Senate procedures are a mystery to me.
January 26, 2011 12:56 PM   Subscribe

In this article, Senate Majority Leader Harry Reid says Minority Leader Mitch McConnell can use Senate procedure to force a vote with less than 60 votes. What the hell?

Don't you pretty much need 60 votes to bring a bill to the floor to vote on? If not, why didn't the Dems use this during the health care debate? Please forgive my potential ignorance of the Senate.
posted by elder18 to Law & Government (13 answers total)
I think what this means is that it can get onto the floor for a vote, but once there senators can then start with the anonymous holds and filibustering so that you need the 60 votes to really get to any actual voting.
posted by mikepop at 1:09 PM on January 26, 2011

I don't know enough about Senate rules to describe what Reid is referring to but the health care bill was passed via the reconciliation process that couldn't be filibustered.
posted by ghharr at 1:11 PM on January 26, 2011

I think he's talking about having a vote on whether to end debate.
posted by empath at 1:11 PM on January 26, 2011

Most business passed the Senate on a simple majority. The often quoted super majority number of '60' is the three fifths vote needed to end debate on a bill (cloture). So in cases of filibuster, there a vote for cloture to end the debate (60 required) and then a vote on the bill itself (50 required). Note that sometimes people who don't support the bill may still vote for cloture but against the bill, that's not uncommon.

If no one filibusters, then 50 votes is all that is needed. I'm guessing McConnell is threatening to hold up Senate business until there's a vote on the healthcare repeal.
posted by sbutler at 1:12 PM on January 26, 2011

Also, if I remember the healthcare bill properly (big caveat) the Senate Democrats watered it down and loaded it up with enough pork to get the 60 votes to defeat a Republican filibuster. But at that point it was different from the House bill and a bill is only passed if the same bill is approved in both the House and the Senate. Now, they could have gone into reconciliation and come up with a new bill, but the Senate would have had to vote on it again and with time running short they weren't sure it would pass. So Nancy Pelosi just ordered a vote on the Senate bill as is in the House and it passed there. No reconciliation required.

For all the talk of filibusters, they don't happen very often. What occurs is a side threatens to filibuster and the majority takes stock of how many votes it has. If the majority thinks they have enough then they call the minorities' bluff and bring the bill to the floor. If they don't think they have enough then the bill is tabled till a later time.

It's pretty rare (considering) for a person to actually get up and tie up the floor reading the Bible or Mark Twain, etc.
posted by sbutler at 1:18 PM on January 26, 2011

Basically what they said.

A bill needs 51 votes to pass the Senate. The health care bill was super contentious and those opposed threatened to filibuster the bill - continue "debating" or otherwise eating up the session's time so that a vote could not be undertaken. However, a majority of 60 can end a filibuster through the process of reconciliation which ghharr linked.

Normally Reid is the one to bring things to a vote, but there are (evidently) procedures through which McConnell can bring bills to the floor. It would be largely ceremonial, as the Democrats still have a majority, and the vote is largely (solely?) partisan.
posted by papayaninja at 1:18 PM on January 26, 2011

Sorry, I kept saying 50 votes but of course it is 51 with the Vice President (President of the Senate) casting the tie breaker
posted by sbutler at 1:21 PM on January 26, 2011

Cloture != reconciliation, folks.
posted by speedgraphic at 1:24 PM on January 26, 2011

Also, if I remember the healthcare bill properly (big caveat) the Senate Democrats watered it down and loaded it up with enough pork to get the 60 votes to defeat a Republican filibuster. But at that point it was different from the House bill and a bill is only passed if the same bill is approved in both the House and the Senate.

Actually the Senate had already passed their version back when Sen. Kennedy's seat was held by a democrat, before Scott Brown's election. The house didn't like the senate bill, but voted for it with the understanding they would pass ANOTHER bill later adding changes they liked better. Then the Senate passed that too, I think by Reconciliation.

As mentioned above, filibusters are a brazen and risky tactic- personally I would have liked to have seen the Democrats make the GOP filibuster healthcare- "Look they're reading from the newspaper while people die for lack of coverage" - and there's a good chance the GOP would have backed down. But Sen. Reid and friends showed as much courage as usual, and meekly accepted that they "needed sixty votes." (Note you never heard that once when the GOP was running the Senate with majorities in the 50s).
posted by drjimmy11 at 1:31 PM on January 26, 2011

From what I've read on this, proposing a straight repeal of health care (as was done in the House) is not doable, as they'd need 60 votes to overcome a filibuster (as others have noted, it'd be interesting to make the other side *actually* filibuster, rather than just threaten). What they can do is attach amendments to other bills that remove or defund portions of health care reform. (this was tried with repeal of DADT at one point) Apparently this just requires a majority vote.

So it's unlikely that the Senate would repeal it altogether (and if they did, Obama would veto). Instead, the GOP will try to chip away at it over time.
posted by chbrooks at 1:47 PM on January 26, 2011

How Our Laws Are Made is a very dense 67 pages, but it's very thorough and useful to understand the ins and outs of Congressional procedure.
posted by holterbarbour at 3:53 PM on January 26, 2011

From my memory, Senate rules were changed such that a filibuster needn't be a guy reading from the bible until he passes out. They basically invoke it and someone from the party has to sit there.
posted by gjc at 6:27 PM on January 26, 2011

The first thing you must do is disabuse yourself of the notion that Senate rules are the same as actual, well, "rules". They certainly don't have the force of law, they're just agreed-upon parliamentary procedure, and are subject to alteration -- usually at the beginning of a new Congress. The House, a much larger body, is more transparent and straightforward; the Senate generally proceeds on murkier grounds with much behind-the-scenes jockeying. The increased partisanship of recent years has made this a somewhat less fruitful process than in past years where you had (once) liberal Republicans and (more recently, and even still) conservative Democrats. The Senators prefer a consultative approach and give great deference to the positions of individual Senators, e.g. with nominative and legislative holds that can in theory be the prerogative of a single member.

Apparently Bernie Sanders did an actual filibuster for several hours just last month, but it went all but unnoticed. For the most part, the Mr. Smith Goes to Washington style of filibuster hasn't existed at all since the 1970s when the cloture rules were changed to a 3/5 supermajority (60 votes) instead of a 2/3 supermajority (66). The vanished need for a physical filibuster has confused the issue; the cloture vote is what is critical here, so it's a vote about ending debate even though that debate may never effectively get started.

Reconciliation is only possible if both houses of Congress have actually passed something that is nominally the same bill with differences. That had happened with health care -- the Senate passed a version, then the House passed a significantly changed version, then it went back to the Senate, which is where the GOP wanted to block it. That process is unavailable here because the Senate would need to both bring to the floor and pass something similar to the repeal bill that the GOP pushed through the House. That really won't happen.

That said, the rules provide means for the minority party to make things happen outside of the direct bill/debate/filibuster/cloture checkers game. According to the Very Serious National Journal,

Republican aides noted they can force a vote by offering the repeal as an amendment, or by using the Senate’s Rule 14 process to bring the bill to the floor, then filing cloture on it. The easiest course for the GOP might be to try to force a vote on the repeal as an amendment to a bill that's likely to pass, such as an appropriations measure. Reid can block amendments to bills, but Republicans could then force a vote on a motion to suspend the rules to take up the amendment. They would need 67 votes to win such a vote. Any other course would require 60 votes.

I'm not terribly worried about this political theater. McConnell and the GOP know that they don't have the votes -- they just want to force a vote that they can then use against vulnerable Democrats in the next election cycle. It's more of a stunt and a bargaining chip than anything else. The rules may provide a means for them to get this vote, but getting a vote isn't the same as winning one.
posted by dhartung at 10:25 PM on January 26, 2011

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