Motions to proceed: The good, the bad, and the ugly

by Sarah Binder on November 28, 2012 · 4 comments

in Senate procedure

 

I thought I would add a few observations to Jon Bernstein’s thoughtful discussions here and here about potential reforms of the Senate’s Rule 22.  Jon and others wonder whether the proposal to ban the filibuster on the motion to proceed to a bill would matter all that much:

Eliminating the need to get 60 to get to the floor doesn’t change at all the (de facto) requirement that a bill needs 60 to pass. And so the majority isn’t going to bring a bill to the floor unless it has that 60, regardless of whether the motion to proceed is a hurdle or not.

Moreover,
What I should have added is that the fight over the motion to proceed therefore has some positive value; it produces useful information for the Majority Leader and the bill managers.

I think these are reasonable points.  Still, I wonder whether banning motions to proceed filibusters might be worth more than it seems to the majority.  Putting aside the possibility that Reid and the reformers might not be able to muster a majority for a tougher set of changes to Rule 22, I think it’s worth putting into perspective the use of cloture on these procedural motions and the value of such cloture motions to the minority.

First, as majority leaders back to George Mitchell in the late 1980s have noticed, Senate minorities have become increasingly aggressive in their willingness to block consent on motions to proceed.  Although there is a good amount of variation in the number of times majority leaders filed for cloture on motions to proceed, the trend line has clearly risen over recent decades.

 


Once we control (below) for the overall number of cloture motions filed each Congress, the upward trend is less pronounced but still evident.  Moreover, some forty percent of cloture motions in recent Congresses have been targeted on motions to proceed.  Given the amount of time consumed by the cloture process, eliminating these cloture votes might actually improve the majority leader’s ability to press forward with the majority’s agenda.


 


It’s also worth noting that in recent years, majority leaders have had a mixed record in getting sixty votes on these motions. Cloture of late is invoked roughly fifty percent of the time, generally in line with cloture success on other Senate business.  (Keep in mind that the denominator in each congress is the number of votes on cloture, not the number of cloture motions filed.)   The sixty vote threshold is at least as tough and time consuming a barrier for putting bills on the floor as it is for getting to votes on measures and nominations.  And for both, there is arguably value to the majority in trying to blame the minority for blocking action regardless of the procedural target of the cloture motion.



Second, I think it’s worth stepping back to consider the value of the motion to proceed filibuster for the minority. Republicans argue that requiring sixty votes for the motion to proceed is a key source of leverage for pushing the majority to agree to its demands for amendments when a bill gets to the floor.  In other words, the price of cloture for the majority is often guaranteeing the minority the right to offer amendments or even to secure changes to a bill before it comes to the floor.  Think about Dodd-Frank in 2010.  Most Senate Republicans had no intention of voting for the bill. But they exploited Reid’s need for sixty votes on the motion to proceed to force Democrats to water down several provisions of the bill before granting the majority the sixty votes needed for cloture to proceed.  Eliminating cloture on the motion to proceed potentially undermines a helpful source of leverage for the minority—even if the minority can still make life miserable later for the majority leader during floor consideration of a bill.


To be sure, it’s not always easy to anticipate the consequences of Senate rule changes.  And as Steve Smith’s Senate Syndrome argument suggests, if the majority succeeds in shutting off motion to proceed filibusters, we would expect the minority to find other ways to continue to frustrate the majority.  Reid for sure anticipates those reactions, but he may think that the benefits outweigh the costs at this juncture.

{ 4 comments }

Matt November 28, 2012 at 6:35 pm

Wouldn’t the main benefit on the ban on filibuster of motions to proceed (for major legislation at least) be in combination with the requirement that the filibusters actually hold the floor for and actual vote? The assumption of course is that if the majority is pursuing popular legislation and it gets to a point where there could be an up or down vote but a recalcitrant minority is completely stopping the business of government to blather on about whatever to prevent passage of said popular legislation, they’d get terrible press and pay a huge price in terms of public support?

Sarah November 29, 2012 at 11:46 am

Yes, I think you’re right. Or, think about it the other way around: Forcing “talking filibusters” is (potentially) a more effective tactic if coupled with making the motion to proceed non-debatable. Otherwise, senators opposed to the bill might fight harder against cloture on the motion to proceed to keep bills off of the floor. (I suppose the Senate could also engineer “talking filibusters” on the motions to proceed…)

Jonathon November 28, 2012 at 7:39 pm

Good point Sarah regarding the minority’s attempt to use the motion to proceed for leverage, and I agree that, if for no other reason, it’s worth doing because it will at least free up some much needed floor time. After cloture is invoked on the motion to proceed to debate, although the majority leader is sometimes able to then secure unanimous consent to waive all post-cloture time and proceed immediately to debate, there are many times when the majority leader is unable to receive this unanimous consent, and the result is that the Senate is unable to do anything until all 30 hours of post-cloture time elapses. It is a huge waste of time, not to mention a practice which makes zero logical sense–why do they need to spend 30 hours to debate the fact that they just agreed to start debating?

Richard Arenberg November 29, 2012 at 10:11 am

As usual, Sarah Binder has shed additional light on the current filibuster reform debate. I wanted to offer a few reactions to her excellent post.

I spent 34 years working on Capitol Hill, including for Majority Leader Mitchell. It has always been my belief that the filibuster on the motion to proceed adds little value. The filibuster is important in the Senate because it defends minority rights and this is tied to the substance of debate and amendment. In my judgement, filibusters on the motion to proceed are useful only as obstruction. I don’t think that Minority Leader McConnell’s argument that it provides leverage to negotiate amendments in the face of the majority leader’s threat to fill the amendment tree holds much water. Once on the bill, the minority can still filibuster. Without cloture, the majority leader is still checkmated. If he wants to get to final passage, he must negotiate with the minority.

I feel the same way about the three motions to go to conference which Sen. Reid wishes to make non-debateable. On Obamacare for example, Democrats might have been able to go to conference with the House and negotiate an acceptable (to Democrats) conference report while Ted Kennedy was still alive.

While these reforms may not be earth-shattering, it seems to me that they are within the realm of possible negotiated regular order (67 votes to end debate) rules changes. The history of filibuster reform in the Senate is the “constitutional option” is credibly threatened, the Senate shrinks from that radical step, and an incremental filibuster reform is negotiated. That could happen here.

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