Full disclosure: I am not a registered member of any political party. I voted for Evan McMullin for president in 2016; I have never voted for Mike Lee and do not expect that I will vote for him this year. My interest in writing this article is to communicate facts about which I have some expertise, not to score political points.
The Rules of the United States Senate do indeed say, as Evan McMullin repeatedly notes, that “Each Senator shall serve on two and no more committees…,” but as the end of this citation hints, this is a limiting rule, not an empowering one. It is not self-executing. No Senator may appoint himself or herself to any committee and no Senator can compel anyone else to put him or herself on any committee. Senators are elected to committees by vote of the entire Senate, acting on nominations brought forward by resolutions from the two party leaders. This process is part of the procedural brush-clearing that takes place on the first day of every new Congress.
The following information on the committee process appears on the U.S. Senate webpage:
Each party assigns, by resolution, its own members to committees, and each committee distributes its members among subcommittees. The Senate places limits on the number and types of panels any one senator may serve on and chair [that is the limiting language quoted above].
That document supplies the following helpful information (citations omitted):
Senate rules call for the election of Senators to standing committees by the entire membership of the chamber. Senate Rule XXIV, paragraph 1 states: “In the appointment of the standing committees, or to fill vacancies thereon, the Senate, unless otherwise ordered, shall by resolution appoint the chairman of each such committee and the other members thereof.” These elections are based on nominations made by the parties, but Senators do not officially take seats on committees until they are elected by the entire Senate.
While Senate rules are fairly clear regarding how nominations are to be approved, they do not address how the nominations of Senators to committees are to be made. In practice, each party vests its conference with the authority to make nominations to standing committees…. The processes … are distinct, but the nominations… require the approval of the full party conference and, ultimately, the Senate. Senate approval of the committee nominations of its parties usually is pro forma because the Senate respects the work of each party.
It has been customary for third-party and independent Senators to caucus with one of the major parties. At least for committee assignment purposes, such a Senator is considered a member of that conference and receives his or her committee assignments from that conference through its regular processes.
In other words, unless either Chuck Schumer or Mitch McConnell puts Evan McMullin’s name on a resolution containing a list of Senators nominated to a specific committee or committees, Evan McMullin will not be confirmed by the full Senate to membership on any committee. As McMullin would be a sitting Senator, one could imagine him moving to amend one resolution or the other by adding his name. One cannot imagine the adoption of such an amendment. And besides, by seeking to amend either the Schumer or the McConnell nominating resolution, McMullin would be declaring a party preference, negating his Quixotic campaign to remain unaligned.
Evan McMullin is correct that no sitting Senator has never been left without committee assignment. But that is because no sitting Senator has ever refused to caucus, for organizational purposes, with one of the political parties.
Gordon S. Jones is a registered Independent who spent 30 years in Washington, D.C., primarily working with Congress, in which context he taught staff classes on Senate procedure. He now lives in Utah where he is a founder and faculty member of Mount Liberty College.