Last Week in the Senate
The Senate was busy last week. A lot happened, at least procedurally. Senators began laying the groundwork for a post-Thanksgiving vote on changing the Senate rules – potentially violating those rules in the process – to confirm more than 400 military nominations over the objections of Tommy Tuberville, R-Ala. And Roger Marshall, R-Ka., demonstrated that every senator - not just the majority leader - has the power to set the Senate’s agenda.
Military Nomination Standoff
Last week’s events suggest that senators are now set to change the Senate rules to make it easier to confirm military nominations when they return to Capitol Hill after Thanksgiving. Senators on the Rules and Administration Committee voted along party lines last week to advance a proposal (S. Res. 444) to confirm more than 400 stalled military nominations over Tuberville’s objections. Tuberville has refused to grant his consent to waive the Senate rules to expedite Department of Defense nominees since February to protest its abortion policy. But Senate Democrats have nevertheless been reluctant to use the rules to confirm the stalled military nominations over his objections. They believe that doing so sets a "dangerous precedent" that will encourage senators to obstruct similar nominees.
Senate Republicans have generally supported Tuberville’s right to object to unanimous consent requests to expedite the military nominations. But some appear to be wavering in their support for Tuberville’s effort. For example, Minority Leader Mitch McConnell, R-Ky., voted against S. Res. 444 in the Rules Committee. Yet he has since noted that Tuberville’s objections have created “a nearly unprecedented situation for the Senate to address.” This is significant because Majority Leader Chuck Schumer, D-N.Y., has indicated that he will ask the Senate to consider S. Res. 444 after Thanksgiving if Republicans do not resolve the situation independently.
If Democrats follow Schumer's threat to force action on S. Res. 444, they will need at least 16 Republicans to overcome a filibuster. This is because ending debate on the resolution and proceeding to an up-or-down vote on it requires a two-thirds vote of senators present and voting (typically 67) instead of a three-fifths vote of senators duly chosen and sworn (typically 60). S. Res. 444 changes Senate rules XIII, XV, XX, XXII, and XXXI. Rule XXII stipulates that resolutions that change the Senate rules require a two-thirds majority to invoke cloture (i.e., end debate) before the Senate can proceed to a final up-or-down vote over senators’ objections.
Rogue Motion to Proceed
The Senate also defeated Roger Marshall, R-Kan. 's effort to start debate on the House-passed Israel Security Supplemental Appropriations Act (HR 6126). Senators voted to table Marshall’s motion to proceed to HR 6126 on a party-line vote (51-48).
The Senate begins debate on legislation by approving a motion to proceed to its consideration. Any senator can move to proceed to a bill if it is listed on the Senate’s Legislative Calendar, which includes all legislation eligible for floor debate.
Senators generally defer to the majority leader to make motions to proceed and, by extension, to set the Senate’s agenda. Senate precedents stipulate that “motions to proceed to the consideration of bills and resolutions on the Calendar are usually made by the Majority Leader or his designee.” However, the Standing Rules (and precedents) empower any senator to make a motion to proceed to a bill. It is, therefore, not just the majority leader's prerogative to make motions to proceed and, by extension, to set the Senate’s agenda.
Nevertheless, rank-and-file senators rarely make motions to proceed. And Marshall’s motion caught the Senate by surprise. After a short period of audible confusion following Marshall’s motion, Raphael Warnock, D-Ga., suggested the absence of a quorum to prevent the Senate from debating it or voting on it.
The Constitution’s Qualifications and Quorum Clause (Article I, section 5, clause 1) requires at least a majority of senators (typically 51) to be present to conduct business. Its Rules and Expulsion Clause (Article I, section 5, clause 2) gives a Senate majority plenary power to determine the rules that govern its proceedings. The Senate has used this power to specify how it complies with the Constitution's requirement in the Qualifications and Quorum clause that a majority of its members must be present to do business.
Senate Rule VI defines a quorum as consisting of “a majority of the Senators duly chosen and sworn” (typically 51). The rule also specifies that the presiding officer must immediately "direct the Secretary to call the roll" whenever a senator suggests a quorum is absent. If the quorum call reveals that a majority of senators is not present, “a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate.
Senators presently use quorum calls to make the legislative process more predictable. The Senate's presiding officer cannot put the underlying question - in this case, a motion - to a vote if a senator is speaking or seeking recognition to speak. When no senator is speaking or seeking recognition to speak, Senate precedents stipulate that the presiding officer must call a vote on the pending question. Senators can prevent the presiding officer from calling a vote on the pending question by suggesting the absence of a quorum. Senate precedents stipulate, "No debate nor business can be transacted in the absence of a quorum, nor during a quorum call…"
Democrats repeatedly objected to senators’ unanimous consent requests to vitiate the quorum call. Marshall asked unanimous consent that the quorum call be vitiated five times. Ted Cruz, R-Texas, also asked unanimous consent that the quorum call be vitiated five times. Mike Lee, R-Utah, twice asked to vitiate the quorum call. Ron Johnson, R-Wis., Marsha Blackburn, R-Tenn., J.D. Vance, R-Ohio, and Eric Schmitt, R-Mo., asked to dispense the quorum call. And when Blackburn asked consent that the quorum call be dispensed with so that the Senate could consider Israel security legislation, the presiding officer ruled that she was out of business. This is because Senate precedents stipulate that "when the Senate is conducting a quorum call, a Senator may only ask unanimous consent to terminate the call and not couple that with another unanimous consent request or make a parliamentary inquiry.”
The Takeaway
Last week was a big week for the Senate. It suggests that senators could change the Senate rules after Thanksgiving. Senators can always change - or ignore - their rules under Article I, section 5, clause 2. And Marshall's effort to proceed to the House-passed Israeli security bill demonstrated that rank-and-file senators, not just Democratic and Republican leaders, can set the Senate's agenda.