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The ‘World’s Greatest Deliberative Body’? Yeah, right.

It’s hard to imagine the Senate being any more dysfunctional than it already is. And yet here we are. Reports indicate that Republicans, frustrated by how long it takes to confirm presidential nominations, are threatening to change the rules to make it harder for all senators to delay the process. But instead of fixing the process, their proposed plan will make things even worse in the upper chamber. Specifically, it will reduce senators’ ability to review presidential nominations while empowering Mitch McConnell and Chuck Schumer to decide who gets to speak on the Senate floor. Breaking the rules to pass the plan will also make it easier for future majorities to use the nuclear option to eliminate other rules that periodically frustrate them like the legislative filibuster.

The proposal, authored by Roy Blunt of Missouri and James Lankford of Oklahoma aims to make it harder for senators to delay the confirmation process after the Senate has invoked cloture on a nominee but before a final vote. Rule XXII (i.e., the cloture rule) currently limits post-cloture debate time to no more than 30 hours and stipulates that “no senator shall be entitled to speak in all more than one hour” during that period. The Blunt-Lankford proposal would cap that period at two hours for nominations to fill some executive-branch and judicial positions. The lower cap would not apply to Supreme Court, Circuit Court, or Cabinet-level nominees. However, the proposal stipulates that for nominations to fill those positions “the period of post-cloture consideration shall be equally divided between the majority leader and the minority leader.”

Changing the Senate’s rules to facilitate the confirmation of presidential nominations subject to the two-hour cap limits significantly the ability of senators to express their concerns about a nominee if they do not serve on the relevant committee of jurisdiction or in leadership. Under current practice, the majority has an incentive to end debate preemptively thanks to Democrats using the nuclear option in 2013 to lower the threshold for invoking cloture on all nominations (other than for the Supreme Court) from three-fifths of senators to a “majority vote” and Republicans using it in 2017 to lower it for Supreme Court nominees. Consequently, today’s majorities are less likely to allow meaningful debate to occur on a nominee before cloture is invoked if doing so decreases the chances that he or she will be confirmed.

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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...