Interview: James Wallner

Daniel interviewed the Foundation for American Innovation fellow James Wallner about how Senate Republicans appoint members to committees. The process is governed by Rule 24 of the Senate standing rules and Rule 5 of the Republican Conference rules, with appointments made through a "Committee on Committees" led by the Republican leader.

The discussion covered how committee assignments work at the start of each Congress. They also examined a specific example involving Lindsey Graham's absence from the Budget Committee and Appropriations Committee, where his sister needed to be appointed to replace him.

They also discussed how Democrats could potentially use procedural tactics to gain control of committees like Appropriations during this transition period. James noted that while procedural hardball is possible, party leaders typically resist such actions because they prioritize party unity and election strategy over immediate legislative action.

The transcript below has been edited for length and clarity

Daniel Schuman: I’m here today with James Wallner, and we’re going to talk about how Senate Republicans appoint members of committees. James, thank you for joining me. How do Senate Republicans appoint people to their committees?

James Wallner: So there’s a magical, storied mountain, at the top of which are a group of people in robes. They got some chicken bones and there’s a smoldering cauldron. And they just do some chants. And then the smoke rises. And then it’s this person shall be on the committee.

No, it’s not far off of that, to be honest with you. It is a very interesting process and it is a very insular and closed process. It’s hard to get a peek into. Right. There’s two kinds of governing authorities here. One is the standing rules of the Senate. Rule 24 governs the appointment of committees. The way this works is that the Senate shall approve a resolution, and that resolution will name the chairman of each committee or a committee, and it will also include the members on that committee.

So if we work backwards, you have a committee and it’s got a chairman and members. The way they get there is that the Senate takes action on the Senate floor. They approve a resolution that says, like the Energy Committee. And at the top there’s a chairman, and then there’s the Republican and Democratic members of the Energy Committee underneath that. And once the Senate approves that, those members are now on that committee.

The Democratic and Republican parties have different internal party rules that govern that process, and the Republican rules are written down. You can find them online. And rule five of the Senate Republican Conference really spells out that appointment process, where the party, in essence, is making a recommendation to the full Senate, saying, these are the members that we want on these committees.

Schuman: The Senate, unlike the House, considers itself a continuing body. So its committees continue on from Congress to Congress. So for the Senate, you have the committee, and then you’re just moving people around from chair to ranking member or moving people on the committee and off the committee. Is that right? Is that what the organizing resolution does?

Wallner: Yeah, more or less. Look, the Senate is a continuing body in the sense that only one third of its members are up for election at any given time. Now, in practice, committees in the organizing resolution are going to be populated at the beginning of each Congress. But the reality of the situation is, if you’re on a committee, you’re going to keep that committee for the most part. And the parties have their own rules. They don’t have to follow the seniority process. But for the most part, once you get a committee assignment, not always and not on every committee, but once you get a committee assignment, that’s your committee moving forward.

The Republican conference rules spell this out. Rule five says, except as otherwise provided by this rule, once selected and confirmed, no member of any committee shall be deprived of his assignment or his rank on a committee, except by the conference. It just makes a lot of sense that they, in essence, retain their committee seats.

Schuman: Let’s talk about what happens at the change of the Congress. How does the Senate put people onto these committees? What needs to be done specifically to make that happen or to move people around if they’re changing committees? The example that I want to get to is Senator Graham passed on July 12th, and his sister was sworn in on the 14th. He was the chair of the Budget Committee. He was a member of other committees, including the Appropriations Committee. So both of those committees now have vacancies. And she’s a new senator, but she doesn’t have any committee assignments. And this has implications for the way the Senate operates. Let’s just start with it’s the start of a new Congress.

Wallner: This gets back to how do you populate those committee rosters on either side in either party before you make that recommendation to the full Senate? For all intents and purposes, the Senate is going to approve that, although you can filibuster the resolution.

One of my favorite white whales was to filibuster the organizing resolution that populates the committees, but then also divide it. And this is getting farther afield. But you can divide that resolution by that. You can say you can force votes on each individual member, if you want, of each committee, and you can also amend it. Right. And so you can move people around, you can do all kinds of stuff you could do.

But working back from that, the Republican conference has what they call, and this is all spelled out in rule five of the conference rules, the process they use to populate their committees or recommend to the full Senate. The Republicans that want to serve on those committees are governed by what they call a committee on committees. And the Committee on Committees has a chairman. The Committee on Committees is, for all intents and purposes, one person working with the Secretary for in this case, the majority, the top kind of floor staffer for the Republican Party. And they basically, within the confines of the conference rules, are going to make these lists, and they’re going to solicit input from the rank and file members. Conference rules say you can retain certain committees over others. They’re going to work within that. Members will come and say, hey, I really want this spot or that spot. And going by seniority, they’ll work through the conference and basically putting people on these different committees.

The other thing that makes this a little bit more complicated is that you have what they call committees, and then you’ve got B committees, right? And so the Republicans many years ago decided, I think it started the in 108th Congress maybe, but they said that every Republican senator is going to be given A committee slots in order of seniority. And so your A committees are like your Energy or your Environmental and Public Works committees, Appropriations, like all of those committees. And each committee is going to be given two slots on two different committees in order of seniority, working down the list. Remember, you retain your committee seat, so you’re really just taking the vacancies that happen. And then they’re allowed to retain one B committee.

What’s interesting here is that the Republican Party has empowered the Republican leader to basically name half the A committee spots in all of the B committee spots without going through the order of seniority. And so you have this kind of convoluted process. So in this case, Lindsey Graham’s committees, they’re going to the A committee slots are going to be filled by the leader because there’s only one. Right. If you had two the leader would offer one fill one. And then the kind of committee on committee would work through the seniority process to fill the other one. But in this case, that’s not happening. So it’s just the leader. And then for the budget committee, which is a B committee, the leader is going to make that appointment as well.

Schuman: You said they follow seniority, but when I was looking at the Republican conference rules, it says that you don’t always have to follow seniority, that there have been instances, I think with foreign, foreign, I can’t remember if it’s foreign relations with foreign affairs, but it was with Lugar became chair of that committee instead of Helms. So they don’t have to do the appointments necessarily by seniority.

Wallner: But that’s regarding the top spot, right? Yeah. And that’s a slightly different process, right. So once you populate a committee, those committee members, according to the conference rules are going to meet and they’re going to select one of them to be the chairman. And the conference rules explicitly say that they don’t have to be governed by seniority. And conference rules also say, and I found it here, effective in the 108th Congress, all Republican Conference members shall be offered two A committee slots in order of seniority. There’s something similar with Warner as well.

‘I think the most recent is when Jim DeMint was still serving in the Senate. He wanted a slot on the Finance Committee. And McConnell at the time, who’s not best buds with DeMint. They don’t always get along. And there was a vacancy on the Finance Committee, but there was only one. And so McConnell got to name the Republican senator to sit on the Finance Committee. Jim DeMint made it very clear and known that he wanted that spot. And the conservative movement was really agitating for DeMint to get that spot. It put McConnell in an awkward position, because he’s trying to show people that he is a conservative and he doesn’t hate conservatives. But now he’s got to name his nemesis to this committee. Right. Because he’s the one who gets to make the pick or he has to, or he has to say, I don’t like DeMint, and I’m not going to put you on this committee. And he doesn’t want to do either one of those things. Right. And so he basically convinces Burr to give up one of his committees, because Burr was the only senator who was senior to DeMint who could get that spot. And then McConnell can put Burr on that spot and say to the world, I’m just following seniority. Right. But he had to convince him to give up a committee to take that spot. And so it shows you this kind of it’s a weird, convoluted process, but the basic outlines of it are pretty well set.

Schuman: So let’s play it out for a little bit. Lindsey Graham was the chair of the Senate Budget Committee. He is obviously no longer able to serve in that role. The Budget Committee is down one Republican. The Budget Committee doesn’t have a chair. Republicans want to do reconciliation. You need a chair of the budget committee, presumably to make that process work. Right? There isn’t as far as I can. There isn’t an acting chair. There’s either a chair or not a chair. So someone has to get that role, which means the Senate needs to pass a resolution which requires 60 votes if the Democrats are willing to filibuster. Like how? Like, how does that play out? Or does that play out?

Wallner: Just to start with an interesting aside, if the Democrats tried to filibuster an organizing resolution or not an organizing resolution, but a resolution to put somebody on a committee amid Congress? It’s pretty remarkable how little tolerance Thune and Senate Republicans will have for that. And you will see very readily how little the Senate rules empower senators, much less a minority of senators, to stop a majority. But when you juxtapose it to the talking filibuster debate and the Save America Act, it’s remarkable. They’re like, we can’t do anything. We want to do something. They just do it.

Schuman: Senator Schumer has said in the past he wants to get rid of the filibuster. And other Democrats have said this as well. This is a chance to chip away at parts of that. Right? You could give Schumer a win win. He could, on one hand, try to stop reconciliation or extract a concession from Republicans saying, we’re not going to do reconciliation 3.0. If you want to do it, your chair has to agree to not do this right. Or, on the other hand, go ahead, go nuclear. This seems like it’s a win-win from at least what he said publicly.

Wallner: It’s also a way to, regardless of how successful it is, to show action to your base, to get excitement, to raise money, all that kind of stuff. But the reality of the situation is that even if Republicans were unable to get the Senate to approve a new member of the Budget Committee to give them the votes to name a new chairman. They don’t need to in this instance. Look, the House can pass a budget resolution. Budget resolution could come to the Senate. The Senate can put it on the floor and vote on it. They don’t have to go through the committee process.

Schuman: Although it’s unlikely that the Senate is going to accept whatever budget resolution comes from the House. Right.

Wallner: And they can change it on the floor. And then if that does open up reconciliation, in essence, what happens then is that the House can pass a reconciliation bill. It can come to the Senate. We’ve seen this, the last reconciliation bill, and it doesn’t have to go to committee, and it doesn’t have to go to the Budget Committee. And in fact, if it only ends in one committee, the Budget Committee by law, is not involved in that process either. There’s avenues procedurally to having the Senate act, even if the Budget Committee is, in essence, defunct.

What I find very interesting is that when the Democrats have more votes on certain panels now, it’s remarkable. The Senate rules are very clear and committee rules are very clear. Majorities on committees have a lot of power. Certainly since the 70s, to call hearings, to schedule markups, to take action with or without the chairman’s permission. And it is remarkable when the Democrats are in these positions, how little they actually are trying to do anything. If you really want to do something to save the world, it seems to me you’re going to spring at any moment you can to take advantage of any advantage you have. But they don’t.

Schuman: Yeah. So let’s talk about that specifically. So the Senate Appropriations Committee. Senator Graham was a member of the Appropriations Committee, and now he’s not. Senator McConnell is ill and he’s not coming back anytime soon, as far as we can tell. And the Senate’s going to go into recess soon enough. And the appropriations process had been they’ve nixed all of their markups that were scheduled to happen. But the Democrats at the moment have a functional majority on the Appropriations Committee, and they could convene proceedings. They could move legislation if they were to want to. Is there anything that’s stopping them from acting?

Wallner: I think when I worked in the House and Senate, I started there were three parties on Capitol Hill, right? You had the Democrats, Republicans and appropriators. The appropriators, even to this day, conduct their work in a bipartisan way. I think that the first hurdle to the Democrats doing that would be the Democrats on the Appropriations Committee. My guess is that they would be very resistant to that kind of hardball on top of that. I think that the temperament of appropriators typically doesn’t, setting aside the bipartisan stuff, they’re just not the type of people who are going to press every procedural advantage. And if they’re not the ones leading the charge on this, the party’s kind of out of luck because it’s the committee members themselves that have to do it.

The other thing is appropriators are like a lot of the other committees – we saw appropriators this Congress, at least Republican appropriators, go along with the reconciliation process that basically takes their jurisdiction out of their hands and puts them into these other committees. You see the House this week, it’s remarkable. They’re considering a CR, right? They’re not even waiting until September.

Schuman: The House appropriations process, as far as I can tell, is totally broken down from an institutionalist perspective. The Republican leadership there is happy to go on with impoundments. They’re happy to go along with pocket rescissions. They’re happy to go along with multi-year funding in ways that would have never been permissible before. But the Senate, there is an opportunity right now if they wanted to make at least a political point where either they could put forward a proposal that Collins would say that she would support, and then they would actually.

James Wallner: They want to create distinction, but they also don’t act on a lot of stuff. But, you know, I think it’s very simple. You don’t try to hijack a plane that is falling out of the sky, right? You don’t, it’s just like you wouldn’t do it. You’re like, this plane’s a waste of time. And I think when you think about the Appropriations Committee and the appropriations process today, I think there’s lots of reasons why Democrats aren’t going to do that. But at the end of the day, why, if the committee is basically moribund, why on earth would you play procedural hardball and press the envelope and do things that you know, maybe the other side might also do? It’s like, what’s the point?

Schuman: So if you were a Democratic member of the Senate Appropriations Committee, you suggest limitations on ICE and CBP to act in places like border states like Maine.

Wallner: Well, sure, but they could also be offering these amendments on the floor without playing procedural hardball. And they haven’t been doing that right. I think it is a very telling thing to identify the procedural possibilities that members have at their disposal, because what that does is it exposes the gap between their rhetoric and their action, or lack thereof. And I think that is a very telling thing. But look, yes, can they do all this stuff right now and take advantage of this moment of 100%? But the kind of people that would do that are also the kind of people who would literally just offer an amendment, right? They’re the kind of people who would take all of these other steps before you get to that point, right? But they’re not doing that.

And so I think it’s I think that the most telling thing is the fact that a completely inactive Senate does not take itself seriously, does not see itself as a serious place where things of consequence happen. And when that is the case, people are going to spend a lot of effort to try to take over that place outside of the electoral process, precisely because what’s the point, right? And so they haven’t been.

Schuman: The context of the Senate, for example. There’s a lot of presidential nominees, right? There’s a lot of people that Democrats, in theory, would want to block, which it’s not going to go through Budget. There’s not a lot that goes through appropriations, but appropriations could limit things. There may be other committees that Senator Graham was on. I didn’t look at his other committee assignments that maybe they can’t move nominations as a consequence.

Senator Schumer, for example, has come under a tremendous amount of criticism for not being willing to fight. Right. The shutdown that happened, in part, was a consequence of the exposure of his unwillingness to fight, and he wanted to demonstrate that he was willing to do something for a period of time. And here is the opportunity to take control of the Appropriations Committee, the opportunity to exercise some influence over the Budget Committee and perhaps other committees as well. And they can use the rules in the same way that Senator McConnell used against the Democrats when he prevented the organization of that chamber for 15 days, until he got a commitment that the Democrats wouldn’t get rid of the filibuster.

Wallner: McConnell is a master at appearing to do one thing and doing something completely different. You know, very rarely do you take McConnell’s actions at face value. I think that the behind the scenes stuff, the machinations, the negotiations, he’s with the other side, with the other leader. They’re always there. And what he does is he will exploit the inevitable. He will exploit a situation that is going to happen anyway. And then he will use that to basically portray himself in a different light.

Look, Schumer, Democrat leaders in general notwithstanding, McConnell is loathe to normalize these types of behaviors, right? You do raise an important point with nominations in the Senate. You don’t have to go through committee for a lot of things. We call it rule 14. Any senator can just put a bill on the floor on the calendar. They can offer an amendment, but you can’t rule 14 nominees. Yeah, there’s ways around that, but they’re very rarely done. With that being said, though, we only have what, like two and a half years left in the Trump administration. And so once we get past December, any person that he puts in an interim basis in a position is going to serve out the term. And so the nominations, the leverage there isn’t as great.

James Wallner: Yes. An interim nominee can’t do everything. A regular nominee, a confirmed nominee can. But you have to put yourself into like, how are the leaders going to because they don’t want to normalize senators running around like crazy people using their power. That’s just not what they like doing. You have to think about how, what are the arguments that they’re going to make to try to dissuade you and your colleagues, or get your colleagues to think that you’re crazy, to isolate you so that you won’t ultimately go through with it. And they’re going to say things like on the nominees that he’s just going to do this anyway because it’s the end of his term, and he can just make these interim recess appointments, right? That’s what they’re going to say. He’s going to say that’s not going to work on the appropriation stuff. He’s going to stand up and say, look, I’m with you, I get it. But you know what we really need to do right now is let the Republicans blow this up themselves. Right? Let’s keep the focus on them right now because we have an election coming. Right. And then hold on. But that doesn’t.

Daniel Schuman: Isn’t it the inverse? Doesn’t Schumer want to show that they’re fighting so that there is more energy among the base to do things? He wants to take control of the Senate. He needs to fire up support.

Wallner: No, but fighting exposes divisions in your own party. And that’s what both sides don’t want to do. I think what they’re going to do is say, look, let’s keep the focus on them. Let’s show them what shows the American people that they’re not doing anything for affordability. They’re not doing anything. We’ve got this war in Iran. We got all this stuff. Why on earth would we want to become the situation, the focus right before midterm. That’s exactly what McConnell would say. The same thing. Thune will say the same. That’s what they do. That’s because the way you fight is not inside the Senate. It’s in an election. And the only way to win that election is to be unified and keep the focus on the other side.

So anytime somebody stands up like a Merkley or somebody and says, we should probably do this and do that, they’re going to these are the types of arguments they’re going to get back. And those arguments aren’t designed to persuade Merkley not to fight. They’re designed to persuade all of the other people that Merkley is a knucklehead and he shouldn’t follow him, because if you do, we’re never going to be back in the majority. And that’s the same dynamic that you get when you’re conservative Republican trying to get. It’s like, what’s happening to Lee and Scott right now when they’re trying to push the Save America Act internally, they’re getting these same types of arguments thrown right back at them.

Schuman: It’s better to wait and try to win the election than to do something when you have the opportunity to actually do something in power.

Wallner: Yeah. But the kicker is that there’s always another election.

Schuman: Which is why, as you were saying, they never do anything because it’s always about what’s next and not what’s happening right now.

Wallner: Look, I would just say Mike Mansfield put the Civil Rights Act of 64 on the Senate floor and a presidential election year in March. I think it was March of a presidential election year. He thought this was going to destroy his party. That’s how far we have come.

Schuman: So there used to be senators who were willing to do things because they thought that they mattered, or because they were important, or because it screwed the timing. We’re going to do it now because we have a chance to do something.

Wallner: In the halcyon days of long ago, the way you did, the way you did stuff, was that you tried to do it right. Today, the way you do stuff is that you literally don’t do it. You gotta wait. And if you try anything, then that’s going to mean that we can’t ever do it. That’s the kind of dynamic. You saw this with the Green New Deal, when leaders tried to push AOC to not push it in the House. Right. I’m with you. But if you do this, we’ll never be able to do it because we’ll lose the election and our Our moderates won’t support it, and then there’ll be Republicans in the future. So let’s not do it. So that one day we can do it.

Schuman: Yeah. This is why people keep throwing out the status quo candidates. They can’t stand it anymore. And they’re the maybe you feel this, but where I sit, it feels like the party system is starting to fundamentally change. You’re seeing the personalism in the Republican Party right now. You’re seeing Democratic candidates to some extent starting to lose against insurgents. The political organization of the House is breaking apart in ways that are really interesting. And the Senate just looks like the graveyard of any type of hope and ideas. And McConnellism is gone or is leaving. It seems like there’s just transitions that are happening in whatever the political system is. And the old keep your team together, screw the other side and wait till the election model of governing. Maybe that’s not the thing anymore.

Wallner: Yeah, you can’t keep pushing. You can’t keep punting forever. It doesn’t work. At some point, the system is going to demand action. The Senate has gone through the most dramatic, radical, significant and far reaching institutional change in its history over the last 20-25 years. I firmly believe that the Senate of today is not recognizable to the Senate of the 90s or the early 2000s. It’s not. And compared to the 60s, it’s like Mars. It’s not even on the same planet. And it is remarkable how thorough and swift and extensive this change has been. And I don’t think it’s sustainable. It’s not because Congress is a crucible of conflict. It’s where we send the people we elect to adjudicate our differences and make collective decisions. And you cannot avoid having arguments in that place forever. And all it takes is 1 or 2 people. And the next thing, the whole thing is going to be different like that.

Schuman: Yeah. And if we don’t fight in Congress, then we’re going to fight elsewhere. And fighting elsewhere is bad.

Wallner: Yeah. You don’t want to fight elsewhere. You want to fight in Congress. It’s important. It’s a hallowed place. I would always say in the 19th century, we had all these fights. I don’t think we should be fighting physically, but people fought over in the House and Senate. They hit each other, right?

Schuman: Yeah. Yeah. The book. There are 80 or 90. Yeah. Feel the blood. There are 80 or 90 incidents of members beating the ever loving crap out of each other in the 19th century that they could document with gang members waiting for other members to ambush them.

Wallner: I read a review of that book a while ago for Law and Liberty, and my opening line was, the problem with members of Congress today is they can’t take a punch. And I don’t mean that literally.

Schuman: But yeah.

Wallner: They people fought over the House and the Senate because those places were important. It is a signal if somebody’s giving a speech on the House or Senate floor, could piss you off enough to make you go down there and punch them in the face. Like this, a Democratic senator from South Carolina listened to another Democratic senator from South Carolina give a speech about Cuba. And like whether or not we should take Cuba. And he walked up to him and punched him in the face. If the Senate floor is important and it has to be for you to go punch somebody for something they say standing on it, that’s something we need. Not the punching, but the Senate floor being important today. If somebody said something on the Senate floor, you’re like, whatever. You probably don’t even know what they say. Nobody cares. They’re not listening.

Schuman: Yeah, yeah, it has to matter. And I guess that comes down to if the Senate matters, then the Democrats would be willing to play this type of procedural hardball, and the Republicans be willing to respond with this type of procedural hardball. And if it doesn’t matter, then, yeah, then then go do something else someplace else.

Wallner: The Senate floor is a liability to winning elections in each party. That’s how they see it. You see this with the Save America Act debate in the Republican conference. It’s we can’t they’re having this whole internal debate that is, the president gave a prime time address. This is basically ripping the party apart. Right. And the base is all agitated. It’s all over. Should we try? Since the debate you’ll see in the Democratic Party as well.

Schuman: If Schumer plays two dimensional chess. I’m making a joke here, or at least trying to instead of the not checkers. Right? Not three dimensional chess, but two dimensional chess. Like he could expose the Senate Republican thing. On one hand, we can’t do the Save America Act. On the other hand, we can go and get rid of the way that we put people on committees and high in that contradiction.

Wallner: Yeah, but Schumer also doesn’t want people doing this when he’s in control.

Schuman: Yeah. You’re right.

Wallner: Party leaders have no power in the Senate. It’s like they’re like a tin can village or something. They’re like, it’s just all an illusion. And the last thing you want to do is normalize aggressive behavior and procedural hardball. Because when you’re in that position and look, the Senate minority leader is the second most powerful senator, the majority leader is the first, most powerful senator. And those two work together, especially in the nominations process. Those two, Thune and Schumer, managed the Senate on a daily basis. The last thing that Schumer doing this would do was basically go in and be like, I’m not working with you. And then the whole Senate would be upended because then those two wouldn’t be able to manage the institution. And so I think, never underestimate the kind of bipartisan comedy between the minority and majority leader, even when Reid and McConnell were like, trashing each other publicly, they’re still working together privately on a regular daily basis because that’s how the Senate functions today.

Schuman: Yeah. The real adversary is the rank and file, not the other party leader.

Wallner: Yeah. The real adversaries are the progressive and conservative knuckledraggers who are like, you’re like, please don’t look at the rule book and realize what you can do and then try to do it. And that’s how they come down so swiftly against them because they want to make examples of them so that the other rank and file don’t go along with them. Right? It’s all about trying to keep everybody together behind you and not to think for themselves.

Schuman: James, you are a phenomenal resource and a treasure. Thank you so much for explaining this.