The United States Senate is a ridiculous institution. It gives Wyoming exactly the same number of seats as California, even though California has 68 times as many people as Wyoming. For this and the prior two Congresses, Republicans controlled the Senate, even though the Democratic “minority” represented millions more people than the Republican “majority” in each of those Congresses. And then there’s the filibuster, which imposes such a high threshold on most legislation that American law sits stagnant, unable to adapt to virtually anything.
The Senate should not exist. But if America insists on keeping this malignant tumor on the lung of our democracy, the least we can do is make it a more functional legislative body. Which, oddly enough, is what Senate Republicans just did on Wednesday.
Thanks to the Senate’s arcane rules, senators typically must take two votes whenever they want to confirm a judge or an executive branch official — the first vote is a “cloture” vote, which cuts off any effort by the minority to filibuster the nominee. The second is the actual confirmation vote. Thanks to a rules change pushed by the Democrats in 2013, both of these votes require only a simple majority, so the second vote is a pointless formality.
Until very recently, however, the Senate needed to spend up to 30 hours “debating” the nomination after the first vote, and before the second vote could take place. The term “debating” here is a misnomer: Nothing that happens on the Senate floor in this instance can fairly be described as a debate. More often than not, senators give speeches to an empty or nearly empty chamber, as C-SPAN cameras focus tightly on them to give the illusion that they aren’t basically talking aloud to themselves.
What these 30 hours of fake debate do, however, is allow a minority of senators to slow senate business to a crawl. To confirm two officials, the majority must hold a cloture vote, wait up to 30 hours, hold another vote, then repeat the process again for the second official. To confirm a dozen officials, the Senate must complete this process a dozen times.
That’s up to 360 hours of wasted floor time, and floor time is a limited resource.
When President Obama was in office, and Sen. Mitch McConnell (R-KY) was minority leader, Senate Republicans used this rule to force Democrats to choose which nominees would get enough floor time to be confirmed — and which ones would have to wait forever for confirmation. In some cases, this led to truly absurd tactics, such as when Republicans demanded hours of post-cloture delay on nominees who were eventually confirmed unanimously.
Eventually, these tactics so frustrated Senate Democrats that they pushed a temporary rules change in 2013 that would allow district judges to be confirmed after only 2 hours of post-cloture delay, and sub-cabinet officials to be confirmed after only 8 hours. (Technically, this rules change came about as part of a deal with Republicans, but Republicans only agreed to such a deal after Democrats threatened more aggressive, unilateral reforms.)
On Wednesday, the Senate voted 48-51 to make a similar rules change — this one will allow district judges and sub-cabinet officials to both be confirmed after only two hours of post-cloture delay. The vote was almost entirely along party lines, with Democrats denouncing the change and McConnell reveling in his own cynical hypocrisy.
But here’s the thing. Yes, Mitch McConnell is a charlatan who routinely gaslights the nation. Yes, he’s pushing this reform to help President Trump confirm ideologues — including judges who will impose that ideology on the nation for decades after Trump leaves office.
When senators write rules that govern the Senate, they should do so from behind what philosopher John Rawls referred to as a “veil of ignorance.” The rules should make sense regardless of who is in charge.
McConnell may also someday be the minority leader again. And when that day comes, he should not be allowed to repeat the same dilatory tactics that he pioneered under President Obama. Mitch McConnell’s reform will prevent the rise of future minority leaders like Mitch McConnell.