Senate Puzzler for your Sunday morning

by Sarah Binder on February 17, 2013 · 1 comment

in Senate procedure

Three cheers to Wonkblog for starting our Sunday morning with a little Senate parliamentary puzzle.  Dylan Matthews gets us going by noting Majority Leader Harry Reid’s procedural move this past Thursday.  After seeing that the cloture vote would fail to cut off debate on the motion to confirm Chuck Hagel to head the Defense Department, Reid switched his vote to oppose cloture.  As Dylan notes, voting on the “winning” side (here, the successful effort to block cloture) allowed the majority leader to enter a motion to reconsider the vote at a later time.  As Wonkblog importantly notes, the maneuver provides a “clever workaround” for a majority leader who seeks to try again on cloture.

So what’s the puzzle?  Check out the graph below of the number of times majority leaders have entered motions to reconsider after failing to secure cloture.  (But note, the majority leader did not always later return the Senate to the motion to reconsider.)  The data come from a 2009 must-read APSA conference paper by the Senate procedural experts at the Congressional Research Service.


These data show instances that Beth et. al. tag as strategic use of the reconsider motion by the majority leader after failed cloture votes.  The first such strategic use occurs in 1999, with subsequent leaders relying increasingly on the move after failed efforts to invoke cloture.

The puzzle? Why does this start in the late 1990s and why does it climb?  After all, in each of these instances—including last Thursday’s—the majority leader could have easily offered a second cloture motion, waited two days for the motion to ripen, and then moved the Senate to vote again on cloture immediately thereafter.  Importantly though, the reconsider maneuver grants the majority leader far more flexibility over when the Senate moves again to attempt cloture—without being constrained by the Senate’s cumbersome cloture rule.   As Beth et. al. note (see also Steve Smith’s treatment here), this procedural move allows the leader to take “a contested measure off the floor while maintaining the possibility of returning to it if at some point its strategic situation improves.”  In a chamber that struggles to secure sixty votes (even when attempting to confirm members of the president’s “Inner Cabinet”), the strategic flexibility conferred by the reconsider motion can be instrumental to leaders’ efforts to herding the Senate’s cats.

Finally, Reid’s maneuver in effect offers the leader a potentially more efficient tactic than pursuing a “talking filibuster.”  Granted, the talking filibuster reform wasn’t adopted in the latest round of Senate rule changes.  But one could imagine the Hagel situation as an instance in which the leader might have taken up the tactic after the cloture effort fell shy of sixty votes. But rather than attempting to hold Republicans’ feet to the fire (on the eve of a ten-day recess), Reid’s maneuver allows him to preserve his right to attempt cloture when he thinks the moment is right after senators are back in town.  For sure, this makes senators’ lives easier, but it potentially makes confirmation in this case more likely.  Hard to know, of course. But one can see why leaders might prefer to keep the reconsider move in their hip pocket, while allowing the Senate to move on to other pressing business (even if that business this time around was going home).

{ 1 comment }

Richard Arenberg February 18, 2013 at 10:23 am

Once again, Sarah Binder has provided a very interesting post on which I feel the need to comment.

The discussion of the tactic of entering a motion to reconsider a cloture vote is well done. In this particular instance, however, I think confusion arises because some are anxious, for various reasons, to characterize the minority’s handling of the Hagel nomination as a further abusive use of the filibuster for obstruction.

As readers of “The Monkey Cage” no doubt know, that are difficulties with any effort to quantify the use of the filibuster, particular be counting cloture votes. Often in the public media the two are conflated.

In this case the majority calls this a filibuster and characterizes it as obstruction to keep pressure on the minority so that Hagel can be confirmed at the earliest date. Filibuster reformers call it an abusive filibuster in order to cry “I told you so” and keep pressure on those who led the January bipartisan reforms of the filibuster, including the majority leader. The media is in the habit of viewing all filibusters as abusive and all cloture votes as signalling filibusters.

The existence of a filibuster is not as evident as one might think. Most of the media coverage of filibuster reform has cited the increasing number of cloture votes as evidence of increased use of the filibuster. While it is clear that abusive overuse of the filibuster by the minority in recent years is real, quantifying it by counting cloture votes is simplistic. There are reasons why a majority leader might for tactical reasons file cloture even if no real filibuster is occurring or before one is able to develop. Also, there are times that a filibuster is occurring, yet it leads not to a cloture vote but rather to negotiation of a time agreement.

With respect to the cloture vote on the Hagel nomination, the answer is not clear. The majority leader clearly wanted to have the vote prior to the impending recess, at least in part for tactical reasons. Republicans who oppose the nomination wanted the vote delayed until the day after the recess to seek information, but also to allow opponents time to marshal further opposition. Sens. McCain, Graham, and others have made it clear that they do not seek to extend debate beyond the first day the Senate returns from the recess. It’s hard to characterize this as a classic filibuster and in a sense, it comes closer to what is typically termed a “hold.”

Of course, holds don’t exist in the Senate rules and have there roots in senatorial courtesy. For much of the Senate’s history, on the one hand senators could expect that a reasonable request for delay for a reasonable period of time would be granted out of an abundance of senatorial courtesy, on the other hand, for much of its history presidents could rely on the Senate giving great deference to his choice of officials he wished to fill own his own cabinet. This was especially true of the expectation that they would be accorded an up or down vote and not filibustered.

In our book, “Defending the Filibuster: The Soul of he Senate,” we quote Senator Tom Harkin who once, in 1995, remarked, “Sometimes in the fog of debate, it is hard to determine who is responsible for slowing something down. It is like shifting sand.” Even in the famous 1917 case of isolationists blocking the arming of merchant ships by President Wilson which led to the cloture rule itself being enacted (at a time when debate was truly unlimited and there was no way in the rules to end it before every senator was ready), one of Senate history’s most famous senators “Fighting Bob” LaFollette (R-WI) argued that they were not filibustering because they were not seeking to delay, but merely fully debate the issue. As the time ran down on the session of Congress, it was actually the counter-filibusterers who seized the floor and killed the bill.

Returning to the purpose of the majority leader entering a motion to reconsider. I think in this case it simply reflects his belief that cloture will be invoked on the first day or two with the cooperation of several GOP senators and this is the most convenient and flexible way to accomplish that in a timely fashion.

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