A Play-by-Play Analysis of What Went Down Yesterday on the Senate Floor
Senate Democrats want to prevent their Republican colleagues from confirming Supreme Court nominee Amy Coney Barrett before Election Day. Their plan to do so appears presently to force Republican senators to cast votes on issues that could hurt them politically in the upcoming elections. Democrats hope to use those votes, along with public opposition in critical states to the Barrett nomination, to win control of the Senate in November.
In recent days, Democrats’ kitchen-sink strategy and Republicans’ determination to maintain control of the Senate floor have made it harder for outside observers to follow events inside the chamber. For example, maneuverings by Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-N.Y., made it incredibly difficult yesterday to follow along with what senators were doing on the floor.
McConnell Tries to Control the Floor
Senators resumed their consideration of the House message to accompany the Uighur Act of 2019 (S. 178) after the Senate convened on Monday, October 19. The Senate initially passed S. 178 by unanimous consent on September 11, 2019. Two months later, the House passed the legislation by a vote of 407 to 1 after amending it first. Riddick’s Senate Procedure sums up the process succinctly.
“When a bill or resolution which has been passed by one House is passed by the other House with amendment or amendments, the latter House messages that proposal back to the House of origin, informing that body that it has passed the bill with amendment or amendments, and its concurrence is requested.”
The Senate’s precedents stipulate that House messages (or amendments between the House and Senate) “may be laid before the Senate as a privileged matter.” That means that senators cannot filibuster motions to proceed to the consideration of House messages. And it makes House messages an attractive vehicle for Senate leaders to use when expediting the consideration of the institution’s business or setting up political gotcha votes of their own.
In this instance, McConnell withdrew an amendment that he had previously offered on behalf of Thom Tillis, R-N.C., related to healthcare reform and preexisting conditions (Amdt. 2673). McConnell then filed cloture on the motion to concur in the House amendment with a further amendment in the nature of a substitute (Amdt. 2652). After filing cloture, McConnell offered another second-degree amendment (Amdt. 2680) at the same spot where Amdt. 2673 was pending previously. McConnell's move effectively prevented other senators from proposing their own amendments to the bill.
McConnell then moved to proceed to the Protect Act (S. 4675). Senate precedents stipulate that “while one measure…even if privileged…is pending before the Senate, a motion to take up a non-privileged measure…is in order at any time.”
Pivoting away from S. 178 while its cloture clock runs makes it easier for McConnell to maintain control over the Senate floor, especially when he expects Democrats to try disrupting the process. The House message accompanying S. 178 will come back before the Senate automatically when McConnell’s cloture motion ripens on Wednesday (i.e., when the cloture vote is scheduled to occur under the provisions of Rule XXII). According to the Senate’s precedents,
“A bill on which a cloture motion has been presented will be displaced by the adoption of a motion to proceed to the consideration of another bill, but will come back for a vote on the cloture motion at the proper time under the rule.”
Schumer Tries to Disrupt the Floor
After McConnell moved to proceed to S. 4675, Schumer notified Republicans that he and his Democratic colleagues would do what they could to disrupt the Senate floor in the coming days.
“I want to be clear about one thing. Because our Republican colleagues have made such a mockery of the Supreme Court confirmation process, we are not going to have business as usual here in the Senate.”
Schumer then announced two things that he planned to do in retribution for Republicans pushing to confirm Barrett before Election Day. First, Schumer informed his colleagues that he would be forcing a vote concerning a House-passed Congressional Review Act resolution of disapproval of an administrative rule concerning the Community Reinvestment Act (H.J. Res. 90). Second, Schumer notified senators that he would move to adjourn the Senate until after Election Day.
Resolution of Disapproval
Schumer acknowledged that he was reluctantly forcing a vote on the resolution of disapproval.
“Normally we would work these votes out with the majority, but their abuse of the Supreme Court process means we will not have business as usual, not now, not until Republicans stop their mad dash to confirm a Supreme Court justice mere days before a presidential election.”
Under the Congressional Review Act, senators cannot filibuster a motion to proceed to a resolution disapproving an administrative rule under certain conditions. Schumer forced the vote yesterday because it was the last day that a motion to proceed to the resolution would be protected from a filibuster.
Schumer’s effort to begin debate on H.J. Res. 90 failed by a vote of 43 to 48.
Motion to Adjourn
After the Senate rejected Schumer’s effort to begin debate on the resolution of disapproval, the minority leader moved to adjourn the Senate until after the election “with the ability to come back into session if there’s a bipartisan agreement on a COVID relief package.”
Specifically, Schumer intended to adjourn the Senate until November 9 while directing it to meet in pro forma session every three days until that date. Schumer's motion to adjourn also included a directive that the Senate reconvene, if necessary, to pass legislation dealing with the ongoing COVID pandemic.
Senate precedents stipulate,
“A motion to adjourn is not debatable, nor are any questions pertaining to adjournment, including appeals from the decision of the Chair relative to adjournment.”
The precedents also stipulate that “a motion to adjourn is in order at almost any time.”
But the Senate's presiding officer ruled that Schumer's motion to adjourn the Senate was not in order. Therefore, Schumer needed unanimous consent to make it.
In response to the Presiding Officer, Schumer appealed the ruling and then moved to table his appeal.
Schumer’s motion to adjourn was not in order because its provisions exceeded what motions to adjourn may include. That is, Rule XXII stipulates that senators can move to adjourn the Senate or move to adjourn the Senate to a specific date. Senators can't set up multiple pro forma sessions in a single motion to adjourn. The Senate's rules and practices also prohibit senators from including exceptions beyond the simple directive of a specific date in a motion to adjourn.
The additional provisions in Schumer's motion to adjourn meant that it was not really a motion to adjourn and thus was not entitled to an immediate vote. Schumer likely moved to table (i.e., defeat) his appeal of the presiding officer's ruling because he wanted to get senators on record regarding his effort to adjourn the Senate until after Election Day. A motion to table was the only guaranteed way Schumer could force a vote concerning his proposal because his underlying appeal was debatable. That is, senators could filibuster it. And the appeal would be displaced when cloture ripened on S. 178.