Did the Senate Just Go Nuclear?

by Sarah Binder on October 7, 2011 · 9 comments

in Legislative Politics,Senate procedure

I sat down tonight to read a little of Mr. Speaker!, Jim Grant’s new, breezy biography of House Speaker Thomas Reed.  “Czar Reed” was the author of “Reed’s Rules”—the package of House rule changes that broke the back of minority party obstruction in the late 19th century.   But, alas, jarred by such headlines as  “Democrats Invoke ‘Nuclear Option’ in the Senate,” I put down Mr. Speaker and sat glued to C-Span for a recap of today’s Senate floor kerfuffle in which Majority Leader Harry Reid and Minority Leader Mitch McConnell sparred (somewhat) angrily over the Democrats’ move to quash Republican amendments to a pending currency manipulation bill.

What exactly happened? In brief (well, Senate-style brief), Senate rules prohibit non-germane (unrelated) amendments on the Senate floor after cloture has been invoked on a bill.  In other words, unless all senators consent, senators can only offer germane amendments once debate has been limited on a bill.   McConnell and Reid appear to have been negotiating an agreement that would have allowed Republicans to offer seven non-germane amendments post-cloture.  But then a GOP senator moved to suspend the rules (which requires a two-thirds vote) so that he could offer non-germane amendments, including at least one related to the president’s jobs bill.   Frustrated with the Republicans’ tactics, Reid raised a point of order that the Republican motion was dilatory. Under Senate rules, dilatory motions are not in order once cloture has been invoked.  The parliamentarian advised the presiding officer to rule that the motion was in order, the presiding officer did just that, and a vote ensued on whether or not to sustain or overrule the chair’s ruling.  Appeals of the chair require only a majority vote to pass, and Reid mustered all the Democrats save Ben Nelson to vote to overturn the chair.   In practice, this means that the Senate tonight set a new precedent, by which I mean a new interpretation of the Senate cloture rule:  Under cloture, a motion to suspend the rules to offer a non-germane amendment may now be declared dilatory.  (If I’ve not quite nailed this down precisely, it’s because no one should try to disentangle Senate floor procedure after midnight.  Please do correct my errors!)

So…did Reid’s move tonight constitute “going nuclear,” as many reporters (or their editors) rushed to declare?  Did this rise to the threat in 2005 that a GOP majority would set a new precedent that Rule 22 would no longer apply to judicial nominations—thus banning the filibuster of judicial nominees?

I think the “nuclear” label overstates what happened tonight.  The Senate did move by majority vote to set a new precedent, but this is hardly a revolutionary act.  The closest I can come to good data (recall, after midnight) on appeals of the presiding officer comes from this conference paper by Chris Den Hartog and Nate Monroe (see also their new book).  For the postwar period, they show that the presiding officer is overruled roughly a quarter of the time his/her rulings are appealed.  Without breaking down the rulings, it would be hard to judge whether any of the Senate’s decisions set new precedents that limited the rights of individual senators on the Senate floor.  But my point is simply that the Senate does periodically move by majority vote to establish new ways of doing business—even when that path is at odds with the parliamentarian’s reading of precedent.  (On the broader politics of such “reform by ruling,” see Wawro and Schickler’s filibuster book or my work on the nuclear option with Steve Smith and Tony Madonna.  See also Steve’s Brookings paper on the Senate’s broader struggles with legislating.)

More generally, I think it’s important to keep in mind that the trend since the 1970s has been the gradual tightening of post-cloture practices, such as limiting the time for post-cloture debate and enhancing the ability of the Senate to prevent back-door “post-cloture” filibusters.  I suspect that from Senator Reid’s perspective, clamping down on efforts to offer non-germane amendments post-cloture was consistent with this general pattern of trying to make the Senate hew more closely to the intent of the cloture rule.   Of course, from Senator McConnell’s perspective, the move was a violation of Reid’s commitment at the start of the Congress to open up amending opportunities for the minority party.  “We are fundamentally turning the Senate into the House,” said McConnell.  “The minority’s out of business.”

Judging from Reid’s comments at the end of the day, I wouldn’t be surprised if the leaders attempt another procedural handshake—with the majority perhaps backing off tonight’s ruling.  Regardless, I doubt that the Senate minority party is really out of business.

{ 9 comments }

Jordan Ragusa October 7, 2011 at 2:21 am

Perhaps I have missed something, but is it possible that the jobs bill is considered germane to the China bill? An argument can be made that both concern jobs, right? If this is so, then it would be hard to argue that the amendment was dilatory–though clearly partisan–and thus covered by the cloture procedures of Rule XX. In other words, Reid and McConnell were operating under a UCA until a Republican senator objected and offered a germane amendment. This interpretation would explain why the parliamentarian overruled the motion to declare the amendment out of order in the first place.

Kevin S. October 7, 2011 at 6:35 am

If the amendment was germane, there would be no need to suspend the rules to allow it. As I understand it, germane amendments can be offered any time, pre- or post-cloture, without any special procedures.

Jordan Ragusa October 7, 2011 at 7:45 am

Right. But Rule XX states clearly that non-germane amendments are out of order after cloture has been invoked (which is was). So why was the point of order overruled in the first place, forcing Reid to “go nuclear”? If this were indeed a germane amendment that was disposed of in this matter that would signal an important change in Senate precedent. What am I missing?

Jason October 7, 2011 at 6:13 pm

Jordan,

The rules DO say that non-germane amendments are out of order. All parties agree on this.

The dispute arose when a Republican senator moved to SUSPEND THE RULES, thus allowing a non-germane amendment to be offered anyway.

Senator Reid claimed that the motion (to suspend the rules) was dilatory. Long held Senate precedent said otherwise.

Senator Reid insisted on overruling the chair (and, in effect, the Senate parliamentarian).

This was a monumentally stupid move by Reid. Either solution (holding the vote to suspend the rules OR overruling the chair) required a vote.

As a result of Reid’s hissy fit, a future Republican controlled Senate will now be able to claim justification for a similar move.

You can bet that when the Republicans do this (unlike Senator Reid), the matter at stake will be of genuine importance.

Kurt October 7, 2011 at 6:57 pm

Do you honestly think that the very first day of the next new session where Republicans have the majority (god forbid I hope not soon), they won’t immediately vote to eliminate the filibuster and holds by the minority? Of course they will!

Barry October 12, 2011 at 12:55 pm

Or offer a credible threat to do so, and carry it out if the Democratic leadership doesn’t buckle?

Steve Smith October 7, 2011 at 8:56 am

Here’s what happened in the Senate last night: The Democrats established a new precedent about the dilatory status of motion to suspend the cloture rule to allow amendments to be considered. The media is reporting that Majority Leader Harry Reid “changed the rules.” The precedent serves as limitation on the use of the motion to suspend for gaining Senate action on amendments considered in the post-cloture debate.

Background: In 1976 and 1977, the Senate’s majority faced “post-cloture filibusters” in the form of multiple quorum calls and recorded votes, time on which did not count against the 100-hour (since changed) limit on post-cloture debate. Then, as now, Rule 22 provides that “no dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.” In 1977, Robert Byrd gained rulings from Vice President Walter Mondale that the amendments and votes demanded by Senators Metzenbaum and Abourezk were dilatory under the rule. A handful of senators did not like the ruling, noting that the rule is ambiguous and had not been enforced in that way before, but Abourezk’s appeal was tabled by an overwhelming majority, 79-14.

A 1979 revision of Rule 22 fixed the post-cloture filibuster problem. Or so senators thought. The 1979 rule made the post-cloture debate limit all-inclusive of the time devoted to procedural motions. The revision was adopted on a 78-16 vote.

Thursday: The use of the motion to suspend the cloture rule threatened to break open post-cloture debate again. Senators sought approval of motions to suspend the cloture rule to take up amendments that were not submitted in advance, as required by Rule 22. The presiding officer ruled that the Senate is required to vote on such motions to suspend, even in the post-cloture period. Because such votes had occurred in the past (see July 21, 2010), it appeared to be a ruling that was technically correct.

Reid, however, made the argument that the motion to suspend was dilatory. As in the past, what is dilatory and what is not is a matter of intentions and difficult to judge. Reid argued that a series of motions to suspend could delay post-cloture debate indefinitely, which would be dilatory under the meaning of Rule 22. Plainly, Reid’s argument has some foundation even if it required a new precedent to implement. Mondale’s rulings serve as precedent for a broad interpretation of what constitutes a dilatory motion or amendment.

Senator Chuck Schumer took the floor last night to suggest new discussions of Senate procedures. I doubt if anything meaningful can come from that now. We can hope.

Tony Madonna October 7, 2011 at 11:29 am

Nice rundown, Sarah, and I agree, it’s not a revolutionary act.

For what it’s worth, here’s the data I have on appeals…

From 1840 to 2001 there were 641 votes on questions of order. 379 of these dealt with amendments being in order. Of the remaining 262, 60 were submitted directly to the Senate without being ruled on. An additional 161 were upheld by the Senate. 41 were overturned. Notably, the percentage of rulings that got overturned didn’t change at all after the parliamentarian’s office was established (roughly 20% both before and afterwards).

-Tony

anonymous October 7, 2011 at 1:53 pm

There is one key element of what makes the actions last night not qualify as the “nuclear option” in relation to how the term has been used recently (e.g., earlier this year) to refer to a process by which a simply majority of the Senate would establish new precedents. The typical scenario being contemplated earlier (under the rubrik of “nuclear”) relied on the chair making a pre-cloture ruling CONTRARY to existing precedents, which would have been necessary to end debate on an appeal or submitted point of order. (Having a chair ignore previous Senate precedents would present a very serious issue, for reasons I won’t go into here.) Last night, the chair ruled in accordance with previous precedent, and since the appeal was post-cloture, the Senate could overturn without having to invoke cloture on an appeal.

As an additional aside in re: earlier comments, germaneness for the purposes of the Rule XXII prohibition is interpreted very narrowly. (The jobs bill is most certainly non-germane to this bill under these standards.) The recent use of these motions to suspend is typically about avoiding the germaneness restriction post-cloture. I haven’t looked at least of the noticed motions to suspend to confirm, but it wouldn’t surprise me if none were germane.

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