As the Senate gets close to the end of the first week of debate on Obamacare, a controversy swirled today around a letter and memo drafted by Senator Judd Gregg (R-NH), as linked by Politico, titled “Foundation for Minority Party’s Rights in the Senate.” The memo explains the rules of the Senate and how the minority party can use the rules to insure that a “full, complete, and fully informed debate on all measures and issues coming before the Senate.” Senate Majority Leader Harry Reid (D-NV) took to the Senate floor this morning to complain about the document, but the memo seems to be nothing more than a guide for members to protect their rights during this historic Obamacare debate.
This document is educational and a good way to understand the arcane rules of the United States Senate. The Senate rules are frequently waived by unanimous consent and any member can take to the Senate floor to protect their rights. The Senate has rules for a reason and it seems perfectly reasonable that these rules should be followed when the Senate is attempting to pass a bill that is wildly unpopular with the American people and represents the most dramatic change in health care law in our lifetimes.
The memo informs members of their right to force a reading of every amendment. “The reading of the full text of amendments may only be dispensed with by unanimous consent. Any Senator may object to dispensing with the reading.” For most amendments, this would serve no purpose, yet many times late in the process, the Senate will consider a manager’s package of amendments that may be hundreds of pages long.
Points of order in the Senate when “a Senate procedure is being violated, with or without cause” may be made at any point during the proceedings. The presiding officer makes a ruling, usually after consulting with the Senate Parliamentarian, and then the Chairman makes a ruling. The Senate can debate the point of order. Considering that the bill costs $2.5 trillion over the first ten years of implementation and all the new mandates and taxes in the bill, there should be many points of order that apply through the Budget Act that Senators can raise. Now if a rule is being violated, Senators would seem to be committing legislative malpractice if they didn’t raise a point of order to insure that the rules are followed.
The Amendment process is the means for the minority or even motivated individual members to flex some muscle. Until debate is shut off on the bill, “Senators may offer an unlimited number of amendments – germane or non-germane – on any subject.” A non-germane amendment is defined as an amendment that is not related in subject matter to the underlying bill. For example, if a Senator offered an amendment to restore the rights of the residents of the District of Columbia to own a firearm, that would clearly be non-germane to the Obamacare debate, yet allowed under the Senate rules. Senators offered hundreds of amendments during the consideration of the Obamacare bill during the committee process and it would seem perfectly reasonable for Senators to file as many Amendments as possible and insist of a full consideration of every amendment before any final vote on the bill is scheduled.
Another interesting rule in the Senate is that amendments are divisible “upon demand by any Senator if they contain two or more parts that can stand independently of one another.” This would allow a member to offer his own amendment that could be divided into many divisions and force multiple votes on issues of importance to that member. Considering that the Senate has only completed work on a handful of amendments, a divisible amendment, called a “Clay Pigeon” in the Senate, might be a good way for a member to offer multiple amendments at one time. This would also allow a member to force a division of any managers package put together at the end of debate by the leadership.
If Obamacare is passed in the Senate, the minority still has some valuable rights before the bill leaves the Senate. “The Senate must pass 3 separate motions to go to conference: (1) a motion to insist on its amendments or disagree with the House amendments; (2) a motion to request/agree to a conference; and (3) a motion to authorize the Chair to appoint conferees. The Senate routinely does this by UC, but if a Senator objects the Senate must debate each step and all 3 motions may be filibustered (requiring a cloture vote to end debate).” This provision in the rules allows a single member of the Senate to effectively block the appointment of conferees to a bill. A member may have a concern that Senate and House conferees will merely rewrite the whole Obamacare bill and exclude the minority party from the process. See the precedent set during the Stimulus Conference for an example of one party being excluded from conference negotiations. This means that one Senator could block conferees and force the House to consider the Senate bill without changes. This procedural protection for members will allow individual Senators to have some control over the final negotiations over Obamacare.
The bottom line is that this memo is a dispassionate explanation of the Senate rules and a member who chooses to use the memo to protect their rights may dramatically slow the progress of Obamacare, while allowing the American people to follow the complex debate going on in the Senate right now.
