Over at NRO’s Bench Memos, Matt Franck points out that insofar as the Reid bill alters Senate rules in order to entrench some of the bill’s reforms, there may not have been enough votes for cloture on the bill.
while cloture to end debate on legislation ordinarily takes “three-fifths of all the Senators duly chosen and sworn” (60 senators when all seats are occupied), cloture on any proposed change to the Senate’s standing rules takes “two-thirds of the Senators present and voting,” or 67 senators if all 100 are on the floor. (Both of these requirements are in Senate Rule XXII.) Ironically, the two-thirds rule can be easier to satisfy when the active quorum of senators is smaller; it could take as few as 34 senators when a bare-minimum 51 senators are present. But any time more than 90 senators are present, it will take more than 60 votes to end debate on any statute that works a change in the Senate’s standing rules. Thus a good argument can be made that the mere 60 votes obtained in the recent cloture vote were insufficient to end debate on the Reid bill—because it contains at least one change to the Senate’s standing rules.
This creates an interesting wrinkle. Under Senate Rule XXII, “a measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting” to end debate. Yet there were only 60 votes for cloture on the Reid bill. So unless there is some basis for giving special treatment to rules changes that are buried into other legislation, it would seem that either a) cloture was not achieved, or b) the entrenchment provisions do not actually alter the Senate rules.
ShelbyC says:
Didn’t the chair rule that it was b? They altered senate procedures, not senate rules. Per the comments yesterday, anyway.
December 23, 2009, 10:02 amMark Field says:
At least one commenter made this suggestion in the other threads here.
December 23, 2009, 10:30 amPersonFromPorlock says:
The distinction between a mandatory procedure that modifies a rule’s execution and a modification of that rule is perhaps too subtle for ordinary minds to grasp, but since the Republicans have opted for comity once again, what does it matter?
December 23, 2009, 10:44 amJ. Aldridge says:
You would think procedures derive themselves from rules.
December 23, 2009, 10:46 amShelbyC says:
Heh. The title of the NRO piece is “Harry Reid’s Entrenching Tool”. Appropriate, given what people use entrenching tools for.
December 23, 2009, 10:46 amShelbyC says:
I would, but I’m not a congresscritter.
December 23, 2009, 10:50 amLarryA says:
Oh, goody. Another issue for the birther types.
December 23, 2009, 10:58 amgeokstr says:
Spoken like a true Truther.
December 23, 2009, 11:13 amChris Travers says:
The fight against Obamacare has recently become a lot more broad. A LOT of Democratic voters are REALLY unhappy with the lack of a public plan. It is very likely that Constitutional challenges to the resulting legislation will include massive support from large sections of all parts of the political spectrum.
It isn’t just an issue for the far right at this point at all.
I have heard a lot of Obama-supporters (and folks who usually vote D) in my family say how they think a court should strike down any federal law MANDATING a purchase of a service from a private party as unconstitutional. I suspect that the law will find very few supporters in the courts once it passes.
December 23, 2009, 11:50 amADF Alliance Alert » Senate may not have had enough votes to invoke cloture on healthcare says:
[...] Adlers writes at the Volokh Conspiracy: “. . . insofar as the Reid bill alters Senate rules in order to entrench some of the [...]
December 23, 2009, 11:51 amDoc Merlin says:
I thought the parliamentarian ruled that it wasn’t actually a rules change? which means they only need 60.
December 23, 2009, 12:04 pmJK says:
Would a court even rule on this? A matter dealing with the internal workings of the Senate?
December 23, 2009, 12:38 pmHugh says:
Oh goody, another rude partisan who ignores issues and insults people who disagree with him.
December 23, 2009, 12:38 pmChris Travers says:
I am a little confused as to what the actual impact of this is.
Does this mean that a court might refuse to accept the legislation as properly passed by the Senate because cloture didn’t pass?
Or does it mean that a future chair would be barred from following the entrenchment provisions?
Or does it mean that such entrenchment tools are of mere rhetorical value anyway and have no binding effect?
December 23, 2009, 12:42 pmShelbyC says:
Give you a hint, it’s a nice round figure.
December 23, 2009, 12:44 pmGene Madison says:
What’s funny… is that a Quorum is required to do business. Why a Quorum? As the founding fathers stated, because in order to pass a bill, you need everyone from the quorum to vote for it. This is why that is the minimum requirement for the quorum… somewhere along the line, they (on their own) determined that only a majority of the quorum was needed. But this causes a problem… should 48% of the senators be killed in a freak accident, should 26% be allowed to speak for the other 74% that cannot be present? This violates the constitution… but yet… where are all the legal experts who know law is above precedent?
December 23, 2009, 1:34 pmsmitty says:
<sarcasm>
December 23, 2009, 2:23 pmThese procedural details are only problematic when conservatives hold power.
Progress requires demolition of the United States in favor of something more cosmopolitan and shiny.
</sarcasm>
Mike from MN says:
What would keep a future chair from ruling that it was a rule change, and thus null and void, because it didn’t have the necessary votes?
December 23, 2009, 2:55 pmEric Rasmusen says:
The post makes a good point. Some commenters seem to be saying that it was brought up in the Senate and rejected (probably wrongly, but there’s no appeal, I think).
The next question is the meta-rule what happens when the rules are violated in passing a bill, but nobody points it out at the time. My guess is that there exists such a rule, and it is that the bill’s passage is valid.
That’s the only good rule, because it is very common for rules to be violated with the consent of all members, for convenience, and we couldn’t have somebody then challenge all those uncontroversial bill passages. That, by the way, takes care of the problem of the lack of a quorum after a bomb blast. If nobody objects, business can still be done.
December 23, 2009, 3:27 pmMark Field says:
I don’t know where you get this, but it’s wrong. It was widely noted in the ratification debates that a majority of a quorum, not a unanimous quorum, could act, and that’s been the rule at all times.
December 23, 2009, 3:50 pmEric Rasmusen says:
Here is an amazing video, and partial transcript, of a Republican senator making the point of order that a rules change requires a 2/3 vote and the bill explicitly says that it is overriding the existing Senate rules as far as the future goes. The presiding officer says that doing so is not the same as a rules change, even though rules changes embedded bills have in the past been declared to require a 2/3 vote.
So there was an objection, and it was overruled. So the meta-question is what happens when the presiding officer allows blatant violation of Senate rules? Can a court strike down the bill or that provision? To file suit, must a senator wait till the new rule becomes applicable in a future session? Must the presiding officer in the future treat the new rule as valid?
December 23, 2009, 4:21 pmEric Rasmusen says:
Perhaps here is the solution. Suppose Senator X in a future session tries to take action Z, which the healthcare bill’s rule change forbids. Senator Y objects to Z as forbidden. Senator X can respond that each house “determine[s] the Rules of its Proceedings” (Art. I, § 5, cl. 2) and no statute that does not amend the rules can forbid action Z. Furthermore, he can say, the presiding officer ruled in 2009 that the healthcare bill’s provision did NOT amend the rules. Hence, it cannot forbid action Z.
The Democrats were in a bind. In the last-minute amending, they forgot about Senate rules and inserted a rule change that would have allowed the Republicans to stop the bill at the last minute. So they stiffed it out, and won’t, I hope, object to future non-enforcement of the rule change.
It reminds me of a Yale Political Union floorfight of 1977 or so when the opponents of a resolution somehow objected to some language because it was in the preamble.
“No, that’s not a preamble,” said the resolution’s floor manager.
“Then why does it read just like a preamble?” said the opponent.
“BECAUSE I’M STUPID,” yelled the frustrated floor manager, followed by universal laughter from both sides.
Law professors Karlan, Calabresi, Dane, Glennon, and Marder were probably there and could perhaps improve on my memory.
December 23, 2009, 4:34 pmTweets that mention The Volokh Conspiracy » Blog Archive » An Interesting Wrinkle in the Reid Bill Entrenchment Provisions -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, YoungLawyer. YoungLawyer said: An Interesting Wrinkle in the Reid Bill Entrenchment Provisions…not procedurally correct? http://ow.ly/P3W7 #legal #law #hcr [...]
December 23, 2009, 4:35 pmR. Richard Schweitzer says:
Perhaps I am ill informed, but I recall that the ruling of the Chair was submitted to the Parliamentarian who ruled that the issue was one of procedure and not of rules.
I do not recall that the the ruling of the Parliamentarian was challenged or put to a floor vote. Had it been, there is little doubt of the outcome.
Of course the outcome is to convert a super-majority into a Ruling Party. Just what Americans have always sought???
December 24, 2009, 2:17 pmMisha S. says:
I believe this is much ado about nothing. The very NRO piece that is being quoted from here shows (if you actually read the whole thing) just how toothless this tool of entrenchment is. The 67-vote requirement can be waived by a mere 60 votes, first of all. (You’d need 60 votes to make any changes to ObamaCare in the first place because you’d have to block a Democrat filibuster.) Another way to bypass the rule would be to convince a simple majority to override the chair if a proposed piece of legislation to change or abolish the IMAB was held out of order.
December 25, 2009, 10:21 am