Note 23. Unanimous Consent in the Senate, Part I

A Few Basics

Two sets of developments deserve to be tied together: The demise of routine unanimous consent requests for an important class of Senate business, presidential nominations, and the elaboration of more complex unanimous consent agreements. Both developments are related to partisan strategies. Both tell us something important about the Senate.

The Senate can do most things by unanimous consent—recess or adjourn, go into executive session to consider a presidential nomination, proceed to the consideration of a bill, accept amendments, and many other things.[1] The Senate takes an action by unanimous consent after a senator asks for unanimous consent for a stated purpose and receives it, usually with the presiding officer saying, “Without objection, it is so ordered,” or simply, “Without objection.” If a senator objects, the request is rejected. 

For most of its history, the Senate has operated with frequent use of unanimous consent requests—or UC requests, as they are often called in the Senate. It still does. On June May 25, 2021, a fairly typical day, a unanimous consent request was made and accepted without objection 18 times. One UC allowed a senator to speak as if in morning business; another provided for two minutes of debate on each side before a cloture vote; yet another allowed a set of letters in support of a presidential nomination be printed in the Congressional Record. UCs of this routine kind reflect the flexible use of floor time that senators expect and facilitate the smooth flow of business that the majority leader seeks every day.

Acting by unanimous consent is more than a mere convenience. If every action required a time-consuming vote, the Senate would come to a crawl. That has been threatened in recent decades—and as recently as the spring of 2021. UCs have been deeply implicated in the partisanship and gridlock of the modern Senate. 

It pays to understand where the unanimous consent practice originated and how important it has become. To do so, it is useful to distinguish routine and complex UCs.

From Routine UCs to Obstructionism on Nominations

While the Senate has acted on routine matters by unanimous consent since the early Congresses, the cooperation of senators is always required. Over the decades, moving to executive session and proceeding to consider a nomination was routine and accomplished by UC in the vast majority of cases. Occasionally, a senator would object, sometimes unexpectedly, to draw attention to a concern about a nominee or even an unrelated matter, but this was rare. The majority leader usually cleared his plans with members of his party and with the minority leader in advance.

That changed in late 2013 after the Democrats’ “nuking” of filibusters on most nominations. Republicans responded by refusing to grant unanimous consent to requests to call up and vote on nominations, forcing more time-consuming cloture votes (Figure 23-1). In 2014, the equivalent of more than a full week of Senate time was used just to vote on cloture motions related to nominations. Even though cloture then required only a simple majority, the cloture procedure and votes used up much time. In the next Congress (2015-2016), the Republicans were in the majority so they made most UC requests to limit debate on Obama nominations and, for those nominations they wanted to block, they could refuse to bring them to the floor, as they did for the Supreme Court nomination of Merrick Garland, or vote them down. With a Republican president in the 2017-2020 period, the Democratic minority objected to time agreements on many nominations and forced cloture votes. 

This is not a minor matter. In the three recent Congresses in which cloture votes have been forced on nominations, the time spent on cloture debate and votes on nominations as added up to weeks of floor session time. Indeed, the tactic has become integral to minority slowdown tactics designed to make it more difficult for the majority party to achieve its legislative goals and to make the majority party appear less competent at governing.

A “Scorched Earth” Strategy?

In the spring of 2021, Senate Minority Leader Mitch McConnell (R-KY) predicted an end to routine UCs—going far beyond nominations--if majority party Democrats moved to end the filibuster practice for legislation, as many Democrats were demanding. The Republican leader, of course, was spearheading Republican efforts to block most of the Biden administration agenda that Democrats wanted enacted. Democrats might be able to force action on legislation by doing so, McConnell noted in making his not-so-veiled threat, but the minority would bring the Senate to a crawl by objecting to unanimous consent requests for routine motions—motions to recess and adjourn, to proceed to executive business, to come out of a quorum call, and so on. Hundreds of hours could be consumed voting on such motions, which would make it very difficult for the Senate—for the majority party—to get much legislating done.

The “scorched earth” retaliation that McConnell forecast was not too different than predictions made at other times. In fact, the term, “the nuclear option,” was a product of Trent Lott’s (R-MS) prediction, made back in the 1990s, about how a minority would react if the majority forced an end to the requirement for a three-fifths majority (60 senators) for cloture. At the time, Lott was saying that the minority would go nuclear in response. By the time Majority Leader Bill Frist (R-TN) wanted to make such a move, the strategy had become known as the “nuclear option”—the connotation being that the majority was going to blow up the filibuster.

Contrary to some predictions, the denial of consent to UCs on routine motions did not materialize when, in 2013 and 2017, Senate majorities used the nuclear option for the limited purpose of changing the cloture threshold on presidential nominations. For more important motions, however, minority obstruction ratcheted up. 

Complex UCAs and the 60-Vote Senate

Since 1846, the Senate has used UCs to set a time for a vote. Often called a “time agreement,” these UCs typically were offered during a debate on a measure to create some certainty about when senators need to be on the floor to vote and when they might be free for other activities. Some majority leaders—Lyndon Johnson in the 1950s most famously—were particularly aggressive in urging time agreements to keep Senate business moving.

Time agreements are not always easy to make. Senators may be seeking to kill a measure by refusing to end debate (filibuster) or may want to protect their opportunities to debate and offer amendments. Eventually, many time agreements were elaborated to provide for consideration of an amendment or set of amendments and guaranteed specified senators a time to speak. They became “complex” unanimous consent agreements that are sometimes labeled “complex unanimous consent agreements” (complex “UCAs”) by political scientists. 

Over the last half century, the provisions in UCAs have evolved in response to senators’ expectations and intensifying partisan conflict and obstructionism that have required complex negotiations to resolve. These agreements often are negotiated before the Senate has moved to proceed to the bill. In fact, they often are the result of the minority’s unwillingness to consider a bill and the majority’s insistence that there will be a vote on the bill. Such agreements often list amendments that will be considered and structure the way amendments are considered. 

Senators have become more creative in designing UCAs in recent decades (see my The Senate Syndrome, 2014, for more details). Here are two prominent examples.

Side-by-side amendments. Since 1990, when the first use of side-by-side amendments appears to have been arranged, the Senate often has agreed to allow votes on two first-degree amendments that address the same issue. This creates the possibility that the Senate would approve both amendments and place incompatible provisions in the bill.  It is usually hoped that only one is passed, but, if both versions are passed, the problem would be addressed later in the process, perhaps in conference.[2]

60-Vote threshold. UCAs have included a requirement that an amendment or even a bill receive 60 votes to pass—without cloture being involved. The 60-vote requirement is a way to get votes on amendments with the expectation that the amendments will not be adopted. Senators justify this as a way of getting a vote on amendments that otherwise might be filibustered and block action on the underlying bill. More rarely, a 60-vote threshold has applied to a bill as a way of avoiding the use of a more time-consuming cloture process to act on the bill. And note that this is not a three-fifths majority requirement; when 60 votes are required to adopt an amendment or pass a bill by UCA, 60 votes are required however many senators choose to vote.

In recent years, minority obstruction and cloture motions have become so common that cloture is frequently the focus of UCAs. The UCAs frequently waive the mandatory quorum call before votes on cloture motions are cast, set times for the cloture votes to occur (sometimes giving the floor leaders the discretion to schedule the votes), and providing filing deadlines for amendments. 

An Example

Let me conclude with a typical UCA—from March 2020 in this case. The agreement provided for consideration of an important bill, limiting amendments, setting a 60-vote threshold for approving the amendments, and providing for a final passage vote on the bill. It even allowed the majority leader, Mitch McConnell (R-KY) to structure three side-by-side amendments. This gave the majority leader the ability to accommodate unlisted amendments without either party being too concerned that unlisted amendments of the other side would be adopted.

Ordered, That at a time to be determined by the Majority Leader in consultation with the Democratic Leader, the Senate proceed to the consideration of H.R. 6172, an Act to amend the Foreign Intelligence Surveillance Act of 1978 to prohibit the production of certain business records, and for other purposes; provided, that there be 10 hours of debate, equally divided between the proponents and opponents of the bill with an hour of debate under the control of the sponsors of each amendment, or their designees, and with the Senator from Vermont (Mr. Leahy) and the Senator from Oregon (Mr. Wyden) controlling one hour each; provided further, that the only amendments in order be the following to be proposed by the following Senators or their designees: 

Lee—Amicus Reform and Exculpatory Evidence
Paul—Rights of Americans
Daines—Sec. 215 Web Browser/Search History Data Collection Prohibition McConnell—3 side by side amendments on the same topics. 

Ordered further, That all amendments and the bill be subject to a 60 affirmative vote threshold; provided, that upon the use or yielding back of time, and upon disposition of the amendments in the order listed, the bill, as amended, if amended, be read a third time, and the Senate vote on passage of the bill with no intervening action or debate. (March 16, 2020.) 

[1] One thing that cannot be done by unanimous—to allow a senator to vote after an outcome has been announced—is a sensible way to make votes count.

[2] The practice is described by Martin Paone, former Democratic party secretary, in "Martin P. Paone: Senate Democratic Cloakroom Staff to Majority Secretary, 1979-2008," Oral History Interviews, Senate Historical Office, Washington, D.C.