What is the role of the Senate’s majority leader? (with James Wallner)

Understanding Congress

The topic of this episode is, "What is the role of the Senate’s majority leader?"

My guest is Dr. James Wallner. He is a senior fellow at the R Street Institute and a lecturer at Clemson University. He is the author of three books on the Senate, including one titled On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate (2017). James has worked in the Senate, and also is a cohost of the Politics in Question podcast.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to James Wallner that we turn to learn about the role of the majority leader. James, welcome to the program.

James Wallner:

Thanks for having me.

Kevin Kosar:

First question. Chuck Schumer is the current majority leader in the Senate. How did he get that job? What's the process? Did all the senators get together and vote for him or some other candidate?

James Wallner:

Well, that's how it works in the House, where you nominate candidates to be the speaker of the House. Nancy Pelosi is our current speaker. Democrats and Republicans on the floor of the House all cast a vote for the speaker, and the nominee with the most votes becomes the speaker. And so the majority party, in effect, selects the speaker. In the Senate, it's a similar process, but slightly different, because they're not electing a speaker, they're not electing a presiding officer. The majority leader, Chuck Schumer, is merely the floor leader of the party with the most votes — so in this case, the Democrats. And it’s 50–50 right now, split evenly between Democrats and Republicans. The vice president is a Democrat, so assuming that the vice president would cast her vote with the Democrats on a tie vote — under the Constitution, she gets to do that — that means that Chuck Schumer has more votes behind him than the leader of the Republican Party, Mitch McConnell, has behind him. So he is the majority leader, McConnell is the minority leader. The way they're chosen is simply by their party colleagues in secret ballot, in a meeting that usually happens right after the election, typically in December following an election before the new Congress meets.

Kevin Kosar:

You underlined a point there about the difference between leadership in the House and leadership in the Senate. It sounds, at least ostensibly, that a speaker may make a claim to be the head of the whole of the House, whereas in the Senate, it sounds like the majority leader is just the partisan leader.

James Wallner:

Absolutely. Look, party leaders in the Senate have institutional tasks, too. They help to schedule legislation. They do a bunch of different things that institutional leaders in the House, like the speaker, also do. And the speaker is also a partisan leader, in the fact that she is selected by her majority party caucus and really works to advance the agenda of the majority party. So they go hand in hand. But there is no Senate leader. I'm reminding myself of Woodrow Wilson, where he says, "There's no leader in the Senate," and that's something that's really frustrating him. And this is what makes the Senate great. Because there's no one that presides over the Senate, who wields lots of power, whom all senators vote for, the institution has a very decentralized set of procedures. The way it makes decisions is very decentralized. And the majority leaders (that weren't in existence prior to the beginning of the 20th century) and the minority leaders, their job, while they do it differently over time, is really then to facilitate the participation of members in the process and also to help to enact their agendas. So there's an institutional component to it, and there's a partisan component to it.

Kevin Kosar:

Is there anywhere listeners can turn to see a job description for the majority leader?

James Wallner:

You could just Google it, I'm sure, and you’d get lots of interesting stuff. You'd probably look up something on Senate.gov. You can look at different biographies of different majority leaders in the past. Robert Caro's The Master of the Senate, a book about Lyndon Johnson, is a great example. But I want to underscore something. There is no one way to lead the Senate. That changes, and it changes over time in response to the environment in which the Senate operates, the problems and challenges that the senators have, and the goals that they want to achieve. And so the leadership position is going to look different at different points in time. There is no one way to lead the Senate.

Kevin Kosar:

And how does one lead the Senate? The first place a person's mind might turn to are powers. We should talk about powers. When you think of leaders, usually leaders have some sort of powers they can use to get other people to obey them. Does a majority leader in the Senate have any powers that are granted to them by the Constitution or Senate rules or something else? The power to give out resources, the power to assign people to committees, power to do whatever it might be? What powers does the Senate majority leader have?

James Wallner:

Well, the short answer is none. If you think about it, that seems a little strange, because if you open up the newspaper and spend five minutes reading about the Senate, you're going to hear a lot about Mitch McConnell, you're going to hear a lot about Chuck Schumer. You'll hear about some other members as well, but we hear about the leaders. The leaders don't have any powers, certainly when compared to the House. They're not mentioned in the Constitution, like the speaker of the House is. The Senate rules themselves, they mention the majority and minority leaders on several occasions, but not in any real, significant way. And they don't really bestow on the two leaders any significant powers. The reason why they're powerful is because the rank and file members, the lawmakers themselves, defer to the leaders to do a whole host of different types of activities to make the legislative process more orderly. This first starts in the late 1940s, early 1950s, and it gains steam over time.

There's something else I really want to underscore though — that the leader has what we call priority of recognition. So everybody's favorite vice president, John Nance Garner, “Cactus Jack,” in 1937 created a precedent. A precedent is simply just what the Senate did in the past. And it looks to its past behavior on occasion to decide how it wants to operate in the present. And so there's a precedent out there where Cactus Jack is sitting there presiding over the Senate, and he just says one day, “Alben Barkley,” (ironically, a leader from Kentucky; we’ve got a current minority leader from Kentucky in Mitch McConnell), but Alben Barkley, he's about to speak, and Cactus Jack says, "You know what, I'm going to recognize the majority leader first, and then the minority leader after him, if more than two senators are seeking recognition at one time." So that's priority of recognition. It's a favor. It's a favor that the chair, the presiding officer, and in this case, the vice president, gives to whomever the floor leader is, whomever the majority leader is. And it's something that the Senate can't force the chair to do.

Now, what does the majority leader do with priority of recognition? It doesn't really matter much at the time, but today it's almost everything. Because priority of recognition, coupled with senators’ deference to their leaders to order the chamber for them and order their deliberations and make it more efficient and predictable — and to be quite honest, easy and less hard — the majority leader will use priority of recognition to set the schedule by making motions to proceed to bills. And then, and most importantly, they will use priority of recognition to fill the amendment tree, which is just a fancy way of saying, they will offer a bunch of amendments, one after another, so that no other senators can offer amendments. And this, in effect, shuts the floor down, shuts down a bill, and denies senators the opportunity to amend it. The Rules Committee in the House will do that as a written rule. And you can very clearly see where the power comes from, and you can see when they vote against your amendments why you can't get your amendments. But in the Senate, the leader approximates that by this priority of recognition, in using it to basically do things that other senators cannot do.

Kevin Kosar:

Earlier, you mentioned that one thing a majority leader does is do stuff that other senators don't necessarily want to do. And one of those things I would think would be the seeking of unanimous consent. What is unanimous consent, and what's the leader's role in getting it?

James Wallner:

So typically when I talk about the Senate, I start off by saying the rules don't matter. Then later on, I say maybe one or two rules matter. And then at the end, I'm like, they all matter, all the rules matter. Well, in the “the rules don't matter” stage, they don't matter because of unanimous consent. The Senate has rules, it has procedures to follow, it has things that it does to make compromise. It's worked that way for hundreds of years, for a very long time. But they never follow those rules. Why? Because they're convoluted. They're hard. They require a lot of effort. The former Senate parliamentarian Alan Freeman used to tell me, there's a certain logic to the rules, but it's contradictory. On one hand, it drives senators towards compromise, towards agreement. The process makes things possible. But at the same time, it also empowers individuals to participate in that process, even individuals who disagree and want to stop things that the other senators may want to pass. But those two things taken together ultimately lead to outcomes.

Now the Senate doesn't follow its rules for lots of different reasons, but let's just go with the fact that it makes it easier to legislate. Well, what do they do? They cut to the end. They know they can game it out and they can say, "Well, if we do this, then you're going to do this and then I'm going to do this, and it's going to unfold like that.” This is how Mike Mansfield and Senator Richard Russell, when they had this meeting in his office prior to the debate of the Civil Rights Act of 1964, they told each other what they were going to do, how they were going to try to win that debate. So I imagine this playing out in senators’ heads. I don't think it does in that same way, but they just cut to the chase. And so they see where things are going to go and they say, "Okay, well let's just not go through all the effort to get there. Why don't we just agree by unanimous consent to waive all our rules and just set a 60-vote threshold, for instance, to pass something” — instead of first having to invoke cloture, which under the Senate rules requires typically 60 votes, and then going through a post-cloture period, and then finally having a simple majority vote on it. Let's just cut to the chase — unanimous consent. And so unanimous consent is a way that the Senate waives its rules and creates a new set of procedures, sometimes very intricate, sometimes not, for a specific bill or a specific debate, or even just for a specific slice in time, so that it can avoid the Senate doing something else under those rules.

Kevin Kosar:

I've heard it said that the majority leader doesn't decide what gets voted on in the Senate, but rather coordinates what gets voted on in the Senate, and will do that through this process of seeking all senators to agree to unanimous consent — so that when he shows up on the floor one morning to do something he doesn't get surprised. Because apparently one senator can gum up the works. Is that right?

James Wallner:

It's right only insofar as that senator's on the floor at the moment unanimous consent is propounded and requested of other senators. And oftentimes, and this has happened during my career in the Senate, the leaders will, when they want to, they will conveniently overlook the fact that someone may have concerns. And in the past, going back to the ’80s, you had Senators Baker and then Dole on the Republican side who were very explicit in reiterating to their colleagues that unanimous consent, or the cloakroom and the hold process and the ways in which the leaders won't ask consent if rank and file have a potential objection — all of those things are favors or services that the leaders are giving or doing to provide for their rank and file. They don't have to do them. And so if you're not there, you can't object. You can't say no. And if you are there, there's certainly things that leaders can do to make it very hard for you to object. They can wait until the last minute, and they can put some provision that you don't like into a big government funding bill or a debt limit bill or something else. And then they can say that if this doesn't pass, this other thing that you're not objecting to, it will be Armageddon. The republic will fall into the ocean, the seas will boil, and it will be just the worst thing in the world. And then you can imagine how difficult it is to stand up and say, "I object,” and then you sit down.

But again, unanimous consent is just a request. It's a vote where everybody has to vote yes. The second you can sit down, the Senate has lots of other procedures they can follow to pass things. There's no veto in the Senate. And the only thing that exists like a veto is when you ask for someone's permission to do something, to waive the rules and pass a piece of legislation, for instance.

Kevin Kosar:

You referenced something called a hold. Listeners may have encountered that phrase before when hearing about the Senate being unable to take up something, whether it's a nominee or a piece of legislation — that a senator put a hold on it. We don't know who it was, but a senator did that. First, what's a hold? And when it comes to holds, if somebody does a hold, is it the majority leader's job to go deal with that person, to see if they can bargain with them?

James Wallner:

The hold process is possibly the least understood aspect of Senate procedure in decision making next to I think the filibuster, or maybe the votes on motions to recommit and cloture. But we'll set all that aside for now. The hold process, what is it? It's simply a senator who expresses an intent to object, who communicates to his or her party leaders that they will object to something. You typically do it in a letter. You say, "I'm just notifying you. Hey, heads up Chuck, if you bring this to the floor, I, Elizabeth Warren, am going to object to its consideration." Or, it could be phrased as, "I would like you to consult with me prior to bringing it up." But again, the leaders can ignore that.

And as far as what the hold process does, it's really an opportunity to negotiate. There are no secret holds. I worked in the Senate for a very long time. If you want to know who's holding your bill, you just call down to the cloakroom — that's the party staff on either side of the Senate, where they sit, and basically all the senators from that party congregate in the back of the chamber — you call them and say, "Hey, who's holding this bill?" And they'll tell you, typically. And if they don't, and if you've asked people not to say, then if the leaders want to pass something that you're holding, they will tell people to bring heat on you, to make it difficult for you to hold it. There are no hard and fast rules in the Senate. But what the hold process does is that you hotline something. All the phones ring. I guess when I was there, the phones would ring. Prior to me, they had a little squawk box that would go off sometimes. And then you would have an email and it says, "We're going to ask unanimous consent for this bill." And then you would pick up the phone and you would call, or you would write a letter, a senator would sign it. It would say, "Hey, we're going to object if you do that." And then they wouldn't go forward with that plan, that day. In the meantime, the people who object would be contacted by the people or the committee who wanted to pass that bill, and they would work out their differences. And that's the way the whole process works, it’s an opportunity to negotiate. It's not about killing things in the dead of night. And if it is, I certainly was unable to do it, because we held a lot of stuff when I worked in the Senate, and I was never able to defeat things without anybody knowing it in the dead of night, without expending any little bit of effort.

Kevin Kosar:

So, you've said in many of your publications that we should not fall into a habit of thinking of the Senate as a factory, some sort of hierarchical organization with a neat separation of duties amongst its members and a leader at the top, and its success measured based upon its outputs. Obviously, how the Senate runs is going to be affected by who the majority leader is. How are the majority leaders of recent years, in the way that they run the Senate, the same or different from majority leaders like Mike Mansfield or Lyndon Johnson or those from 50, 60, 80 years ago?

James Wallner:

Well, I'm so glad you referenced Mike Mansfield, and Lyndon Johnson for that matter, because Mike Mansfield really speaks to this factory analogy very well. In a speech that he was intending to give in 1963, he was going to deliver it, but it was right around the time that President Kennedy was assassinated, it was a speech called “The Senate and Its Leadership.” And he ended up submitting it for the record in 1963, on November 27th, for the congressional record — you could look it up there. He also delivered it himself in person in the old Senate chamber as part of a leadership speaker series that you can find on the Senate.gov website. It's really a fabulous address, and it really speaks to how he understood the Senate, and it speaks to how a leader can be effective in a particular environment, doing things that we may not think could be effective today.

But in this speech, he says that the Senate isn't a factory. He says, there's no timecard, senators aren't clocking in and then assuming their position on the factory floor. They are there to participate in an activity as equals. It's the process, it's the...