Tommy Tuberville and the future of the single senator veto

Since February, Sen. Tommy Tuberville (R-Ala.) has blocked votes on every personnel recommendation of the U.S. military requiring Senate confirmation. By the end of the year, the impact will be felt by about 90 percent of the nation’s most senior military commanders.

According to a legion of critics across the political spectrum, Tuberville’s action poses a threat to national security, reduces military readiness and undermines morale. In a joint letter, seven former secretaries of defense declared, “We can think of few things as irresponsible and uncaring.” Along with several other Republican senators, Senate Minority Leader Mitch McConnell opposes his “blanket hold.”

Tuberville, who has never served in the military, claims the U.S. Armed Services has “too many officers.” And he has maintained that he will not relent until the “woke” Pentagon — which he alleges, without evidence, may be facilitating “after birth abortions” — stops granting leave and travel expenses for military personnel who cannot get abortions in the state where they are stationed.

Having accomplished nothing in nine months, Tuberville told his Republican colleagues on Nov. 29 that he would get them out of “this mess,” but did not say when or how. The next day, he acknowledged that “these people need to be promoted,” promised to allow promotions “in the very near future,” but “I don’t know how many at one time.”

Tuberville’s single senator veto depends on an arcane procedural rule. In the House of Representatives, the Rules Committee sets guidelines for debates, amendments and votes on legislation. By contrast, the Senate requires “unanimous consent” for most nominations and bills to reach the floor. The Senate, McConnell once quipped, needs unanimous consent “to turn the lights on before noon.”

Because bringing up the Pentagon’s nominations one by one would tie the chamber down for months, Majority Leader Chuck Schumer requested unanimous consent to consider them in batches, and Tuberville’s objection kept them off the calendar. A resolution to suspend unanimous consent is subject to a filibuster, and so far not enough Republicans seem willing to invoke “cloture” and proceed to a vote on the nominations.

As Tuberville’s parliamentary maneuver demonstrates, unanimous consent, holds and filibusters thwart the will of the majority, increase partisan polarization, decrease the ability of the Senate to do its work and prevent senators from debating the merits of legislation. It’s time to end these harmful practices.

It’s important to note that none of these (nor a provision for unlimited debate in the Senate) originate in the Constitution. In fact, in Federalist 22, Alexander Hamilton writes that “if a pertinacious minority can control the opinion of a majority,” national proceedings will be “kept in a state of inaction.” And a weak government, “sometimes bordering on anarchy,” will be incapable of conducting “the public business.”

“Universal consent” was introduced into the Senate in the 1840s by Sen. William Allen, who defined the term as “a conversational understanding that an end would be put to a protracted debate after a particular time.” In 1914, what had been a “gentleman’s agreement” became formalized as a mechanism for placing bills directly on the Senate calendar. Over the ensuing decades, universal consent was used “pro forma,” to expedite consideration of routine matters almost certain to command a large bipartisan majority.

Ironically, universal consent has now become a weapon, backed up by an implied filibuster threat, allowing hostage-takers to delay such consideration to extract concessions for their own priorities that do not command a majority.

A hold is a fraternal twin to universal consent, which since the 1980s has taken the form of a demand by an individual senator that the majority leader not bring up a bill or confirmation of a nominee. In 2023, in a protest against indictments against former President Trump, Sen. J.D. Vance (R-Ohio) put a hold on appointments to the Justice Department. To pressure the Biden administration to propose a plan to reduce prescription drug prices, Sen. Bernie Sanders (I-Vt.) put a hold on nominees for health-related positions.

The filibuster is, of course, the elephant in the Senate chamber. The Senate’s first formal limit on debate came in 1917, with a cloture rule permitting a two-thirds majority move to a vote. In 1975, the threshold was reduced to three-fifths. In recent years, the Senate has permitted “silent” filibusters, conducted without senators having to hold the floor.

The result has been a huge increase in filibusters, applied to most of the Senate’s business. In the 60 years between 1947 and 2006, 960 cloture motions were filed; in the decade between 2010 and 2020, 959. And the Senate is the only legislative body in the world that requires a supermajority to pass “ordinary” bills.

Designed to slow down legislation proposed in the heat of the moment and ensure careful deliberation, the filibuster has become a means of stopping it — all too often, it seems, by politicians who prefer partisanship and paralysis to governing.

What, then, can be done? Universal consent and holds should be abolished and the Senate Rules Committee given the authority to work with the majority leader to set the calendar, guidelines for amendments and time limits for debate. Few Americans realize that the filibuster has been revised 161 times since 1969. The closing of military bases, arms sales, fast-tracked trade agreements, the budget reconciliation process and the confirmation of federal judges are no longer subject to filibusters.

And so there’s ample precedent for the Senate to add additional legislation, including voting rights, to that list. Senators should set the threshold for cloture at 55 votes, or reduce the current number needed by three after each cloture vote, until a bill can pass with 51 votes.

Americans take pride, and justifiably so, in a political system that pairs majority rule with minority rights. But since eternal vigilance is the price of liberty, it seems like the right time to adjust the balance between them by taking a hard look at unanimous consent, holds and the filibuster.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”