The Lankford proposal moved through the Rules and Administration Committee in the last congress on a party-line vote, but both he and Sen. Schumer of New York and other members of the Rules and Administration Committee, reduced to eight hours the window for post-cloture debate on most executive branch positions except for the Cabinet level, with district judge nominees getting just two hours. Roll Call contacted numerous Democratic senators who have been laying the groundwork for runs for the White House or have already announced campaigns. So far, Democratic Sen. Kamala Harris of California has announced she is running, while Sens.
Other Democratic senators are in the mix as well but have not taken such steps.
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But given the level of opposition to the presidential appointments of Trump within the Democratic base, supporting a plan that would make it easier for the current president to fill jobs within his administration might prove beyond unpopular on the campaign trail. We got a good bipartisan vote.
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Get breaking news alerts and more from Roll Call on your iPhone or your Android. Senator Walter F. Mondale observed, "the Rule XXII experience was significant because for the first time in history, a Vice President and a clear majority of the Senate established that the Senate may, at the beginning of a new Congress and unencumbered by the rules of previous Senates, adopt its own rules by majority vote as a constitutional right.
The last minute votes attempting to undo that precedent in no way undermine that right. One element of the cloture rule that the Senate has changed on occasion is the voting threshold required for the invocation of cloture, which is currently three-fifths of the full Senate 60, assuming no more than one vacancy. Some have proposed changing this threshold to three-fifths of those present and voting provided that a quorum—a simple majority—is present. If only a quorum voted, then supporters would theoretically need as few as 31 of 51 votes—that is, three-fifths of a quorum.
How it’s done
A related proposal would change Rule XXII to allow for multiple cloture votes in which the vote threshold to invoke cloture gradually drops lower with each successive vote e. By implementing a change like this, supporters say, the Senate could allow a determined simple majority the ability to eventually work its will. In past Congresses, advocates proposed to apply this "ratchet" process only to nominations—premised on a distinction between executive business and legislative business—arguing that the existing supermajority vote requirement in pursuit of a vote on a nomination is not consistent with the constitutional provisions for Senate advice and consent.
In the current context, however, this sort of change has been proposed to apply to all matters—including legislation—on which a cloture motion might be filed. In addition, because recent proposals along these lines would not allow for a subsequent cloture motion to be filed until after the disposition of the previous motion, this approach would require significant expenditure of floor time. Currently, cloture petitions can be filed on successive days—or even on the same day—without first disposing of the previous petition, so that each motion can meet the layover requirement simultaneously.
Other proposals seek to change Rule XXII so as to allow a simple majority to invoke cloture on the first attempt, not just to allow for a gradual reduction in the vote threshold. Proponents argue that the existing cloture process including the two-day layover of the motion and the possibility of 30 hours of post-cloture consideration provides ample time for deliberation and debate, and that the supermajority requirement is too often used to block passage of a matter rather than subject it to due deliberation.
Opponents of this idea note that the complexity of legislation and the need for careful deliberation and negotiation often requires more time, especially in situations in which policy proposals are brought to the floor with little or no committee consideration a practice that some Senators assert is on the increase in recent Congresses. Finally, some proposals would allow for a lower voting threshold to invoke cloture in only specific circumstances.
Some, for example, have proposed applying a lower threshold for confirmation of nominees, on the argument that a President is entitled to some deference in his nominations. Other proposals attempt to encourage more bipartisan agreement on decisions to end debate or at least to discourage filibusters characterized by strict party polarization; for example, a vote threshold of less than three-fifths might be required for cloture, but only in circumstances in which some majority party members oppose cloture or, alternatively, when minority party members support an end to debate.
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Other proposals focus on shortening the cloture process itself. As noted earlier, invoking cloture involves a two-day layover period once a cloture motion is filed, and then—if cloture is invoked—up to 30 additional hours of consideration of the matter. This means that even if a cloture motion is immediately filed on a matter on which three-fifths of the Senate will support cloture, the Senate could very well devote five days of floor time getting to a final vote.
Due to this time-consuming process, some items of business are never considered on the Senate floor; the majority party has to decide which matters warrant the use of the extensive floor time that may be necessary to leverage the support of three-fifths of the Senate through a cloture process. Proposals to shorten this process can focus on the pre-cloture layover period, post-cloture consideration, or both. In regard to shortening the two-day layover period, one recent proposal reduces the two-day layover period to a hour layover period.
Such a motion could be subject to a supermajority vote threshold, so that only on matters with broad support could the period be reduced. Other proposals seek to potentially reduce floor time expended by the Senate during the period after cloture has been invoked. Some recent proposals apply this idea to consideration of all or most nominations by eliminating all post-cloture consideration after a successful cloture vote.
Rather than attempting to reduce the use of floor time associated with the cloture process in general, some proposals instead focus on providing new debate limitations on only certain motions or matters, such that a cloture process would not be necessary in some circumstances.
Some recent proposals along these lines—addressed below—have focused on the motion to proceed, motions to go to conference, certain amending situations, and new limits in relation to debate on a pending nomination. The motion to proceed to a matter, under most circumstances, is subject to debate.
The only other alternative for bringing a measure to the floor for consideration is via unanimous consent or as a proposed amendment to another measure. Therefore, many measures that face opposition in the Senate may be subject to at least two cloture processes on the motion to proceed and on the measure itself , which even if supported by three-fifths of the Senate, requires the expenditure of significant time during the layover period for the cloture motion, as well as during the use of any post-cloture debate time.
One way to hasten Senate action on a matter would be to eliminate or curtail the floor time spent considering the motion to proceed. Such a change would not remove the ability of opponents to prevent passage of a measure with a coalition sufficient to block cloture because the measure itself—and amendments to it—would still be subject to extended debate, theoretically requiring a cloture process and the support of 60 Senators to end debate and allow a vote on the matter. In addition, it could be argued that the two-day layover required for a cloture motion is necessary when filed on a measure because those days are used for the drafting and filing of amendments that may be proposed post-cloture; these activities are not relevant, however, for cloture on a motion to proceed to consider.
Changing Senate rules such that all or some additional motions to proceed could be non-debatable could have a significant effect on the time the Senate spends on each matter it considers. Other proposals to limit the time spent on motions to proceed include ideas that limit debate without eliminating it entirely.
For example, the Senate could instead expand the number of questions for which the motion to proceed is not debatable beyond the existing circumstances. Alternatively, the Senate could allow debate on these motions to proceed, but limit it to a certain number of hours. Finally, the Senate could instead establish a new non-debatable motion to limit debate on a pending motion to proceed, if made by the majority leader. This change, supporters argue, would allow the Senate to make a decision about the length of debate on the motion to proceed on a case-by-case basis. Of course, the Senate could make such a motion to limit debate subject to a simple majority vote, but even subjecting the motion to a supermajority threshold could serve to limit the time spent on motions to proceed.
Certainly, a majority threshold would prove an easier hurdle to clear in deciding whether to subject a certain motion to proceed to extended debate. However, even a supermajority threshold of three-fifths for such a vote could also provide the Senate a faster way of bringing the measure to the floor; while the 60 votes necessary likely would be the same as the 60 votes necessary to invoke cloture on a motion to proceed, allowing this motion to limit debate could still allow the Senate to immediately agree to the motion to proceed rather than spend the multiple days necessary to invoke cloture and conclude consideration of a motion to proceed.
By precedent, the three actions the Senate must take when arranging to send a measure to conference with the House are all separate: disagree to a House amendment or insist on a Senate amendment ; request or agree to a conference; and grant the presiding officer the authority to appoint conferees. In addition, Senators can offer motions to instruct conferees, and various other motions are in order during the consideration of motions to disagree or insist and motions to request or agree to a conference committee.
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The Senate normally takes all three required actions en bloc by unanimous consent. If a Senator objected to such a unanimous consent request, however, debate could occur separately on each of the three required actions; under current procedures, the floor manager may not offer one motion to take all three actions.
Although cloture could be invoked on each of the three actions, the requirement to do so separately on each has made the threat of a single Senator to obstruct the process at this stage extremely potent. Some Senators have suggested that Senate rules be amended to allow these motions to be combined, thus permitting a single motion to facilitate arranging for a conference committee.
The Senate may also seek to resolve differences with the House using amendment exchange sometimes called "ping-pong". Because of the availability of this option, those who may prevent the Senate from going to conference do not necessarily prevent the Senate from resolving its differences with the House. The amendment exchange process may be structured to limit the input of those opposing a conference, thus undermining their goals.
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Given this alternative, proposals that may expedite Senate actions necessary for conference may attract support from those who believe that amendment exchange process is even less likely to result in attention to their policy concerns. An alternative proposal aims to reduce the need to invoke cloture multiple times on the same policy proposal.
Even if the Senate does not need to invoke cloture on the motion to proceed to a measure, it frequently must invoke it twice or more during consideration due to the application of certain principles of the amending process under cloture; specifically, it is common practice for the Senate to consider, and agree to, an amendment in the nature of a substitute to a bill that may have been proposed by a committee or offered on the floor as a policy option negotiated after the bill's introduction or pendency.
Because Rule XXII prohibits non-germane amendments from being offered after cloture is invoked on a bill—and because an amendment in the nature of a substitute frequently includes provisions that are not germane to the underlying bill it seeks to amend—the Senate must invoke cloture on this substitute amendment before invoking it on the underlying bill. Otherwise, the substitute amendment would fall as non-germane once cloture was invoked on the bill. This means that the Senate must go through the time-consuming cloture process twice on almost all bills on which an amendment in the nature of a substitute is offered, even though the Senate is, in effect, invoking cloture twice on the same text because if the substitute was agreed to, the second vote is on invoking cloture on the underlying bill, as fully amended by the substitute.
To avoid this "double" cloture process, some have proposed allowing no debate on an underlying bill or resolution once the Senate has agreed to an amendment in the nature of a substitute. As an alternative means of restricting debate in certain circumstances, some have suggested broadening the scope of Senate Rule XIX, paragraph 1, to apply its provisions to a subset of Senate business known as "executive business" i.
The rule says, in part, "no Senator shall speak more than twice upon any one question in debate on the same legislative day, without leave of the Senate, which shall be determined without debate. Each Senator would get two speeches on each of those questions, each of unlimited length, and, therefore, a determined opposition would have numerous opportunities to block a final disposition of the matter at hand. The same is not true, however, for nominations. No amendment is in order when considering nominations, and the Senate may not attach any conditions to the confirmation of a nomination, so the number of "questions" that would arise would necessarily be more limited than during consideration of legislation.
Senate precedents, however, would need to be re-interpreted in order to apply the two-speech rule to executive business.