Confirming by Supermajority: Another Look at Today’s Fed Nominations

The Senate readily confirmed Jerome Stein and Jay Powell to the Board of Governors of the Federal Reserve this afternoon, with each securing 70 or more votes for confirmation. With these two new governors, the Fed returns to its full complement of seven governors for the first time since 2006. Obama’s willingness to pair a Democratic and Republican nominee—coupled with the harsh glare of the spotlight this week on J.P. Morgan’s risky business—likely helped to propel the agreement by Senate Democratic and Republican leaders this week to bring the pair to the floor for confirmation votes—even over the earlier objections of Senator David Vitter who had single-handedly blocked the road to confirmation.

Republican Lamar Alexander went to the floor today to herald the Senate’s decision to hold confirmation votes, noting that Republican senators had restrained themselves from fulling exercising their procedural rights in these cases. There was much to admire in Alexander’s frank discussion of the difficulties of legislating in a partisan Senate. But before we get too carried away with patting the Senate on its back for a job well done (Powell’s seat after all had been vacant for six years, Stein’s for over a year), it’s worth pausing a moment to think about the process by which the Senate moved to the confirmation votes. Majority leader Harry Reid had filed a cloture motion earlier this week. Instead of following through with the time consuming cloture process, the Senate agreed unanimously yesterday (i.e. with Senator Vitter’s consent) to bring the nominations directly to the floor for up or down confirmation votes.  Vitter’s price for allowing the Senate to hold confirmation votes was to require sixty votes to confirm. Ordinarily of course confirmation requires only a simple majority vote, even if sixty votes are sometimes first required to end debate on the nomination. (In other words, Senator Alexander’s claims notwithstanding, we might wonder whether Republicans restrained themselves from exploiting their parliamentary rights in these cases.)

Negotiating unanimous consent agreements (UCAs) that require sixty votes—when a simple majority would suffice under the rules—is not entirely new. As the cracker jack Senate experts at the Congressional Research Service have noted here and here, Senate leaders have increasingly resorted to negotiating such agreements over the past couple of years. (See also Steve Smith’s treatment of the new practice.) Although there is precedent for imposing a sixty vote adoption threshold for nominations, sixty vote requirements are more commonly imposed within UCAs on amendments.

Why is this important? To be sure, in some ways the particular procedure employed does not matter: Both cloture and these negotiated UC agreements require sixty votes.  From the majority leader’s perspective, however, negotiating sixty votes allows the Senate to avoid the time-consuming, several day cloture and post-cloture periods. In other words, the UC allows the Senate to proceed more expeditiously without asking opponents to give up their procedural rights to delay or block the Senate from moving forward. The UC in such cases also guarantees a direct vote on substance rather than a procedural vote on cloture, which may be attractive to senators. And in situations in which the minority seeks a vote on a preferred amendment, negotiating a sixty vote adoption threshold protects the amendment from being tabled summarily by the majority without coming up for a direct vote.  In other words, both majorities and minorities often have good reason to consent to these negotiated sixty vote agreements, even if they doubt they will muster the requisite sixty votes. This new practice, in short, improves the Senate’s ability to legislate, may sometimes bolster the majority party’s ability to pursue its agenda on the floor, and provides a solution to the Senate’s knack for tying itself into procedural knots.

For nominations, however, I’m not so sanguine about the practice. Today’s procedural solution imposes a supermajority threshold for confirming presidential appointees, even in situations in which opponents cannot muster 41 votes to block cloture. Obama appointee Judge David Hamilton secured 70 votes for cloture, but just 59 for confirmation; Bush appointee Justice Samuel Alito secured 72 votes for cloture, but just 58 for confirmation.  Granted there are not very many nominees who secure cloture but are then confirmed with fewer than 60 votes. And it seems not to have affected today’s outcomes (in part because they were bundled as a bipartisan deal).  Still, routinizing supermajorities for future nominations seems to me to be a step in the wrong direction. Finding ways to trim, rather than to enhance, the already formidable powers of Senate minorities strikes me as a higher priority.