Most of us of a “certain age” remember Arte Johnson’s Laugh In character who would emerge from undergrowth at points in the show and declaim “Veery interesting!”
A reader sent me a column that elicited a similar sentiment from me as it had from him. He wanted to know whether the legal points being raised were accurate. As I indicated, it’s an area far beyond what expertise I still–or ever–had, but I promised to do a bit of research.
The article itself, titled “Who’s Afraid of Mitch McConnell,” asserted that even in the absence of wins in Georgia, Kamala Harris has authority under the Constitution to call on any senator who will call up one of the numerous bills on which McConnell has refused to allow a vote. Lawyers who read this blog can click on the link and draw their own conclusions.
I did some limited research, but Dr. Google let me down, so I turned to a couple of lawyers I know, who met my very stringent criteria: they had to be good lawyers, they had to be politically savvy, and they had to be nice people who were likely to humor me. (So–one of my sons and a friend who is really, really smart. Both named David.)
That friend summed up the problem with the article’s thesis thusly:
Certainly not my area of expertise, but I see three problems with the analysis.
First, custom becomes rule. The idea that a VP could come in and do this without a massive response is pie-in-the-sky. The pushback would come from Democrats as well as Republicans, protecting Senate privilege and custom from interference from the Executive.
Second, it ignores the elephant in the room, cloture. Even if Harris could do this, it still takes 60 votes to stop debate, and Republicans not only have them, but such a strong-armed move would guarantee a complete shut down of the Senate, with no negotiation or compromise.
And third, it assumes today’s Republicans are capable of shame. The idea that bringing a vote to the floor would change their behavior is akin to assuming that putting a bow on a rabid pit bull will make it a poodle.
My son was–if possible–even more negative. His comment (edited slightly for profanities–he takes after his mother):
I agree with David. I would add (as I mentioned on the FB page of the guy who circulated this point a few weeks ago) that the ONLY thing the applicable clause of the Constitution says about VP and Senate is that the VP is the President of the Senate and gets NO vote unless the body is evenly divided…. hardly a textual position of strength to argue that the VP can come in and dictate who gets to preside and run the show.
Also, the argument is somewhat internally contradictory — on the one hand, the Constitution grants her sweeping powers to override longstanding, informal rules, on the other hand, the VP’s “priority recognition”-power IS one of those informal rules.
Of course, all the other practical/political/prudential reasons David noted are also at work.
I think it’s a fantasy, particularly in a world where EVEN IF Dems retake the Senate by winning both Dem seats in Georgia, f***ers like Manchin and Feinstein stand ready to kill any attempt to even soften the Filibuster that would defang McConnell.
Actually, his last sentence suggests his current mood, and may indicate a need for intervention–or at least, strong drink:
The country is doomed. The sooner we all move away, the more peace of mind we’ll have.
It would be lovely if the Constitution or some other part of the legal system had a shortcut we could use to repair what is broken. It doesn’t. We have a lot of work ahead of us–and failure to do that work would doom the American experiment.
“The pushback would come from Democrats as well as Republicans, protecting Senate privilege and custom from interference from the Executive.”
The above statement should be the stopping point for even consideration of Vice Presidential interference into past, present or future Congressional actions. The Legislature was set up by founding fathers to PROTECT this nation from Executive branch massive abuse of power as we continue being subjected to by Trump & Co. Never, never, never have I seen our former governor Mike Pence give such a crowd-pleasing, inspiring speech as he gave to young Republicans to continue fighting for “four more years” because the election is not over. Overt actions of sedition and treason from our current Executive branch being upheld by McConnell and his private Senate body. Our current Vice President is doing exactly what was erroneously suggested Vice President Elect Harris could and should do when in office.
Even this old high school dropout with a GED understands the reason for that power being given to the Legislative branch of our government. It was a sorry day when Republicans, using the 20% of the RNC vote, ignoring the 80% against Trump, nominated him for the presidency. Could it be possible they believed they could control him once in the White House? Those who remember Arte Johnson on “Laugh In” will also remember Sammy Davis, Jr., bounding across the stage in judicial robes spouting “Here comes de judge, here comes de judge!” Trump’s judgement day has come and gone; “Veery interesting!” he is being allowed by our Legislative branch to continue to run for reelection.
As Sheila said, sometimes Dr. Google is very difficult!
I was never sure how long a bill could set in waiting if it was passed by the house and never brought the vote by the Senate. And it seems to me, there is no time limit to call up those bills for a vote if they’ve never had any action taken by the Senate. That means that Mitch McConnell never calling them up for a vote has allowed those to lined up in que waiting for action. And if that’s the case, if the Democrats gained control of the Senate by Kamala Harris being the tiebreaker, they could really make some hay voting on a lot of these bills that have languished under McConnell.
I know about what they call past practice, that because something has been done a specific way, just assume that’s the way it must always be done. And, it really becomes part of the law. In the union, even if something was done opposite of bylaws, the past practice would usurp the bylaws! I really don’t know the legality of past practice being rolled back to follow original intent, that’s interesting! Because the original intent would have been put into the bylaws for a reason. Maybe to prevent what’s happening with McConnell, him barricading the door so to speak. Maybe getting rid of past practice would be a good thing and it would force more debate and cooperation instead of stonewalling.
How the Vice President Limits the Power of Senate Majorities
James Wallner
August 10, 2018
https://www.legislativeprocedure.com/blog/2018/8/10/how-the-vice-president-limits-the-power-of-senate-majorities
”’On September 7, 1787, delegates to the Federal Convention meeting in Philadelphia voted to make the Vice President the Senate’s Presiding Officer.
Regardless of the delegates’ reasons, their decision to designate the Vice President as the Senate’s Presiding Officer has had a major impact on the institution’s development. It limits majority power, protects minority rights, and thus continues to shape the Senate and the way that its members make decisions today. In short, the Vice President’s role effectively precludes the Senate from turning into a majoritarian legislative body like the House of Representatives.
Theoretically, the majority could ask the Presiding Officer to refuse recognition to a senator for such purposes. But doing so on a repeated basis would require delegating to whomever was presiding over the Senate the discretionary power to recognize members and to determine if a sufficient second is present. And since senators cannot guarantee how the Vice President would use such power in the future, such a delegation of authority is unlikely.
The Vice President’s role also highlights the relative weakness of the Senate leadership compared to its counterpart in the House. In contrast to the Speaker, who is chosen by the entire House membership, the majority leader is not selected via a vote of the full Senate. Rather, the floor leader of the party that controls most of the Senate’s seats becomes the majority leader by default.
The majority leader’s power is derived from the fact that his colleagues defer to him to order the chamber’s deliberations. But the leader’s ability to do that job depends on his being recognized first by the President pro tempore (or the Vice President depending on who is presiding).
Yet the majority leader’s priority of recognition ultimately depends on the Vice President.
The leader was first granted priority of recognition in 1937 pursuant to a ruling made by Vice President John (“Cactus Jack”) Nance Garner while presiding over the Senate. But the 1937 ruling is not irreversible. Any Vice President presiding over the Senate in the future could just as easily break with past practice and recognize another senator in lieu of the Majority Leader.
The result of the Vice President’s role in the Senate is that the institution is less efficient than it would otherwise be if it had a powerful Presiding Officer like the House. Yet senators have tolerated such inefficiency to the extent that it is the price of their retaining control over the legislative process………….”
A must read article!
“First, custom becomes rule.”
Well, if we’ve learned anything these past four years it is that the executive can do ANYTHING, custom be damned.
Haven’t we seen Mitch do away with the need for cloture whenever it was convenient for him to do so? That horse has already left the barn.
If the Senate were operating under “Roberts,” the proposal would be reasonable but they don’t. so just assume it’s not going to happen. If the shoe were on the other foot, the Republicans would definitely give it a try, but the Dems are way too timid to do so.
Lyndon Johnson attempted to assert himself as Vice President – after he had served in the Senate – and quickly learned he no longer was part of the “club.” He was told to mind his own business and that he had no substantive role in the Senate. Rulings from the presiding officer of a body on matters of parliamentary procedure can be very important, but they rarely are.
Just as with the Supreme Court, a lot in the Senate revolves around results. Biden/Harris have experience enough as politicians to weigh all of their options if either body becomes an obstacle to getting done what needs to be.
I can easily commiserate with your son’s last sentence, on an emotional level, but, obviously, that’s not a workable solution. And our moving away just gives more control to the f***ers, hurting everyone left behind.
We have to support the demise of Loeffler and Perdue, and, given that, raise Stacey Abrams to sainthood, hard for an atheist like me to write.
Shiela, I saw the facebook post and thought it was interesting, but discounted it because if there was anything to it, it would get some traction in the press. John, thanks for the link.
I am not holding my breath one way or another. Until grievance/obstruction politics goes away, the Senate seems doomed, but maybe more politically savvy people will find a way to tame the tyranny by the majority.
“Presiding” over a lawmaking body and invading such body’s bipartisan-approved and customary exercise of rulemaking via an ill-defined power grab is not going to work. I know, I know, we have a legislative dictator at the helm of the Senate these days, but vice presidents armed with such power can become dictators, too, and such “dictators” may not always be Democrats, and Mitch, the self-described “Grim Reaper,” will ultimately meet himself.
The answer to Herr McConnell’s authoritarian rule is to be found two weeks from yesterday in the State of Georgia, an answer that will obviate the immediate problem of who runs the Senate and will be key to Biden’s success in governing and an FDR-type recovery from four years of nothing done along with economic and pandemic crises, legacies left to us by a sick narcissist. Georgia, per the (I think) Ray Charles’ rendition, is on my mind. Big Time!
“The Standing Rules of the Senate give its presiding officer abundant power. But they do not require the Majority Leader to be that presiding officer. Delegation of priority recognition from the Vice President to the Majority Leader is not required by any written Rule of the Senate, or by any of its Standing Orders. ”
The article seems to assume that the Senate Majority Leader has the power he has because he has been deemed by practice as the “presiding officer” in the Senate. It is true that the most powerful person in the House, the Speaker (who is elected by the entire membership of the House), is the “presiding officer.” But it is not true that the most powerful person in the Senate, the Senate Majority Leader (who is elected by his caucus, not the entire membership), is the presiding officer in the Senate. If the VP is not present, the presiding officer in the Senate is actually President Pro Tempore, currently Iowa Senator Charles Grassley. That position is elected by the entire membership of the Senate, and usually goes to the person in the majority with the most seniority. If the VP and Senate President Pro Tempore are not presiding over the Senate, it’s a designee of the Senate President Pro Tem who presides.
The House has much more strict rules over debate and what bills can be brought to the floor than the Senate. Thus the presiding officer, the Speaker, in the House has a lot of authority. In the Senate, which has fewer restrictions on debate (in fact they have the tradition of unlimited debate) and what bills can be brought to the floor, the presiding officer in that body is more like a police officer directing traffic at an intersection. The Senate Majority Leader’s power depends on keeping his caucus together and being able to outvote the other side. The Senate’s practices regarding “priority recognition” of McConnell when he takes to the floor recognizes that fact.
While VP Harris could throw some wrenches into the Senate’s gears as presiding officer, I don’t think that would fundamentally change things much
this is a whole corprate senate now. the few progressives are far outnumbered. if the reading was right that the VP had authority to send a bill for vote,and so called custom trumps that, where in the reading did it allow for,custom? the fact is, if feinstien and manchin are the soap in the shower,even with two wins in Ga, the game still allows mcconnel to thwart any move he sees as his need. the only way out, vote the soap down the drain,all of them. of course we will never see this in our lifetimes. in my blue collar travels, i see a very hungry ignorance being bred to do as trump, at any costs. this breeding ground is America. we have now witnessed how easy it is to get a pardon on lives taken,money scammed,and corprate influence,lawyers who trivialize the system,against the U.S. trumps pardon game has made America reek of stench. his prsidency has given what we all have fought and many died for, a black eye. with his new spout about a bigger check? for,the working class,hes only sending flowers to his working class usefull idiots who will take the bait and vote for the same stench..
like anyone who has waited for relief,im not into slamming my own socio-economic group. we see how education and too many # have garnered the small % of whoevers,on whatevers,to sink,their own ship..fact is,if we had a living wage.this whole healthcare and living standard mess would have been alot easier to deal with.. im giving some of that unemployment extra to a new food bank,and a few single moms who have riden this storm long enough..
now wake me up, from this bad dream
Much of our focus in the next four years must be on vitiating the power of Donald Trump who looks like a good bet to hold on to 73 million rabid supporters. His crimes must be talked about and explained incessantly. More books on the kinds of damage he did and intended for the U.S should be written. His enablers must be educated to understand that he is using their money exclusively for his personal benefit. Anti-Trumpism should be made synonymous with patriotism. Helping people to evaluate their own self-interest is imperative. The danger of cozying up to authoritarian dictators needs more exposure. The role of Senators in abetting Trump’s treasonous tendencies must be exposed for all to see and in a way that all understand. Since its goal is the defeat of democracy, defeating Trumpism is job one.
As far as inducing the Senate to do its job, I always felt that Obama, a gifted speaker, failed us by not going on the stump to explain to the American people what McConnell was doing to them. Convinced by speeches from Biden and Kamala and Buttigieg, citizens can exert irresistible amounts of pressure which can force politicians into acting responsibly even if they care only about extending their sinecures.
Democrat-driven legislation is normally devised to help people and/or the nation. If we can’t explain that in ways that disarm the Republicans, what hope does democracy have? If we can’t sell that idea, why should the people trust us? FDR faced a similar challenge in the 1930s. He succeeded. We can too if we show a relentless determination to stop the Republicans who want to stop democracy in its tracks. We might start by promoting the thought that compromise is so essential to democracy that our form of government is not sustainable without it. An effective approach to teaching civic literacy to adults would be helpful.
All I’m hearing is that education is the key.
Apparently newspapers, books, radio, TV, Internet and news programs, documentaries ad infinitum don’t do it.
Maybe people, like bacteria, can develop resistance to inconvenient truths.
We can’t all move to New Zealand, can we.
Up your intellectual game, folks. Maybe the VP should do it. Custom is dead, and rules are needed.