Senate Rules Committee Considers Changing Senate Rules
Senators on the Rules and Administration Committee vote today on a resolution (S. Res. 444) that would make it easier for the Senate to confirm more than 300 military nominations over the objections of Tommy Tuberville, R-Ala. Tuberville placed a so-called “blanket hold” on all Department of Defense nominees earlier this year to protest its policy on abortion. Since then, all efforts to negotiate an end to the standoff have failed.
S. Res. 444 is based on a plan proposed by Kyrsten Sinema, I-Ariz., to expedite military nominations over Tuberville's objections. The resolution would allow the Senate to confirm specific military nominations en bloc. It permits senators to circumvent the Senate's existing rules and practices to confirm military nominations in one vote by approving an omnibus nominations package.
Senate Rules and Standing Orders
S. Res. 444 is a proposed rule change in the form of a standing order. Senators use standing orders to regulate how the Senate operates. Like Senate precedents, standing orders fill in the gaps where the Senate’s rules are silent or vague.
Senators also use standing orders to waive the Senate’s rules and establish new rules in specific circumstances. Senators usually do so by unanimous consent. For example, Tuberville’s critics have repeatedly asked for unanimous consent to waive the Senate’s rules regulating the confirmation process for presidential nominations so that they can quickly confirm the military nominations in question. And Tuberville has repeatedly objected to their unanimous consent requests.
Senators may waive the rules and establish new ones by passing a resolution (i.e., standing order). For example, Tuberville’s critics support S. Res. 444 to create new rules that would make it easier for the Senate to confirm military nominations without having to get the unanimous consent of all senators. Rule XXII stipulates that standing order resolutions that change the Senate rules require a supermajority of the Senate (typically 67 senators) to invoke cloture (i.e., end debate) before senators can proceed to a final up-or-down vote.
Rules Changes
S. Res. 444 changes several Senate rules.
Reconsideration
Rule XIII stipulates that whenever the Senate votes on a question, “any Senator voting with the prevailing side or who has not voted may, on the same day or on either of the next two days of actual session thereafter, move a reconsideration." The rule also stipulates that a "majority vote" of the Senate may lay a motion to reconsider on the table. Rule XXXI specifies that whenever the Senate confirms or rejects a presidential nomination, "any senator voting in the majority may move for reconsideration."
S. Res. 444 stipulates that whenever the Senate approves an omnibus nominations package, “the motion to reconsider the confirmation vote on the military nominations en bloc shall be considered maid and laid upon the table.”
Dividing the Question
XV allows senators to call for a division of the question when “the question in debate contains several propositions.”
S. Res. 444 stipulates that a motion to proceed to an omnibus nomination package "shall not be divisible." The resolution also stipulates that the omnibus nominations package itself is not subject to division.
Points of Order
Rule XX permits senators to raise “a question of order…at any stage of the proceedings. The only exceptions specified in the rule are “when the Senate is voting or ascertaining the presence of a quorum.”
S. Res. 444 stipulates that a motion to proceed to an omnibus nominations package “shall not be…subject to a point of order.”
Cloture
Rule XXII stipulates that any senator may move to end debate on “any measure, motion, or other matter pending before the Senate” by filing a cloture petition signed by 16 senators.
S. Res. 444 stipulates that “it shall be in order for the majority leader, or a designee, to make a single motion…to proceed to Executive Session to the en bloc consideration of 2 or more military nominations.”
Post-Cloture Consideration
Rule XXII stipulates that “after no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed without any further debate on any question to vote on the final disposition thereof.” Rule XXII also guarantees “any Senator who has not used or yielded at least ten minutes” during post-cloture debate ten minutes “to speak only.”
S. Res. 444 stipulates that after the Senate invokes cloture on an omnibus nominations package, “there shall be no more than 2 hours of consideration of the military nominations being considered en bloc." The resolution also requires the Senate to vote to confirm the military nominations "after no more than 2 hours of consideration." It does not guarantee senators ten minutes to speak before the confirmation vote.
Consideration of Nominations
Rule XXXI stipulates that the Senate vote on one nominee at a time. It does so by defining the final question that the presiding officer asks senators, "Will the Senate advise and consent to this nomination?”
S. Res. 444 expands the final question that the presiding office may ask the Senate to include: "Will the Senate advise and consent to these nominations?"
The Takeaway
S. Res. 444 includes several changes to the Senate rules. Consequently, invoking cloture on any proposal that changes or otherwise violates the Senate's rules - including S. Res. 444 - requires a two-thirds majority of senators present and voting. Invoking cloture on a standing order resolution that changes the Senate rules by a three-fifths majority vote (or less) violates those rules.