Nothing excites a Senate aficionado like a good parliamentary spat, so it is no surprise that Sarah Binder and Jordan Ragusa have already made great posts about last night’s vote eliminating motions to suspend the rules after cloture has been invoked. I thought I might try to add some historical context and my own thoughts on what this fight means for the 112th Congress.
Suspension: A Rule to Ignore All Rules
From the beginning, both the House and Senate have had a rule to allow members to “suspend” all other rules so they can achieve some particular thing before returning to their normal rules of procedure (current Senate Rule 5). In 1822 the House changed this rule so a 2/3 majority is required to suspend the rules. During the 19th century, House members often suspended the rules to set the chamber agenda, and in recent decades the House has typically used suspension motions to pass noncontroversial legislation.
Historically, suspension motions have been rarely used in the Senate. From 1789 to 1915, there were just thirteen votes on motions to suspend the Senate’s rules. In 1915, the Senate enacted a precedent–an interpretation of its existing rule–that a 2/3 supermajority is required to suspend Senate rules. As I point out here and discuss here, this was an entirely arbitrary and illogical interpretation of the suspension rule, and one which a simple majority of the Senate can overturn any day of the week. But it made sense at the time: senators wanted to cast a pro-prohibition vote without actually limiting alcohol transportation, so by raising the threshold they made it easier to take popular positions without actually doing anything.
From 1915 to 2008, there were 98 roll call votes to suspend Senate rules. Like the 1915 case, almost all of these votes were intended to allow policy riders on appropriations bills, which is otherwise forbidden by Senate Rule 16. Mixed in, however, were two attempts to suspend the provisions of Senate Rule 22 (the cloture rule) to allow an amendment to be proposed to a bill. Specifically, Rule 22 states that “No dilatory motion, or dilatory amendment, or amendment not germane shall be in order.” The first attempt, by Senate majority leader Robert Byrd (D-WV), was in the midst of a famous October 1977 filibuster over natural gas deregulation; the second occurred in 2000 and was proposed by Senate minority leader Tom Daschle (D-SD).
In 2010, however, there were 18 votes to suspend Rule 22 postcloture, as shown below. Most of these were by Jim DeMint (R-SC) and Tom Coburn (R-OK), and other Republicans, although Democratic senators Baucus and Sanders* also attempted to suspend the rules post-cloture. All of them failed, but each vote forced senators to record a position on some other senator’s priority.
Procedural and Partisan Context
In procedural terms, this is a case of two silver bullets colliding. The cloture rule is intended to override all other rules to force senators to focus on one measure and then render a decision on whether it should pass or fail. The suspension rule is intended to override all other rules to allow a [super]majority of the Senate to do whatever it wants whenever it wants. And if the Senate made parliamentary decisions on the merits, it would be difficult to untangle this knot. Reid’s case for the new precedent is that suspension motions could be used to circumvent the 30-hour limit on debate after cloture is invoked; McConnell denies this. If this motion had come up after 30 hours of postcloture debate, that would be a “ripe” question. But since the precedent occurred early, the real procedural question was whether Rule 22’s prohibition on unrelated or time-wasting amendments trumps the right to suspend Senate rules.
But, like most parliamentary questions, this fight was not about abstract procedural priorities. In the real world, as TPM explains, this is a case of raw politics: McConnell wanted to force an embarrassing vote on President Obama’s (unamended) jobs bill, and Reid wanted to a) help the senators up for reelection in 2012 and b) set up a later vote on an (amended) jobs bill that unites the Democrats against the Republicans. By ruling McConnell’s suspension motion out of order, the Democratic party avoids McConnell’s trap.
Is this a “Nuclear Option”?
Like Sarah Binder, I associate the term “nuclear option” with the specific strategy threatened by the Republicans in 2005. However, journalists and senators seem to use this phrase to describe the more general tactic of revising Senate procedure by enacting new parliamentary precedents which alter the meaning and enforcement of existing rules, resolve conflicts between rules, and clarify gray areas where no rule applies. As I have stressed repeatedly here and in my published work, a simple majority of the Senate could, if sufficiently determined, establish new precedents to limit or abolish filibustering, and it is not necessary to declare that the Senate is not a standing body in order to do so. (For more on the majority party’s use of simple majority precedents, and the 2005 nuclear option debate, see this chapter). Historically, the Senate majority party has dominated these votes, as shown below.
By itself, last night’s precedent is not a major reform. The “right” to vote on suspending the rules after cloture is invoked was almost never used until last year. And since this “right” has only been used to record senators positions on defeated proposals rather than, you know, change public policy for the better, I am reasonably confident** that the republic will survive. The minority party can still force votes on pet amendments, but now the bar to do so has been raised. Instead of a single member filing a motion to suspend the rules and subsequently forcing a vote on the motion, now the minority party must band together and vote against cloture until they are guaranteed a vote on their priorities. This is a more dangerous tactic when the majority’s proposal is popular (e.g. criticizing China’s currency manipulation), since minority party members may take heat for a strategic vote. In this case, it is noteworthy that 31 Republicans voted for cloture as the bill was coming to the Senate floor and 12 voted for cloture on the bill itself; if they had voted otherwise, several of these Republicans may have found it hard to explain to their constituents why they were blocking a bill to “get tough with China.”
More broadly, the implication is that the period of detente over Senate rules is over. As Reid admitted on the Senate floor, he “filled the tree” (a tactic used to limit the right of others to offer amendments), which he had agreed not to do in January. And, last night’s vote demonstrates that, as pointed out on TMC in January, “there is still ample room to work within the existing rules to improve Senate decision-making, if a simple majority so chooses.” This may be the beginning of a more assertive Senate majority party, leading to more precedents trimming minority rights and expediting the majority party’s legislation/reelection. Or, a single demonstration of Democratic frustration may lead to bargaining for further reforms.
Another possibility short of institutional changes is that the Senate minority party is more selective in its battles going forward. One of the points made in this recent book on filibustering is that if the majority can credibly threaten to reduce minority rights, the minority party may refrain from obstruction that will provoke the majority party to act. As Senator Reid stated last night, there are a lot of important bills and nominations for the Senate to consider in the coming months; the Republicans may limit their tactics to avoid further majority party retaliation.
*Don’t try to tell me Sanders is an Independent. You are where you eat.
** That is, I can reject the null hypothesis that the republic will not survive this reform with at least 95% confidence.