Tuberville is showing how much power one lawmaker wields under Senate rules
If you follow Senate action, you may have noticed lately how a single lawmaker is using senatorial privileges to bend the will of the chamber to his own.
Since February, the senator has been blocking every personnel move in the U.S. military that requires confirmation. Starting with a "senatorial hold" on what was then 150 personnel moves waiting for approval in batches, he is now up to at least 270 — and counting.
That lawmaker is Sen. Tommy Tuberville, a Republican from Alabama who has been in the Senate for a little over two years. Tuberville likes to say "there is no one more military than me." And while he has not served in the military himself, he regularly features Alabama service members on his senatorial website.
Notably, the positions without permanent replacements include that of the Marine Commandant, a post that is now unfilled for the first time since the Civil War. The commandant is a member of the Joint Chiefs of Staff, the senior uniformed leadership of the U.S. military.
Three more members of the Joint Chiefs, including its chairman, Army General Mark Milley, will reach the end of their terms in August and September. That would leave half the Joint Chiefs positions without permanent Senate-confirmed nominees if the Alabama senator remains unmoved.
But for months Tuberville has resisted the entreaties of his colleagues and a formal letter of protest signed by seven previous secretaries of defense who served presidents from both parties.
President Biden, the commander in chief of the armed forces, on Thursday called Tuberville's actions "totally irresponsible" and said they threatened national security.
So the situation raises several obvious questions. Why is this one senator doing this? How does he have the power to do it all alone? Why can't Senate leaders stop this single actor? And, finally, is this really the way the Senate wants to continue to operate in the 21st century?
Let's take those one at a time.
Why is Tuberville doing this?
In two words: abortion policy. He has said he wants to overturn the Pentagon policy of granting leave and travel expenses for military personnel who cannot obtain an abortion in the state where they are stationed. For example, Alabama, which has one of the strictest limits on abortion in the country, has six military facilities. Tuberville told Secretary of Defense Lloyd Austin in a committee hearing earlier this year that the taxpayer should not be "on the hook" for such costs. He says it violates the Hyde Amendment that bans federal funding for abortion.
What other objectives Tuberville may have, we can only speculate. It is not unusual for first-term senators to look for issues that may raise their profile. Tuberville has yet to make much of a mark beyond Alabama, although he was very widely known for his exploits as a football coach at Auburn University, and other schools.
Tuberville is also known for having defeated former senator and U.S. Attorney General Jeff Sessions in their state's Republican primary in 2020. Tuberville won that faceoff with the support of former President Trump, who had appointed and fired Sessions as the head of the Department of Justice.
Little noticed in his first two years in office, Tuberville has since become a frequent guest or topic on cable TV news and in the political press, particularly the most partisan publications on both sides. His focus on abortion has at times been overshadowed by his remarks about the military's rejection of white nationalists in the ranks. Tuberville told one interviewer his definition of a white nationalist was "an American." After that remark was denounced by a number of his colleagues, Tuberville said he did believe white nationalists were racists.
But Tuberville has in no way backed down on his stance regarding abortion, or the policy of the Pentagon with regard to active duty personnel who become pregnant. Having at one time said he would release his hold if the Senate held a vote on the issue, he has more recently said he will not do so until the Pentagon rescinds the policy.
Tuberville's challenge to Pentagon policy in the Senate dovetails with similar efforts in the House. On Friday, the House narrowly approved the annual National Defense Authorization Act (NDAA), which regularly renews statutory authority for the Pentagon's myriad functions and programs. This year's House version would end the Pentagon policy to which Tuberville is objecting. An amendment to that effect was added to the bill in the early hours of the morning on Thursday at the insistence of the House Freedom Caucus, some members of which have spoken out in support of Tuberville. "He's got backup here in the House," said Rep. Ronny Jackson, R-Texas, lead sponsor of the amendment.
But that language is not expected to be in Senate version of the bill, which has yet to be approved. Nor is the Senate expected to approve, or even vote on, a separate bill by Sen. Joni Ernst, R-Iowa, that addresses the Pentagon policy in question.
So Tuberville's objective is not likely to be achieved by legislation.
How can one senator do this alone?
In two words: unanimous consent. Among the mysteries of Senate procedure that mystify most Americans, perhaps none is more curious than the concept of unanimous consent.
As congressional scholars Casey Burgat and Charles Hunt put it in their 2023 textbook Congress Explained, "the Senate's rules grant incredibly powerful privileges to all Senators ... that greatly affect how and if the chamber schedules" floor action on any subject.
While the House has a Rules Committee that orders the debate and voting on pieces of legislation, the Senate relies heavily on consent agreements negotiated by the party leaders. Such "unanimous consent agreements" have evolved to be a crucial means of bringing Senate business to the floor for formal consideration.
Former Senate Majority Leader Robert C. Byrd (who died in 2010 after a record 51 years as a senator) once said unanimous consent was used for "easily 98 percent of the business of the Senate" that reached the floor for consideration.
And Mitch McConnell, the Republican from Kentucky who is the current GOP leader and the record-holder for longevity in that role once quipped that the Senate "requires unanimous consent to turn the lights on before noon."
Burgat and Hunt have written that "because any one senator can tank a UC request or agreement, party leaders must maintain very open lines of communication with each member within their caucuses."
And under normal circumstances, they do so. Their staffs stay in touch with members of their respective parties obsessively so as to be informed and accommodative — and to know when a UC agreement can be reached and the Senate can proceed.
But once in a while, an individual senator pushes the envelope.
Why don't the Senate leaders stop him?
The current Senate Majority Leader Chuck Schumer has made it clear he considers Tuberville's blockade an abuse and an outrage. The GOP's McConnell has also said he does not support the "blanket hold" on military nominations. Both have acknowledged the pleas coming from the Pentagon and from the ranks, and they have done what they could to encourage Tuberville to stand down.
But the leaders cannot simply bulldoze the senator from Alabama. Their power is restrained by Senate rules and traditions and by the sentiments of their respective caucuses.
If the issue here were an ordinary piece of legislation, the leaders would seek a unanimous consent agreement that would bring that matter to the floor. Individual senators may object to that with a notice that they seek "extended debate" on that legislation. This is an implicit threat to filibuster, and the majority leader routinely files a cloture petition and holds a vote.
If cloture fails, the legislation does not go to the floor. If three-fifths of the Senate supports cloture, the legislation can be brought to the floor with time limits on debate.
Presidential nominations have been largely exempt from this since 2013 when a Democratic Senate majority decided only nominations to the Supreme Court would be subject to filibusters. In 2017, a Republican majority decided to extend that exemption to include Supreme Court nominations.
Nonetheless, Tuberville's maneuver has the effect of freezing confirmations for the current backlog presidential nominations because they are submitted in batches for group consideration and approval. The batching procedure itself requires unanimous consent, allowing even one senator to stand in the way.
The Senate majority leader could bring the nominations to the floor one by one for consideration by regular procedure, but that would require two to three days for each. Had the Senate tried to individually process even the first 150 promotions Tuberville blocked back in February, it could have done little else in the months since – and it would still be far behind on confirmations. That is scarcely practical when the military alone submits hundreds a year and the larger executive branch far more.
Moreover, just as the Pentagon bristles at having a single senator dictate its personnel policy, so the Senate leaders are loath to have individual senators deciding when and if the Senate can proceed with normal business using its usual procedures – such as the batching of nominations.
Is this really the way the Senate wants to be?
Does a Tuberville-style use of senatorial privilege strain relations with other senators and especially the leadership? Surely it does. It may even mark an individual for years, affecting their careers in the chamber. Surely Republican Ted Cruz of Texas, paid a price in terms of such relationships after he pushed a government shutdown as a first-year senator in 2013.
But there instances when the notice to be gained for an issue — or for an individual senator — may seem worth the notoriety that goes with this kind of tactic.
The Senate has long styled itself as "the greatest deliberative body in the world." That is both a boast and an invitation for the institution to be held to its own standard — to be judged against its own image of itself.
But when it comes to changing the Senate's "standing rules" — or its powerful precedents, practices, customs and folkways – the members of the club have been wary of reforms that would reduce their own privileges.
They may decry an egregious case such as Tuberville's, or speak against the hold or the filibuster. They may criticize the Senate as a whole as being too often anti-democratic in its procedures.
But when it comes to voting for actual reform, senators tend to remember their own reliance on those "incredibly powerful privileges" scholars note they are granted under the rules.
More than a few senators have come to regret the curtailment of the filibuster on nominations back in 2013, which was occasioned by a blanket hold on all presidential nominations of then-President Obama. That blanket hold had been placed by another Republican from Alabama, Richard Shelby, since retired.
Democrats applauded that limitation on the filibuster then, but many felt differently when it was extended to include Supreme Court nominations in 2017. It is an open question whether any of Trump's three appointments to the Supreme Court could have survived a filibuster, had one been mounted. But we will never know.
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