Despite recent Republican warnings that the Senate will work 24/7 to overcome Democratic delay tactics, Republicans are unlikely to execute that strategy. Floor time is the most valuable resource that Senate Republicans have and they have a number of pressing issues. Senate Republicans only have limited time to use the Congressional Review Act and its requirement of 10 hours of floor time before each vote. Similarly, Democrats have forced 30 hours of floor time before confirming some of President Trump’s more controversial nominees. Even if Senate Republicans want to address non-time pressure issues, they would need 30 hours to pass any legislation (nearly all) subject to a filibuster. Add these time requirements up, and the Senate could struggle to get much done in the next two years.
To solve this problem, Republicans have threatened to have the Senate in session 24/7 to allow more floor time. While there is nothing stopping Republicans from keeping the Senate open for as long as they want, this strategy would likely only be partially successful because the quorum requirements would make 24/7 sessions hard for Republicans to maintain.
To be in session, the Senate must have a quorum present. In practice, one is not usually present. Instead of listening to other Senators speak to the C-Span cameras, Senators usually spend their time outside the Senate floor (but still near the Capitol) going to hearings, marking up legislation, and meeting with constituents. Even though a quorum of Senators is not present on the floor, the Senate assumes that a quorum is present. However, any Senator may request a quorum call, and if the call does not show a majority of Senators present (50 Senators, once Senator Sessions is confirmed), “no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.” By practice, Senators do not make these calls because (1) they also want to spend their time off the floor doing pressing work and (2) do not want to be “that jerk” who required everybody to drop what they are doing to come to the Senate floor.
Conversely, Senate Democrats would likely require a quorum call if the Senate were not conducting business, but merely trying to run out floor time. At any time in the night, Democrats could make a quorum call. Republicans would then need to produce a majority or adjourn the Senate. Even if they could produce a majority with some delay (waking a Republican Senator and getting him to leave his house or arresting a Democratic Senator and forcing him to come to the floor), the time that it took Republicans to produce the majority would not count as floor time. To avoid this, Republicans would effectively need to have 49 Senators near the Capitol 24/7. On the other hand, Democrats would only need to only have one Senator on the floor to (1) ensure that a quorum is present and (2) that Republicans do not pass legislation by unanimous consent. Even with the ability to give two Senators a break every night, Republicans would likely have little desire to spend all their time at the Capitol.
Even though Republicans would likely not want to spend all their time near the Senate floor, they could implement part of a 24/7 schedule. For instance, they could have late sessions and have sessions on the weekend. To force Democrat’s continual presence, they could schedule committee meetings. This strategy would have the added benefit that vulnerable Red State Senators could not go back to their states to campaign.
Nevertheless, the best solution for Republicans to increase available floor time would be to let Democrats continue making all-night talkathons. Paradoxically, by using all-night talkathons (floor time) to bring attention to controversial nominees, Democrats are keeping the Senate in session and providing Republicans with additional floor time to more quickly pass its agenda. Effectively, each talkathon is the rough equivalent of allowing Senate Republicans to overturn an additional Obama regulation.
*Sam Wice is an attorney adviser for the U.S. Government, a former analyst at the Congressional Budget Office, and a former Council member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. The views expressed herein are those of the author.