Steve Smith on “What Happened in the Senate Last Night”

I posed a few questions about the specific procedures that governed last night’s supposed nuclear meltdown in the Senate.  Steve Smith, the Kate M. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, was kind enough to answer.  Here is his reply in its entirety:

Here’s what happened in the Senate last night: The Democrats established a new precedent about the dilatory status of motion to suspend the cloture rule to allow amendments to be considered. The media is reporting that Majority Leader Harry Reid “changed the rules.” The precedent serves as limitation on the use of the motion to suspend for gaining Senate action on amendments considered in the post-cloture debate.

Background: In 1976 and 1977, the Senate’s majority faced “post-cloture filibusters” in the form of multiple quorum calls and recorded votes, time on which did not count against the 100-hour (since changed) limit on post-cloture debate. Then, as now, Rule 22 provides that “no dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.” In 1977, Robert Byrd gained rulings from Vice President Walter Mondale that the amendments and votes demanded by Senators Metzenbaum and Abourezk were dilatory under the rule. A handful of senators did not like the ruling, noting that the rule is ambiguous and had not been enforced in that way before, but Abourezk’s appeal was tabled by an overwhelming majority, 79-14.

A 1979 revision of Rule 22 fixed the post-cloture filibuster problem. Or so senators thought. The 1979 rule made the post-cloture debate limit all-inclusive of the time devoted to procedural motions. The revision was adopted on a 78-16 vote.

Thursday: The use of the motion to suspend the cloture rule threatened to break open post-cloture debate again. Senators sought approval of motions to suspend the cloture rule to take up amendments that were not submitted in advance, as required by Rule 22. The presiding officer ruled that the Senate is required to vote on such motions to suspend, even in the post-cloture period. Because such votes had occurred in the past (see July 21, 2010), it appeared to be a ruling that was technically correct.

Reid, however, made the argument that the motion to suspend was dilatory. As in the past, what is dilatory and what is not is a matter of intentions and difficult to judge. Reid argued that a series of motions to suspend could delay post-cloture debate indefinitely, which would be dilatory under the meaning of Rule 22. Plainly, Reid’s argument has some foundation even if it required a new precedent to implement. Mondale’s rulings serve as precedent for a broad interpretation of what constitutes a dilatory motion or amendment.

Senator Chuck Schumer took the floor last night to suggest new discussions of Senate procedures. I doubt if anything meaningful can come from that now. We can hope.


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