Tuesday, June 30, 2009

60 Vote Senate. Great! Right?

Well, perhaps not. People have spilled a lot of ink, or bits, on this matter. The ever amazing (and clearly more professional) blogger, Ezra Klein, has a good political take. However, I love the Senate, sort of, and I particularly love the rules and traditions of the Senate. So, I will take the opportunity to show 60 votes does not mean anything will get done.

Most people have this view that 60 votes means that a filibuster can be broken. That is absolutely correct. However, this does not mean that the Senate will move any faster.

The Senate rarely uses its own rules. Usually what happens is that they call up bills under complex unanimous consent agreements. These agreements specify how long debate lasts on a bill, and what amendments are in order. The analogous item in the House is the Special Order of Business Resolution/Special Rule. However, there is a significant difference. A Special Rule comes out of the Rules Committee, which the majority party controls under a 2x + 1 manner (where x is the number of minority party members). The Special Rule can pass with only an hour of debate, because you can close with a Previous Question Motion, which in the House is not a debatable motion and if approved by a simple majority ends debate and forces a vote on the Special Rule. The Rule then can pass by a simple majority.

As the name implies though, the Senate operates on unanimous consent. Should any one Senator object to the terms of considering the bill she can just whisk to the floor when a special phone, called the Hotline, rings and say, "I object." So how then can the world's most deliberative body consider a bill? Well with lots of deliberation.

In order for a bill then to move, the leader must then move to consider a bill. However, that motion is debatable. That means it can be subjected to a filibuster. As such, what will happen then is that cloture, where you need the 60 votes has to occur. However, you cannot just invoke cloture. The process is far more complicated.

For the Senate to invoke cloture, 16 Senators must sign a petition. The rules state that the vote cannot occur until two days later. That means if cloture is filed on a Monday, it does not ripen until Wednesday. Then a vote occurs. 3/5 of those Senators duly chosen and sworn (i.e. 60 Senators) then vote on the question, "Is it the sense of the Senate that debate shall be drawn to a close?"

The vote then happens. Things are done, right? Well, not exactly. There is still 30 more hours of debate in place. Usually after the Senate invokes cloture, a unanimous consent agreement waives this. However, if not, then you debate whether you want to proceed to consideration of a bill for 30 hours. Then you take the vote on the motion to proceed. At this point about a week has gone by just considering whether the Senate will consider the bill.

Now you consider the bill. But, the bill itself is debatable. That means you can filibuster by bill. You can filibuster by amendment too, as each motion to amend is debatable (one day I will speak of one of my favorite charts ever). The majority leader can avoid this amendment matter by various means. However, there are plenty of opportunities to gum the matter up. That said too, a major bill, like health reform, is far more subject to just having more general debate.

Of course the Senate could avoid this with a unanimous consent agreement, but why do that when you can gum things up and make the majority take hard votes, and you can pummel them for being unable to do anything in an effective matter.

So you will spend another week invoking cloture on the underlying bill. If that passes, there is still 30 hours of debate (cloture procedure stays the same). Now, though all debate and new or pending amendments must be germane (rare for the Senate).

So what does all of this mean? Essentially it means 60 votes is not as great as it seems from a procedural standpoint. Furthermore, the Senate, unlike the House, is much harder to keep together, because of the ability to object to unanimous consent. The majority leader then could find his own party causing obstructions too, because if one of them does not agree cloture is that much more likely to fail.

One way to get around that is to create more omnibus pieces of legislation to move through with various disparate issues. However, that weakens the committee process and makes things generally more messy. It gets especially weird in conference sometimes with the House. Transparency people hate that too. And often large bills come with drafting errors that courts obsess over in the future (just ask anyone litigating a Superfund case).

Perhaps good will come of this situation. However, as a procedure person, I shudder over a 60 Vote Senate and what people on both sides seem to think. It could just create a different type of mess. Then again, all aspects of the government was designed to move at a glacial pace.

For more cloture information, consult Riddick's Senate Procedure.

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