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Thursday, October 06, 2011

Harry Reid destroys decades of Senate tradition to spare Obama & Dems from embarrassment [update: Over tractor dust!]

Our constitutional democracy is premised on the assumption that with each national election every other year, we re-tally the desires and opinions of voters. The results re-determine the composition of the entire House of Representatives and one-third of the Senate with each election. And each such Congress is new and distinct, and it is given a unique number to identify it through history. Because no Congress can bind the hands of any future Congress (unless it goes through the intentionally cumbersome process of amending the Constitution, which will require supermajority votes in Congress and the active concurrence of three-fourths of the states' legislatures), each such new Congress is free to amend or re-write entirely the rules by which the respective chambers operate.

In consistent practice going back nearly to the ratification of the Constitution, however, those rules are not casually amended in the United States Senate. And if they are amended at all, they are, traditionally, amended only at the start of a new Congress — not in the midst of one.

Among the U.S. Senate's most hallowed original traditions — one of the characteristics, indeed, of the Senate that most distinguished its operations and temperature from the House of Representatives — was the tradition of unlimited debate. It stood intact from the first convocation of the Senate until 1917, when the Democratic Senate majority of the newly convened 65th Congress passed the cloture rule, Senate Rule XXII, through which filibusters could be forcibly ended by the vote of two-thirds of all senators "present and voting." Rule XXII was left essentially unchanged, and no more radical change in the nature of the Senate was accomplished until 1975, when a newly elected Democratic majority in the Senate changed the cloture requirement to three-fifths of all senators "duly chosen and sworn." This meant a filibuster could be ended with 61 votes (assuming no vacancies in the Senate, and regardless of how many were on the floor to vote) instead of potentially requiring 67 votes (assuming all 100 senators were on the floor and voting).

Frustrated by their inability to get Bush-43 judicial nominees an up-or-down vote against Democratic opposition in the Senate, Republicans proposed a mid-Congress interpretation of Rule XXII in 2004-2005 that would exempt from its scope, by ruling of the chair (confirmed by a bare majority vote of the Senate), all votes on judicial nominations. This proposal, called the "constitutional option" by its proponents (which included me) and the "nuclear option" by its opponents (which included Harry Reid), would have effectively ended filibusters altogether for judicial nominees, who would be guaranteed an up-of-down vote so that the Senate could perform its constitutional advice-and-consent function; it would not have affected filibusters on legislation or other votes. Democrats, however, went ballistic. The resulting debate ended with the infamous "Gang of 14 compromise" on a series of pending nominees. (Basically John McCain and a handful of other Republicans got snookered — again, and as usual — by trusting Democratic counterparts who insisted they were acting in good faith and could be relied upon.)


But even when cloture is invoked, and a filibuster is thereby ended, Rule XXII, as it's existed since 1917, doesn't provide for an immediate vote. Rather, Rule XXII, as accurately summarized in a helpful glossary on the Senate website, "limit[s] consideration of a pending matter to 30 additional hours." Indeed, Rule XXII specifies precisely what may and may not be done during those 30 additional hours. And until today, those 30 additional hours have included an opportunity for the side that's lost the cloture vote to engage in one last organized effort to make its political points — to the nation, and in theory to anyone from the opposing camp who's willing to reconsider.

Specifically, Rule XXII said that except under some very narrow conditions rarely ever satisfied (involving prior submission of amendments before the cloture vote on a strict timetable), and

[e]xcept by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close ....

In practice, that "except by unanimous consent" requirement has always been read by senators from both parties to permit a senator to at least seek unanimous consent, even if he has zero expectation of getting it. [Editing note: My original understanding of this turned out to be not quite right. McConnell was relying on language from Rule XXII regarding amendments pre-filed before the cloture vote, language that I omitted here but quoted below. See the series of updates below for full details. — Beldar]

Senate Majority Leader Harry Reid (D-NV) While ostensibly seeking that unanimous consent, a senator can say things like Mitch McConnell has been saying for the last couple of days on the senate floor after Reid had pushed through a cloture vote ending debate on a bill to retaliate against China for its currency manipulation. Under longstanding rule and tradition, McConnell was free to say, "I ask unanimous consent that we amend the bill on which cloture has just been granted to incorporate President Obama's oh-so-urgent new jobs bill, which President Obama is traveling around the country to complain we're not voting on yet." McConnell wanted to make Democrats vote against giving "unanimous consent" — precisely because that would mean putting them on record as voting against even the consideration of Obama's version of the jobs bill (which no senate Democrat actually supports), at the very same time Obama's out lying to the public about the reasons his bill can't get passed.

Everyone understands this is political theater. In McConnell's case, it represents his determination, as Senate minority leader, that such request for unanimous consent was an effective use of the minority's portion of the 30 remaining hours of post-cloture-vote debate.


But today, though, Harry Reid threw a fit on the floor of the Senate — a massive temper tantrum from nowhere, without warning, that did vastly more to permanently degrade the traditions and collegiality of the United States Senate than anything and everything the Republicans proposed regarding judicial nominees in 2005. As a mis-headlined, long, somewhat disjointed, but substantively excellent article at TheHill.com reports:

In a shocking development Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) triggered a rarely used procedural option informally called the “nuclear option” to change the Senate rules.

Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of a bill.

Reid’s coup passed by a vote of 51-48, leaving Senate Republican Leader Mitch McConnell (R-Ky.) fuming.

This was not remotely "bipartisan," this was hyperpartisan. Reid couldn't even get all of the Senate's Democrats to go along.

Reid’s move strips the minority of the power of forcing politically-charged procedural votes after the Senate has voted to cut off a potential filibuster and move to a final vote, which the Senate did on the China measure Tuesday morning, 62-38.

Reid said motions to suspend the rules after the Senate votes to end debate — motions which do not need unanimous consent — are tantamount to a renewed filibuster after a cloture vote.

“The Republican Senators have filed nine motions to suspend the rules to consider further amendments but the same logic that allows for nine such motions could lead to the consideration of 99 such amendments,” Reid argued before springing his move.

Reid said Republicans could force an “endless vote-a-rama” after the Senate has voted to move to final passage.

That is another example of Harry Reid telling America a bald-faced lie. Once cloture has been voted, it's 30 hours of further proceedings, no matter how those 30 hours are spent. There's nothing "endless" about 30 hours.

This is about shutting down argument, pure and simple. It's not just "Shut UP!" politics, it's "Shut up NOW, damn-your-soul!" politics. And it's despicable.

It's not unconstitutional. The Senate Rules, including Rule XXII, are "extra-constitutional." But it's nevertheless a big damned deal in the history of the United States Senate, and it amounts to pissing on the minority party just because, for now, the majority can, even if they have to break decades and decades of bipartisan tradition to do so:

McConnell, visibly angry and shaken, said Reid’s action Thursday evening threatened the powers of the minority that distinguish the upper chamber from the House of Representatives.

“We are fundamentally turning the Senate into the House,” he cried on the Senate floor. “The minority’s out of business.”

And Reid already knows the cosmic truth that's right around the corner in January 2013: Payback is going to be a real bitch this time.

Reid said he resisted pressure from junior Democrats to “massively change” the Senate rules in the 112th Congress, when Democrats had a larger majority in hopes that Republicans could be persuaded to ease their use of obstructionist tactics.

But Reid admitted that he did not take the action lightly and may regret it in the future.

“Am I 100-percent sure that I’m right?" he asked. "No, but I feel pretty comfortable with what we’ve done. There has to be some end to the dilatory tactics.”

Senate Republicans said Reid is right to worry.

“Just wait until they get into the minority!” one GOP staffer growled.

Reid is a complete and utter fool. He's barely tolerable as Polonius to Obama's Hamlet, but at least Polonius didn't use his stewardship of Elsinore to batter the castle down to its foundations.


UPDATE (Fri Oct 7 @ 12:45am): Ryan Grimm and Michael McAuliff at the Puffington Host report the precise straw that broke the camel's back, i.e., that triggered Reid's tantrum. They say (boldface mine) that after losing on the cloture vote,

McConnell then apparently settled on a consolation prize of forcing the Democrats to take tough post-cloture votes, including on the president's jobs bill and on a measure to bar the EPA from regulating farm dust.

McConnell initially wanted 10 votes [on motions for unanimous consent to amend the China bill], and Democrats were willing to give him five. They ultimately settled on seven, a Democratic source said, and they told McConnell which ones they would accept.

That left the Democratic leaders in a sour mood to begin with, but then McConnell tried to insist on the farm dust measure offered by Sen. Mike Johanns (R-Neb.).

"We accepted the embarrassing vote on the president's jobs bill," a Democratic leadership source said. "Then he tried to jam the farm dust bill up our ass."

The problem for Democrats with the dust measure is that many don't want to undercut the EPA, and they also don't want to be made to look ridiculous by seeming to regulate natural dust at the expense of jobs. The EPA, however, has insisted the entire issue of regulating farm dust is a "myth." The agency has proposed toughening the standards to regulate particulate matter in the air.

Tractor dust. Harry Reid destroyed decades of Senate tradition because he didn't want to be embarrassed by making his party go on record in favor of EPA regulation of tractor dust.

Clowns. Petty, ridiculous old men who are children, pretending to be leaders. Liars.

November 2012 can't come soon enough.


UPDATE (Fri Oct 7 @ 1:15am): Andrew Stiles has a very good post about today's events up at The Corner, but his interpretation of the rules issue is slightly different than mine. Perhaps I'm misinterpreting Rule XXII, or the facts I've relied upon from TheHill.com are slightly off, but I thought this was a literal, official amendment of Rule XXII — not merely a majority vote, with precedential effect, overruling the parliamentarian's interpretation of Rule XXII. Mr. Stiles' explanation seems to me to ignore the part of Rule XXII which already prohibits amendments, regardless of whether they're "germane," once cloture has been voted (unless there's unanimous consent). The distinction doesn't make much of a practical difference, except that if I'm right and there was a vote on amendment of Rule XXII, that would be more obviously a big deal. The problem with my interpretation of what's happened, though, is that I can't figure out how they could have changed the Senate Rules right now with only a bare majority vote: after cloture has been invoked, "a measure or motion to amend the Senate rules" requires an affirmative vote of "two-thirds of the Senators present and voting," the standard that dates back to 1917.


UPDATE (Fri Oct 7 @ 1:50am): This suggests that this wasn't a formal vote to change the Senate Rules, just a vote to overturn a decision of the chair (based on the ruling of the Parliamentarian), which would still effectively establish a new precedent for the Parliamentarian to rely upon in the future. But I'm not sure how that precedent will be expressed.

Maybe I was wrong, though, and maybe instead what McConnell was trying to do was not an amendment by unanimous consent, but rather something taking advantage of the language in the last half of this sentence from Rule XXII — language (beginning with "unless it had been submitted") which I assumed didn't apply (because it would take a lot of planning to set up):

Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p.m. on the day following the filing of the cloture motion if an amendment in the first degree, and unless it had been so submitted at least one hour prior to the beginning of the cloture vote if an amendment in the second degree. 

Are Republicans routinely pre-filing a bunch of such proposed amendments before every cloture vote now, specifically in order to take advantage of that "unless" language? Maybe so, since the Dems have become so hyper-aggressive in filing cloture motions at the merest hint of an intention to filibuster.

That link also reveals that the Dem senator who voted against Reid was Ben Nelson (D-NE), and that Sen. Boxer (D-CA) didn't vote.


UPDATE (Fri Oct 7 @ 2:35am): Last update tonight: My friend Dafydd ab Hugh emails to point out that I missed a "more apt, succinct, and literary phrase" to describe what kind of politics Reid is playing — one "from the apex of American arts and letters (or 'the arts and farces,' as Benny Hill was wont to say)":

He's right, as usual.


UPDATE (Fri Oct 7 @ 7:30am): Here (slightly edited and expanded) is what I've posted in a comment to Mr. Stiles' post at The Corner:

Having read the just-now-available Congressional Record at pages S6314-15, it does indeed appear that the GOP pre-filed nine bills as amendments to the China currency bill before the cloture motion was filed. So it was indeed the "unless it had been submitted" language from Rule XXII — quoted above — upon which McConnell intended to rely.

There had been negotiations off the record in which Reid and McConnell had agreed that the Dems would not contest votes on suspending the rules to permit seven of those nine amendments to be voted upon during the 30 hours of proceedings before the final vote (required by the cloture vote) on the China bill. However, McConnell apparently convinced the author of one of the seven upon which Reid had agreed, Sen. Paul, to withdraw his amendment so that there could instead be a vote on one of the nine pre-filed amendments that Reid really didn't want to have voted on — Sen. Johann's amendment that would prevent the EPA from regulating tractor dust.

That was the bit that sent Reid into his tantrum. He insisted that the Dems, having agreed to permit procedural votes on seven amendments from the minority out of the nine the minority had pre-filed, also get to pick which seven. McConnell wouldn't go along with that.

So at that point, Reid dropped an amendment he himself had sponsored and called up an amendment that Sen. Coburn had proposed, so that he himself — Reid, not Coburn! — could immediately object, via point of order, to Coburn's amendment.

The chair, relying on advice from the Parliamentarian (who relied upon the text of Senate Rule XXII and all past Senate precedents under it), promptly refused to sustain Reid's point of order.

It was that decision — the chair's refusal to sustain Reid's point of order that would block even an amendment that the Dems had agreed to allow a procedural vote upon — which Reid then appealed to the full Senate: "I appeal the ruling of the Chair and request the yeas and nays." That prompted McConnell's protest, quoted in some of the press, that "in a few moments the rules of the Senate will be effectively changed to lock out the minority party even more." And that's when Reid got his 51-48 vote, and Reid's point of order — that Coburn's proposed amendment was "a dilatory motion under Rule XXII" — was sustained by the full Senate (on a bare-knuckled bare-majority vote).

Mr. Stiles was much more right than I was, and for all practical purposes completely right, in his description, and I apologize for quibbling.

The precedent that this sets, then, is that notwithstanding the literal language of Rule XXII, the majority not only gets to confine proceedings to 30 hours after a cloture vote (with the minority's share of that 30 hours limited to half, at most), the majority also gets to dictate the content of those proceedings, and to exclude certain matters from mention or debate during those 30 hours on grounds that the majority just doesn't feel like listening to it. The new precedent doesn't only apply to pre-filed amendments that are not "germane" to the bill on which cloture has been granted: at least one of the amendments that Reid blocked with his point of order maneuver yesterday was concededly germane to the China trade/currency regulation bill. Others weren't, but so long as they'd been pre-filed on the deadlines specified in Rule XXII, even non-germane amendments had always been allowed before to be brought up at least as part of a motion to suspend the rules. But no longer: None of the amendments pre-filed by the GOP are going to be permitted to be raised on a motion to suspend the rules; and before yesterday's abysmal precedent, all nine of them should have been.

This is ugly, ugly business. The Dems should be deeply ashamed, but they are, literally, shameless.


UPDATE (Sun Oct 9 @ 7:30am): This report from TheHill.com adds a missing piece to the puzzle: Not only do the proposed amendments have to be pre-filed to be eligible for consideration (even via a motion to suspend the rules) after cloture has been invoked under Senate Rule XXII, but the Majority Leader selectively chooses among those pre-filed amendments to "fill the amendment tree":

More than majority leaders before him, Reid has used a tactic known as filling the amendment tree to block Republicans from offering politically charged amendments to legislation. He has done this to protect vulnerable members of his caucus from taking tough votes.

He did it on the China currency bill that was being debate when he triggered the nuclear option. Republicans had no recourse to force a vote on Obama’s jobs package than to offer a motion to suspend the rules after the Senate had already voted to move to final passage.

By changing the rules Thursday, Reid barred Republicans from forcing votes even on motions to suspend the rules to proceed to amendments designed to send a political message.

One GOP strategist said giving the minority an opportunity to vote on these message amendments “lets partisan steam out of the kettle.”

Now that Republicans have been deprived this outlet, they warn pressure will build up, threatening an explosion.

And once again recall: None of this has any possible impact one way or the other on when a vote will be taken on the China trade/currency bill: Rule XXII already prescribes that as being immediately after 30 hours of further proceedings, regardless of what those proceedings consist of.

So this is about shutting down political speech from the floor of the U.S. Senate — nothing else.


Posted by Beldar at 11:24 PM in Congress, Politics (2011) | Permalink


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(1) Beldar made the following comment | Oct 7, 2011 2:01:51 AM | Permalink

Editing note: Per a correction emailed by a particular eagle-eyed reader, I just fixed an error in the original post in which I'd said "Reid" when I meant "McConnell."

(2) Gregory Koster made the following comment | Oct 7, 2011 2:11:15 AM | Permalink

Dear Mr. Dyer: I still disagree with you on Senate rules being "extraconstitutional." Nope. Here's Article I Section 5 Paragraph 2:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member."

That's all the basis needed for the Senate to make rules. However idiotic the rules may be, the Constitution hands the Congress power to set its onw rules.

I can't get as agitated about this change as many seem to be. Given the notorious lawlessness of The One's administration, why be surprised when his Democratic majority in the Senate behaves the same way. It may be a disguised blessing if it persuades such dummoxes as McConnell and McCain for example that they are facing a ruthless gang who cares not a dam for anything but power. You well remember all the howling the Left did when the GOP Senate in Geo. W's day made noises about the "constitutional option." Today they snicker in peace, unconcerned by what they said earlier. Such dolts require rough handling. The 2012 election may do a big chunk of this task, but there will be plenty of idiots who will need shaking up. This includes Scott Brown, who has a tendency to think he needs to appese the lefties in MA. I think he'd do better to denounce them as rogues and imbeciles. A few more "Thank God," wisecracks are in order for him.

Sincerely yours,
Gregory Koster

(3) Beldar made the following comment | Oct 7, 2011 2:31:20 AM | Permalink

Mr. Koster, we agree about what the Constitution says. When I say that the Senate Rules are "extra-constitutional," I don't mean "counter-constitutional," nor to deny that they're authorized and contemplated by the Constitution. I mean simply that the Constitution doesn't say what the content of the rules should be, either by way of prescription or proscription.

(4) Captain Ned made the following comment | Oct 7, 2011 5:21:20 PM | Permalink

Much as Ike wanted the Soviets to launch the first satellite and thus remove any "freedom of the skies" issues for US launches, Harry Reid has launched the Sputnik that will end up backfiring and in a big way. Assuming the '12 election brings in a Republican Senate I can't see Mitch McConnell restoring the rule without settling several hundred scores first.

I can run wild for six months. After that, I have no expectation of success.

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