Majority Cloture for Nominations: Implications and the “Nuclear” Proceedings
Released: 2013-12-06T00:00:00

Introduction

In recent Congresses, renewed attention has been paid to the rules and practices of the Senate that allow committed Senate minorities (or individuals) to delay or prevent a vote on pending business unless a supermajority can successfully use the cloture process to reach a vote. Various proposals to change Senate rules in relation to extended debate and the use of cloture, among other issues, have been discussed; some of these proposals have been debated on the Senate floor, and some changes to the Standing Rules (as well as new temporary orders) have been adopted by the Senate. However, since reaching a vote on a contested proposal to amend the Senate Standing Rules likely would require, under Rule XXII, invoking cloture with the support of two-thirds of Senators voting, some supporters of change have advocated making changes to Senate procedure instead by establishing a new precedent (basically, a reinterpretation of the rules). Some Senators and outside observers have used the term "nuclear" to describe such proceedings, in part because they might rely on steps that are novel (potentially in contravention of existing rules and precedents), or because they could undermine the prerogatives exercised heretofore by Senate minorities or individual Senators.

Some discussion of possible proceedings of this kind has focused chiefly on Senate consideration of presidential nominations to the executive branch and/or the federal judiciary. So-called "nuclear" floor proceedings were publicly contemplated in 2005 in relation to judicial nominations; in July 2013 similar actions were discussed in relation to presidential nominations to executive branch positions.

On November 21, 2013, the Senate took actions to address concerns about both executive branch and judicial appointments (with the exception of nominations to the Supreme Court). Specifically, the Senate reinterpreted the application of Senate Rule XXII to floor consideration of presidential nominations by overturning a ruling of the chair on appeal. For nominations other than to the Supreme Court, the new precedent lowered the vote threshold by which cloture can be invoked—from three-fifths of the Senate to a simple majority of those voting, thereby enabling a supportive majority to reach an "up-or-down" vote on confirming a nomination. Reaching a confirmation vote, however, still requires either unanimous consent or a successful cloture process, as detailed further below.

Senate Floor Consideration of Nominations: Rule XXII and Temporary Modifications

The vote threshold by which the Senate can confirm a presidential nomination is, and has always been, a numerical majority of those voting (provided a quorum is present). However, floor consideration of any nomination is subject to no general time limits under Senate rules, and those rules provided no mechanism by which a simple majority could end or even limit consideration and bring the Senate to a vote. While the Senate frequently agrees by unanimous consent to vote on a pending nomination, Senators opposing a particular nomination often have been able to delay or prevent a numerical majority from reaching such a vote.

History and Operation of Rule XXII in Relation to Nominations

Paragraph 2 of Senate Rule XXII (also known as the "cloture rule") provides a process by which a supermajority of the Senate can vote to limit further consideration of a pending question. When the rule was adopted in 1917, the cloture process applied only to legislation. However, in 1949, the Rule was amended so that cloture could also be filed in relation to nominations, thereby making it possible for a supermajority to limit further consideration of a nomination and proceed to a vote. However, not until 1968 was a cloture motion filed in relation to a nomination. Since 1975, the Rule's supermajority threshold by which cloture could be invoked on a pending nomination (or any other question other than in relation to a proposed change to the Senate standing rules) has been three-fifths of the Senate (60, unless there is more than one vacancy in the chamber). As on legislation, a cloture motion filed on a nomination under Rule XXII receives a vote after two days of Senate session. The text of the Rule provides that, if on that vote the requisite supermajority supports cloture, the Senate will—after no more than 30 hours of consideration—vote on the pending question, with final approval subject to only a simple majority vote.

Notably, unlike the process by which the Senate agrees to bring legislation to the floor for initial consideration, the procedures by which the Senate can bring up a nomination (that is, make it pending for floor consideration) do not, in current practice, rely on the provisions of Rule XXII. Specifically, by precedent, the motion to go into executive session and proceed to consider a specific item of business on the Executive Calendar (i.e., a nomination or treaty) is not subject to debate. As a result, reaching a vote on the motion does not require a cloture process, so a simple majority of those voting can agree to bring up the nomination without requiring a supermajority to invoke cloture in order to limit debate on the question of bringing up the nomination.

Note, however, that the Senate (except by unanimous consent) cannot consider multiple nominations en bloc ; in addition, paragraph 2 of Rule XXII provides that once cloture has been invoked on any pending question, the question "shall be the unfinished business to the exclusion of all other business until disposed of." This means that the Senate can consider nominations only sequentially, absent unanimous consent to do otherwise. Cloture motions can be filed on multiple nominations, effectively allowing the two-day layover period before a vote on cloture to lapse concurrently on each nomination. However, once the Senate invokes cloture on one nomination, it cannot vote on cloture on any other nomination until the expiration of the post-cloture time (and a final vote) on the first nomination; in other words, processing multiple contested nominations requires the use of any post-cloture time in sequence, not concurrently.

Temporary Modification to Cloture on Nominations for 113th Congress

In January 2013, after extended deliberations about proposed changes to its Standing Rules and procedural practices, the Senate adopted S.Res. 15 —a standing order that governs certain floor proceedings, but that expires at the end of the 113 th Congress. The standing order did not change the process of invoking cloture provided by Rule XXII; rather, for certain nominations, Section 2 of S.Res. 15 provides only for different post-cloture limits on consideration from those provided in Rule XXII. Specifically, for the remainder of the 113 th Congress, all but the very highest of executive nominations are subject to a maximum of eight hours of post-cloture consideration, and district judge nominations are subject to only two hours, post-cloture. (See Table 1 below.) All other federal judicial positions, as well as high level executive nominations (effectively cabinet level), remain subject to up to a 30 hours of post-cloture debate, as provided for under Rule XXII.

The November 21 Precedent: Some Effects and Implications

Reinterpretation of Rule XXII

The precedent set on November 21, 2013, did not change the text of Rule XXII of the Standing Rules. The Senate applies its rules to specific situations in accordance with its precedents, most recently compiled as Riddick's Senate Procedure , cited earlier. Senate precedents are effectively an identification of instances in which the Senate established or applied a particular understanding of the actions that its rules preclude or allow in specific circumstances. The non-partisan Parliamentarian relies on these precedents to advise the presiding officer on how to enforce and apply the rules, as well as how to respond to points of order from Senators seeking to enforce the rules (or in response to parliamentary inquiries seeking to elucidate the rules' effects). Through action on any appeals of rulings of the chair or submitted points of order, however, the Senate itself is the final authority on the interpretation and application of its rules. In summary, in floor proceedings on November 21, the Senate established a new precedent by which it has reinterpreted the provisions of Rule XXII to require only a simple majority to invoke cloture on most nominations.

Effect on Senate Floor Consideration of Nominations

The effect of the Senate's new precedent is to lower the vote threshold by which cloture can be invoked on a nomination other than to the U.S. Supreme Court from three-fifths of the Senate to a simple majority of those voting, thereby enabling a supportive simple majority to reach an "up-or-down" vote on confirming the nomination. The new precedent, however, does not expedite the cloture process. Absent unanimous consent to arrive at a vote, once the Senate proceeds to a nomination, a cloture motion can be filed on the nomination, but the Senate still will not vote on the cloture motion until the second day of Senate session after the cloture motion is filed (unless the Senate unanimously consents to schedule the vote earlier). The Senate can, however, turn to other business during the two days of session that elapse prior to the cloture vote.

Under the new precedent, for the Senate then to limit debate on a nomination requires only a simple majority of those voting on cloture (unless the nomination is to the Supreme Court). Once cloture has been invoked, the nomination remains subject to post-cloture consideration, which, for the 113 th Congress is a maximum of 2, 8, or 30 hours, depending on the nomination (see Table 1 ). In future Congresses, the post-cloture consideration limits will revert back to 30 hours for all nominations, unless the Senate provides otherwise. In addition, Rule XXII still prohibits consideration of other business (except by unanimous consent) during this post-cloture period; therefore, multiple nominations can still only be processed sequentially. In sum, the new precedent did not change existing requirements for floor time to complete a cloture process and reach a vote on a pending nomination.

Under previous practice, the Senate was already able to proceed to executive session and proceed to consider a nomination with the support of only a numerical majority. The new precedent now allows that same supportive majority to employ the cloture process to proceed to a vote on confirming the nomination . As a result, a simple numerical majority can now take actions to reach the final vote on a nomination, when before only three-fifths of the Senate could agree to limit consideration and reach a vote.

Other Potential Effects on Presidential Nominations

Broader effects of the November 21 precedent cannot yet be fully assessed, but the precedent could have implications for elements of the nomination and confirmation process that occur prior to floor consideration. Under current Senate practices, the only nominations that the Senate can, by majority vote, proceed to consider, invoke cloture on, and confirm, are those that appear on the Executive Calendar. For judicial and most executive branch nominations, only those reported by committee are placed on the Executive Calendar; except by unanimous consent, the Senate has treated these nominations as eligible for floor consideration only after being favorably reported by committee. Before the new precedent, opponents of these nominations might have focused their opposition on floor consideration, aware of the supermajority threshold for invoking cloture on the nomination. The new lower (majority) threshold for cloture now might induce opponents to oppose such nominees more frequently in committee, since those not reported out of committee effectively can be considered on the Senate floor only by unanimous consent.

Pursuant to S.Res. 116 , a Senate standing order adopted in the 112 th Congress, the process is somewhat different for 272 positions in cabinet departments, certain advisory boards, and independent agencies. S.Res. 116 provides a process by which these "privileged" nominations can be placed on the "Nominations" portion of the Executive Calendar, and thereby made eligible for floor consideration, without being first referred to and reported by committee—but only as long as no Senator requests that a nomination be referred. So while these nominations can potentially become eligible for floor consideration without committee action, any Senator can require that they be instead referred to committee—thereby effectively requiring the nomination to be reported by committee before floor consideration. In sum, the potential effects of the new precedent on pre-floor action are effectively the same for all nominations (whether "privileged" under S.Res. 116 , or not), except for those to the Supreme Court.

In addition, while the lower threshold for cloture on nominations will remain in effect until the Senate takes further action to alter it, the reduction in the limits on post-cloture consideration for certain nominations (pursuant to S.Res. 15 , 113 th Congress) will revert back to 30 hours in the 114 th Congress (2015-2016). At the time the standing order was agreed to, Senators understood that the support of three-fifths of the Senate was potentially necessary to reach confirmation votes. Accordingly, the November 21 precedent could affect the likelihood that the standing order will be renewed. Particularly if the standing order is not renewed, Senators will need to continue to negotiate unanimous consent agreements to process routine nominations swiftly.

Finally, the process by which the President selects nominees may be now influenced by the understanding that nominees considered on the floor in the future can receive a vote with only the support of a numerical majority. In the past, many nominees may have been selected with an eye towards the possible need for supermajority support.

Effect on Future Proposals to Change Senate Rules or Practices

The procedures by which the precedent was set also may have implications for future proposals to alter Senate rules or their application. A key procedural detail on which the November 21 proceedings turned was the inability of opponents of these proceedings to extend debate on the appeal of the chair's ruling. Under Senate practice, appeals are typically subject to no debate limit except in a post-cloture environment; therefore, overturning a chair's decision on appeal in the face of sustained opposition typically would require a successful cloture process (and therefore a supermajority vote) to reach a vote on the appeal.

The appeal of note in the events of November 21, however, was in relation to a non-debatable question (the cloture motion) and the appeal was therefore treated as itself being non-debatable; this allowed the Senate to reach a vote on the appeal immediately. Since the practicability of proposed "nuclear" proceedings has often turned on the Senate being able to reach a vote to establish new procedures in a contested situation, the parliamentary circumstances under which the new precedent was set will likely be examined for their implications for future attempts to change Senate rules or the Senate's interpretation and application of them. CRS Report R42929, Procedures for Considering Changes in Senate Rules , by [author name scrubbed], provides a detailed examination of the complications presented by certain procedural paths by which the Senate might consider changing its rules, with specific attention to the significance of debate limits (or lack thereof) on questions that may be raised during contested floor proceedings.

Appendix. Procedures by Which the Senate Set New Precedent in Relation to Cloture on Nominations

On October 28, 2013, the Senate agreed to a motion by Majority Leader Harry Reid (NV) that the Senate proceed to Executive Session to consider the nomination of Patricia Ann Millett to be United States Circuit Judge for the District of Columbia Circuit; the majority leader immediately filed cloture on the nomination. On October 31, the Senate failed to invoke cloture on the Millett nomination, 55-38; immediately after the vote, the majority leader entered a motion to reconsider the vote by which cloture had not been invoked.

On November 21, 2013, the majority leader moved to proceed (that is, asked the Senate to take up) the motion to reconsider the failed October 31 cloture vote on the Millett nomination. Since the question on which reconsideration was proposed—that is, a cloture motion—is itself not subject to debate, the motion to proceed to the reconsideration motion was also not subject to debate; therefore, after the yeas and nays (i.e., a rollcall vote) were requested and ordered, the Senate voted immediately on the motion to proceed to the reconsideration motion; the motion to proceed was agreed to, 57-40.

Having thus taken up the reconsideration motion, the majority leader moved to reconsider the failed cloture vote; this question of whether or not to reconsider the failed cloture vote was also not subject to debate. After rejecting an intervening motion to adjourn made by Minority Leader Mitch McConnell, the Senate voted to reconsider the cloture vote, 57-43 (thus agreeing to bring the cloture motion back before the Senate).

The majority leader then raised a point of order that "the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote." Consistent with the provisions of paragraph 2 of Rule XXII that provide for a three-fifths vote on cloture (in relation to all questions except a proposal to amend the text of the Senate standing rules), the chair ruled against the point of order. The majority leader appealed the ruling of the chair. Since this appeal was in relation to a non-debatable question (the cloture motion), the appeal itself was therefore treated as non-debatable. After the chair responded to a series of parliamentary inquiries from the minority leader, the Senate voted on the appeal; 52 Senators voted to overturn the ruling and 48 voted to sustain the chair.

After the vote, the minority leader raised a point of order that the three-fifths threshold provided for in Rule XXII applies to invoking cloture on a nomination. The chair ruled against the point of order, based on the precedent just set via vote on the previous appeal. The minority leader appealed the ruling of the chair, but the Senate sustained the ruling, 52-48.

Finally, the chair then laid the cloture motion before the Senate. No debate being in order on the cloture motion, the Senate then re-voted on the failed cloture motion, agreeing to it 55-43. Based on the precedent just set by the Senate providing that a numerical majority was sufficient for invoking cloture on certain nominations (of which the Millett nomination was one), the presiding officer announced that the motion was agreed to. The Senate then continued proceedings on the nomination, but in post-cloture time (which, under Rule XXII, is limited to 30 hours of consideration).