The Senate is changing character
The Senate has long been more deliberative and individualistic, giving each individual senator more power than members have in the House, where leadership is centralized and members are expected to fall in line.
But long-standing Senate norms that respect individual positions are eroding. In November 2013 the Democratic Senate went “nuclear” to end filibusters on all non-Supreme Court nominations, in response to endemic delays to court and key agency nominations. This move set a precedent in which Senate majority leadership could change rules — and any future majority could override a filibuster. Senate Republican leadership in this session has already advanced nominees out of committee even when no Democratic senator was present.
These changes fundamentally change the institution by reducing the ability of the minority party to influence decisions.
For decades the Senate has been experiencing a slow but steady collapse of comity while descending into perpetual procedural warfare. In “The Senate Syndrome,” Steven Smith notes that the problem is a cycle of obstruct-and-restrict. In response to intensifying minority party obstruction, the majority party adopts new restrictive rules as countermeasures to be able to function.
Increasing obstruction is often attributed to changing norms and rising partisan polarization. But the intensity of current Democratic opposition to Trump’s Cabinet nominees has no precedent — and can probably be attributed to the close and contentious election coupled with controversial executive actions.
With a slim majority, Republicans will assuredly face a filibuster on either Trump’s Supreme Court pick or legislative agenda. Anticipating that, Trump has already come out publicly in favor of the nuclear option for overriding a filibuster for Supreme Court nominees as well.
While Republicans may be wary of ending the filibuster for legislation, because moderate members are advantaged by it, going nuclear on a Supreme Court pick is a comparatively smaller step and therefore more likely.
Expect near universal delay of lower-level executive appointments — which can have a powerful effect
Cabinet appointments usually move quickly through the Senate. The fact that they’re being delayed so forcefully suggests that Democrats may obstruct all nominations. My research finds that, among the 1,200 administration positions that must be confirmed by the Senate, the lower-level nominations can be most easily slowed down. While the people these positions do influence policy, the news media and president are less likely to pay attention to how quickly they’re approved.
And yet they’re important. Those hundreds of lower-level appointments form the connective tissue between the highest presidential appointees and the career civil servants who are make sure executive agencies function smoothly. Without them, the administration’s policy agenda cannot be rolled out.
Though actually preventing a nominee from taking office is rare, delaying confirmation is common — and just as deadly. Most unsuccessful nominations die by delay, of what Bond, Fleisher and Krutz call “malign neglect,” rather than by being voted down. While Senate Democrats may not be able to win a vote rejecting on any lower-level nominations, they can theoretically delay all of them.
It’s important to note that even though the 2013 Senate got rid of filibusters for most judicial nominees, the minority still has many ways to delay action. Under the new Senate rules a determined minority can still require 30 hours of debate even after a cloture vote, which closes the discussion. Using this procedure on every nomination would actually require more time than the Senate works in an average presidential term.
If Democratic senators use the full debate time on every nomination, the resulting logjam would enable only key nominations to pass — because every nominee would require cloture.
That’s exactly the situation that President Barack Obama faced, after the Democratic leadership eliminated the filibuster. He could overcome obstruction on any individual nomination, but not on every nomination. The figure below shows the staggering increase in the use of cloture to overcome obstruction. This is the new normal for nominations in a post-nuclear Senate.
More and more, the Senate has to use cloture to get any nominations through
The current Cabinet fights foreshadow continuous conflict in staffing the executive bureaucracy. A Reagan administration adage had it that personnel are policy. As Trump’s personnel are delayed, he is losing ground on policy.
The result: Difficulty and delay for Trump’s legislative agenda
That’s in part because when the Senate is consumed with every nomination fight, it is not debating Republican legislative priorities. Time is the most precious commodity in the Senate. Every new administration is inevitably judged by the accomplishments or lack therein of the first 100 days.
In this way Democrats gain through pure delay. Every moment spent on confirming Cabinet nominees is a moment not spent on the Republican agenda. Every ounce of executive and legislative energy spent on a Cabinet nomination is effort taken from other priorities.
The delaying effect of these contentious Cabinet battles may be compounded by the nomination of Judge Neil Gorsuch to the Supreme Court. As Richard Vining explained here at the Monkey Cage, fighting for Supreme Court nominations drains valuable political capital — and slows a president’s legislative agenda. Delay may be the Democrats’ best tool for bringing Republicans to the bargaining table.
Previous presidents have taken for granted the ability to staff key posts. Doing so may be one of the biggest achievements of Trump’s early administration.
Like earlier presidents, Trump has not been shy about using executive powers to influence policy. But he’s seen more fallout from his orders than usual. Using executive tools effectively requires the cooperation (and consultation) of federal agencies staffed with like-minded officials. The debacle related to the drafting of Trump’s immigration order shows how difficult — even ineffective — it is to try to govern from within the White House alone.
In her book “Insecure Majorities,” Frances Lee notes that over the past decades, as control of Congress has frequently shifted from one party to the other, leaders have focused less on policy and more on messaging. With their eyes on the 2018 midterms, Democrats appear to be building a party image on opposing the often controversial Trump.
Ian Ostrander is an assistant professor of political science at Michigan State University, specializing in legislative-executive interactions, including the nominations process.