View from Australia: Incommunicado

By Jonathan Bradley

There was a bit of a tiff in the Senate last week, and like most Senate tiffs, it played out in a series of squabbles over arcane rules and complicated votes. Sarah Binder explains what happened:

In brief (well, Senate-style brief), Senate rules prohibit non-germane (unrelated) amendments on the Senate floor after cloture has been invoked on a bill. In other words, unless all senators consent, senators can only offer germane amendments once debate has been limited on a bill. McConnell and Reid appear to have been negotiating an agreement that would have allowed Republicans to offer seven non-germane amendments post-cloture. But then a GOP senator moved to suspend the rules (which requires a two-thirds vote) so that he could offer non-germane amendments, including at least one related to the president’s jobs bill. Frustrated with the Republicans’ tactics, Reid raised a point of order that the Republican motion was dilatory. Under Senate rules, dilatory motions are not in order once cloture has been invoked. The parliamentarian advised the presiding officer to rule that the motion was in order, the presiding officer did just that, and a vote ensued on whether or not to sustain or overrule the chair’s ruling. Appeals of the chair require only a majority vote to pass, and Reid mustered all the Democrats save Ben Nelson to vote to overturn the chair. In practice, this means that the Senate tonight set a new precedent, by which I mean a new interpretation of the Senate cloture rule: Under cloture, a motion to suspend the rules to offer a non-germane amendment may now be declared dilatory. 

Right! Essentially, the Senate was debating a currency bill, and Minority Leader Mitch McConnell wanted to hold a vote on President Obama's jobs bill. Majority Leader Harry Reid didn't like this idea, because the bill wouldn't draw enough support from Democrats to pass in its current form, so he told McConnell to keep his focus on the matter at hand. McConnell and his fellow Republicans tried to force a vote, and according to the Senate rules, they could. So the Democrats, who have a majority, overruled the Senate's rules. That's OK because the Senate makes its own rules, and if a majority thinks they should work differently, then they change.

The subject of this dispute isn't anything very important; as Brian Beutler says, technically, the minority lost "the right to force a vote on a motion to suspend the rules, after cloture has been invoked on a bill, to consider a non-germane amendment." It's controversial, however, because the same tactic can be used to change to the workings of the Senate in much more noticable ways. The same procedure, for instance, is what many on the left were urging Democrats to take at the beginning of the year so as to weaken or remove the filibuster. It's the same procedure that Republicans wanted to use to end Democratic filibusters on judges during the Bush presidency. It's known as the "nuclear option," and this was akin to a country undertaking its first nuclear test: They didn't use their new weaponry, but everyone now knows that they can.

Jonathan Bernstein details the future lay of the land:

It’s not a stable situation. Senators have always been eager to protect the rights of individual Senators, which are preserved by the filibuster and other procedural rigamarole, such as “holds.” But at this point, it’s clear that there’s no way that a solid majority will allow itself to be repeatedly “out-voted” by the minority for much longer. The only question is how long reform will take, and what kinds of reforms will happen

It's worth noting, too, that though the basis for this dispute was trivial, it happens for a reason. Republicans, including Mitch McConnell, do not want to pass Obama's jobs bill. Why then would they seek to bring it up for a vote if they don't have to? For that matter, most Democrats do want to pass Obama's jobs bill, in which case, why not welcome the opportunity Republican's provide to vote on it?

Of course, it's not that simple. McConnell brought up the bill with the expectation it would fail, which would embarrass the Obama administration and neuter one its talking point urging the GOP to let the bill come to a vote. Reid also knew the bill would fail, because he needs to amend it before he can be sure enough Democrats will support it to allow it to pass. (This is all even before the filibuster comes into play.) Reid and McConnell were playing games with one another so that they can continue to wield political advantage.

This is the kind of nonsense Americans hate about Washington, and rightfully so. But it's not nonsense without a purpose, and neither Harry Reid nor Mitch McConnell is playing games just for the sake of it. The problem is that it's very difficult for politicians to communicate exactly what they want, what they're doing, and how they're achieving it to their constituents. Democrats want Obama's jobs bill to pass because they think it will create jobs. Depending on how cynical you are, Republicans want it to fail either because they think it won't create jobs or because they think it will help Obama get re-elected.

Republicans want to say Obama's jobs bill is so unpopular that even Democrats disagree with it. That's sort of true and it sort of isn't: the opposition to the bill is predominantly from one party, and the Democrats who do have problems with some of the bill's elements are much more willing to negotiate on it than Republicans. But the best way Mitch McConnell has to get people to understand his message is to show that Democrats will actually vote against something called "the jobs bill."

Democrats, meanwhile, want to say that the only people standing in the way of the jobs bill are Republicans. Again: sort of true, sort of false. Some Democrats have serious problems with the bill. But the best way Harry Reid has to get people to understand his message is to create something called "the jobs bill" that all Democrats agree on and only Republicans will vote against.

It would be much more straightforward if politicians could just tell the public how they feel about the jobs bill and go from there. But politicians all want the public to agree with their take on the bill, which means they have to try to convince them that take is the right one. Holding meaningless votes is an effective way politicians have to communicate what they believe and what they think their opponents believe. That, unfortunately, is why they play these games. 

11 October 2011