S5E08: Overturned Tables: The Senate: Marty Paone

This is Larry Lessig. By far, by way far the most

frustrating feature of American politics is the

filibuster in the Senate. This feature, or let's say bug, of the Senate is frustrating not because of the idea of a filibuster. I love the idea of the ability of members of any deliberative body to make sure the deliberative body has had the chance to hear all sides and to slow the process down so they can hear all sides is a perfectly

wonderful thing to imagine.

Now it's frustrating not because of the idea, but because of how the practice of the filibuster has evolved. Born as a technique for slowing down the consideration of a bill, but not to block the majority in the Senate from considering and voting on a bill. In those rare cases, at least, where the Senator feels extremely strongly about some issue, and for most of the history of the 20th century that was basically strongly committed to denying equal civil rights, the technique has evolved into a default within the Senate, the default for any bill, except for a couple exceptions and categories that the Senate might consider. Mitch McConnell, after the election of Barack Obama, transformed the filibuster into a procedural default. Except for a few clear categories of exceptions, any bill in the Senate is subject to the restrictions of. Of the filibuster. Among those exceptions are budget reconciliation bills and certain nominations. But if you happen to be a Senator who has a bill that is not within the list of recognized exceptions, then what the filibuster means is that any Senator has the freedom to block the consideration of your bill unless 60 senators vote to consider it. So let's just think a little bit about what 60 senators means. If you need the vote of 60 senators to proceed, that means the vote of 41 senators is enough to block the Senate from considering any proposal not on the list of exceptions. So if you take, let's say, the smallest 21 states that supported Donald Trump in 2016 by at least 10 points, those 21 small estates would give you 42 votes, the ability to block any

bill except for the exceptions.

Those 42 votes would represent 21% of the American population. So the rule of the filibuster has evolved to a norm that means that almost 4/5 of America is needed to support a proposal before that proposal can even be debated in the United States Senate. This is. It's a technical, legal term, but this is absurd. America is a majoritarian democracy. There are just a few places in the Constitution where the Constitution requires more than a majority to make a decision. In Congress, for example, to Overturn A Presidential veto requires a vote of 2/3 of Congress. But those exceptions point to a default and the default is majoritarian. And yet the filibuster as it has evolved has become the most minoritarian bloc in our Congressional system. A tiny minority has the power to stop our Congress from doing anything. And this bloc is, is a block in an absolute sense. The President can veto a bill, but that veto can be overwritten. The Supreme Court can decide a law is unconstitutional, but the Constitution can be amended or the law can be rewritten. But the failure of the Senate to pass a bill is the death of that bill. There's no way around it. This minoritarian or counter majoritarian device is the most anti democratic device within our so called representative democracy. In this episode we're going to talk to one of the most experienced of the Senate's former staffers. By the time of his retirement in 2008, Martin Peon had been in or around the Senate floor for three decades, beginning in the Democratic cloak room, moving to the Democratic Party Policy Committee floor staff, and then serving as the Minority Secretary and Majority Secretary for Senate Democrats. And during these many years he worked under the leadership of Senators Robert Byrd, George Mitchell, Tom Daschle and Harry Reid. As Secretary of the Majority, he was essentially the floor manager of the Senate. And when he retired, Senator Reid claimed that it was no exaggeration that quote, every single Democrat and more than a few Republicans relied on Peony's experience every day, including Senator Reid. As he said, nothing happens on the Senate floor. No legislation is considered, no parliamentary procedure is enacted without Marty's influence. Marty Peony is currently a senior advisor at the Prime Policy Group. He rejoined that firm after a two year hiatus spent working for President Obama as his Deputy Assistant for Legislative affairs and Senate Liaison. Before that he had served on Capitol Hill for 32 years. He graduated from Boston College with a Bachelor's degree in Economics and Philosophy and later earned a Master's degree in Russian Area Studies from Georgetown University. This conversation about the Senate is ultimately with the hope of understanding how the overturned table of the Senate might itself be righted.

Enjoy the conversation. Marty Peony, thank you so much for talking to me. So you've had an enormous experience in the Senate and Olafic Senate. You were were in the Senate for 26 years in various roles. I guess about 15 of those the Republicans were in control. About 11 of those the Democrats were in control. And you left in 2008 before President Obama became President. And so from that experience you lived inside of a Senate That I'm going to say, you don't have to say it, but I'm going to say worked reasonably well for government work, got stuff done. And the Senate that we've seen since then seems to be a different institution. And what we're hoping to do in this conversation is help people understand the basis and the reason why that change might have occurred. And I want to start in that conversation by just asking you to help explain the notion of a body which operates by unanimous consent, which is the way people characterize the work of the Senate. So how is it. So what does it mean when people say the Senate basically operates by unanimous consent?

Well, first of all, I was in the Senate for more than 30 years, counting my time in the cloakroom and the Senate parking office, which is where I started the Senate. But unanimous consent is just what it sounds like in a body where majority does not rule. In order to get things done in a timely fashion, it often takes unanimous consent. And that means the two staffs of the two leaders, they're called floor staffs, they are constantly working with the committees and with senators who are pushing legislation or trying to get something done to get an agreement behind the scenes. And they work with the chair and ranking members, the committee staff, and then anybody that has notified the floor staff that they might have an interest in this bill and they try to craft unanimous consent agreements to allow for the consideration of that bill. Sometimes the consent agreement would involve the bill being done completely by unanimous consent with the two leaders reading from scripts and maybe offering an amendment or two from people on their side and those amendments being adopted by voice vote at the end of the day and what the floor staff refer to as wrap up, sometimes those agreements can be complicated and members insist on a roll call vote. And in a body where you can filibuster still legislation with and require 60 votes to invoke cloture to end debate or limit debate on legislation, they would sometimes get agreements, and they still do to this day get agreements that, okay, there'll be X amount of time for debate on this amendment, equally divided between the proponent, the offeror of the amendment and someone and the opponent. And at which time after that debate is used or yielded back, there would be a vote. And they often now stress that on this amendment 60 votes will be required. And then that would save the time of having to call up an amendment, debate it, and then the opponents say, no, I'm not going to give you an up or down vote, so you're going to have to file cloture Cloture takes two days to ripen as called before you even have a vote once you've filed it. So getting the agreement up front and Putting in a 60 vote threshold saves some time.

So you used a word that many people won't understand. Cloture.

Yes.

Which is a procedure to end the debate.

Correct.

Is that right?

And cloture is when the Senate was established in 1789, as did the House, they both had motions from the previous question in the House that evolved into ability of the majority to force an up or down vote on something and end debate. And in the Senate I have no doubt that it would have evolved the same. But Aaron Burr was vice president in 1805 and as he was going out the door he suggested that, you know, you've had these rules now for all of six years and there are some of them that you don't use and you might want to re codify them. And one of them is this previous question item. And so they did re codify them when they reconvened in 1806 and they dropped the previous question. And then thereafter from 1806 until 1917, there was no way to force an up or down vote on anything in the Senate. And that didn't start off as a problem, but over the years it did become problems with people filibustering states entering the Union, whether they be pro slavery or anti slavery states, etc. And it really became a problem, and it still is in my opinion. But by 1917 it peaked and people senators filibustered a bill to arm merchant vessels. The Lusitania had already been sunk. Wilson was president. He made sure that the press got out what was called the Zimmerman Telegram, which is a telegram from the German Foreign ministry to the ambassador in Mexico telling him if you can get Mexico into the war with, if the United States gets into the war, if you can get Mexico in on the German side, then we'll promise them they get Texas back if we win. And of course that public knowledge of that enraged people. Wilson was enraged that people senators filibustered that arming merchant vessel bill and he called them back into session a few days afterwards and they passed what is called Rule 22 in the Senate rules that allowed for if in Those days, a 2/3 vote, if 2/3 of the senators voted to end debate on something, then thereafter or to limit debate thereafter, each senator would be courted up to one hour debate and then once everybody had used or yielded back their time, there would be an up or down vote. On the item, that threshold, that is what we call cloture, that threshold morphed, changed over the years for 2/3 of those sworn, 2/3 of those voting, to 2/3, thirds of those sworn. And then in 1975, a revolt, bipartisan revolt of Democrats and Republicans who are fed up with southern filibusters of civil rights legislation, forced the issue to be lowered from 2/3 down to 60. And they refer to it as, they define it as 3/5 of those sworn. So it's a hard 60. And that is what cloture is. And once cloture is invoked under the current rules, there are now there's 30 hours of debate, and at the end of that 30 hours on that clotured item, whether it's an amendment or a bill, there's an up or down vote. You vote on whatever's pending at that time. If there is a first or second degree amendment pending to it, you would dispose of what's pending at that time and then vote on the clotured item. And that's where the Senate stands right now. On legislation, it takes 60 that has changed for nominations to a majority vote, which I'll get into later if you want, but it only takes a majority vote and it's a majority though, of those voting for nominations. So if 51 show up to vote that day, you've got a quorum. You can invoke clotua26 on a nomination. And then for most nominations, the post closure time is only two hours, not 30. But for higher level nominations, Supreme Court justices, cabinet level and circuit court nominees, it's still 30 hours.

Okay, so one important distinction that I want to make sure we're clear about is the difference between what the rules say and what the norms of the Senate are. Because the rules for filibuster for cloture can seem like they're relatively stable and have existed for a long time in basically the same form since the beginning of the last century. For cloture in general and 2/3 moving down to 60 of either present or sworn, that seems stable. But it seems like the practice of the Senate has changed pretty substantially. And that change happened just after you left the Senate. Maybe you're to blame, but after you left the Senate, I guess Mitch McConnell, maybe in response to the decision to change nominations for some judges to just a majority, began to adopt a different practice for the invoking of the filibuster. Is that, is that a fair characterization of what happened?

Well, I'm not sure what you mean by that. What the Cloture situation. The place changed when I was there. It was much more of a. In the 80s and 90s and early 2000s, it was much more open body where members could walk in and offer amendments freely. And they got votes on them. Often majority votes, like might be a motion to table, which is a majority vote. And the Senate is a unique body in the sense it doesn't have Germanness restrictions except for appropriations bills, money bills. And so you might be on a farm bill. And there was something in the front page of the news that morning dealing with Middle east peace process. And somebody could walk in and offer an amendment on the Middle east peace process. And the floor staff would tell the two managers, the chair and ranking member of the farm bill agriculture committee, that okay, put in quorum call, which is a timeout, and we're going to go call the chair and ranking member of foreign relations and let them know that this is pending and ask if they want to come over and debate it or if they want you guys, the agriculture Committee to handle it. Usually the chair and ranking member of foreign relations would say, no, we'll be right over. And you might spend the next couple of days on depending debating foreign relations amendments, dealing with the Middle east or anything else. But they would get votes and they wouldn't be filibustered mostly. And it would drive the House crazy because that bill might come over with items in more than one committee's jurisdiction. Once the Senate passed it. Eventually leaders on both sides decided to they would get well in their defense, the leader's defense. They were getting complaints or plea pleas from their members of protection from tough votes. I don't want to vote on a gun amendment. I don't want to vote on abortion amendment. So, you know, I'm running for election. Let's see what you know. Can you protect me from having to cast that vote? Well, there's a yin and a yang for that. You can protect them by leader, majority leader. Once the bill is called up, he fills the amendment tree. That is, he offers an amendment to every possible spot, blocking everybody else out. And then he says, okay, now let's negotiate. Do we want to get this bill done? And what amendments do people want to offer? And then the floor staffs would try to craft an agreement and sometimes they're able to do that. But you can see where people who got left out that might have a controversial amendment, they might object to that agreement. And the agreement is unanimous consent is what it says. One person who gets left out can object to that. Then that Means the leader has to fall back to filing cloture on the bill. And for that he needs 60. Two days later there would be a cloture vote. And if 60 were to vote to invoke cloture, then that puts a time limit on the consideration of the bill. But it also invokes a very strict German restriction on amendments to be offered there too. So people with non germane amendments and it could even be relevant. I mean, say again, use a farm bill as an example. There are myriad aspects to a farm bill and people could come in with different types of crop insurance legislation. For instance. Well, if your crop insurance amendment adds new language or a new crop insurance program to the bill, even though it'd be very relevant, it would be non germane under cloture. So you would be barred from getting a vote on that. And so cloture, the germanus restriction on the cloture is very strict. And so for a number of reasons it's difficult. And if you got only 50 members or 51 members now is what Senator Schumer has, it's very difficult to get 60 on anything, which is why a lot of legislation gets done in end of the year. Omnibus massive bills that cover a wide range of areas like funding the government and other things. And they, because they're so large, do get 60. Or the majority party uses budget reconciliation, which is a way of using the budget act to get a majority vote on a bill. But those bills are also governed by strict Germanness and tight limits on what can be offered the legislation. Reconciliation can only. The bill can only deal with aspects of the federal government's inputs, income, you know, tax receipts and outlays, what it spends money coming in and money going out, and you can't add new programs to it, et cetera. And so it's very difficult to use reconciliation unless you're, unless you just want to do some tax cuts and then that's ready made for that. And it's been used by that successfully by the Republicans and the Democrats have used it. When Clinton was in the White House, they did a big, it was actually a bipartisan bill. Welfare reform was done that way. And so cloture and budget reconciliation are the only way to get things done by majority vote, although cloture takes 60 to invoke it.

Okay, but the point is, but I mean, let's make sure that we're agreeing on this basic fact. So the numbers suggest that there's a pretty sharp rise in the number of filibusters that happen after Obama becomes president.

Oh yeah, absolutely. I mean McConnell started out by saying it's my job to make sure he's a one term president. And so it was unfortunate that theyone of the things they used the way to keep the majority from doing popular legislation under Obama was to take up floor time doing unnecessary things like cloture on nominations that were not controversial. And that's what McConnell did very successfully. And in those times at that point, cloture, you know, 30 hours on everything. District judges used to be done on block numbered one after another. You know, you might do seven or eight of them with one unanimous consent agreement. Now you're forcing a cloture vote which takes two days to ripen and then 30 hours once invoked on just one non controversial district judge. And yes, you're right, it became the political modus operandi. If you, you don't care about getting things done, you just want to show that you want to campaign that the majority is ineffective and that we should be in the majority. And so yin and yang is good for both sides. When Trump was elected and they were in the majority and they had the House and Senate, you saw a lot of non controversial nominations and cloture votes on things because the Democrats didn't want them to be passing bad legislation. And so they used, they, the Republicans used reconciliation to pass their tax cuts. They tried to use it to eliminate the Obamacare, the ACA health care bill. But we all remember McCain standing there with his thumb and going thumbs down on that. They couldn't get even a majority vote on that action that was so controversial. I'll leave it at that. But you're right, yes, things did change.

So when those norms change and shift to a world where both parties basically play the game where 60 votes are required to get anything, literally anything, even non controversial things done, that radically changes the capacity of the Senate to, to be functioning inside of a well functioning government. Right? I mean this.

Oh, I agree. I mean when I was there I was opposed to people that were arguing for a majority vote cloture and you know, Bush was threatening and the Republicans to use the, what was called the nuclear option to get their judges done by, you know, and I was opposed to doing that. But now since both sides have unfortunately gone to the mats on keeping the other side from succeeding. Although in the Democrats case, and I'll admit I'm a Democrat, I don't think their use of it was as bad. Although they did use a lot of non controversial judges for cloture to keep things from happening under Trump. But that's why I recommended that, that for the voting rights bill, that they at least carve out an exception for that bill to allow for majority, right, majority cloture and address the conference on that. Unfortunately, Senators Sinema and Manchin did not agree and they couldn't get the majority vote to do it. But I think eventually you're going to get to majority cloture, just as you have on nominations, you're going to get to that on legislation. It's just a matter of time.

It was an extraordinary debate to watch when the Senate was struggling with whether they would allow a majority on voting rights. I remember Senator Manchin stood on the floor of the Senate with a huge placard that said, never in the history of the Senate has a majority vote been sufficient to stop debate. And what was striking about that is. Well, actually before Aaron Burr's work, that wasn't true. Under Jefferson's rules, a majority could stop debate. But even more striking is it just ignores this fundamental difference in norms where you could support cloture at 60 votes in a world where it's invoked railing and it's invoked when people really think there's something important to them that could respect the integrity of the senators who are invoking it. But then you could change your view on it once it's clear that it's going to be basically a political thing that stops the Senate from being able to do anything. And to miss that part of the debate, which I think the vast majority of people miss, is a pretty fundamental thing not to understand.

Yeah, I mean, I had a number of meetings with Senator Manchin during that time, with Senators Kaine and Klobuchar and others, and Tester and Senator Manchin, unfortunately, at that time, he didn't understand the fact that if nobody was speaking, if debate ended and you were not in a quorum call, then it's incumbent on the chair. It's. The chair has to. To put the question to force an audience to say, if there is no further debate, the question is on the amendment or on the nomination, and if yeas and nays have been ordered, in other words, if there's been a previous request for a roll call vote, then the chair would say, if there's no further debate, the question's on the amendment and the clerk will call the roll. And Senator Manchin didn't understand that somebody had to put in a quorum call to stop that from happening. And that's what happens now. I mean, people to avoid. So it makes it easier for a person to maintain a filibuster if they want. They put in a quorum call, sit there at their desk, read their mail, and maybe wait for relief from someone else who's going to come over to sit on the floor and make sure there's not a vote on the pending issue prior to maybe a cloture vote, which would then require 60. So the days of getting agreements, I mean, when Mitchell was leader, when Byrd was leader and Baker and Dole, they would call up bills. You very rarely saw a vote, closure vote on a motion to proceed to the bill. They would be called up by unanimous consent. You would debate bills with amendments that had absolutely nothing to do with the underlying text. Senator Helms was, quite frankly, in my memory, he was the first to start offering amendments to force people to cast tough votes that would then be used against them in case campaigns. And up until then, people offered amendments because they were hoping that the amendment would win because they cared about the substance. Senator Helms realized that if I can make people vote on keeping this silly rule that the NEA has proposed or program, then that's going to be fodder for being able to use against them in a campaign. And I don't care if I win or not. I'm just trying to get people on record. And so he would come over and offer amendment. It usually was in the social. In those cases, we called it the Labor Committee, it's now the help Committee, and Senator Kennedy was chair. We would call Kennedy's office, he would come over and he would offer an alternative to the Helms amendment, and we would get an agreement that we'd debate the two of them side by side, and we'd have two votes, first on the Kennedy amendment as if it were a second degree, next on Helms, and you could vote for both. So the people that were, you know, and Kennedy's amendment was basically a cover amendment for people to vote to try to then get them to vote against Helms. But you would often have members who are up in tough elections, say, well, you know, I'm going to vote for both. You know, don't ask me to vote, I'll vote for yours, Ted, but don't ask me to vote against that. I'm not going to. And you could end up with a situation where both amendments passed and were incorporated in the bill, and it would drive the House crazy when that sort of thing would end up in a final item that went to conference with the House. But we used to joke that, you know, the Helms language wouldn't make it past the rotunda as far as for a conference was concerned. But that's, but that was. And those were, you know, that happened a lot. And people would come over and they'd grumble about casting votes, but the bill would move on and then people would offer substantive amendments and they got their votes. And after a couple of days of that, we might get an agreement, unanimous consent agreement limiting the amendments that would remain to the bill prior to final passage. And quite frankly, we've got agreements where you'd have 90 more or more amendments on that list and you'd get that agreement on Tuesday. But by Thursday, dangling the carrot of no votes on Friday, if we get the bill done tonight, a lot of amendments would go away like snowflakes in June. But the other reason they would go away is not only because they wanted to be able to travel on Friday was because senators knew that they would get to offer them another bill coming down the pike, that they weren't going to be limited by a leader filling the amendment tree and blocking them out. It was a much more open Senate. So we were able to get agreements like that. You were able to cast votes and there were mixed votes. You know, some would be bipartisan and, you know, and then they would be hashed out in conference with the House. You don't have that now. Members, you know, most of the Senate that is up there now doesn't even realize that they used to be able to cast amendments freely on whatever topic they wanted because of non germaneness. They don't realize what they've lost.

So the mechanics of the filibuster have also changed in the sense that there's a time when to filibuster, you basically had to be standing on the floor arguing. So Strom thurmond with the 57 Civil Rights act, and you know, he stands on the floor for 24, 25 hours arguing. And that's what affected the filibuster. Today, nobody has to stand and argue the rules have been changed to basically affect a filibuster without anybody actually physically arguing anymore. How did that happen? What was the change that made that possible?

Well, some of it is, especially in the modern communications era, you, you don't need to stand out there for 10 hours to get press. You can create all sorts of ways of getting your own press, social media, et cetera. And so that's why you had people like Thurmond and others would stand out there for a long time and speak. But even though they were speaking, you could still file cloture cloture is that highly privileged that while you're speaking, someone else can come in and file and interrupt you and file cloture. And we did that once with Daschle when he was minority leader and Alan Simpson was majority whip and he was speaking and we wanted to get a. Force a cloture vote on a. I think it was minimum wage at the time. And Daschle came in and sent a cloture motion to the desk. A cloture motion is just a piece of paper was signed by 16 senators or more that says, you know, we want to vote on this and we want to have a cloture vote on this. And so Daschle foul sent it up to the desk. The chair interrupted Simpson for the clerk to report the cloture motion and then re recognized Simpson and he was able to continue his speech. He didn't lose the floor. But what that did was by having filed that cloture, say he filed it on a Tuesday, that meant on Thursday you were going to get a cloture vote. And so using holding the floor to keep somebody from filing cloture doesn't work. I mean, you can. The Senate's a different animal. You can talk all you want, but the other side, the proponents, can file cloture and at least get a cloture vote two days later. That's one. And the other thing is two. Tracking. Two, tracking was often used by Senator Byrd to save time. So while you'd call up an item, know that there was going to be a fight, file cloture on it, and then while cloture is ripening, as it's called, from Tuesday to Thursday, you might lay that item aside. If you could get consent and then call up another item and debate that and maybe have a few votes on it, maybe even dispose of it before the Thursday closure vote as a way of making a place more efficient or, you know, get things done. Now, that is pretty rare because in order to do the item in between, it takes consent, and it's rare that you see such consent granted. And so members coming over to keep a vote from happening prior to cloture, they don't need to be sitting on the floor, they don't need to be talking. But they should have somebody on the floor to make sure that if someone else talks and then they don't put in a question and put in a quorum call, the chair doesn't put the question. And that's all they got to do is to keep the chair from putting the question from. From Having a vote, all they got to do is stand up and get recognized and say, I suggest the absence of a quorum. Then they can sit down and do some work at their desk, read their mail, and wait to be relieved.

Okay, that's really helpful. So just to make sure it's clear, if you're standing, speaking as Strom Thurmond did, or as any senator could, and somebody doesn't put in quorum call, a cloture vote, and doesn't put in a quorum call, and you stop speaking, somebody could then say, let's do the yeas and the nays on this bill, and the bill would come up and you could pass the bill with the majority of those voting, right?

Yes, that's right, in a sense. And it's even. You even added a step. That doesn't exist. Somebody doesn't say, let's have a vote. It's the chair's responsibility to say, if there's nobody, if there's no further debate and he looks around, he or she looks around and says, does anybody else seek recognition? If nobody seeks recognition, then the clerk will call the roll. The question is on the amendment or whatever the item is, and the clerk will call the roll. If there's. If the yeas and nays are awarded. If there's not yeas and nays, then the chair would say, question is on the amendment. All those in favor say aye. And, you know, wait to hear and etc. And all those in favor say no. And then, you know, the chair would make a decision. You're right.

Okay, so. But then the next step might be that you're. The debate is going on, and it sounds. It seems like nobody is going to speak anymore, but you don't want there to be a vote on this.

Then you call for a quorum call,

and then there's a process of trying to ascertain whether there's a quorum on the floor of the Senate, which there never is, obviously. And so that. That quorum call itself takes how much time?

Well, it's there. A regular quorum call can take as long as the Senate wants. I mean, they don't hurry up that call. That's basically, like I said, it's more like a timeout in an athletic event contest. They the only time. And they would just call the roll and they would be directed by the floor staffs. Like the two floor staffs would be working behind the scenes, like maybe notifying somebody that they wanted to come over and speak that this is a good time for you. To come over and give your speech and try to line up some speakers so you don't have that much dead time on the floor. And people would come over and take advantage of it. Otherwise, you just sit in that quorum call that clerk does not read. If the clerk reads the entire roll, you'll see sometimes what is called a live quorum. That means the clerk got to the end of the roll, to the last name on the roll in the Alphabet of the hundred. And then the clerk turns to the chair and says, a quorum is not present. And then the chair says, a quorum is not present. The clerk will now call the names of the absent senators. And normally there's a light system and a bell system in the House and Senate. A quorum call is two lights that stays on. So people in their offices looking up at their clocks and have lights on them. No, there's nothing going on in the Senate right now. This all came in handy before TV in 86, but still, people can get, you know, if they're walking around, clocks throughout the area have these lights. And in the Senate, two lights means you're in a quorum call. So, you know, there's not much happening. But if you see three lights, that means that quorum call has gone live. And the only way to get out of that live quorum is to either have 51 bodies show up, the clerk then turns around and tells the chair a quorum is present and that the quorum call is called off, or there are certain type of procedural votes that you can have within a quorum call. And members do not like to miss roll call votes because it counts against their voting average. And so if a vote happens, they all come to the floor, all on both sides, to vote. And it's called a motion to instruct the sergeant at arms to request the absence of absent senators. And there are levels of that. There's a motion to request the presence, there's a motion to compel their presence. And then you go to Defcon 3 and there's a motion to arrest. And that's what Burritt did once when the Republicans were fed up with him having seven cloture votes on campaign finance, all failures. But he kept making them have these cloture votes. And so finally they got fed up. And Byrd was. He liked to work. He didn't mind working late. So these were late nights. So Republicans decided, well, we'll keep them from getting a quorum by not showing up for the vote, and we'll deny them progress that way. And you'll have to. And the rules that state that if the senate can't achieve a quorum, then they're supposed to adjourn until the next day. Well, Byrd knew that was what they were doing, and so he elevated it to a motion to arrest, which sent the sergeant arms around to their private offices with keys. And they found senator Packwood in his private office, had a couple of police officers pick him up. It was sort of like the late sixties Vietnam war demonstrations where you just lay there and make them have to carry you out. And they carried Packwood into the chamber and they got a quorum. And after that, though, Byrd realized that if they're going to be this silly, then, you know, we'll go out. But anyway, you can have that vote. It's usually a motion to instruct the sergeant arms and forces people over there. And otherwise that quorum call doesn't go live. It just stays there until somebody calls it off by unanimous consent. And the quorum clerk only gets to the last name on the list when a member of the floor staff working for the majority leader tell them, yeah, let's speed it up. We're going to have a live quorum here. And then they will put out an alert on both cloak rooms, will put out an alert warning people. You'll notice the tone of the clerk as his voice quickens up as he runs through the roll. Now, instead of calling one name every five minutes, is running through the list and they'll put an alert. Both cloak rooms will alert members, saying, this quorum call is going to go live. There will be a roll call vote shortly on a motion to instruct the sergeant arms, and members will have to come. And that's how you deal with that. That's how a quorum call goes.

Okay, but.

So this is teaching me something I didn't know, and it's really helpful.

Let's imagine you.

You had a majority of 52 votes, not counting the vice president, and you're trying to move legislation through, and you know the debate has stopped and nobody's going to speak anymore. So the chair wants to move to a vote, but somebody calls for a quorum call, and you as the majority leader, just tell all your party members to show up, like, be there. And so more than 50 show up. So there is a quorum. Is there anything at that moment that would stop you from moving to a vote that would get you what you wanted with a majority of 51?

If you're in the minority, you usually the floor staff will have a body around There will not be a time when you don't have a member of the minority available. So that. No. Even though a quorum is there. And they could say, yeah, we've got, there's a quorum. When the chair says, is there further debate? That member of the minority will say Mr. President. And then they could start reading recipes out of their mom's cookbook. But to keep a vote from happening.

So if they, but if they don't, if they don't say anything, if they're not willing to stand there and speak, then that stops and they can move to a vote.

If you were to have, see, strategically, you'd have to have 52 bodies on the floor, which is like herding cats to get all 52 out there. And like I said, chances are you would have a member of the minority there. I mean, even hearing a quorum call going like that, the minority floor staff would get the minority leader and the minority whip both have offices within a few floors feet of the floor. They would get them out to the floor and they would make sure they had and standard operating procedure if you're going, because you usually don't. They work with comity with a T and not try to surprise either side with parliamentary shenanigans, which that would be considered because you might get away with it once, but you'd never get away with it again. And that's why it's the minority's job floor staff to make sure they have a body, if not on the floor, in the cloakroom a very close by to avoid something like that happening. In theory, what you said, yes, that could happen. In reality, no.

Okay. So that means that the only way to force the vote. This is your point about cloture.

The only way to force.

Force the vote to avoid this gaming by the minority to continue the debate, even if it's just reading recipes on the floor of the Senate, is to force a cloture vote. And then that requires the super majority. So the majority. So a party with just 52 is not going to get a majority on this cloture. We can imagine. And the only way they would get their bill passed without cloture is if the minority just didn't show up to continue causing trouble.

Yeah, if eight members of the minority supported the bill and allowed for cloture, which is why a lot of this type of legislation from members on both sides of the aisle get folded into these omnibus bills that are done at the end of the year that they have so much that fund the government and other matters that by themselves they might be a problem. Defense authorization is another one that has carried other legislation throughout the years. I mean, Senator Kennedy got the hate crimes bill put on the defense authorization bill. That's how that became law. And you're not going to filibuster defense authorization bill or at least you're, you're going to probably get 60 for that one. Same thing with omnibus bills, appropriations bills, especially now that we've brought back directed spending, as it's called now, earmarks. And so, you know, it's, unless you can get closure on that individual item, a lot of the matters get done in massive bills. You know, the farm bill is going to expire at the end of September. I think it's October 1st. And that's something that gets done every three or four years, maybe five years, depending on how they write it. That'll get done. But. And so, and that could carry some unrelated items. But you know, it's a difficult bill, but you know, you don't. And the farm bill in that sense also carries a lot of weight with Republican members because they have a lot of the rural states. But then it becomes a parochial issue of different types of crops, where you've got the peanut growers versus the cotton growers versus the wheat growers and who's going to benefit from what crop insurance program is in place.

Okay, so this helps set up what is the hypothetical. I'd love you to kind of work through. I'm sure you've watched a little bit what's going on in a state like Nebraska. So Nebraska has a state senator. I think you pronounce her first name Michella, but Michella Kavanaugh, who has basically blocked Nebraska from taking up any bill. They have a very short legislative calendar. I think it's 30 days because the majority insists on bringing an anti trans bill. And so she's used her time to basically stop that body from acting. Now imagine there were some senator elected to the United States Senate who was inspired by her and said this is my issue or I'm going to stop them from doing that issue. So I'm going to try to adopt the most obstructive strategy I can to block the Senate from doing anything. So the question then, let's say they hire you and say, Marty, what can we do? Like, what's the most obstructive we can be? Given the rules of the Senate as they are right now, what would you say the prospects are that they would achieve the ability to obstruct the Senate either completely or a majority, or how much trouble could any single senator cause?

Well, they can cause a lot of trouble by objecting to unanimous consent agreements. And they also have to be willing to be out there all the time. But if they're holding up a piece of legislation like we were discussing, like an omnibus or a defense authorization bill, something that's going to get 60, then even as I noted earlier in the Simpson example, unlike which I don't think it doesn't look like Nebraska has this. Even while you're speaking, someone can file cloture on the item that is pending if that's what you're holding up. And you would be holding it up. If you just out there speaking, you might be holding it up because you don't want the next item to come up. But if the item you're holding up at that point is a popular item, then you can be interrupted, your speech can be interrupted, cloture can be filed. Two days later, there's a cloture vote. And if 60 members vote to invoke cloture, then your ability to speak is severely curtailed because you can only speak for one hour under closure, you can have a couple hours. You can have some time yielded to you, but that has to come from the leader or the floor manager. And if the leader and the floor manager don't support what you're doing, then just because your cousin next to you and who feels the same way wants to yield you to time, you're not going to get it because it's got to go through a conduit to get to you, yielding their hour to you. So your ability to speak is curtailed. And then as I said, if you've invoked cloture on the item, at the end of that 30 hours, there's going to be a vote on the item. And then the question is, was that the item you were holding up or were you just slowing the place down to avoid something else coming up? So, I mean, whereas I think in Nebraska, she has the ability to just hold things up. They don't have that ability to invoke cloture even though she's holding the floor. So that's where the United States Senate differs.

Okay, so you could slow things up because you could just basically require them to do cloture for everything, and then you'd require a 60 vote on everything, which there'd be a lot of things that couldn't get a 60 vote except for if you bundled everything together as they typically do, then obviously 60 are going to support that. But what about Other corners of Senate rules, like, for example, we hear a lot about holds that senators have. So, like, what could you do if you were abusive with your power to issue holds?

The the whole process is basically, even in this day and age of obstruction by the minority, you'll still see legislation get done at the end of the day by unanimous consent by the two leaders or people standing in for them, in which they will call up a bill, the clerk will report it, the leader will offer an amendment, if there is one, they'll adopt that amendment, the minority leader may offer amendment or that stand in and that gets adopted, and then the bill is passed. And that is called a script that the floor staffs write up for the leadership. But prior to getting in order to get to that stage, there's a constant coordination going on by the floor staffs with each other and with the committee staff. And so what happens is when items get reported out of committee, they're put on what is called a legislative calendar. It's a booklet that's printed every day. And for an item to have a motion to proceed to it, it's got to be on that calendar. And senators will notify the floor staffs or the leader and the leader might pass it on to the floor staff, but eventually gets to the floor staff and they keep what is called a marked calendar. And that might mean anybody that's notified us they have an issue with, they want to get consulted before you call this bill up. And that can be, but it can be something to a raging hold that this bill does something bad to my state, or I can't stand the author of the bill because they did something bad to me and committee. Or it could be I just want to be notified so I can have a statement put in the record saying how much I like the bill. It's, you know, and so we have. They'll look at their they keep these consults on their march calendar. And then the committee at some point, majority staff will ask the floor staff, okay, can we try to get this bill done? And we've consulted with our counterparts, the Republicans on the minority on the committee. They're ready to go. Can we try to get this bill done and wrap up? Which is what we call when the two leaders are out there passing bills by consent. And so then the floor staff will run a hotline. It's a cloakroom each both cloakrooms have this hotline and it's a phone line that rings in all their now 51 offices in this Democratic side in which the person in the Cloakroom putting out this notice saying majority leader has a request to take up and pass this bill with the widened substitute amendment, maybe a Finance Committee bill and he's the chair of the committee may have a Wyden or maybe they call it a committee substitute to adopt a committee substitute and to adopt an amendment by Senator Durbin that does X and an amendment by maybe even a Republican that does. Yes. And if your senator has any objection to passing the bill in this way, please notify the cloakroom. They press a button, then that rings in all 51 offices, Democratic offices at the same time. And they get this alert in the modern era. That's also, they also send them email alerts now too. And then it's up to anybody who has a problem with the bill to notify the floor staff. Now, like I said, it might be something where somebody, a senator is not on that committee of jurisdiction, but they're afraid that that bill might negatively impact, maybe they're downriver in the Mississippi river. They might negatively impact their state. So they need to study it. And they're not on the committee of jurisdiction. So they weren't involved in its markup and they weren't able to focus on that.

That.

So they ask. They would notify the cloakroom. They would have staff call the cloakroom and say, I want to snag that bill until I can look at it. And you know, so that, that is temporary. What you, you could call that a hold. And like I said, it could be a hold for substantive reasons or it could be a hold that they might call and say, no, I've got an objection to that. It really does cause me. I state a problem or whatever. They don't even have to give the reasons. And then that bill would be, at the end of the day, the two floor staff sit down and meet and they say, okay, do you have anything cleared for wrap up tonight? What bills went through the hotline, Nobody objected. We've got all our statements in hand. And then they would coordinate what bills or at least that have gone through both sides clearance process. And those would get done in wrap up by the two leaders. The others would be put back in the folder. Like I said, one might be clear up tomorrow because that senator's office would call back and say we've studied it, so it might take a day. They might have to call like, you know, if it's something that deals with their state, they might be waiting on hearing back from somebody in the state governor's office as to does this negatively impact us do you have a problem with this bill? Do you want to suggest a change? If they come back with a suggested change, then they would let the cloakroom know and the cloakroom floor staff, they would let the floor staff know and the floor staff would tell them, okay, fine, it's your job now to go to the committee staff and try to get your amendment cleared. And they would give it to both Republican committee and Democratic committee staff and wait to hear the results of that amendment. If it's a non controversial, clarifying amendment, a day or so later we might get word from the committee that we're okay with this amendment. Add that to your script on how the bill is going to pass and we would let the senator office know. They would probably already know it from communications with the committee, but we'd let him know, yeah, we're going to go, it's going to go and wrap up. Do you with your amendment, do you want to send us over a statement to go in with it or what? Some items don't get cleared and the member continues to keep his hold on legislation. And like I said, it could be substantive or it could be. Ted Cruz did me wrong and I'm not ever going to let anything go that Ted Cruz has his name on it. But that person's hold remains confidential amongst the floor staff, the Democratic floor staff. The Republicans have their own holes that they keep confidential. But the place is what we call a village. And eventually you're going to find out who has snagged that bill because you would go to the committee and say, okay, the Republicans have snagged your bill. We're clear on our side. You might want to check with your Republican counterparts on the committee to find out why the bill isn't moving now, whereas you thought it was a day ago. Then they would talk to their counterparts and sooner or later they would find out from their committee counterparts probably who has the same snag. But they don't share that. I mean, if the chairman of the committee is upset, they might want to and they think it's going to a popular item and they might want to embarrass that member and saying that the reason this thing isn't moving is because Senator X has a hold on it and try to gin up outside groups to put pressure on that senator's office. That could happen. Or they may not want to do that and just let the, you know, issue come out on its own because like I said, sooner or later the item, you know, they want one side or the other can find out who has the hold. But it's not something that is put up publicly. Now, they did change the rules years ago to state that if somebody, if there was an objection on the floor to a consent being done in wrap up to a passing of a bill, then that objection, whoever, and in that case you might have Durbin in his web capacity, object on behalf of someone else, then the rule states that that person has to put their name in the record and it goes in the back of the calendar that they objected to passing that bill. If Durbin's okay with using his name, he could put his name in there or he could tell that senator, like I'm not going to be the one being accused of holding this up. You put your name in the record. But that, like I said, only applies if the item is actually propounded. The consent agreement was propounded and objected to. The floor staffs won't put the item up for a consent request if they know there's going to be an objection. So that is a toothless reform, in my opinion. And it didn't really get very far as far as people saying, yeah, there's now no more secret holds. Well, baloney.

Yeah. So, but if somebody pursues a hold, let's say they don't care whether it's known or not, let's say they say I have a principled reason for stopping everything happening in the United States.

Yeah, Rand Paul often does.

Is there any way to overcome that hold?

Rand Paul often does that with legislation. And yeah. No, the only way, the only way to overcome the hold is to try to call the bill up through the regular legislative means, which could mean cloture on the motion to proceed. You know, cloture on the bill itself, cloture on maybe a substitute amendment, because nine times out of 10, a substitute amendment is not germane because it's adding new item, new language. So you can force cloture on a motion to proceed, cloture on the bill itself. Well, cloture on a substitute amendment and then cloture on the bill itself. If you really want to drag it out. That's 30, 60, 90 hours right there, plus two days in between each of those three votes. So that's six days. So you can see where a hold can be effective. And you know, and unless they're holding up something of great importance to the nation that the two leaders agree that, yeah, this is something we're going to do, then you start looking for other avenues to put your bill, as in an omnibus so that it can withstand an objection all right.

You've been very generous with your time. I just want to ask one final question which kind of surprised me and it's hopeful. Earlier in our conversation you said you expected that the Senate would move to a majority cloture rule because obviously nothing is getting done under a 60 vote majority cloture rule. Is that wishful thinking or is there some reason you kind of believe that this is where we're actually going to be moving anytime soon?

It's both. It is wishful thinking, but I think you've seen what's happened with cloture for nominations. When the Republicans were filibustering every non controversial nomination under Obama to keep the controversial ones from advancing. Then finally it became too much. You know, we would often, you know, boards and commissions like National Labor Relations Board, sec, Federal Communications Commission, these commissions are all bipartisan and the minority has certain slots to fill and majority has certain slots to fill. And we would often fill them in tandem. Like if we had a, if the Democrats had an opening, the White House would send up the nominee, but the Republicans would say, well yeah, but we have a nominee whose term is going to expire soon, we'll do them both, have to wait for the White House to send up our nominee and we'll do them in a pair. And you would do them in pairs. And they were non controversial usually. But then the Republicans under Obama took that a step further and started filibustering boards and commissions to get keep them from being effective, denying them a quorum. The nlrb, classic example, the Consumer Financial Protection Board, denying the ability to appoint the director, which stymied the entire board's existence. And so having taken it, and they were filibustering D.C. circuit Court nominees because even though there were vacancies, they had Republicans who had said the vacancies were a result of Republican judges retiring. But when a judge retires, they go into absentee status and they can still take cases during that status. And they were doing cases. And D.C. circuit is the most important circuit next to the Supreme Court because it often hears government lawsuits. And so they wanted to keep a Republican majority on the D.C. circuit claiming that these vacancies didn't need to be refilled. And so like I said, it was one thing after another after another. And finally Reid in I think it was November of 13, did a nuclear option. And what he did was he said he made a statement that he filed, he filed, failed to get cloture on a nomination. And then in that situation, having motioned to reconsider that vote since the two days had already happened. And under cloture, the rule, the vote had already occurred. Appeal of the ruling of the chair is non debatable. And so a point of order, Reid made the point of order that for all nominations except for Supreme Court, the cloture should be a majority vote. And the chair ruled against him because that's not what the rule was at the time.

Right.

And so he appealed the ruling of the chair. And because you were in a non debatable situation, you immediately had a majority vote. It only takes a majority to overturn the chair. And once you overturn the chair on a ruling, you've set a precedent. And that precedent is how the Senate acts going forward until a new president supplants it or until a precedent votes or the Senate decides to go back to the way it was before. And that has happened in the past. But that set up majority votes for nominations. And then he was able to do just DC circuits, NLRB, Consumer Protection Board, et cetera. Senator McConnell was out there crying crocodile tears, saying, oh, what horribleness you've done to the body. This is outrageous, horrible. But Fast forward to 2017, Trump's in the White House, and recall there was an exception for Supreme Court nominees. McConnell didn't waste any time in using the same tool and having it apply to Trump's Supreme Court nomination, Gorsuch. So thereafter it only took a majority vote for Supreme Court nominees also. And they used that to end up packing the court. And you've seen the result. And so he changed that. Fast forward two years later. I think it was April of 19. He liked it so much that he didn't want to spend 30 hours on each nomination, even though it took a majority vote only to get them done, particularly D.C. circuit district circuit judges. McConnell used the exact same method, overturning the chair to state that from now on, for all nominations except for Supreme Court and Circuit Court nominees, the time post cloture should only be two hours of debate. And so that way they were able to process under Trump multiple District Court nominations in one day, rather than taking the 30 hours on each. And so that evolved. And I have, I'm just confident that eventually the breakdown, you're going to see people more friendly to this than cinema and Manchin and a majority, and it might even be a Republican majority who don't want to have to use. Although, like I said, the Republicans being hamstrung with cloture actually benefits the Republicans because all they want to do is nominations, judges and tax cuts, and they can use reconciliation for tax cuts. And now the nominations are cleared with having done that. But at some point, I believe a majority will. Voting rights wasn't right, but I believe a majority will put cloture for legislation on an equal footing with nominations. It's just a matter of time.

Senator Sinema was pretty convinced that would be the end of the Senate.

No, see, that's just it. That's a mistaken view of what the Senate was. See, that view was fostered on the Senate by members by Southern Democrats who wanted to filibuster civil rights legislation. That this unlimited debate is our right. And that's how the place was formed. And as I said earlier, it wasn't formed like that. It was formed as a majority rule body. The founding fathers put in the Constitution that the vice president gets to vote on a tie vote. Well, they were envisioning tie votes. They weren't envisioning supermajority votes. They also specified where supermajority votes should be, like 2/3 for a treaty, 2/3 for impeachment and things like that. So when they wanted to specify that it wasn't a majority vote, they put them in the Constitution. This place was not established. The idea that doing this would do away with it. Byrd used to be one of the ones too. And Byrd in his early days did filibuster civil rights legislation. And he apologized for that later and thought that was bad. But he also propounded this myth of it should be cloture is part of the fabric of the body. Well, and yet it was Senator Byrd who changed the way nominations are considered. When Byrd was majority leader, I think it was 1980, he wanted 81. He wanted to call up a nomination that was on the calendar. No, it was probably 80 because we lost the place. Anyway, he wanted to call up a nomination and in those days a motion to proceed to executive session, which is where nominations are considered, it was always non debatable. But that just put you into executive session. While in executive session, a motion to proceed to a nomination was fully debatable. You had a motion to proceed vote. I mean, that's how that Supreme Court justice under LBJ who didn't get his job, he lost his vote. They got him a cloture vote. But that cloture vote was on a motion to proceed to his nomination. And so Byrd went to a nomination a couple of days in a row. That was the first nomination on the calendar. Nobody objected. And then having set up that precedent, he then one day went to a nomination that was not number one. On the calendar. And Republicans pointed out that hey, that's not according to the rules. And they made a point of order against it. And the chair ruled in favor of the Republicans saying, you're right, there should be a debatable motion to proceed. And Byrd said, well, that doesn't make sense. I've just done it a couple of times. And nobody objected. And they pointed out, yeah, but that was the first person on the calendar, this one isn't. And Byrd said, well, it shouldn't matter whether the person's first or what, you should be able to do this. And I appealed the ruling of the chair and he overturned the chair. And that point on majority leaders could, or anybody, if they had the majority vote, could, could go to executive session to pick whatever nomination on their calendar, wherever they are. And so even though Byrd was a strong supporter of cloture, he was willing to use the nuclear option when it benefited him. And that to me shows that his situational ethics, you know the place, even he knew the place wasn't set up as a super majority rule body. They put the other methods in place, the founding fathers, by making it six year terms and staggered elections so that you could have the cooling saucer, but they never envisioned that you had to have super majority votes on everything in order to get things done. That was only because thanks to our good vice president Aaron Burr, after he had killed Hamilton, then he did this much damage, which to me is even worse to the country by convincing them to get rid of the emotion. The previous question motion.

Yeah, as a constitutional law professor, this argument always drives me crazy because of course the Articles of Confederation were a super majority constitution and we saw how

effective did they require.

Supermajorities. Yeah, that's right. We got rid of them because we couldn't be a super majority.

Exactly.

So then we adopted a majoritarian constitution and with a couple exceptions, as you can.

And they pointed out the exceptions.

Yeah. Extremely grateful for your time and your experience and your service and thank you so much for explaining these not so easy concepts to art.

Sure. As my wife would tell me, I've cleared out many a party, many a kitchen, and many a party talking about amendment trees. But if you ever have a question question, feel free to reach out.

This has been the eighth episode of season five of the podcast Another Way. These podcasts produced by Equal Citizens are literally made by hand by Josh Elstrow of Elstro Productions. You can find more about Equal citizens@equalcitizens.us. you can give us your feedback and your thoughts. Hate will also flow through, but feedback and thoughts are really encouraged. And of course you can also help support equal citizens on that site by clicking the red donate button and signing up, even for a small amount every month that keeps these conversations going. Thanks for listening to this episode. Stay tuned for the next as we

shift away from overturned tables into a

more fundamental problem, which I call the Gash. Tall.

Sam.