Diary

An Intriguing Alternative to the Senate Nuclear Option

Should the Senate opt for the nuclear option to confirm Gorsuch or is there some surefire way to get around Democratic obstructionism?

Over at The Federalist they make a good case for an intriguing alternative, read the full article here.

Rule XIX of the Standing Rules of the Senate plainly states that on any given question, a senator may speak only twice on the same legislative day. This clause is known in Senate parlance as the two-speech rule. No senator may speak more than two times on the same matter on the same legislative day. Here’s the relevant text from the rule:

1. (a) When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. …

What are the differences?

[With the filibuster rules] It is assumed that debate on these nominations must continue in the Senate until 60 senators agree that the debate is over.  … The modern practice of allowing 41 senators to indefinitely obstruct up-or-down votes under the guise of debate is just that: a mere practice, indulged by courtesy.

[With Rule XIX] A final up-or-down vote is guaranteed

They continued:

So what does this mean? In simple terms, it means that once each senator has spoken twice on a matter, debate on that matter is concluded no matter what. It means that a final up-or-down vote is guaranteed. It does not preclude the Senate from invoking cloture before all senators have spoken twice, nor does it preclude the Senate from proceeding to a final vote in the absence of continued debate. Unlike the nuclear option, which kills debate instantly at the whim of the majority, enforcement of the two-speech rule effectively sets a limit on debate.

Will it work?

They Did This to Pass the Civil Rights Act

As political science professor Nina M. Moore noted in her book “Governing Race: Policy, Process, and the Politics of Race,”Senate Majority Leader Mike Mansfield kept the Senate on the same legislative day for 81 calendar days, from March 30 to June 19, to enforce the two-speech rule to break the filibuster of the 1964 Civil Rights Act.

Are there any benefits?

The two-speech rule option preserves debate while still guaranteeing an up-or-down vote.

Maintaining conservative reform momentum by staying in business:

The Senate majority has the power to bounce back and forth between legislative and executive session at will.

Wearing out the opposition, two observations:

Seriously, Nobody’s Got Stamina to Make This Last Long

As a result, the Senate could conduct its legislative business during the day and confine debate over the pending presidential nomination to the wee hours of the night.

But… it might take a few weeks this way but, it always takes a little bit of time:

By way of comparison, since 1980 the amount of time between initial nomination and Senate confirmation of a Supreme Court justice has averaged 68 days. Even if only two opposition speeches were exhausted each [calendar] day, that would still leave nearly three weeks for senators to weigh the merits of a particular nominee prior to beginning formal debate on the nomination.

The side benefit of using Rule XIX is:

Thus, not only would the Senate be able to dual-track its legislative and executive business, Senate Republicans would also have the power to force Senate Democrats to make their speeches in the middle of the night when nobody is watching. This would deprive Democrats of media oxygen for their arguments and tire them out over time, as there is often little desire among older senators to futilely rant at the C-SPAN cameras at three in the morning.

The Best of Both Worlds

Compared to the controversial nuclear option, which would give the majority carte blanche to eliminate debate on all nominees from now until eternity, the two-speech rule option preserves debate while still guaranteeing a final vote on Supreme Court nominees. It balances the desire to prevent indefinite obstruction with the desire to ensure votes for well-qualified Supreme Court nominees. And it does so without fundamentally altering the nature of the Senate, which was specifically created to provide for lengthy debate on matters of national concern.

[1] Gorsuch and future Supreme Court nominees can be confirmed without the nuclear option. [2] They can be confirmed without arbitrarily limiting debate. Most important, [3] these nominees can be confirmed under the Senate rules not by ending debate, but by encouraging it.

The two-speech rule option provides the best of all worlds by addressing the concerns of both sides of the Supreme Court nomination debate. Instead of nuking debate, the two-speech rule option merely nukes obstruction. And it does so by encouraging debate and by encouraging the input of every single senator.

Current Senate practice empowers a lazy minority by allowing indefinite obstruction without requiring any effort or debate. If voters want a confirmation process that simultaneously encourages debate while limiting obstruction, they should demand that the Senate set the nuclear option aside and invoke the two-speech rule option instead.

Lest We Forget the Sneak Attack:

Enforcing the two-speech rule would thus turn current practice on its head and force obstructing senators to do all the work to maintain the filibuster. It would require them [Democrats] to monitor the floor 24/7 for days and weeks on end to continue the debate. Even if they could muster that kind of stamina and coordination, there would still be a vote once each opposing senator had spoken twice. If opposing senators were to let their guard down even for a minute, the majority could move to end debate and force a final vote. Either way, a final up-or-down vote is guaranteed. The only question is how much pain the obstructing senators wish to inflict on themselves before that happens.

Not a bad approach and given the Republican’s tendency to defer to Democrats’ nomination anyway and for the Democrats’ tendency to fight every Republicans’ SCOTUS nominees, there is hardly any downside.  I say that Democrats can talk all they want about this as long as it’s late at night when other horror shows are broadcast.