by 
By Charles Tiefer*
The press coverage of Senator Elizabeth Warren’s silencing under Senate Rule XIX was colorful, but sadly shallow. Much more daunting than a one-cycle news bite or a catchy hashtag, the incident in fact revealed that today’s narrow Republican Senate majority is poised to use procedure to subjugate the minority Democrats to an extreme.
In the news bite version of the story, the Warren silencing was simply a clash of personalities against a background of quaint Senate rules that date to times when the chamber functioned as a “club” of distinguished gentlemen who used aristocratic norms of address.
Warren was silenced after she read aloud from a letter by Coretta Scott King, who had harsh words about Attorney General Jeff Sessions (R-Ala.), whom she called a racist in her 1986 letter. Republican Majority Leader Mitch McConnell (R-Ky.) brought out the rarely used Senate Rule XIX to silence Warren. In his words: “She was warned. She was given an explanation. Nevertheless, she persisted.”
Rule XIX(2) states: “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.” And, Rule XIX(4) provides that “f any Senator, in speaking . . . in the opinion of the Presiding Officer transgress the Rules of the Senate the Presiding Officer shall . . . call him to order; and when a Senator shall be called to order he shall take his seat, and may not proceed without leave of the Senate . . . .” In the authoritative internal Senate guide, Floyd M Riddick & Alan S. Frumin, Riddick’s Senate Procedure, the rule comes under the heading “Disorderly Language, Use of, in Debate, and Restrictions on.”
The Warren incident, examined closely, provides a glimpse into the workings of Senate procedure today—workings that are potent indeed. My research on trends in Congress for The Polarized Congress: The Post-Traditional Procedure of Its Current Struggles—published in 2016—suggests that the current party alignment has predictable consequences. A Republican president, Donald Trump, and a Republican House headed by the strong-willed Speaker Paul Ryan, put enormous pressure on Senate Republicans to bring their partisan proposals to undiluted effectuation. They will push Majority Leader McConnell with all their might to drive through nominations and bills, which will require McConnell to exert significant, centralized power over his institution given his bare majority of fifty-two Republicans to forty-eight Democrats.
Two key trends of the recent past will help strengthen that push, both of which were manifest in the silencing of Senator Warren. First, of course, the Senate has become more and more polarized over the past half-century, increasingly straining and fraying the institution’s bipartisan fabric.
Second, the pressures on the Majority Leaders, especially (but not only) Republicans, have produced a cycle: the minority party resists majority lordliness; the Majority Leader increases his power of control by adding to his “toolkit” and then deploys that power; the minority party further resists majority dominance; and so on. Republicans in 2001 moved a massive tax cut without Democratic support for the highest numbers; Democrats in 2009-2010 moved the Affordable Care Act without Republican support.
Interludes occur when the minority party has enough discipline to turn the tables and kill all majority bills, as the Republicans did in 2010-2014, when the Senate became an absolute graveyard of majority-backed legislation. Yet these interludes do not stop the accumulation of new tools and powers for Majority Leaders to use.
Consider the Senate of past periods up to, say, the 1990s. Power was shared between majority and minority parties in a way that kept a modicum of harmony between them. Senate Majority Leader Howard Baker (R-Tenn.) conducted the chamber in relatively close consultation with Senate Minority Leader Robert Byrd (D-W.Va.).
The minority party typically held off on full use of its filibuster power, partly because of the level of leadership consultation and partly because bills were fashioned to be relatively tolerable to at least some of the minority party.
Now fast forward to the Senate in 2017. The first weeks of Trump’s presidency saw unprecedented signs that the mere fifty-two majority senators would produce action even if it meant trampling the minority. To name just a few:
–Republicans talked incessantly of using budget reconciliation for many major bills. This is a procedure, originally meant only for measures to reduce the deficit, which has evolved into a broad way to enact bills with any fiscal nature. Legislation considered under reconciliation procedures does not need sixty-vote cloture to overcome minority resistance, just a fifty-one-vote majority to pass. Reconciliation was made to order for a situation with a hard-driving House and a president whose party in the Senate has a bare fifty-two-vote majority. It was astonishing how many pieces of the Trump agenda Senate Republicans consider suitable for reconciliation, from the repeal of the Affordable Care Act to individual and corporate tax cuts.
–President Trump called on Republicans to use the “nuclear option” to crush Democratic resistance to the confirmation of Neil Gorsuch to the Supreme Court seat formerly occupied by Justice Antonin Scalia. Democrats seethed at how their own nominee to that seat, Merrick Garland, was last year refused even a hearing.
–Current Senate rules protect the right of the minority party to filibuster Gorsuch absent sixty votes for cloture. The “nuclear option” is a procedural maneuver for radically reshaping the Senate rules to reduce the number of Senate votes needed for cloture for a particular object. President Trump’s early demand to see the nuclear option used for Gorsuch showed utter disrespect for the Senate as an institution made of bipartisan cloth. Trump’s demand would not only ram through this particular nomination; it would also squelch the Democratic minority’s voice when subsequent Supreme Court seats open up over the next few years—seats for which Trump may name someone even further to the radical right, such as Judge William Pryor.
–Trump Cabinet nominees were rushed through the Senate, often by denying the rights of the minority. When Democrats demanded that financial documentation be completed so questions could be put to the nominees at hearings, they were disregarded. When Democrats had questions at hearings, the time for questioning was truncated. When Democrats exercised their right to stay away from the committee meetings to report the nominations to the floor, the nominations were reported in violation of longstanding quorum rules.
–Trump Cabinet nominees were approved by the Senate over opposition that would have certainly blocked them in the past. The day before the silencing of Elizabeth Warren, the Senate voted on Secretary of Education nominee Betsy DeVos. The senators split fifty-fifty on her nomination, with Vice President Mike Pence having to make the tie-breaking vote. (Unlike most—but not all—of the procedures discussed here, the Senate that made the change was a Democratic-majority chamber, which decided to reduce to a bare minority the vote needed for President Obama’s nominations. That change excluded the Supreme Court.)
–They did not get much attention, but in the background in early 2017 loomed two unusual processes by which the Republicans would swiftly redirect government spending, particularly to pump up defense outlays, without waiting for the regular 2017-2018 budget. Last December, the House and Senate financed the government only through April 2017, so that the new Republican president and Congress could immediately put their stamp on appropriations.
–In addition, an “emergency supplemental” spending bill is to be considered soon by the Trump Congress. Again in violation of regular order, which prescribes that such a bill be used for near-term unpredictable spending on active conflicts, this measure will probably be loaded with billions of dollars of long-term defense spending – spending that should have no place in a “war supplemental.”
So when Senator Warren was silenced by Rule XIX, the matter concerned not just a single senator speaking out about one controversial nominee. Warren was surrounded by a high, swirling tide of Republican-manipulated, inappropriately domineering procedures.
Senator Warren’s floor effort is a crucial point in the cycle discussed above. In the days immediately before her silencing, Republicans pounded their chests and proclaimed their intention to use tough majority tactics.
Senate Democrats felt some of the oppression experienced by their minority counterparts in the House.
Normally, just as a Senator could say anything she wanted about those in executive office, a Senator could say anything about a nominee to an executive office. However, since Sessions was still a Senator, he was the only kind of nominee for which Rule XIX could be invoked. Of course, Sessions was still a senator only because McConnell would not let him resign until after Betsy DeVos’s confirmation, for which the Republicans needed every single vote to make it to the fifty-fifty tie.
Conversely, the cycle of the Senate’s evolution traditionally meant that after the majority party had sufficiently flexed its muscle in ways like rushing confirmations and crushing filibusters, a Senate Democrat like Warren would take some kind of a stance to assert minority rights. Also traditionally, in the absence of Senate majority party muscle-flexing a senator who was warned to cease and desist would not continue to make rough statements about another senator – that would be seen as not just disrespect toward the other senator (who might nevertheless well warrant the comments) but also as a danger that could rend the fabric of the institution.
In today’s cycle, however, the minority already experiences the Senate fabric as frayed, subjected as it has been to restrictions, provocations and general disempowerment. So even though warned, the minority persists. There is little point in being careful with a cloth that has already been torn.
To some extent, the die now is cast: the Republican majority is expected to run roughshod over the minority. As noted, reconciliation can pass many bills by a bare majority. Were the minority to hold its ground, the step may be taken to allow Supreme Court nominations—plural—to be confirmed by a bare majority.
But there remains a zone of potency for the minority party, if it can hold fast to 41 votes to defeat cloture. In particular, the Senate has a powerful rule, the “Byrd Rule,” which dates to 1985, that sharply limits bills under reconciliation instructions to fiscal provisions only, not to non-fiscal legislation.
What would a unified Democratic minority be able in this way to filibuster in this way, in 2017 and thereafter? “Repairing or replacing” the Affordable Care Act would require sixty votes, as much of it is non-fiscal legislation. A partial repeal or a rewriting of Dodd-Frank bank-regulating legislation would require sixty votes. Moving through any school-voucher legislation from Betsy DeVos would require sixty votes, as would repealing the aspect of the Clean Air Act that deems greenhouse gases to be pollutants. Democrats should stay united enough, as Republicans did in 2010-2014, that such bills may pass only in bipartisan versions.
The silencing of Senator Warren pursuant to Rule XIX was much more than a colorful, one-day news story. It offers a window into the current dynamics of the Senate, exposing the strengths and vulnerabilities of the majority and minority parties.
*Charles Tiefer is professor at the University of Baltimore School of Law. He is the author of Congressional Practice and Procedure (1989) and The Polarized Congress (2016). He was Assistant Senate Legal Counsel and House General Counsel.