Yesterday we saw Republicans on the Senate Finance Committee nuke their rules to permit the reporting out of the Mnuchin and Price nominations. Today, the Senate Environment and Public Works committee pulled something similar, though even more naked, to report out the nomination of EPA Administrator-designate Scott Pruitt.
I say they “nuked” their rules, because the procedures used in both instances are essentially identical to that of the “nuclear option,” used to set new precedents (not actually “change the rules,” per se) with respect to invoking cloture on executive and judicial nominations, with the exception of nominations to the Supreme Court.
The rules of the Finance Committee ordinarily require that a quorum be present in order to conduct business, which would, of course, include holding any votes. Their rules define a quorum this way:
one-third of the membership of the committee, including not less than one member of the majority party and one member of the minority party, shall constitute a quorum for the conduct of business.
When Democrats absented themselves from their proceedings, that meant no quorum could be established for reporting out the Mnuchin and Price nominations, since no members of the minority party were present.
But chairmen Orrin Hatch (R-UT) of the Finance committee, and John Barrasso (R-WY) of the Environment and Public Works committee, both think they’ve worked out ways around that.
Hatch’s plan was the more elegant of the two. He had Sen. Johnny Isakson (R-GA) make a motion to suspend the rules temporarily (and that those rules be restored at the conclusion of the day’s business), including the rule requiring a member of the minority be present in order to establish a quorum, so that votes on the nominations could be taken. That’s when Hatch, a bit of a stickler for the rules, got really crafty. He actually ruled Isakson’s motion out of order. Now, he could have done this for two reasons, though he named only one. Most obviously, he could have ruled the motion out of order because without a member of the minority present, no quorum was present to validate a vote on Isakson’s motion. But he didn’t do that. Instead, he ruled it out of order under committee rule 2(a), which states in relevant part that no business that isn’t listed in the committee’s written agenda for any meeting will be considered germane for discussion at that meeting. Since the written agenda didn’t include a vote on suspending the rule on quorums, Isakson’s motion was non-germane, and out of order.
Having ruled correctly on that narrow question, Hatch then appealed his own ruling, and called for a vote to overturn it! To no one’s surprise, the committee’s 14 Republicans then voted to do just that, the effect being to validate Isakson’s motion after all. Clever! And a precise analog for the logic of the better-known “nuclear option.”
Over in the Environment and Public Works Committee, though, Barrasso took a slightly different and more troubling approach. Eager to report out the Pruitt nomination, he asked his committee Republicans for a motion to suspend his committee’s rules 2(a) (“six members, at least two of whom are members of the minority party, constitute a quorum”) and 8 (“The rules may be added to, modified, amended, or suspended by vote of a majority of committee members at a business meeting if a quorum is present.”). Then, hearing one of his Republican colleagues agreeing to make such a motion, and another seconding it, he called for a voice vote to approve the motion, and to no one’s surprise, carried the vote.
How was the vote in order under rule 8 requiring a quorum for the conduct of any business?
It wasn’t.
Could Barrasso have gotten around the problem the same way Hatch did? That is, by having someone make the motion, ruling it out of order, then appealing his own ruling and taking a vote on the appeal?
Yes. Sure. But he didn’t. He just moved to suspend the rule about how you can suspend the rules, and the rule about what a quorum is, and said that the voice vote did the trick.
Does that “work?” Well, in some sense, yes. That is, with nobody there to raise an objection to the inherent contradiction, the vote was taken and the nomination was purportedly reported out unanimously. But that’s as naked a nuclear option as you’re ever likely to see! As opposed to noting for the record that the rules say “X,” but that overturning the correct ruling of the chair will stand for a ruling that the rules are now interpreted as saying “not X,” Barrasso just substituted the result of a vote that the rules say should never have taken place as having waived that rule. Neat!
Is there anything Democrats can do about it? Well, probably not that much, at least in terms of preventing the Pruitt nomination from ultimately moving forward. After all, if Barrasso had taken a little more time and care, he could certainly have engineered his vote the way Chairman Hatch did, and he’d be on much better footing.
However, it might be worthwhile for Democrats to consider some parliamentary inquiries about the Pruitt nomination’s actual status when the Majority Leader tries to bring it up for floor consideration, and claims it’s been reported out by the EPW Committee. Was it, really? Or is that just fake news?