Frustrated by how long it takes to confirm President Trump’s nominees, Republicans are accusing Democrats of dragging out unnecessarily the time permitted under the rules after the Senate has invoked cloture on a nominee but before a final confirmation vote. Rule XXII (i.e., the cloture rule) caps so-called post-cloture time at thirty hours. Republicans want to pass a resolution, authored by Roy Blunt, R-Mo., and James Lankford, R-Okla., that would lower that cap to just two hours for all presidential nominations other than those to fill positions on the Supreme Court, Circuit Court, or in the Cabinet, as well as in a number of government agencies, ranging from the Equal Employment Opportunity Commission and the National Labor Relations Board to the Federal Reserve.

Republicans have threatened to use the nuclear option if Democrats do not support their effort to change the rules. The nuclear option refers to a procedural maneuver that empowers a Senate majority to ignore, circumvent, or change the rules with a simple majority vote in direct violation of those rules. For example, Rule XXII requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to invoke cloture on any “measure, motion, or other matter pending before the Senate.” However, Democrats used the nuclear option in 2013 to reduce the number of votes needed to invoke cloture on all nominations (other than for the Supreme Court) from three-fifths of senators (usually 60) to a simple majority (usually 51). Republicans followed suit in 2017, using the nuclear option to reduce the number of votes needed to invoke cloture on Supreme Court nominations to a simple majority.

Nuclear options

There are three ways Republicans can use the nuclear option to circumvent the Senate’s rules in this instance. First, they can use the maneuver to force the Blunt-Lankford resolution through the Senate over Democrats’ objections. Second, Republicans can invoke cloture on the Blunt-Lankford resolution with 60 or more votes but less than the 67 required by Rule XXII to end debate on a measure to change the Senate’s rules. Third, Republicans can try to implement parts of the Blunt-Lankford resolution in a piecemeal fashion by making points of order during post-cloture consideration of presidential nominations.

Going nuclear to circumvent filibuster

While the Blunt-Lankford resolution would have no effect on how the Senate considers legislation, passing it over Democrats’ objections will nevertheless require Republicans to abolish the legislative filibuster to prevail. Hypothetically, Democrats could filibuster either the motion to begin debate on the Blunt-Lankford resolution or the proposal itself. In response, McConnell would file cloture on the resolution, thereby setting up a showdown over the rules. Assuming that the Senate fails to get 60 votes to invoke cloture on the resolution, McConnell would then make a point of order that the vote on cloture under Rule XXII for such resolutions is by majority vote. The Senate’s Presiding Officer would rule against McConnell’s point of order because Rule XXII plainly requires a three-fifths majority to invoke cloture. McConnell would then appeal and 51 (or more) Republicans would join McConnell in voting to overturn the Presiding Officer’s ruling. In doing so, they would create a new precedent that a simple majority can end a legislative filibuster.

Invoking cloture with less than 67 votes

Republicans hope to avoid the first scenario by persuading enough Democrats to support the Blunt-Lankford resolution. They argue that it only takes 60 votes to invoke cloture on the proposal because it is a standing order. According to McConnell, Republicans are “still hoping to have bipartisan support to go forward with the standing order, which would require 60 votes.” Blunt made a similar observation. “Sixty votes would still be our preferred way to do it, and whether the leader decides … we need to do it with 60.”

Yet even if 60 senators vote to invoke cloture on the Blunt-Lankford resolution, Republicans would still need to go nuclear to pass the resolution if Democrats filibuster it. 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 a proposal to change the Senate’s rules, like the Blunt-Lankford resolution, requires a two-thirds majority (usually 67), not a three-fifths majority (usually 60) as claimed by McConnell and Blunt. If Republicans use the nuclear option to circumvent this provision of Rule XXII, they will create a new precedent that a simple majority can change the rules governing the legislative filibuster whenever it wants to do so.

Points of order

Republicans can avoid impacting the legislative filibuster directly by making points of order during post-cloture consideration of a presidential nomination. However, there are limitations associated with this approach. It will be discussed in greater detail in a future post.

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Topics: Legislative Procedure