Friday, June 22, 2007

June 22-26 Interlude: Motions to Proceed

Contrary to Senator Reid's bluster about "working through the weekend in order to get energy and immigration done," the Senate is running on a fairly ordinary work schedule. There won't be any roll call votes today or Monday, the two pending cloture motions (to limit debate on motions to take up H.R.800 and S.1639) will be conducted on Tuesday.

If the timing of taking cloture votes was taken according to Senate Rule XXII, the vote to limit debate on the motion to proceed to H.R.800 would have been conducted yesterday (June 21) and the vote to limit debate on the motion to proceed to S.1639 would be conducted today. Lesson: They don't follow the rules.

Regardless of the outcome of the motion to proceed to H.R.800, the Senate action will move to the subject of comprehensive immigration reform.

H.R. 800 (ORDER NO. 66)

    1.--Ordered, That at 11:30 a.m., on Tuesday, June 26, 2007, the Senate proceed to a vote on the motion to invoke cloture on the motion to proceed to H.R. 800, an act to amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes; further, that if cloture is invoked on the motion to proceed, the motion be agreed to and the Senate vote immediately on cloture on the motion to proceed to S. 1639.

S. 1639 (ORDER NO. 208)

    2.--Ordered, That on Tuesday, June 26, 2007, following the adoption of the motion to proceed to H.R. 800, the Senate proceed immediately to a vote on the motion to invoke cloture on the motion to proceed to S. 1639, a bill to provide for comprehensive immigration reform and for other purposes and that if cloture is invoked, the motion to proceed be agreed to.
    Ordered further, That if cloture is invoked on the bill, it be in order upon the disposition of all post cloture debate time for 20 minutes of time, for debate only, on a motion to waive the Congressional Budget Act in response to a Budget Act point of order against the bill made by the Senator from Alabama (Mr. Sessions), or his designee.
    Ordered further, That on Wednesday, June 27, 2007, if the Senate is considering S. 1639, the Senator from Alabama (Mr. Sessions) be recognized for up to 2 hours.

There is some interesting phrasing in those agreements, and I'm not sure they represent what the Senate really plans to do.

By a literal read, taking the cloture vote on the motion to proceed to S.1639 is conditional, and depends on first passing the cloture motion on the motion to proceed to H.R.800. Looking at order No.2, ask what happens if the Senate does NOT adopt the motion to proceed to H.R.800? Answer, the same thing, the Senate will take the cloture vote on the motion to proceed to S.1639.

Notice the timing of the debate on the Budget Act point of order noted in the second paragraph of Order No. 2. That point of order debate will occur ONLY if the immigration bill is taken up, and then only if the Senate votes to invoke cloture on the bill, and then after all the other debate has been conducted. That budget point of order will be one last opportunity to keep the bill from moving out of the Senate.

The cloture vote on Tuesday is NOT a cloture vote on the bill, it is a cloture vote as to whether or not to take the bill up at all, or in the phrasing used in the Record, "cloture vote on the motion to proceed to the consideration of."

Finally, I make a picayune observation that opposition to the comprehensive immigration bill is not using all of the delaying tactics available to it. For example, under the unanimous agreement, if cloture is invoked on the motion to proceed, then the motion to proceed is automatically and immediately passed. But there is a 30 hour period of debate, under the rules, between passing the cloture motion to limit debate and voting on the issue - in this case the issue being the motion to proceed to S.1639. The reasons this observation is picayune are that the Senate usually (but not always!) merges cloture and motion to proceed, and as a practical matter on the immigration bill, the procedurally-permitted delay could be short-circuited by taking the cloture vote today.


I expect light debate today on the two subjects represented by the orders above, and an early adjournment of the Senate. Same on Monday, except Senator Sessions will most likely be speaking against the proposed immigration bill.

UPDATE @ 10:20

Senator Brown drew Friday duty for the chair.

Maybe a hint of where Senator Reid intends to take the Senate in the future:

  • he continues his lament relating to the Iraq war
  • he notes the continuing legislative-executive battle over AG Gonzalez (some pertinent legislation was added to the calendar yesterday)
Visiting the energy bill (as it will be back after House/Senate conference), Senator Reid chooses to emphasize the importance of the CAFE provision (automobile fuel-efficiency/mileage requirements), and singles out Senator Cantwell as effective in obtaining Senate passage of that aspect of the bill.

My comments on the energy bill debate of yesterday are at the end of H.R.6 - CLEAN Energy Act (Week 2).

UPDATE @ 10:45

Senator Durbin railed against the Office of Vice President for exempting himself from some aspect of security procedure, i.e., protection of classified information. Not subject to Executive Order. Senator Durbin invokes the Libby case as an example of the OVP being irresponsible with classified information. It's a bad example, because Libby got burned for lying, and while he told reporters that Wilson's wife works at the CIA (but told investigators his only awareness of that was from reporter-generated rumors), there is no question that the CIA itself also told reporters that Wilson's wife works at the CIA, and none of the "Wilson's wife works at the CIA" gossip and publicity amounted to disclosing classified information.

In the vein of Congress/Executive battles, JURIST has a summary of recent action in Bush administration was divided on legality of warrantless wiretaps.

UPDATE @ 11:15

Heheheh. The White House said it would veto H.R.2206 - the Iraq Emergency Supplemental if it contained this measure. Probably somebody going off half-cocked, just funny to see the loop closed.

On Thursday, June 21, 2007, the President signed into law:

S. 1537, which authorizes the Secretary of the Senate to transfer proceeds from the sale of holiday ornaments from the Senate Gift Shop Revolving Fund to the Senate Employee Child Care Center.


Senator Sessions starts talking about immigration, notes that having a greater pool of labor has a tendency to reduce the average wage, and ties his objection to a large flow of immigration to his objection to strengthening the power of unions in the legal/judicial system.

LOL - he calls out Senator Lott (not by name) for blaming radio talk shows for opposition to the White House/Senate/Grand Bargainers comprehensive immigration proposal.

Just thinking out loud, Senator Reid made a monumental tactical error by pulling the immigration bill in order to take up the "more expensive energy and enhance the energy bureaucracy" bill, and compounded that error by deciding to move to a new immigration bill, instead of picking up the one that he had "pending." Seeing as how he can take "pending" status off at will, I wonder if he can restore that status to S.1348, if he wants.

UPDATE @ 11:47

Senator Enzi invokes a powerful argument against H.R.800, by noting that it strips individual workers of their privacy when they participate in voting on the adoption of a labor union as their exclusive representative with their employer.

UPDATE @ 12:12

Senator Cornyn knows how to tie a tie with proper pucker, plus it's a handsome tie.

He speaks against the just-passed energy bill and the proposed-to-be-pending union bill.

He is also condemning the Democrat's proposed budget - and much as it pains me to say it, the GOP has been liberal with entitlements and government encroachment too. Action, gentlemen, action. Talk is cheap.

UPDATE @ 13:55

A welcome to Dr. (now Senator too) John Barrasso from Senator Enzi. An unknown quantity to me, and I am optimistic that he has his head screwed on straight.

UPDATE @ 14:18

Have a nice weekend! Bier time (continues =:-O)

UPDATE @ June 23

Clay Pigeon in the Amendment Tree

The procedure wonks have been chatting a bit about "clay pigeon" and other supposedly esoteric parliamentary procedures that immigration proponents are considering in order to get comprehensive immigration reform passed. The process isn't really all that complicated. The fundamental principle in play is availability of amendment and debate, and the real complaint will boil down to freezing out amendments by the premature filing of a cloture motion and the other techniques used to regulate amendment, not to the use of a "clay pigeon" amendment.

The underlying objectionable conduct is 60 or more Senators (plus active White House participation), the "grand bargainers," working outside of public debate and freezing out the other senators, crafting language that they will agree to pass into law. The collusion is undertaken before the bill is brought to the floor for debate. In order to take the taint off the collusion, the "grand bargainers" want to create the illusion of engaging in reasonable and transparent give and take with their opponents (the impression created by public debate and risk of amendment), and they want to give the frozen out senators a venue to vent their frustration. While they need the appearance of possibility of amendment, or deviation from the grand bargain, they don't want to risk voting "on the record" against certain opposition amendments, nor do they want to use too much time, both being parts of an open-ended amendment process.

One way to carry the collusion into law is to craft a bill in such a way that 60 senators would pass it unamended. This is the simplest scenario. Let me describe how this hypothetical, no-amendments-needed bill could be "rammed through" over some amount of objection from opponents.

The Senate Majority leader makes a motion that the bill be brought up for consideration, and is met with objection. He files a cloture motion to limit debate on bringing the bill up. This point is where S.1639 presently stands - a cloture motion has been filed to limit debate on a motion to take the bill up. In a scenario where 60 Senators have already agreed that the bill is good (and need not be amended), they will vote in favor of bringing the bill up for consideration, and the bill will become the pending business of the Senate.

Filling the Amendment Tree

In the ordinary scheme of things, once a bill is brought to the floor for action, all senators have the right to debate and suggest amendments. But the process of making an amendment pending is tightly controlled -- and it should be, otherwise a typical bill would become a cacophony of hundreds of competing amendments. The majority leader can completely short circuit the usual process of permitting substantive amendments from becoming pending by "filling the amendment tree" immediately upon the bill being brought up for consideration. This tactic doesn't cut off debate on the bill, it just sets up a "take it or leave it" situation.

What is "filling the amendment tree?" It is a practice whereby an amendment is offered to the bill (first degree amendment), then an amendment is offered to the amendment (a second degree amendment). That's it, it takes two amendments to fill the amendment tree. Senate rules are that a third degree amendment is never in order, and that unanimous consent is required to set aside an amendment in order to offer a different one. If one senator objects to setting aside the pending (second degree) amendment, there is no way for any other senator to cause an amendment to be pending.

If you're curious, you can see a "fill the tree" maneuver in S.2271 - The USA Patriot Act Reauthorization. The amendments used to "fill the tree" are "do nothing" amendments. The first amendment, S.Amdt.2895, provided "This Act shall become effective 1 day after enactment." The second degree amendment, S.Amdt.2896, provided "This Act shall become effective immediately upon enactment." Similar "fill the amendment tree" action occurred on H.R.6061 - Secure Fence Act of 2006. Again, the point of having the amendment tree full is to prevent additional amendments from being made pending.

As another aside, Senators Specter and Byrd had a brief discussion on Feb 15, 2007 as to whether or not the majority leader in fact has the parliamentary power to "fill the tree," but at this point it's a very safe assumption that the majority leader has the practical power to do so.

Once their bill is pending, the same 60 or more senators who crafted it are sufficient power to invoke a limit on debate both to take the bill up, and to vote on the bill "unamended." The bill is guaranteed to pass, and the timeframe for getting it though is predictable.

The Clay Pigeon

A "clay pigeon" amendment is an amendment that is divisible - and for what it's worth, a great number of amendments are divisible. "Divisible" simply means that a given amendment contains provisions that can logically be debated independently from one another. A clear example that comes to mind is the typical "manager's amendment" that is voted on near the conclusion of action on a bill. A "manager's amendment" is a collection of several amendments, sometimes 40 or 50 or more, that were offered while the bill was pending, but the amendments themselves weren't individually pending. The Senators work in the back rooms and negotiate which amendments they would accept, they do their horse trading while the bill is pending. The only public manifestation is the voice vote or unanimous consent to pass the manager's amendment. A manager's amendment is sort of a "reverse clay pigeon," the parts are put together before the vote is taken.

Now, once you grasp the principles of "fill the amendment tree" and "divisible amendment," you are equipped to ponder the combination of the two. The "need" for the combination arises when the grand bargainers don't have all the language in the bill, unamended. They have already agreed on a package of amendments that they are willing to debate - the only remaining issue is how to get these amendments (and only these amendments) to become pending.

The usual method of getting a package of amendments pending is to negotiate in the back rooms while the bill is pending, and involving any senator who is interested. This one-by-one, or horse trading of amendments method could work for a package of amendments that was crafted in collusion, but it's time consuming, it's messy, it runs the risk of introducing amendments from somebody outside of the clique of grand bargainers, and it runs the risk of some of the grand bargainer amendments being dropped instead of being voted. Hence the temptation to "fill the amendment tree" with a divisible amendment that represents the set of amendments the grand bargainers have decided, in advance, can and must come up for debate and voting.

Skeet Shoot

The "fill-the-tree with a clay pigeon" tactic would begin with agreement to proceed to the bill, the majority leader would introduce the clay pigeon amendment, followed by introducing a second degree amendment. No further amendments would be in order, and the do-nothing second degree amendment is pending. At this point, the process can go in one of three directions. It's a given that when the clay pigeon amendment is made pending, some senator, probably one of the grand bargainers, would move to divide the clay pigeon so the 20 or 30 issues it contains would have to be debated and voted separately.

  1. dispose of the second degree amendment and divide the clay pigeon, long before filing a cloture motion on the underlying bill,
  2. file a cloture motion on the underlying bill and divide the clay pigeon at about the same time, and vote on some or all of the amendments before taking the cloture vote on the underlying bill
  3. the grand bargainers agree in advance to belay division of the clay pigeon until after cloture has been obtained on the underlying bill
In the first scenario, division occurs days before a cloture motion is filed on the underlying bill, and the process is the same as normal, everyday Senate work. Additional amendments can be made pending upon unanimous consent. The usual back room horse trading as to vote on additional amendments is not prevented by the fact that one divisible amendment is being debated and voted on. And of course, the usual calculus of timing of filing a cloture motion would be in play, where filing one "too soon" is objectionable to the senators who want more debate.

The third scenario -- the 60 colluding senators agreeing to obtain cloture on the bill as a whole before making the amendment pending and dividing it -- would limit the time for voting on the amendments to 30 hours, followed by conducting a vote on the bill, regardless of how the individual amendment were decided.

The second scenario, like the third, limits the time for debate, but also delays and (maybe) puts at risk the decision to vote on the underlying bill. This scenario is fundamentally little different from filling the tree or a premature cloture motion - what is being controlled is the subject matter permitted to be voted on. By asserting a time-certain limit to debate (the one day layover provided between filing a cloture motion and voting on that cloture motion) the grand bargainers prevent additional amendments from coming pending before the cloture vote on the underlying bill. There is only so much that can be introduced in such a time-limited window - and the grand bargainers' package of amendments will easily take the entire layover between filing the cloture motion on the underlying bill and taking the cloture vote.

If cloture on the underlying bill is NOT invoked, this scenario becomes like the first scenario. But if the grand bargainers have agreed in advance to pass the cloture motion on the underlying bill regardless of the votes on the divided amendment, then this scenario becomes more like the third one, except it has more than 30 hours of debate before voting on the underlying bill. Even with the additional time for debate, the time isn't enough to admit amendments from outsiders.

In principle, this process is no more objectionable than Bill Frist filling the amendment tree on the USA Patriot act and on the Secure Fence Act. Here's the bill, 60 of us agree with it, we'll debate for awhile and take the political fallout, but at the end of the day, "take it or leave it."

The procedural issue is the timing of filing the cloture motion on the bill, not the use of a "clay pigeon." With S.1348, the most recent redux of the comprehensive immigration reform package, the cloture motion was probably one to three days premature. Senator Reid could have permitted debate to continue, and filed a second cloture motion once it was clear that enough senators were agreeable to vote on the bill.

He can do the same thing on the new bill, that is, wait until an appropriate time before filing a cloture motion. If he does use the "clay pigeon," I'm confident that most people will be so awed by the event that they'll assign stigma to the use of divisible amendment, and will completely miss the fact that a cloture motion was filed before debate even started. Keep your eye on the cloture motion.

UPDATE @ June 25

The day will occupied with speeches on H.R.800 and S.1639, with Senator Sessions having up to one hour to speak starting at 7:00 - no doubt to speak on the motion to take up the comprehensive immigration subject.

Dr. Barrasso will be sworn in around 3:30 p.m..

UPDATE @ 14:15

Add another name to the list of withdrawn nominations.

William W. Mercer, of Montana, to be Associate Attorney General, vice Robert D. McCallum, Jr, which was sent to the Senate on January 9, 2007.

Over at, The Fourth, Minus One-Third, on the subject of vacancies in the 4th Circuit Court of Appeals. And the nomination of Southwick (not in the 4th Circuit) is probably lost, but the responsible and affected parties (the Senate and the White House) aren't talking about it.


Jack Balkin has composed a good read in Bomb Throwers and Dismantlers: Some Notes on Today's Supreme Court Cases. A couple of quotes, and I recommend reading the whole thing.

Roberts' opinion creates a new rule allowing schools to ban student advocacy of illegal drug use-- but this rule would apparently not extend to student advocacy of changing the drug laws. (Which raises the obvious question: How can we tell whether "Bong Hits 4 Jesus" is advocacy of illegality, political advocacy of drug liberalization, or just a joke?)


There are two ironies worth noting. The first is that George W. Bush promised to appoint Justices in the mold of Thomas and Scalia. But Roberts and Alito have not been willing to go as far as Thomas and Scalia in these cases.

A few other good articles at, one on the "power relationship" involving VP Cheney and the rest of President Bush's advisors.


A technical review of detention law by Steve Vladeck, Making Sense out of the Iraqi Detention Cases.


In general, it seems the subject of executive secrecy is heating up again, with news stories on VP Cheney's refusal to submit to oversight for handling of classified information, as well as on various "informed" opinions relating to the NSA wiretapping program.


Here's one on the subject of immigration, ImmigrationProf Blog, with some very timely and pertinent articles.

State Immigration Bills Submitted at Record Pace

In "Illegal Immigrants Targeted By States Impasse on Hill Spurs New Laws" by Darryl Fears for the Washington Post (here) reports that, by the time most legislatures adjourned in May, at least 1,100 immigration bills had been submitted by lawmakers, more than double last year's record total, according to the National Conference of State Legislatures. This year's total is expected to grow as the issue continues to dominate debate in statehouses still in session.

See also The Senate Debate Continues, Immigrants Running the California GOP? (the same story is covered here by NRO), and The Comprehensive Immigration Reform Bill as a sampling of articles from ImmigrationProf Blog. That last link has a GREAT summary of the bill, including a comparison between it and last year's Senate immigration fiasco, S.2611.


Heheheh, back in the Senate, Senator Enzi notes that the unanimous consent agreement provides for moving to immigration, no matter what the result of the cloture vote on H.R.800. Where have I heard that before?

UPDATE @ 15:17

VP Cheney has sworn in Senator Barrasso. Congratulations, and welcoming speeches from some Senators. Whatever time is used for this purpose is supposed to push Senator Sessions's start time out from 7:00 p.m.


Somebody got to Senator Cornyn, he isn't keen on the proposed immigration bill, and he says the proponents aren't fooling the public with false choices and over-promises. Stern talk from the Senator from Texas, about the ramifications of insulting the public with disingenuous arguments.

Senator Cornyn objects to the substance of the bill, and to the process whereby it is purported to be "debated" by the Senate. After describing several amendments that he wishes he could propose, he says he will oppose taking the bill up. That's a bit disingenuous on his part, because he can agree to take it up, give Senate leadership a chance to make his amendments pending, and then refuse to agree to cloture on the underlying bill on the grounds that it has not been properly debated.

In a sense, he just gave away that the Senate leadership, the "grand bargainers," in fact start the debate process with a definite time and subject limit in mind. "Take it or leave it?" Senator Cornyn says his choice is to "leave it."

UPDATE @ 17:30

Senator Sessions spoke earlier than the 7:00 p.m. scheduled time slot. Link to file download (3.8 Mb mp3 file)

His nose count of proponents of the proposed bill is about 50 or 51 (it would pass, if the Senate invoked cloture on the bill itself - but the cloture vote tomorrow is not on the bill itself), and he described the "clay pigeon in the amendment tree" process that is described above.

UPDATE @ 19:01

Senator DeMint is firmly against invoking cloture on the motion to proceed to the immigration bill. Senator Sessions is back, as of about 6:50 p.m., and notes that the Congressional Budget Office analysis indicates that this bill does not do what it's proponents claim. It reduces the amount of illegal immigration by a paltry 13%. He also points to Canada as a model of an immigration system that works, and that the bill proponents are pulling bait and switch with their promises such as a merit-based immigration system.

Senator Sessions knows how to knot a tie - great style there, Senator!

The Head of the Border Patrol Association says, "Congress is lying about it." (referring to the immigration bill). Senator Sessions is quoting others (past Chiefs of Border Control Union), "I call it the al Qaeda Dream Bill," "the compromise is a raw deal for America," "[Congress is] waving the white flag on immigration." His (Senator Sessions's) main point is the necessity of enforcing the law.

UPDATE @ 19:59

The voting schedule for Tuesday has the cloture vote on the motion to proceed to the consideration of H.R.800 occurring at 11:50 (this is moved out from the previous unanimous consent agreement), with the cloture vote on the motion to proceed to the immigration bill, S.1639, occurring immediately after, followed by a recess until 2:15 p.m.

UPDATE @ June 26

After continued thought about the clay pigeon in the amendment tree, and still of the mind that it's substantively little different from a plain old "fill the tree" or hard-nosed amendment trading, I've come to the opinion that the clay pigeon process is slightly more obnoxious than a pure "take it or leave it" bill because one of the functions of the clay pigeon is to create the illusion that a substantive amendment process is being undertaken.

And I've also come to realize that the divisible amendment could be the second-degree amendment, and that the amendment could be divided the very next moment after being made pending, by the same senator who introduces is -- almost certainly to be Senator Reid. The amendment tree would be just as full, but there would be an illusion that the bill was subject to the possibility of extensive revision, by 24 amendments (just picking that number as a likely guess).

Not noted above, but there is always a possibility that amendments outside of the clay pigeon would be admitted too. The way the Senate operates, the number of amendments offered is always negotiable, and "clay pigeon" doesn't permanently foreclose taking up of outside amendments. If outside amendments are "approved by the grand bargainers," the number is apt to be few, and the admitted substance of outside amendments will be a political calculation designed to air issues not well-aired by any of the topics in the suite of topics addressed in the clay pigeon. Permitting outside amendments may be necessary in order to mollify some senators, and would be useful to take some of the sting and stigma out of having used the clay pigeon procedure.

If the Senate votes to take up the immigration bill, keep your eye out for the filing of the cloture motion to limit debate on the bill itself. I'd be shocked if that came within an hour of taking up the bill (that degree of ram-rodding is too obvious), but expect it to be filed by Wednesday evening, putting the cloture vote to limit debate on the underlying bill (which is almost sure to fail) on Friday.


I'll be AFC&K (away from C-SPAN2 and the keyboard) for all of today and tomorrow.


  • Cloture motion to proceed to the consideration of H.R.800 will fail (party-line vote)
  • Cloture motion to proceed to the consideration of S.1639 will pass, Senator Reid will fill the tree using a clay pigeon
  • A cloture motion to limit debate on S.1639 will be filed late Wednesday (after 8 p.m.)
  • Cloture motion to limit debate on S.1639 will fail in a vote taken on Friday


According to Senator Reid, Senators McConnell, Kyl and Specter requested and agree with use of the "clay pigeon" procedure. The NRO statement, "It's either vote no, and never know whether your amendment to fix the bill would have made it through, or vote yes, and hope that yours is one of the dozen or so," is probably false. The package is known and agreed in advance of taking the cloture vote on the motion to proceed. Plus, it'd be suicide for Reid to NOT include the amendment, as surely each senator in the clique will see the clay pigeon before the cloture vote to limit debate on the bill.


According to the Washington Times, in Rough road ahead for immigration bill, the cloture motion on limiting debate on the underlying bill will probably be filed today.

To pass the Senate, the bill must earn 60 votes today, survive a series of amendments, earn 60 votes in a follow-up vote likely to come Thursday, and then pass with majority support ...

They left out the 60 vote super majority that will be required to waive the budget point of order that will be raised by Senator Sessions. There are THREE separate 60 vote hurdles, before getting to the majority vote passage. At any rate, if the budget point of order and cloture vote on the underlying bill are to occur on Thursday, then a cloture motion to limit debate on the bill will be filed today. I may be "colored shocked" by the obviousness of the ram-rodding.

UPDATE @ June 27

Color me shocked. The cloture motion to limit debate on some substantive part of the immigration bill (probably to limit debate on the amendment, leaving open the issue of time for debate on the underlying bill) was filed at about the same time the divisible amendment was made pending.

Yesterday I said there were THREE 60 vote hurdles (cloture motion on motion to proceed, cloture motion on the bill, budget point of order) before getting to the up-or-down vote on the bill. I'd like to revise and extend my remarks, there are at least three 60 vote hurdles, there could be additional cloture motions on various component parts of the bill.

Filing a cloture motion does NOT start a 30 hour clock. See Rule XXII. The vote on a cloture motion is, under the rule, held not the day after the motion is filed, but the day after that. The cloture motion to limit debate on the amendment was filed on Tuesday, and under the rules would be voted on Thursday morning. But the Senate has no obligation to follow its own rules, see the cloture vote taken yesterday, and my comments above, where the vote taken yesterday had been pushed out two full days. The cloture motion on the motion to proceed to the immigration bill was filed last week Wednesday (June 20), and if the Senate followed its rules, would have been voted on Friday morning.

The 30 hour time period is the delay between passing a cloture motion, and voting on it's underlying issue. The Senate voted yesterday on a cloture motion on a motion to proceed to take up immigration, and by unanimous consent, agreed that if the cloture vote on the motion to proceed passed (it did, that was yesterday's vote), that there would be no 30 hour wait, and the Senate would proceed directly to the bill. And that is exactly what it did.

As of now the new immigration bill is the pending business, and voting on one big amendment (the clay pigeon) and one other amendment (whatever filled the tree) comes before voting on the amended immigration bill. Under routine practice, the one big amendment would get one up or down vote, but the amendment is divisible and either has been or will be divided so there can be multiple votes.

Come the time to take the cloture vote to limit debate on the substantive matter, the Senate can either agree to do so, or, by refusing to invoke cloture, can keep the bill alive for more debate. Saying NO to cloture keeps the bill alive in the normal world. Saying YES to cloture also keeps the bill alive, but also serves to limit the time for debate to 30 hours.

Which reminds me that I don't know for certain the target of the cloture motion filed yesterday. It is most likely to limit debate on the amendment, but Senator Reid has filed some weird cloture motions (see the pair of cloture motions last week where some Senators could use the completely bogus cloture vote on the energy bill tax package amendment - that failed cloture vote was rendered moot when the senate agreed to limit debate on the bill - as evidence to support saying "I blocked higher taxes on the energy bill.")

The quickest way to discern the procedural posture is to read the June 26 Daily Digest. This will recite what is pending, by amendment number, and will recite the exact nature of the cloture motion filed yesterday (whether it is on the bill, or on the amendment - and I am pretty sure it is on the long amendment).

As for the substance of the offered amendments the grand bargainers have prepared for this charade of open legislative process, I doubt the text of the clay pigeon amendment even appears in the June 26 Record - or even the Record for June 27, for that matter. Last time around, the text of S.Amdt.1150 (the first try at an immigration bill) wasn't in the Record until May 24, after being noted as filed on on May 21.


Steyn at NRO ...

I agree with Stanley. There's something creepy about a political class so determined to impose a vast transformative bill cooked up backstage in metaphorically smoke-filled rooms on a nation that doesn't want it. It's an affront to republican government and quasi-European in its disdain for the citizenry. ...

They'll teach this one as a textbook definition of "bipartisanship": both parties gang up on the electorate.

As far as I'm concerned, President Bush is a leader (if not THE leader) of the political class that is running an affront to republican government. He did it before with Harriet Miers, he's doing it now with immigration, and you can bet your bottom dollar that he's done it with many other fundamentally important things. Just because he gets Congress to go along with him, doesn't mean the language that defines torture, for example, is a creation of Congress.

The White House was an active participant in drafting the clay pigeon amendment - Harry Reid and Mitch McConnell are just the front men for the 60+ colluding senators, doing the will of themselves with the bully pulpit of the White House being strongly in their camp (read the WH press stuff) and being used for the purpose of passing the immigration abomination that they helped compose.

As for the substance of the clay pigeon points, I remind you to read the details and see whether the amendments have any "teeth" whatsoever. See Dorgan's "one day sunset" joke, for example.

Anybody who accepts what is being done is open and transparent "working the will of the people" is a fool - and by my accounting, about 90% of the public is too busy with bread and circuses to even merit the label of "been fooled." Among those who watch seriously, my guess is less than a quarter see the charades. The pundits so often get the facts wrong (maybe they misrepresent the facts on purpose), and readers, too lazy to check facts for themselves, form their opinions based on wrong information and on the urge to promote the horse (either the person or the party) that they picked as "theirs.

Ta-ta to personal independence and critical thought.

Mark Kirkorian has more, this on spinning coming from the White House.

And I'm off, again away from the news and Senate play-action - and being away is probably for the better, certainly not for the worse, since my humble opinion has zero impact on the future.


Ahh, the Daily Digest is up before I head into the factory. Time for me to eat some more crow ...

The cloture motion filed yesterday is to limit debate on the bill, not on the amendment. Limits to debate on amendments are meaningless, when (if) the time for debate on the entire bill has been agreed to be limited.

Senator Sessions has been granted 2 hours of debate time today, by unanimous consent.

The clay pigeon amendment (by Kennedy and Specter) is in the Record! What a wonder! Senator Reid has asked the amendment be divided, but the Record does not yet indicate that the formality of division has in fact been performed. There are 26 divisions, 13 GOP, 13 Democratic.

Individual grand bargainers have a safety valve in the form of the agreement to have a vote to waive the budget point of order before voting on the bill. They can agree to limit debate on the bill (they can vote yes to cloture tomorrow) before they have votes on their amendments, secure in the knowledge that there is one last 60 vote hurdle to cross after the 30 hours of post-cloture debate (if cloture is passed) and just before getting to the vote on the bill as amended.

The Senate ought to be ashamed of how it is conducting this debate. It's an embarrassment, an affront, and an insult. And for the White House to applaud this action as "progress" tells me what the White House accepts as "positive progress." This is not positive progress for a republican form of government. This is a charade of participative government - and a piss poor charade at that.

I see Senator Cornyn has also called the White House out for misleading the public about 24 hour background check, where the White House issued a press release labeling criticism of that provision as being based on a myth.

UPDATE @ 22:10

The supposed "procedural nightmare" that developed today runs on a few simple rules. Not that I can explain them, even though I think I pretty well understand them and how to manipulate them. Here is the latest from NRO ...

No More Amendments [Jim Boulet Jr.]

My "Senate rules source" tells me that the Senate cannot consider any more of the "clay pigeon" amendments until cloture is invoked on the immigration bill (S.1639). This is the result of the Senate failing to table an amendment by a vote of 45 to 52


Not Looking Good for Team Amnesty? [Kathryn Jean Lopez]

From Bloomberg:

The supporters' strategy of disposing of amendments that threatened the legislation's bipartisan support hit a procedural snag late in the day, adding to the uncertainty. The Senate refused to set aside an amendment by Montana Democrats Max Baucus and Jon Tester that would dilute requirements employers verify the identity of new workers.

Under Senate rules, Majority Leader Harry Reid, a Nevada Democrat, now can't move to consider other provisions without getting the consent of all 100 senators.

Here's my slightly simplified explanation. Read it slowly - read it over and over if you need to, in order to understand it. THINK about how the rules play, because that is the only way you will understand the process. I can't utter some prose that will cause you to understand how these rules work - understanding the application is a personal chore. Listen to what the Senators say. Read the record.

  • Rule 1 - it takes unanimous consent, or cloture in the alternative, to make a bill pending
  • Rule 2 - any senator who has the floor may offer an amendment, unless the amendment tree is full
  • Rule 2a - the amendment tree is always full
  • Rule 3 - pending matters are set aside by unanimous consent or disposed of by a vote
  • Rule 3a - there is no such thing as a "motion to set aside"
  • Rule 4 - it takes unanimous consent, or cloture in the alternative, to dispose of a pending bill or amendment by up-or-down vote
  • Rule 5 - any senator may make a motion to table the pending matter. Motion to table is a nuke - it is a complete alternative from the path of getting to an up-or-down vote. A motion to table is not debatable, and therefore there is no need to "force" a motion to table by using cloture. In other words, "motion to table" is inevitably (and without debate!) followed by a vote on the motion to table, and there is no delay (except by unanimous consent, and the senator moving to table won't consent) on taking the vote on the motion to table
  • Rule 6 - disposing of a matter by tabling or by point of order is final and dispositive. To not table, just like to not invoke cloture, keeps the matter pending - but tabling kills the matter

Senator Reid's jam is that he was trying to dispose of the divisions of the divisible amendment (see above, "division" discussed) by tabling, and he ran into one division (Baucus amendment) that instead of being disposed of, is still pending (not tabled = still pending). There is no way set the amendment aside over the objection of a single senator. Absent unanimous consent to set it aside, the only way to get rid of an amendment that survived a motion to table (in this case, the Baucus division/amendment) is to vote it up or down, but the only way to force taking an up or down vote on an amendment (amendments obviously being debatable) is via cloture.

Senator Reid can keep things going, the bill isn't dead, and he's not "stuck" with only the clay pigeon amendment. Or, he's not "stuck" because Senate rules dictate the outcome.

"Failed cloture motion" means the bill is still alive! Rejecting cloture is a vote to continue debate. But the public has been conditioned to think "If it can't get 60 votes today, the bill is dead." But that impression is 180 degrees wrong ... see examples of multiple cloture votes on the same issue, judicial nominations being a good example, and funding the Whitewater investigation being another.

UPDATE @ June 28

The substantive debate on this bill has been a joke, which is why I haven't bothered to review the debates on the divisions(amendments) on the merits. The action boils down to how far the Senate is willing to go with a 90% take-it-or-leave-it bill, and which senators are are in the "take it" camp.

The clay pigeon maneuver was short - ensuing debate occupies very little of the Record.

Remember that I said to "watch for the cloture motion - man, it was the very first thing to come out of the block. Here is the action immediately following the 64-39 vote to proceed to S.1639 ...

The PRESIDING OFFICER. Under the previous order, the motion to proceed to S. 1639 is agreed to.

Under the previous order, the Senate will proceed to the consideration of S. 1639, which the clerk will report.

The assistant legislative clerk read as follows:

A bill (S. 1639) to provide for comprehensive immigration reform and for other purposes.

The PRESIDING OFFICER. The majority leader is recognized.


Mr. REID. Mr. President, I send a cloture motion to the desk.

The PRESIDING OFFICER. The clerk will report the motion.

The assistant legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, do hereby move to bring to a close debate on Calendar No. 208, S. 1639, Immigration.

There's the threat of limiting debate. It isn't the clay pigeon amendment that limits debate, it's the cloture motion. The above is the totality of the Record on the detail of calling for cloture, there was no intervening action between proceeding to the bill and filing a cloture motion to limit debate on the bill.

THAT move, calling for cloture IMMEDIATELY upon proceeding to the bill, before any debate whatsoever, that is obnoxious. And to do so knowing there is a further 400 page amendment waiting in the wings just compounds this farce of legislative process.

Next up is a bit of parliamentary "negotiation" designed to make the clay pigeon amendment look like the only possible way to proceed with debate, faced with "unreasonable objection."

Mr. REID. Mr. President, I now ask unanimous consent that there be a limitation of 26 first-degree amendments to S. 1639, the immigration bill. This is the list of the 13 Democratic amendments, the 12 Republican amendments, and 1 managers' amendment, which each are at the desk; that there be a time limitation of 1 hour equally divided for each amendment; that they be subject to relevant second-degree amendments under the same time limitation; and that upon the disposition of the amendments, the bill be read the third time and the Senate vote on passage of the bill, with no intervening action or debate.
This is urgently objectionable because it would eliminate the cloture motion just filed. It says "Unanimous consent to read the bill the third time and vote on passage" - there is no "if the Senate agrees to limit debate by the cloture motion" language in there. There is no need for a cloture motion or a cloture vote or any part of the cloture process when the senate has entered a unanimous consent agreement. Of course, there was objection to Reid's unanimous consent proposal. The stated reason was that the proposal didn't allow enough debate - but the elimination of the second cloture vote would have followed just as night follows day, if the proposal had been accepted.

There was zero substantive debate on the immigration bill on June 26th. The clay pigeon was made pending, and the Senators went off to beat each other up in private. What follows is the entire Record of debate on the clay pigeon, from Tuesday, June 26th.

Mr. REID. Mr. President, I say to my distinguished friend, the junior Senator from Oklahoma, he always comes directly to the point. I appreciate him and his objection.


Mr. REID. Mr. President, I tried to line up these 26 amendments for debate and vote. We have been told that no matter what the time per amendment is that would be allocated, that is not good enough. I also included second-degree amendments. That was objected to. I have no choice but to offer, after consultation with the Republican leadership, an amendment that contains these Democratic and Republican amendments and ask that it be divided so that these 26 Senators may get votes in relation to their amendments.

I now call up that amendment, which is at the desk, on behalf of Senators Kennedy and Specter.

The PRESIDING OFFICER. The clerk will report the amendment.

The assistant legislative clerk read as follows: The Senator from Nevada (Mr. Reid), for Mr. Kennedy and Mr. Specter, proposes an amendment numbered 1934.

Mr. REID. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. DeMINT. I object.

The PRESIDING OFFICER. Objection is heard. The clerk will continue to read.

The assistant legislative clerk continued with the reading of the amendment.

[Hours of reading do not appear at this point in the record]

The PRESIDING OFFICER (Mr. Menendez). The Senator from Louisiana.

Mr. VITTER. Mr. President, in light of our discussion with the distinguished majority leader under which we won't take further action until tomorrow, so we can begin to digest this mammoth amendment, I move to waive reading of the amendment.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senate debated and tabled a handful of amendments on June 27th, and set the stage to make an excuse for not debating. "We couldn't agree to limit debate, so we'll stop debating."


A minor procedural point - but it proves the senators know how to (ab)use parliamentary procedure. When the Senate did not table Division VII, the so-called Baucus amendment, it remained pending as a first degree amendment. In that condition, any senator who had the floor could offer a second degree amendment. Senator Kennedy protected that position by filing a second degree amendment to Division VII. Here is the relevant section from the Record ...

Mr. KENNEDY. Madam President, I send an amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from Massachusetts [Mr. Kennedy] proposes an amendment numbered 1978 to division VII of amendment No. 1934, as modified.

The amendment is as follows:

At the end of the amendment add the following:

This section shall take effect one day after the date of enactment.

And that is procedural posture of the bill at this moment. Kennedy's second degree "do nothing" amendment is pending. The next vote will be the cloture vote to limit debate on the immigration bill. It won't pass.

UPDATE @ June 29

In a short rant above, I said,

Anybody who accepts what is being done is open and transparent "working the will of the people" is a fool - and by my accounting, about 90% of the public is too busy with bread and circuses to even merit the label of "been fooled."

A news report (HT to NRO) by Rasmussen Reports, No One Notices As Senate Passes Energy Legislation, puts a test to my comment.

A Rasmussen Reports national telephone survey found that just 11% of Americans were following news coverage of the [energy] legislation Very Closely. Another 26% say they followed the stories Somewhat Closely. By way of comparison, nearly 8-out-of-ten voters followed news stories about immigration reform legislation over the past month. ...

However, just 13% knew that the Senate had passed a bill last week. Another 6% of adults mistakenly thought the legislation was defeated while 31% thought no action was taken. Half (51%) admitted they were not sure.

And mind you, this poll relates to people who obtain their awareness from news coverage, which isn't exactly known for accurately presenting reality. Anyway, the Rasmussen Report is interesting on the subject of energy, and the public's perception of the role of government in energy.

I agree the extent of public interest runs from close to zero for some subjects (the price of tea in China) to moderate (energy issues) to fairly elevated (as it is for immigration reform); but I'm going to stick to my guns that even for subjects that have an elevated public interest, the public as a whole is far from properly informed. Whose fault is that? My firm belief is that becoming properly informed is a personal responsibility, so I don't blame the media, their pundits, or the politicians. I blame the listener for thinking the passive process of listening and reading will result in being informed.


Anonymous Anonymous said...

Thanks, cboldt!

Once again, your notes are a big help!


6/22/2007 2:14 PM  
Anonymous Anonymous said...

Watching the goings on during the Immigration and the Energy bill debates, it seems that there is lots of armtwisting going on off-stage.

Would the odd wording of the orders go along with that, or are they all unique oddities, in your opinion?


6/22/2007 2:35 PM  
Blogger cboldt said...

The wording in the orders isn't odd in the "nefarious" sense. The wording is pretty common. My hidden objective is to encourage readers to read the record carefully.

6/22/2007 5:40 PM  

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