate time to senators of their choosing and, by extension, empowers them to prevent senators with whom they disagree from speaking on the Senate floor. The resolution also allows them to do away with debate on these nominees by yielding back the time under their control.

If Republicans successfully change the rules by adopting the Blunt-Lankford resolution, they will have made it possible that a senator may not be allowed to speak on important presidential nominees.

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Topics: Legislative Procedure
James Wallner
James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group t...