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Why Democrats won’t outmaneuver Tommy Tuberville

There are risks to changing Senate rules.

- September 20, 2023

Since March, Senator Tommy Tuberville (R-Ala.) has singlehandedly blocked the Senate from easily confirming over 300 of Pres. Joe Biden’s military appointments across all five branches of the armed services. Those include Biden’s picks to chair the Joint Chiefs of Staff and to head the Marine Corps, Army, and Navy. Tuberville’s so-called Senate “hold” leaves many officials on double duty – serving in both their old and new positions as they await Senate confirmation. Given how the military regularly rotates officials through appointments, the Pentagon estimates that nearly 650 of more than 850 top leaders will not be able to take their posts if Tuberville does not relent by the end of 2023.

Tuberville is protesting a new Pentagon policy that pays for transportation and leave time for servicemembers seeking legal abortions out of state, if the servicemember is serving in a state that restricts access to reproductive health services, and which the Pentagon put in place after the Supreme Court’s Dobbs decision. Tuberville charges that the policy violates federal law prohibiting funding for most abortions; the Justice Department argues the policy is legal. Regardless, Tuberville vows he will only release his hostages if the Pentagon revokes the policy, which it is unlikely to do. Meanwhile, Republican Party officials back home cheer his resolve, though polls of Alabama voters are more mixed.  

Technically, Democrats have several ways to circumvent Tuberville’s blockade. But the political and institutional costs of such moves make Democrats loath to maneuver around him. Without either enough Republican pressure to get Tuberville to bend or an acute crisis that pushes the parties to make a deal, stalemate will continue.   

How it works in normal times

Each year, pursuant to Article II, Section 2 of the U.S. Constitution, the president nominates hundreds of top military officers (known as general and flag officers) for appointments and promotions across the armed services, sending them to the Hill for timely Senate confirmation. 

Because there are so many military nominees, the Senate typically considers and confirms them in large batches (known as “en bloc”). To do that, the Senate majority leader seeks the unanimous consent of all 100 senators to waive the regular rules of debate. If no senator objects – or threatens to object – the Senate can get through all the necessary procedural steps to confirm dozens of nominees in one fell swoop without time-consuming roll call votes.

How to throw a wrench in the system

Enter Tuberville. Whenever a Democrat asks for unanimous consent to confirm nominations en bloc, Tuberville objects. In Senate lingo, Tuberville has placed a “blanket hold” on military nominations: He’s put the Senate on notice that he will object every time a senator asks for consent to confirm military nominees en bloc. Tuberville is not the first senator to take scores of military appointments hostage to their demands, but in the past, senators have folded far more swiftly.   

Tuberville’s hold doesn’t technically stop the Senate from considering the nominations. But without unanimous consent to confirm nominations en bloc, Senate rules require the chamber to take them up one by one. That means the Senate must call up each nomination separately, file a motion to cut off debate (known as a “cloture” motion), wait two session days for the cloture motion to “ripen,” vote on cloture, and if successfully invoked, hold two hours of “post-cloture” debate, and then move to a confirmation vote. 

True, any senator could simultaneously file dozens of separate cloture motions for different nominations and then let the cloture motions “ripen” all together over two session days. At that point, Senate rules require the nominations be handled sequentially: Each nomination gets its own cloture vote, two-hours of post-cloture debate, and a confirmation vote. Rinse and repeat for dozens of nominations, one at a time. 

But in practice, even doing it that way, staffers estimate it could take months of Senate floor time to confirm hundreds of nominees. And that’s without pausing to work on any other measures, such as, say, funding the government.  

Democrats have thrown cold water on a GOP proposal that the Senate should call for votes on a small handful of top appointments. Singling out top brass for action, Democrats maintain, would snub lower-ranking officials, encourage future hostage-taking, and allow Republicans to dodge blame for the impasse caused by one of their own. 

Why don’t Democrats change the rules?

There are several potential procedural solutions, but it’s doubtful any of them could work. A resolution proposing a formal change in Senate rules requires a two-thirds vote to end debate. So even if 50 Democrats and independent Kyrsten Sinema of Arizona stuck together, they would be shy 16 GOP votes. 

Many Republicans do seem frustrated with Tuberville’s tactics, but they are unlikely to vote for a rule change that would further endow the majority with leverage over nominations – even though  Republicans would benefit when they regain the majority. Case in point: Sen. Amy Klobuchar (D-Minn.) has proposed allowing the Senate to call up 10 nominations at a time without unanimous consent. That change would barely make a dent in the backlog of military appointments, and still no GOP senator has signed on.

Second, Democrats could “go nuclear.” By a simple majority vote, Democrats could set a new precedent (which amounts to a new interpretation of an old rule) that would allow a majority to confirm, say, 100 military appointments with a single cloture motion and confirmation vote. 

But Democrats don’t seem keen to launch a strike. For starters, given the closely divided Senate, Democrats would need the votes of every one of the 48 Democrats and the two independents who caucus with them, plus independent Kyrsten Sinema. But neither Sinema nor Sen. Joe Manchin (D.-W.V.) has supported recent nuclear attempts by Democrats, suggesting that Democrats may not be able to count on their votes. 

Old habits die hard

So why don’t Democrats just ignore Tuberville’s holds, say, by seeking unanimous consent when he’s not in the chamber to object? 

Senate leaders can ill afford to ignore their colleagues’ objections to consent requests. Indeed, reliance on unanimous consent is woven into Senate life. Notably, most of the time, senators do not fully exploit the chamber’s formal rules. They don’t have to. Instead, when leaders seek unanimous consent, senators often use their leverage under the rules to force Senate leaders to accommodate their demands. By meeting their colleagues’ demands to secure consent, leaders can set aside cumbersome, time-consuming rules and make the chamber function. 

But as the Tuberville example shows, leaders can’t always meet senators’ demands. That’s when the Senate crawls to a halt, and the majority typically moves on to its other business.  

Most senators don’t want to give up the leverage that leaders’ constant need for unanimous consent affords. Were the Democrats to hoodwink Tuberville by seeking consent in his absence, another Republican would surely object on Tuberville’s behalf (even if he or she opposed Tuberville’s tactics). What’s more, the next time Democrats needed Tuberville’s consent, he could retaliate and tie the Senate in even greater knots – perhaps on the eve of a government shutdown or debt default. 

So what kind of crisis might loosen Tuberville’s grip? Apparently, we may find out. 

Image: (cc) Daniel Mennerich