Explaining Senate procedure on the health care bill

On Saturday night, November 21, after the Senate voted (to put it as precisely as I can) to close debate on the motion to proceed with debate on the health care bill, I discussed the difficulties of understanding the incomprehensible rules of procedure under which the bill was being advanced. A reader then sent me a November 18 article by Keith Hennessey, an expert on Congress, in which he laid out the procedures that he expected Majority Leader Reid to pursue on the health care bill over the next few days leading up to the cloture vote. Apparently Hennessey’s predictions were correct both as to substance and timing. The article explains a lot, but also introduces new puzzles. In this entry I excerpt the part of the article relevant to what happened last weekend (though the article also looks ahead to the bill’s prospects in December). Below the excerpt is a question to Mr. Hennessey that I’ve posted at his site concerning a truly bizarre Senate procedure that he mentioned. He said (again he was writing on the 18th about events that took place on the 21st) that Reid would introduce on motion to proceed, not on Reid’s own bill, but on an unrelated House bill, and that after there was a vote to close debate (a 3/5 cloture vote) followed by a vote to proceed (a simple majority vote) on that unrelated House bill, he would then substitute that “shell” bill with his own bill and the Senate would proceed with debate on that bill. If this is what actually happened last weekend, then the dramatic cloture vote last Saturday night was not on the health care bill but on an empty shell of a bill. How can a government be accountable to the people, if the rules by which it governs are incomprehensible to essentially everyone? .

Updated health care projections
Posted on November 18th, 2009 by kbh


The next few days

Later today Senate Majority Leader Reid is expected to release his version of the health care reform bill along with a CBO score. Senate Democrats are scheduled to meet (“caucus”) late this afternoon. My sources tell me that most Senate Democrats do not know what is in the Reid amendment. Release of the Reid amendment and the caucus meeting are two pivot points that can significantly shape prospects for the bill.

Leader Reid will be asking all 58 Senate Democrats, along with Independents Lieberman and Sanders, to vote for cloture on the motion to proceed this Friday or Saturday. Here is how I would expect the process to play out:

  • Today: Leader Reid moves to proceed to an unrelated House-passed tax bill. He then files a cloture motion (signed by 16 Senators) on the motion to proceed.

  • Friday: The Senate votes on cloture on the motion to proceed. If Reid gets 60 votes to invoke cloture, then 30 hours of post-cloture debate begins. That takes us to Saturday afternoon.

  • Saturday: There’s an up-or-down (majority) vote on the motion to proceed. Assuming cloture was invoked Friday, this vote is a gimmee. It might even be a voice vote that does not require Senators to be present.

  • After the motion to proceed is adopted on Saturday, the Senate would be debating the unrelated House bill. Reid would then offer his new proposal as a complete substitute amendment for the text of that bill, sometimes colloquially referred to as the shell bill. Leader Reid’s proposal would be referred to as the Reid substitute. You can think of it as the Reid bill.

  • The amendment (probably approaching 2,000 pages) needs to be read in full. I assume Leader Reid would ask for unanimous consent to dispense with the reading of his amendment. I would then expect a Republican (McConnell? Coburn?) to object.

  • Saturday—Monday?: The Senate clerks would take turns reading the entire Reid substitute amendment aloud.

  • Monday: The amendment would have been read, and the Senate would adjourn until Monday the 30th.

  • Monday, Nov. 30: The Senate would convene and begin consideration of the Reid substitute.

Advantages for Leader Reid of starting now:

  • If he gets 60 votes on cloture on the motion to proceed, he has a win going into the Thanksgiving recess, having held his entire party together. This creates positive momentum.

  • He allows himself more time in December for debate and amendments.

  • In December he is inoculated against process arguments about having had insufficient time to read and understand his amendment. By the 30th the amendment would have been public for 12 days.

Disadvantages for Reid of starting now:

  • A Friday cloture vote would break the 72-hour transparency commitment he made to his moderates. This might cause a bump or two within his caucus, but he can solve it by delaying the cloture vote until Saturday night.

  • He may be rolling the dice on the upcoming cloture vote. I have been surprised that some of his 60 have been willing to leverage their votes on the motion to proceed to push for substantive concessions. It is highly unusual to challenge your own party leader on the motion to proceed.

  • Q: Does he already know he has 60 for a Friday (or Saturday) cloture vote, or is he betting that he can round up 60?

  • Q: Do some of those 60 votes depend on substantive policy that they have not yet seen? If so, the substantive and mechanical challenges of rounding up the votes by Friday are significant.

  • He is exposing his members to a lot of risk over the Thanksgiving recess. They will spend 9-10 days at home being hammered on a bill that many/most of them may have not yet seen. Imagine a constituent asking you, “Why did you vote for [cloture on the motion to proceed to] the Reid bill when it contains _________?” In reaction, a nervous Senate Democrat might reply, “I agree with you. I just voted to start the process, but I won’t vote for cloture in December unless that is fixed.” Winning the battle this week may make it harder for him to win the war in the third week of December.

  • Constituencies have more time to analyze the bill, organize their campaigns, and lobby Members. This makes December more difficult.

Nevertheless, the odds favor Reid invoking cloture on the motion to proceed this Friday or Saturday. If that falls apart, then Reid and the bill are in trouble, because Democrats will be going home in chaos, and could not complete Senate floor action in December.

It is also interesting that Leader Reid is using an unrelated House bill as the shell, rather than the House bill. I am fairly certain that is because some of his members don’t want to take any vote even indirectly related to the House-passed bill. This is an indication of overall strategic weakness and substantive differences between the House and Senate.

[end of Hennessey excerpt]

Here is the comment I’ve posted at Hennesey’s site:

Mr. Hennesey,

A question about your useful article:

If the cloture vote that took place on Saturday night, Nov. 21, was on the unrelated House bill, how then can debate proceed on the Reid substitute for the House bill? Doesn’t that substitute bill have to have its OWN procedure, consisting of (a) a motion to proceed; followed by (b) cloture on the motion to proceed; followed by (c) an up or down majority vote the he motion to proceed, before it can be debated?

Look at it this way: if the actual bill that is going to be debated (the Reid substitute) is a completely different bill from the bill on which the motion to proceed was actually passed, what is the point of even requiring cloture on a bill to proceed with a bill? The Senate could have a cloture vote on some meaningless piece of text, and then replace it by a bill to turn America into a socialist country.

- end of initial entry -

Paul G. writes:

I don’t know how Mr. Hennessey will respond to your question, but my answer would be “They vote on the shell bill because that way they can tell their constituents that they haven’t voted at all to approve the House’s health care reform bill.” It’s stupid and splitting hairs, but it allows them to say that they oppose the House version in campaign ads or when talking to angry constituents. More examples of the power of literal honesty.

Speaking of which, a friend of mine who clerked for a federal district court judge in Atlanta during the Bush administration told me once about that administration’s application of literal honesty regarding wiretapping. Say someone suspected that his phone was tapped and called the phone company to inquire about it. The phone company puts him on hold and calls the justice department [or the nearest branch office]. If there really was a tap on that person’s phone, the justice department official would tell the phone company to take it off. The phone company representative would then tell the person who called, “No sir, there is no tap on your phone.” The person would then hang up and the justice department would then have the phone company put the tap back on the phone. And the phone company hadn’t lied—at the moment its representative made the statement, there was no tap on that person’s phone. Isn’t literal honesty wonderful?

LA replies:

I find your friend’s story hard to believe. If it’s true, it’s exactly like Clinton’s lie under oath, perhaps in the Paula Jones deposition. As I recall, it was something like: “There is no sexual relationship.” And the opposing attorneys were too stupid to nail him down by asking him, “Has there ever been a sexual relationship?” A lawyer, whose profession is the use of words, has to be extraordinarily stupid not to catch obviously ambiguous language like that and make sure that the ambiguity is eliminated by a better phrased question.

November 24

Keith Hennessee has posted a reply to my comment at his site:

The motion to proceed applies to a bill. Senator Reid will be offering a “complete substitute” amendment to that bill. This needs no motion to proceed.

His amendment will be subject to many amendments of its own. Both the Reid amendment and any amendment to it could be filibustered and require its own cloture vote.

I suggest avoiding the “what is the point” questions when focusing on Senate procedure. The rules exist so that they work in a wide range of cases. There are points in the process of implementing those rules, like cloture on the motion to proceed to a substantively unrelated bill, which may seem to not substantively “make sense.” In my view, as long as those rules are consistently implemented over time and everyone can understand them, that’s acceptable.

As for “replacing it by [an amendment] to turn America into a socialist country,” Leader Reid would need just as many votes (60) to do that as to adopt a freestanding bill that achieves the same goal.

I answered:

Thanks for the reply. But it amounts to saying that the rule is this way because it is this way. The rule continues to defy common sense, or, at least, the common sense of reasonable persons not conversant with Senate rules.

Posted by Lawrence Auster at November 23, 2009 09:26 PM | Send

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