Reforming the Senate without a vote? My (double) take

by Sarah Binder on August 20, 2012 · 3 comments

in Legislative Politics,Senate procedure

I am looking forward to reading Richard Arenberg and Robert Dove’s new book, Defending the Filibuster, which comes out tomorrow.  Niels Lesniewski’s preview in Roll Call provides a glimpse of some of the authors’ arguments.   First, they oppose what many call “reform-by-ruling,” or altering Senate rules by majority vote at the start of a Congress.  (Some also refer to this approach to reform as the “Constitutional option.”)  Second, Lesniewski notes that the authors support a range of changes to the Senate’s Rule 22, so long as regular order is followed in changing the rules.  Regular order would require a two-thirds vote to cut off debate on the motion to proceed to the resolution changing the rules, and then would require just a simple majority to adopt the resolution.  Arenberg’s and Dove’s proposals include limiting debate on the motion to proceed and reducing the number of debatable motions to get to conference—proposals that others have endorsed over the years.

What caught my eye in Lesniewski’s preview was Dove and Arenberg’s suggestion that majority leaders avail themselves more often of a non-debatable motion to proceed that already exists in Senate rules.  During the Senate’s “morning hour” (a two hour period that follows a Senate adjournment), a motion to call up a measure from the Senate’s calendar can be made without debate.  (Only in the Senate would a “morning hour” last two hours.  And only in the Senate would a morning hour sometimes start in the afternoon.)  Outside of the morning hour, motions to proceed can be filibustered, unless the Senate musters unanimous consent or sixty votes to invoke cloture to proceed.)  In other words, the Senate majority leader could exploit a narrow procedural window during the morning hour to move to consider a measure by majority vote.  The measure would still be subject to filibuster once the Senate has proceeded to its consideration, but the move would circumvent an initial filibuster of the motion to proceed.  That is why Suzy Khimm in the Washington Post dubbed it a way to “reform the filibuster without taking a vote.”

Dove and Arenberg appropriately note that this non-debatable motion during the morning hour has fallen out of favor with Senate leaders.  Indeed, it appears that the last leader to exploit the move was the late Senator Robert Byrd, who used it in 1987 to circumvent a GOP filibuster of a motion to proceed to the annual defense authorization bill.  So why don’t leaders avail themselves of this seemingly easy way to circumvent the initial filibuster of a bill?  There may be more reasons than I offer below.  But here are a few thoughts on why leaders don’t seem keen to exploit the morning hour provision:

First, keep in mind that the non-debatable motion to proceed can only be made either after completion of the Senate’s morning business or during the second half of the morning hour.   The last time Byrd attempted a motion to proceed during the morning hour, Republicans gummed up the works as they apparently tried to run out the clock on the morning hour.  Ironically, Byrd and the Democrats then moved by majority vote to create several new precedents that barred such behavior as dilatory. In other words, it took a mini Constitutional option to make the morning hour motion an effective tactic.  One could imagine that if Harry Reid moved to proceed to a measure during the morning hour by majority vote, he would be greeted by a similarly inventive GOP intent on complicating his move.   Anticipating difficulties, majority leaders might avoid escalating parliamentary war with the minority.

Second, if the Senate did proceed to a measure during the morning hour, that measure would be displaced at the end of the morning hour by the Senate’s unfinished business pending from the previous legislative day.  In other words, calling up a bill during the morning hour might not be a very effective tactic for a major, time consuming measure.   (Then again, if there were no unfinished business, consideration of the bill could last past the end of the morning hour.)

Third, proceeding to a bill during the morning hour does not of course preclude obstruction of the underlying measure.  Senate rules, for example, preclude debate on motions to go into executive session to call up nominations.  And yet, nomination filibusters are now old hat in today’s Senate.  Leaders’ reluctance to exploit the morning hour might reflect a calculation that upsetting the minority over the motion to proceed might not be worth the added cost.  An aggrieved minority has ample ways to make the majority leader’s life miserable—blocking cloture or refusing consent on a time agreement for the underlying measure.

It’s not clear to me whether the majority (or the minority) party would be better or worse off with more frequent use of the morning hour tactic.  My hunch is that such uncertainty underlies the parties’ routine daily agreement that no non-debatable motion to proceed will be offered during the following morning hour.  Exploiting the morning hour might indeed jump start reform of the filibuster without a Senate vote, but neither party seems eager to give it a try.

{ 3 comments }

Rich Arenberg August 21, 2012 at 9:50 am

I welcome Sarah Binder’s interest in reading our book “Defending the Filibuster” (http://defendingthefilibuster.com/). I admire her work and have recommended her book (“Politics or Principle?: Filibustering in the United States Senate”) to my students for years– although I disagree with many of her conclusions.

While her discussion of our mention of the Morning Hour as a way to proceed to a bill is interesting, our book hardly put the procedure forward as a way to “reform the filibuster without taking a vote.” In fact, the whole matter occupies only three sentences in the entire book, as follows:

“It is already possible for a motion to proceed which is non-debateable and therefore cannot be filibustered to be made under Senate Rule VIII. This route has, for some reason that escapes us, fallen out of favor with modern majority leaders (since Robert Byrd used it). Nonetheless, this is a somewhat cumbersome path, and we would support making the motion to proceed a non-debateable motion (as it already is with respect to nominations and treaties on the Executive Calendar).”

There are times, however, when this maneuver might be helpful even though as Binder correctly points out, ” proceeding to a bill during the morning hour does not of course preclude obstruction of the underlying measure.” For example, in cases like the battle over “Don’t Ask Don’t Tell” in the last Congress when some Republicans were filibustering the motion to proceed although they favored the bill because they feared that Majority Leader Reid would preclude amendments by “filling the amendment tree” even though he promised that he would not. The floor manager, Sen. Carl Levin repeatedly argued to no avail for proceeding to the bill and testing the majority leader’s promise since the Republicans would retain the right to filibuster the bill itself if he reneged.

Much more fundamental is the disagreement we have with Binder and others over the so-called “Constitutional Option.” We’ll save that debate for another day when she’s weighed the arguments in “Defending the Filibuster”.

Steve Smith August 21, 2012 at 10:15 am

Bob Dove, of course, was largely responsible for thwarting Byrd’s effort in 1987 to use the morning hour to get a vote on the motion to proceed to a defense authorization bill. They did so by having Repubs announce their intention not to vote and forcing a Senate vote on the question. With follow-up parliamentary maneuvers, morning hour expired without the motion to proceed being offered. Some version of the 1987 tactics probably would work again. I bet that is how majority leaders have seen it, too.

Sarah may not find the “constitutional option” any more desirable than Dove and Arenberg. Its technical feasibility, on the other hand, makes it attractive to frustrated majorities (of both parties). All of these moves, including the dilatory moves during morning hour on May 13 1987, encourage the other side to exploit all of its options.

Sarah August 21, 2012 at 10:25 am

Thanks for your comments, Rich. I certainly agree with you that the Washington Post headline “reforming the filibuster without taking a vote” falls wide of the mark in assessing the morning hour restriction on the motion to proceed. And, as Steve suggests above, I suspect that we agree on much more! In any case, I am looking forward to reading your book.

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