How VP Harris Can Sideline Moscow Mitch
NOV 14,
2020
https://newsflector.com/how-vp-harris-can-sideline-moscow-mitch/
Even
if the Democrats don’t win control of the Senate, there is a way to strip Mitch
McConnell of his power for good: priority recognition.
According
to Article I, Section 3, Clause 4 of the Constitution, the Vice President is
also the President of the Senate. The Majority Leader is not a position that
exists anywhere in the Constitution. The reason that the Majority Leader has
near-dictatorial powers to control floor votes is because of a tradition that dates back to 1937. The
tradition is that the Vice President gives the floor leaders priority
recognition. Most notably, this is not a rule in the Senate.
As
President of the Senate, Vice President Harris could give any senator priority
recognition. That senator could then decide on all legislation that is brought
before the entire Senate. Even with a minority in the Senate, Vice President
Harris could simply give Chuck Schumer priority recognition. He could decide
what is voted on and what isn’t.
This
would change everything. Without Mitch McConnell to hide behind, the moderate
Republican Senators would be forced to vote down every Cabinet
member, bill, resolution, everything that Harris would want done. Without
McConnell, anything even remotely popular with at least two senators would
pass. Including getting a cabinet assembled.
I
see some debate as to what the Senate rules do and do not permit. I encourage
everyone to read this article on the actual written rules (below) and
why the Majority Leader is so powerful today. It should be noted, however,
unlike the House of Representatives, a large part of the Senate rules is tradition.
As Mitch McConnell will gladly tell you, tradition is not written rule.
Also, This wouldn’t be the first time Schumer has done something
like this. And yes, while there’s the possibility of rule
changes, they cannot change the Constitution.At the end of the day, Madame Vice President Harris is
President of the Senate. Period. Not Mitch McConnell
What makes Senate leaders
so powerful?
by James Wallner
August 1, 2018
https://www.legbranch.org/2018-8-1-what-makes-senate-leaders-so-powerful/
The floor
leaders of the Democratic and Republican parties dominate today’s Senate. They
play a central role both in crafting major bills and in shepherding them
through the legislative process from beginning to end. And they cultivate
carefully the expectation that they are responsible for setting the Senate’s
agenda and for regulating the ability of their colleagues to participate in the
decision-making process by offering amendments.
For example,
consider recent claims by Majority Leader Mitch McConnell, R-Ky., that he alone
decides what bills get considered on the Senate floor. When asked if the Senate
would consider legislation to protect special counsel Robert Mueller, McConnell responded, “I’m the one who decides what we take
to the floor, that’s my responsibility as the majority leader, and we will not
be having this on the floor of the Senate.” Or take Harry Reid’s, D-NV., regular habit of deciding what, if any,
amendments were permitted to be offered to bills when he was majority leader.
Yet
notwithstanding the mounting frustration among rank-and-file members during the
tenures of both leaders, neither Reid nor McConnell saw a significant challenge
to their leadership. The takeaway from this is that party leaders wield more
power today than at any other point in the Senate’s history. And it suggests
that rank-and-file members, despite their clear frustration with the status
quo, cannot imagine the Senate working without the active involvement of their
leaders.
That members
have been conditioned to think in this way sheds light on the paradoxical
source of leader power in today’s Senate. Put simply, party leaders are
powerful because rank-and-file senators defer to them to manage the institution
how they see fit. This deference is not mandated by the Senate’s official
rules. Rather, it is simply grounded in its past practice. The implication is
that frustrated members can easily change how the Senate operates at any point.
All that’s needed is a willingness on their part to recast their relationship
with the Senate’s leaders.
STANDING
RULES VS. PRECEDENTS
Unlike their
colleagues in the House, the power of the Senate’s leaders is not derived from
the institution’s formal, or written, rules. There are currently
forty-four Standing Rules of the Senate that govern everything from non-controversial
issues like the oath of office (Rule III) and the committee referral process
(Rule XXVII) to controversial issues such as the process to end debate (Rule
XXII). For the most part, the Standing Rules are very general and do not
address circumstances that may arise in specific parliamentary situations.
The Senate
operates daily largely according to informal, or unwritten, rules
established pursuant to a collection of precedents. According to the late Senator Robert C. Byrd,
D-WV., “Precedents reflect the application of the Constitution, statutes, the
Senate rules, and commonsense reasoning to specific past parliamentary
situations.” Former Senate Parliamentarian Floyd M. Riddick argued that precedents embody the practices
of the Senate pursuant to the Constitution, its Standing Rules, and any relevant
rule-making statutes. These practices serve to “fill in the gaps” contained in
these procedural authorities when they fail to address specific parliamentary
situations. In this sense, the impact of precedents on Senate procedures is
like that of judicial decisions in case law. Both have the force of formal
rules/laws and are thus binding in the same way on future action.
PRECEDENTS
AND LEADER POWER
Party
leaders derive their power from the Senate’s precedents, not its Standing
Rules. Of the forty-four rules, only ten mention the majority and minority
leaders. And those ten rules do not grant the leaders any real power vis-à-vis
the rank-and-file.
[A list of
the Senate rules that mention specifically the majority and/or minority leader
is included at the end of this post, along with a short description of the
relevant provisions in each. A full list of the Senate’s Standing Rules can be
found here.]
Under the
rules, all senators are essentially equal. That is, no senator is more powerful
than another. However, the majority leader is clearly considered to be the most
powerful senator today. This perception is based on his ability to make motions
to proceed to legislation and nominations and to fill the so-called amendment
tree (i.e. offer the maximum allowable number of amendments to legislation to
block senators from offering their own amendments). Both are based on his
ability to be recognized first by the Senate’s Presiding Officer. But the leader’s
preferential recognition and, by extension, his ability to make motions to
proceed to bills and nominees and his ability to fill the amendment
tree, are grounded only in precedent. And the leader’s power in these
areas is perpetuated simply by senators’ continued deference to the majority
leader to wield them however he chooses.
The majority
leader has the right of first recognition pursuant to precedent. The leader was
first granted priority of recognition in 1937 because of a ruling made by Vice
President John (“Cactus Jack”) Nance Garner while presiding over the Senate. On
his own initiative, the Vice President decided that “in the event that several
senators seek recognition simultaneously, priority of recognition shall be
accorded to the majority leader and minority leader, the majority [bill]
manager and the minority [bill] manager, in that order.”
By creating
the right of preferential recognition, the Garner precedent serves as the
foundation on which leader power is based in the Senate today. Since any member
can technically make a motion to proceed to legislation or a nomination under
the Senate’s rules, being the first to do so enables the majority leader to set
the schedule and control the agenda to a limited degree. Note that the minority
leader is the next most powerful senator under this formulation. This is
because he has preferential recognition after the majority leader. That
technically makes him more powerful than the other 98 members of the Senate,
including those in the majority party.
It is the
prerogative of the majority leader by long-standing practice to move to proceed
to the Senate’s floor business. According to Senate precedent, “motions to
proceed to the consideration of bills and resolutions on the calendar are usually made
by the majority leader or his designee, who, as spokesman of his party and in
consultation with his policy committee, implements and directs the legislative
schedule and program.” But there is no explicit provision in the Senate’s rules
or precedents stipulating that motions to be proceed can only be made by the
leader. In reality, any rank-and-file member, or the minority leader, can make
a motion to proceed to a bill or nominee on the Senate floor. They simply
choose not to and instead defer to the majority leader to do so.
Priority of
recognition also allows the leader to block votes on undesirable amendments.
The ability to be recognized first before other members enables the majority
leader to fill the amendment tree. Like the leaders’ preferential recognition
on the Senate floor, today’s amendment process was largely
established by precedent and not by the institution’s Standing Rules. That is,
the amendment process evolved over the years and is based on a continued
interpretation of past parliamentary practice. Those precedents stipulate the
nature of amendment that may be offered at a particular point in time (i.e.
first or second degree; perfecting or substitute). According to precedent, “Any senator recognized is entitled
to offer an amendment when such amendment is otherwise in order, but he cannot
offer an amendment unless he has been recognized or has the floor.” The process
of filling the amendment tree thus follows precedent to block members from
offering their own amendments.
LEADER
POWER DEPENDS ON MEMBER DEFERENCE
Senate leaders
have no formal power under the institution’s rules to compel their colleagues
to comply with their dictates. Rather, their continued ability to control the Senate
rests on nothing more than the continued deference of rank-and-file members.
And given the precedential nature of leader power in the Senate at present, the
rank-and-file can change overnight how the institution works should they choose
to do so.
PARTY
LEADERS AND THE STANDING RULES
1. Rule
XV: Amendments and Motions
Requires a
senator offering an amendment (or making a motion to recommit a measure with
instructions) to provide copies “to the desks of the majority leader and the
minority leader before being debated.”
Note that it
is the desk, and not the leader who sits at the desk, that is empowered here.
2. Rule
XXII: Precedence of Motions (i.e. the cloture rule)
Stipulates
that post-cloture debate time may be extended beyond the 30-hour limit set by
the rule if approved by three-fifths of senators duly chosen and sworn
(typically 60). When that happens, the rule specifies that “any such time thus
agreed upon shall be equally divided between and controlled by the majority and
minority leaders or their designees.”
Stipulates
that during post-cloture debate, “a senator may yield all or part of his one
hour to the majority or minority floor managers of the measure…or to the
majority or minority leader.” Yet the rule goes on to place limits on the total
amount of time leaders can have yielded to them, stating, “…but each senator
specified shall not have more than two hours so yielded to him.”
Shortens the
time required to invoke cloture on a motion to proceed to a measure if it “is
signed by 16 senators, including the majority leader, the minority leader, 7
additional senators not affiliated with the majority, and 7 additional senators
not affiliated with the minority.” Under normal circumstances, the rule
requires only 16 senators to sign a cloture petition for it to be operative.
3. Rule
XXIII: Privilege of the Floor
Allows the
Committee on Rules and Administration to promulgate regulates permitting
currently-banned individuals (i.e. registered lobbyists, etc.) from the Senate
floor for ceremonial events and “events designated by the majority leader and
the minority leader.”
4. Rule
XXV: Standing Committees
Authorizes
the majority and minority leaders to jointly increase, albeit only temporarily,
committee memberships “by such number or numbers as may be required to accord
to the majority party a majority of the memberships of all standing
committees.”
5. Rule
XXVI: Committee Procedure
Prohibits
committees from meeting two hours after the Senate first convenes “and in no
case after two o’clock postmeridian unless consent therefore has been obtained
from the majority leader and the minority leader (or in the event of the
absence of either of such leaders, from his designee).”
Requires the
majority leader or his designee to announce to the Senate whenever consent has
been granted under the rule and to specify the time and place of such meetings.
6. Rule
XXVIII: Conference Committees; Reports; Open Meetings
Stipulates
in several places that total debate on motions to waive points of order
authorized by the rule is limited to not more than one hour “equally divided
between the majority leader and the minority leader or their designees.”
Stipulates
in several places that total debate on appeals from the ruling of the Presiding
Officer/Chair is limited to one hour “equally divided between the majority
leader and the minority leader or their designees.”
Requires
conference reports (i.e. bills agreed to by the House and Senate in a
conference committee) to be publicly available for at least 48 hours before a
vote. But this provision “may be waived by joint agreement of the majority
leader and the minority leader of the Senate, upon their certification that
such waiver is necessary as a result of a significant disruption to Senate
facilities or to the availability of the Internet.”
7. Rule
XXXIV: Public Financial Disclosure
Clarifies
the relationship between leadership staff and the member of leadership
(including the majority and minority leaders) that employs them for purposes of
the financial disclosure reporting process.
8. Rule
XXXVII: Conflict of Interest
Clarifies
the relationship between leadership staff and the member of leadership
(including the majority and minority leaders) that employs them for purposes of
the rule.
9. Rule
XLI: Political Fund Activity; Definitions
Authorizes
the majority and minority leaders to designate an employee(s) in their
respective leadership offices to perform political functions in accordance with
the rule.
10. Rule
XLIV: Congressionally Directed Spending and Related Items
Requires in
certain circumstances that the majority leader, or his designee, certify that
any congressionally directed spending items (i.e. earmarks) included in a bill
are done so in accordance with the rule.
Stipulates
that total debate on motions to waive points of order authorized by the rule is
limited to not more than one hour “equally divided between the majority leader
and the minority leader or their designees.”
Stipulates
that total debate on appeals from the ruling of the Presiding Officer/Chair is
limited to one hour “equally divided between the majority leader and the
minority leader or their designees.”
This
article originally appeared in the Legislative Procedure blog on July 31,
2018.
James
Wallner is a senior fellow of the R Street Institute and member
of R Street’s Governance Project and Legislative Branch Capacity Working Group
teams. resident of the Senate. Period. Not Mitch
McConnell.
