What exactly happened? In brief (well, Senate-style brief), Senate rules prohibit non-germane (unrelated) amendments on the Senate floor after cloture has been invoked on a bill. In other words, unless all senators consent, senators can only offer germane amendments once debate has been limited on a bill. McConnell and Reid appear to have been negotiating an agreement that would have allowed Republicans to offer seven non-germane amendments post-cloture. But then a GOP senator moved to suspend the rules (which requires a two-thirds vote) so that he could offer non-germane amendments, including at least one related to the president’s jobs bill. Frustrated with the Republicans’ tactics, Reid raised a point of order that the Republican motion was dilatory. Under Senate rules, dilatory motions are not in order once cloture has been invoked. The parliamentarian advised the presiding officer to rule that the motion was in order, the presiding officer did just that, and a vote ensued on whether or not to sustain or overrule the chair’s ruling. Appeals of the chair require only a majority vote to pass, and Reid mustered all the Democrats save Ben Nelson to vote to overturn the chair. In practice, this means that the Senate tonight set a new precedent, by which I mean a new interpretation of the Senate cloture rule: Under cloture, a motion to suspend the rules to offer a non-germane amendment may now be declared dilatory. (If I’ve not quite nailed this down precisely, it’s because no one should try to disentangle Senate floor procedure after midnight. Please do correct my errors!)
In the comments, Steve Smith adds:
Here’s what happened in the Senate last night: The Democrats established a new precedent about the dilatory status of motion to suspend the cloture rule to allow amendments to be considered. The media is reporting that Majority Leader Harry Reid “changed the rules.” The precedent serves as limitation on the use of the motion to suspend for gaining Senate action on amendments considered in the post-cloture debate.
Background: In 1976 and 1977, the Senate’s majority faced “post-cloture filibusters” in the form of multiple quorum calls and recorded votes, time on which did not count against the 100-hour (since changed) limit on post-cloture debate. Then, as now, Rule 22 provides that “no dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.” In 1977, Robert Byrd gained rulings from Vice President Walter Mondale that the amendments and votes demanded by Senators Metzenbaum and Abourezk were dilatory under the rule. A handful of senators did not like the ruling, noting that the rule is ambiguous and had not been enforced in that way before, but Abourezk’s appeal was tabled by an overwhelming majority, 79-14.
A 1979 revision of Rule 22 fixed the post-cloture filibuster problem. Or so senators thought. The 1979 rule made the post-cloture debate limit all-inclusive of the time devoted to procedural motions. The revision was adopted on a 78-16 vote.
Thursday: The use of the motion to suspend the cloture rule threatened to break open post-cloture debate again. Senators sought approval of motions to suspend the cloture rule to take up amendments that were not submitted in advance, as required by Rule 22. The presiding officer ruled that the Senate is required to vote on such motions to suspend, even in the post-cloture period. Because such votes had occurred in the past (see July 21, 2010), it appeared to be a ruling that was technically correct.
Reid, however, made the argument that the motion to suspend was dilatory. As in the past, what is dilatory and what is not is a matter of intentions and difficult to judge. Reid argued that a series of motions to suspend could delay post-cloture debate indefinitely, which would be dilatory under the meaning of Rule 22. Plainly, Reid’s argument has some foundation even if it required a new precedent to implement. Mondale’s rulings serve as precedent for a broad interpretation of what constitutes a dilatory motion or amendment.
