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).