Sinema Proposal Risks Nuking Senate Rules

Democrats are threatening to circumvent the Senate rules to confirm more than 300 military nominations over the objection of Tommy Tuberville, R-Ala. The Constitution’s Appointments Clause (Article II, section 2, clause 3) requires senators to approve all military promotions that the president submits to the Senate before they can take effect. Senate Rule XXXI requires senators to consider each nomination separately.  But Tuberville made it harder for the Senate to approve military promotions using its rules when he placed a so-called “blanket hold” last February on all Defense Department nominations submitted to the Senate by the president.

Overcoming Obstruction

Tuberville’s hold has prompted many of his colleagues to call for changing the Senate rules to prevent a single senator from obstructing presidential nominations. However, the rules do not empower Tuberville - or any other senator - to singlehandedly stop the Senate from confirming a presidential nomination, much less 300. This is because holds happen when senators try to waive the Senate rules by unanimous consent to make confirming presidential nominations easier. Senators can always use the Senate rules to approve the stalled military promotions. For example, Democrats used the Rule XXII cloture process to approve three military promotions over Tuberville’s objections earlier this year.

Yet Democrats are nevertheless reluctant to use the Senate’s rules to approve all of the stalled military promotions. They argue that the cloture process takes too long. This is because the Senate rules require senators to vote at least three times on each individual nomination: once on whether to begin debate on the nominee; once on whether to end debate (i.e., to invoke cloture); and once on whether to approve the nomination. And the cloture rule requires a minimum amount of debate time for each nominee. Democrats claim that using the Senate rules to approve military nominations over Tuberville’s objections will also set a dangerous precedent that will encourage other senators to obstruct routine nominations in the future. 

Given Democrats unwillingness to use the Senate rules to approve the long-stalled military nominations, senators are considering other ways to overcome Tuberville’s objections. Kyrsten Sinema, I-Ariz., has proposed using a standing order to approve the 300+ military nominations en bloc. According to Sinema’s plan, the Senate would first approve a resolution authorizing senators to consider the military promotions all together in one omnibus nominations package. Proponents of her approach claim that it is “not a rules change…because no one wants to fool around with the rules.”

Standing Orders

Standing orders regulate how the Senate operates. There are two kinds of standing orders: permanent and temporary (or routine). Senators establish permanent standing orders by approving a simple resolution (designated “S. Res.”). Permanent standing orders remain in effect until the Senate repeals them unless otherwise noted in the text of the resolution establishing the order. These standing orders are listed in the Senate Manual under the heading, “Nonstatutory Standing Orders Not Embraced In The Rules, And Resolutions Affecting The Business Of The Senate.”

Examples of permanent standing orders include the oft-ignored requirement that senators vote from their desks during recorded votes instead of doing so while milling about on the floor, authorization of gavel-to-gavel coverage of the Senate’s proceedings on radio and television, and the special process granting expedited consideration of certain nominations subject to advice and consent on the Senate floor. The permanent select committees on Ethics and Intelligence were created by permanent standing orders.

Senators also use standing orders to manage their deliberations whenever they propound unanimous consent agreements (e.g., the unanimous consent requests to approve military nominations to which Tuberville is presently objecting). Temporary (or routine) standing orders remain in effect for the period specified in the unanimous consent agreement establishing them. And they are listed in the Congressional Record on the day senators adopt them. The Senate also adopts several routine standing orders by unanimous consent at the beginning of each Congress that remain in effect for the duration of that Congress.

An example of a temporary (or routine) standing order is the provision for “leader time” on each day that is under the control of the majority and minority leaders for the discussion of routine legislative business. Senators also utilize temporary/routine standing orders to structure the legislative process on the Senate floor. Such unanimous consent agreements set the date and time when votes will occur, schedule floor speeches, and stipulate how much overall time can be used to debate a bill (or nomination). Temporary/routine standing orders may also limit the number of amendments that senators are allowed to offer to legislation or otherwise restrict their scope.

Standing Orders and the Senate Rules

The Senate approves resolutions like Sinema’s that establish permanent standing orders by majority vote. Proponents of Sinema’s plan concede that Republicans can filibuster her proposal on the Senate floor. Consequently, Democrats need nine Republicans to vote to invoke cloture (i.e., end debate) on Sinema’s proposal before the Senate can adopt it on a majority vote. This is because 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,” including standing orders.

Yet Democrats really need at least 16 Republicans to vote to end debate on Sinema’s standing order proposal. This is because Sinema’s proposal violates the Senate’s rules. And 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 that changes, or otherwise violates, the Senate’s rules - including a standing order - requires a two-thirds majority (usually 67 senators), not a three-fifths majority (usually 60 senators). 

The Takeaway

Approving Sinema’s standing order authorizing en bloc consideration of 300+ military nominations by first invoking cloture on it with less than two-thirds of the senators present and voting is synonymous with the nuclear option, which Sinema has long opposed. The nuclear option is defined as any time the Senate acts to explicitly violate, change, or otherwise ignore its Standing Rules. In this case, the rules requiring separate consideration of presidential nominations would not be changed. They would still require the Senate to consider presidential nominations on a case-by-case basis. Sinema’s standing order would instead signal that the Senate has chosen to ignore that rule moving forward.