March 28, 2019

S. Res. 50: Consideration of Nominations in the Senate

NOTEWORTHY

Background: In response to the unprecedented number of Democrat filibusters waged against presidential nominees, Senators Lankford and Blunt introduced S.Res. 50, a resolution to reduce post-cloture debate time for certain nominations. This concept is not new – a similar resolution was adopted by the Democrat-majority Senate in the 113th Congress.

Floor Situation: S.Res. 50 was reported favorably (10-9) by the Rules Committee on February 13. The full Senate is expected to consider the matter soon.

Executive Summary: S.Res. 50 would reduce post-cloture debate time from 30 to two hours for most nominations except those to the Supreme Court, circuit courts of appeal, cabinet-level positions, and certain independent boards. If cloture is invoked, post-cloture time would be evenly divided between the majority and minority leaders. S.Res 50 would not expire. Furthermore:

  1. The resolution would not eliminate the filibuster on nominations. Absent unanimous consent, cloture would remain the only procedure by which the Senate could end debate and proceed to a vote on confirmation.

  2. The resolution does not make any changes to the legislative filibuster. 

  3. Because the measure is drafted as a Senate resolution, it is not considered by the House or submitted to the president for signature. If S.Res. 50 is adopted by the Senate, it will have force and effect immediately.

OVERVIEW OF THE ISSUE

The Senate operates under the principle of unlimited debate for both legislation and executive calendar nominations. Cloture is the only procedure by which the Senate can place a time limit on consideration and overcome a filibuster. The process takes a minimum of four calendar days if all time is used. Under Rule XXII of the Standing Rules of the Senate, a cloture petition must lie over one calendar day before it ripens. Once cloture is invoked, 30 hours of consideration transpire (post-cloture time cannot be yielded back except by unanimous consent). Only when all post-cloture time has expired can the Senate proceed to an up-or-down vote.  

For every new president, the Senate must process more than 1,000 nominations for executive branch jobs, in addition to confirming judges to fill vacancies. Until recently, cloture was reserved for only the most controversial nominees, but now Democrats are exploiting the cloture process to slow the pace of executive and judicial confirmations. In President Trump’s first session of Congress, Democrats forced the Senate to file cloture on 148 of his nominees and conduct cloture votes on 128 of them. If cloture is required to confirm every remaining Trump nominee, it could take more than 5 years. 

S.Res. 50 would reduce post-cloture debate time from 30 hours to two hours for most nominations except those for the Supreme Court, circuit courts of appeal, cabinet-level positions, and certain independent boards. If cloture is invoked, post-cloture time would be evenly divided between the majority and minority leaders and could be yielded back by one side or both.

The Democrat-controlled Senate imposed a similar limit on post-cloture debate time during the 113th Congress to accelerate consideration of President Obama’s nominees. The Reid-Schumer rule, in effect for that Congress only, provided 30 hours of debate for nominees to the Supreme Court, circuit courts, and cabinet-level positions; two hours for district court judges; and eight hours for all other nominees. The Senate adopted the rule overwhelmingly, with the support of 34 of the 47 Democrats who serve in the Senate today.

NOTABLE BILL PROVISIONS

S.Res. 50 would reduce post-cloture debate time from 30 hours to two hours for most nominations except the Supreme Court, circuit courts of appeal, cabinet-level positions, and certain independent boards. If cloture is invoked, post-cloture time would be evenly divided between the majority and minority leaders and could be yielded back by one side or both. S.Res. 50 does not make any changes to the legislative filibuster and would not expire.

ADMINISTRATION POSITION

The president has not released a Statement of Administration Policy.

COST

A Senate resolution is an organizing document that describes how the Senate will conduct its business. It is not scored by the Congressional Budget Office.