Is Majority Leader McConnell blocking elections security legislation?

(Editor’s note: This piece first appeared in LegBranch.org on August 6, 2019.)

Democrats want the Senate to debate legislation that they say is needed to secure American elections against outside interference. But they say Majority Leader Mitch McConnell, R-Ky., is standing in the way.

Whatever the merits of the legislation in question, such procedural posturing is endemic in today’s Senate. That is, senators routinely blame each other for their own inaction. For example, Republicans blamed Democrats for slowing down the confirmation process earlier this year even though they were unwilling to use the Senate rules to force action. Similarly, Democrats are blaming McConnell for turning the Senate into a “legislative graveyard” while they themselves are unwilling to force legislative action to advance their own policy priorities.

The tussle over who is to blame for the Senate’s inaction on election security measures is merely the latest episode in the Senate’s ongoing blame game.

What makes such accusations ring hollow, however, is that the senatorial victims at the center of each episode are not powerless. Specifically, there are a number of steps under the Senate’s current rules and practices that senators can take to force votes on the issues about which they care.

For starters, senators can challenge the majority leader’s ability to block the consideration of unwanted amendments on the Senate floor by offering so-called third-degree amendments. Such amendments are allowed under the Senate’s rules (though they are not consistent with its past practice). Senators can also make motions to proceed to stand-alone legislation over the majority leader’s objections and file cloture on it to force action on the issue.

More broadly, senators can call on the presiding officer to put the question whenever senators are no longer speaking. When senators are not speaking, the Senate should be voting. This is because the Senate’s rules and practices do not allow any one senator to veto the legislation on which his or her colleagues vote. The filibuster merely allows a senator the opportunity to speak on the Senate floor for as long as he or she is able. According to Senate precedents,

“There is no motion in the Senate to bring a matter to a vote. In the absence of either cloture or a statutory limitation of debate or a unanimous consent agreement, debate may continue indefinitely if there is a Senator or group of Senators who wish to exercise the right of debate.”

As long as a senator is speaking on the floor, the presiding officer may not put the question (i.e., call a vote). However, when a senator yields the floor and no other senator seeks recognition, the presiding officer must call a vote. The Senate’s precedents state clearly,

“When a question is pending, and a Senator addressing the Chair concludes his address on the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.”

Robert Byrd, D-W.Va., affirmed this interpretation of the Senate’s rules and practices during a 1987 debate on a motion to proceed to a defense authorization bill. Byrd, who was the majority leader at the time, stated to an empty Senate floor,

“I would hope that at this early hour of the afternoon, there would be Senators who would be discussing the motion to proceed; because, while I am not going to intentionally walk off the floor when I see no other Senator on it, thus providing the opportunity for the Chair to fulfill its responsibility to put the question, there come times when I cannot be on the floor, and if other Senators are not on the floor at that time, then the Chair has the responsibility to put that question. We have seen that situation happen once during my 29 years in the Senate. Most of us try to accord the courtesy to other Senators not to take advantage of the situation and other Senators rely on us to protect them. They have always been able to count on me and I intend for them to continue to be able to count on me, but I may not be on the floor. I would just urge Senators if they are interested in discussing this motion to come to the floor.

In 1950, the Vice President reassured a concerned senator that he was merely following the rules and practices of the Senate when he called a vote during a lull in debate.

“The Chair feels it his duty, when he is acting as Presiding Officer, to present the pending question to the Senate. All the Chair was doing was presenting the question before he recognized the Senator from Oregon.”

This understanding was reaffirmed by Harry Reid, D-Nev., and McConnell in 2013. The majority and minority leaders, respectively, informed their colleagues during a colloquy on the Senate floor that the presiding officer would call votes when senators did not appear to speak. Reid even cited the specific page numbers in Riddick’s Senate Procedure where his colleagues could read the precedents for themselves.

“In addition to the standing order, I will enforce existing rules to make the Senate operate more efficiently. After reasonable notice, I will insist that any Senator who objects to consent requests or threatens to filibuster come to the floor and exercise his or her rights himself or herself….Finally, we will announce that when the majority leader or bill manager has reasonably alerted the body of the intention to do so and the Senate is not in a quorum call and there is no order of the Senate to the contrary, the Presiding Officer may ask if there is further debate, and if no Senator seeks recognition, the Presiding Officer may put the question to a vote. This is consistent with precedent of the Senate and with Riddick’s Senate Procedure, 1992. See page 716 in Riddick’s and footnotes 385 and 386 on page 764. This can be done pre-cloture or post-cloture on any amendment, bill, resolution or nomination.”

McConnell then concurred, observing,

“This is consistent with the precedent of the Senate with the understanding that Senators are given the timely notification of the Presiding Officer’s intention so that they will be able to come to the floor to exercise their rights under the rules.”

Senators can make it harder for the majority leader to block their amendments by requiring twenty of their colleagues to appear on the floor to give him a sufficient second each time he asks for the yeas and nays on his tree filler amendments. According to Senate precedent,

“Until a Senator has lost the right to modify his own amendment he is precluded from offering an amendment thereto and this will be enforced at the initiative of the Presiding Officer.”

“A Senator must have lost the right to modify his or her own amendment before he or she can propose an amendment to it.”

This tactic is especially helpful to Republicans. Forcing twenty of their colleagues to appear on the floor in support of McConnell’s efforts to block their amendments invites rank-and-file senators and their constituents into the discussion over who gets to offer amendments. It also makes it harder for Republicans to blame Democrats for their inability to offer and debate their proposals on the Senate floor.

In the event that the majority leader succeeds in filling the tree, or offering a blocker amendment, senators may move to postpone the pending amendment and file cloture on the motion. This forces a vote, albeit at a higher threshold (typically 60), that senators can then use as leverage to negotiate with the majority leader on when they can offer their amendment. It also prompts a larger conversation over the majority leader’s decision to block amendments. Under Rule XXII, a motion to postpone “to a day certain” is in order. Senate precedent’s state this unambiguously. “A motion to postpone an amendment to a day certain, or to postpone indefinitely, is in order under Rule XXII.” Postponing the blocker amendment has the effect of opening the branch on the amendment tree that it previously occupied. “One particular amendment to a bill having been postponed, other amendments to the same bill are in order for consideration.”

Before they blame others, senators should use all of the tools at their disposal to force action on their top priorities.