Understanding the Senate cloture process (on health care)

[Omaha Steve]

http://www.seiu.org/2009/10/understanding-the-senate-cloture-process.php

By Matt Browner-Hamlin

The health care debate has been long and hard fought. As we near the time when we expect the Senate to take up a bill and vote on reform, there are a lot of questions about what exactly will be happening from a procedural standpoint. After all, the Senate has a lot of complicated and misunderstood rules. Foremost among them are cloture and the filibuster.

First, filibusters really don't happen the way they did when Mr. Smith went to Washington. Instead, the word filibuster is commonly used to refer to any time a bloc of 41 or more senators vote against considering a piece of legislation or letting it come to a floor vote. This week Andy Stern wrote in an op-ed on Huffington Post that there is no such thing as a Republican filibuster, because the GOP caucus only has 40 votes. As a result, the only way health care reform can be blocked is if members of the Democratic caucus join the Republicans to oppose moving forward.

Second, the Senate is governed largely by consensus. Things don't get done without either everyone agreeing to them or there being a vote to see where the members of the Senate stand. One of the tools the Senate uses to keep the wheels turning is cloture. Cloture is simply a vote on whether or not to end consideration of an issue or piece of legislation for the time being. In our one hundred member Senate, there must be sixty votes in favor of cloture for a cloture motion to pass and the Senate to move forward. The Congressional Research Service has a great, detailed report on filibusters and cloture (PDF link), but I'm going to try to distill some of it here to explain what we expect to come during the health care debate.

To understand the procedure on cloture votes and filibusters on health care, it's important to look at the general process. After the Senate HELP Committee and Senate Finance Committee bills have been merged, the final bill will need to be brought to the Senate floor. Because the health care reform bill deals with funding, the Senate will need to use a bill from the House Ways and Means Committee in order to introduce the legislation - the Senate health care reform bill will be offered as a substitute amendment to that House bill. Offering a new bill as a substitute to a bill from the House is common Senate procedure and the House bill in question doesn't even have to relate to health care.

There are likely going to be three big points in the Senate debate of health care reform legislation that will almost certainly be subject to cloture votes. Each one of these votes will require sixty senators in favor of moving forward, yet none of them will be on the actual health care reform bill itself!

1.Cloture Motion on Motion to Proceed to Measure's Consideration: This will be the first step, where the Senate will ask itself: Do enough of us want to start debating specific health care reform legislation on the floor? Assuming that 60 senators do, the process will continue;

If Cloture on the Motion to Proceed is "invoked" (a fancy senate term for saying 60 Senators voted yes) then the Motion to Proceed will be adopted by a majority vote and the Senate will start debating the House bill that I mentioned above. Next the very first thing that will happen is that the "merged" Finance/HELP Committee bill will be offered as a complete substitute to the House bill. Then the fun really begins. Senators offer dozens of amendments, the Majority and Minority Leaders try to work out Unanimous Consent agreements, which I will explain below, to get lots of the amendments votes and sometimes Senators even filibuster each other's amendments. But sooner or later the Majority Leader says that is enough. That's when...

2.Cloture Motion on Manager's Amendment (Substitute Amendment): After considerable debate and amendment to the substitute, the Majority Leader will file Cloture on the Substitute. If there are 60 votes here, the Merged reform bill/Substitute as amended will get an up or down vote after 30 hours of post cloture consideration. Then...

FULL story at link.

[elocs]

1. From what I've seen here at DU, people still think it's "Mr. Smith Goes to Washington".

Reality sure does suck.

[Better Believe It]

2. The Senate Democrats wrote those rules. They can change them!

The Democrats can change those complicated rules and even under current Senate rules they can force Republicans to filibuster "on-the-floor" of the Senate, they can put a stop to sham phantom Republican filibusters and they can even stop any Republican filibuster dead in its tracks by simply threatening to use the nuclear option which the Republicans did so effectively against Senate Democrats in 2005.

If Senate rules seem way too complicated and cumbersome, the Democrats can change them whenever they like. Again, they run the Senate, they make the rules. So they can't complain about Senate rules they wrote and use them as an excuse to surrender or make concession after concession to Republicans. If Democrats are incapable of playing hardball with the Republicans in the Senate and find it impossible to function as an opposition partisan political party they should leave the field of play.

Democrats supposedly control Congress. When the Republicans ran the Senate they didn't have any difficulty changing Senate rules to advance their legislative agenda. Any whining about Senate rules must be directed against the Democrats who wrote those rules and who can change those rules!

[CTLawGuy]

5. not without 2/3 of the vote they can't

that's what it takes to change Senate rules.

[Better Believe It]

6. And how many votes does it take to force the Republicans to engage in a genuine filibuster?

Or for Democrats to stop a Republican filibuster dead in its tracks with a nuclear option?

Answer: None.

No more excuses for surrender and betrayal please.

[Better Believe It]

8. The Supreme Court long ago ruled that the Senate can change its rules by a simple majority vote

'NUCLEAR OPTION' BASED ON 1957 NIXON OPINION WHILE VEEP

The "nuclear option" -- so named by then-Senator Trent Lott (R-Mississippi) in 2005 -- is based on a 1957 advisory opinion by then-Vice President Richard Nixon, serving in his capacity as president of the Senate, that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority.

The Constitution specifies that, except for the ratification of treaties and constitutional amendments and the override of presidential vetoes of legislation -- in which case, a two-thirds majority is required -- the Senate is free to establish its own rules for parliamentary procedure.


Although legally nonbinding, Nixon's opinion has been treated by the Senate ever since as a definitive precedent.

Moreover, the U.S. Supreme Court ruled as far back as 1892, in United States v. Ballin, that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by a simple majority vote.


HOW THE 'NUCLEAR OPTION' WORKS

The "nuclear option" is used in response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this.

The presiding officer of the Senate -- usually the vice president of the United States or the president pro tempore -- makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent.

A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue.

If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration.

http://www.skeeterbitesreport.com/2009/10/letter-from-editor-for-public-option-to.html

[CTLawGuy]

10. the political question doctrine

says that the Supreme Court cannot tell the senate or house or any other branch of government how to run its internal affairs. So I'm not surprised by the Supreme Court case you cited.

Furthermore, there's a difference between a body being constitutionally "able to do something" and "having done so". The rules say, as they approved them at the beginning of this term (they weren't imposed on them by a previous Senate), that it takes 2/3 to change the rules (per Rule 22, 2/3 is what is needed to invoke cloture on the debate on the rule change). I can understand that requirement. If you can so easily change the rules, then they become meaningless and the body is run by tyrrany of the narrow majority.

[CTLawGuy]

9. Politically speaking, don't you wish the Rs used the nuclear option in 2005 or whenever?

so that they could have neutered themselves as of today? Let's not make that mistake ourselves, we won't be in the majority forever. Even though the filibuster can be annoying, it is a good tool that should be used only sparingly and when the minority is willing to openly block legislation.

Legally and morally speaking: using the nuclear option is a cheneyesque dictatorial abuse of power that flies in the face of Senate rules. It takes 2/3 vote to change the senate rules. We should not be law- and rulebreakers.

Practically speaking: under current rules, no one has to ACTUALLY filibuster. The filibuster is not a concept in the rules, it is a quirk in the provision that allows for unlimited debate. That rule allowing for unlimited debate can only be waived by invoking cloture with 3/5ths of the Senate or 60 votes.

Also, the senate technically requires a quorum of 51 senators to do ANY business. Yet there are almost never 51 senators on the floor at one time. This doesn't matter most of the time because no one complains.

However, lets say a cloture vote fails, and after that, a couple of Rs speak, but then no more come to the floor. Reid decides to call a vote (a vote on final passage) because the filibuster is over-there are no more speakers. Then, the Rs can block the vote by complaining about the lack of a quorum. When that happens, all business has to stop and the clerk will take a roll call to see who is present. Business cannot start up again (i.e. Reid can't move to a vote) until either (1) there are 51 senators on the floor or (2) the Rs waive their objection. If he does get 51 senators on the floor, then suddenly the Republicans will find more speakers.

So a "real filibuster" would require 51 senators on the floor around the clock, which is practically impossible. Now I'm not defending Harry Reid's treatment of this quirk in the law as a positive requirement on dems to get 60 votes for every bill, thereby putting the pressure on dems, rather than treating it as the republicans blocking what the majority wants. But, he is right in that it's very difficult to force a "real" filibuster.

The senate rules should be changed to waive quorum requirements after the failure of a cloture vote so you can force filibusters without needing 51 senators on the floor.

[BzaDem]

11. Do you ever get tired of posting this nonsense?

Just curious.

[excess_3]

3. Biden could sweep this crap away, ...

Biden could sweep this crap away
with two swings of his gavel,
but won't,
for various reasons

[Better Believe It]

7. He and Obama could apply the gavel to Senator Reid's head if necessary.

Is that what you had in mind?

:)

[annabanana]

4. Damn!. . And here I thought it had gotten complicated up to THIS POINT. .

It is time to buckle our seatbelts, isn't it? The opportunities for this to get misunderstood and (more importantly) misrepresented are legion.

(on edit: bookmarking)