Senate Rules May Expedite Border Bill

The Senate may soon consider a bipartisan border security and supplemental spending bill negotiated by Chris Murphy, D-Conn., Kyrsten Sinema, I-Ariz., and James Lankford, R-Okla. According to reports, the legislation would change federal asylum laws and increase the administration’s ability to detain and deport migrants. It would also provide billions of dollars in aid for Ukraine and Israel.

President Biden has repeatedly called on Congress to pass a supplemental spending bill for Ukraine and Israel. And Minority Leader Mitch McConnell, R-Ky., is pressing his colleagues to act quickly. But House Republicans have insisted that any supplemental spending bill include border security provisions.

Notwithstanding agreement on the broad outlines of a deal, negotiators must still resolve outstanding issues over the president's parole authority and determine specific funding levels before the Senate considers the compromise on the floor. Senators not involved in the negotiations will likely want ample floor time to debate the bill and offer amendments.

The agreement's supporters can reduce the time required for the full Senate to begin debate on it. For example, senators can skip committee review of the agreement and place it directly on the Senate floor instead. The Senate's second-ranking Democrat and Judiciary Committee Chair, Dick Durbin, D-Ill., indicated that his panel would not first consider the compromise agreement and that it would instead go straight to the Senate floor, thereby expediting the process. Majority Leader Chuck Schumer, D-N.Y., can use Senate Rule XIII to reduce the time it takes to set up a floor debate on the agreement after negotiators resolve all outstanding issues.

Consideration

It can take the Senate days to begin floor debate on major legislation. This is because senators agree on what measure to debate on the floor by approving a motion to proceed. And motions to proceed to most measures are debatable - senators can filibuster them. Consequently, the Senate can't vote on a motion to proceed to a measure like the supplemental/border bill as long as a senator is speaking or seeking recognition to speak.

Rule XXII empowers senators to end debate - invoke cloture - on a motion to proceed to a bill over senators' objections. However, the cloture process outlined in the rule takes time. The rule requires sixteen senators to sign a cloture motion to end debate on a measure. The Senate votes on cloture one hour after it convenes two days later. If three-fifths of senators "duly chosen and sworn" vote to invoke cloture (i.e., to end debate), the Senate enters a post-cloture period of up to 30 hours. The Senate votes on the motion to proceed at the end of that period.

Reconsideration

Yet Schumer doesn’t have to wait two days to set up a cloture vote on the supplemental/border bill. He can instead move to reconsider last year’s failed cloture vote on the motion to proceed to the Relieve Act (HR 815) - the Senate’s intended legislative vehicle for the supplemental spending bill. Schumer announced before the vote that he would offer an amendment adding the supplemental to the underlying measure once the Senate voted to begin debate. The Senate failed to invoke cloture on the motion to proceed by a vote of 49 to 51. Schumer changed his vote from "yea" to "nay" at the last minute so that he could move to reconsider the vote in the future.

Rule XIII stipulates that "any Senator voting with the prevailing side or who has not voted may, on the same day or on either of the next two days of actual session thereafter, move a reconsideration." Moving to reconsider the failed cloture vote on the motion to proceed to HR 815 reduces the time it takes the Senate to begin debate on a legislative vehicle for the supplemental/border bill. Instead of waiting two days to vote on a new cloture petition, the Senate votes on cloture immediately.

The Takeaway

Some senators are pushing to pass a supplemental/border bill immediately. However, the lead negotiators have not yet resolved all outstanding issues. And other senators want ample time to debate the bill on the Senate floor, further delaying passage. Proponents of the supplemental/border bill are calling to speed up the process - at least on the front end - by skipping committee consideration of the compromise agreement and moving to reconsider last year's failed cloture vote on the intended legislative vehicle for the supplemental bill (i.e., HR 815).