Sanders Blames McConnell For His Own Timidity
In a recent interview, Bernie Sanders, I-Vt., blamed Mitch McConnell, R-Ky., for the Senate’s present dysfunction. Sanders, a Democratic presidential candidate, said that McConnell, the Senate’s majority leader, was preventing senators from debating and voting on important legislation. According to Sanders, “there’s very little that’s going in the Senate, it is a do nothing body and that is because of McConnell.”
But Sanders overstates McConnell's power to prevent senators from acting. In blaming the majority leader for the Senate’s dysfunction, Sanders omits the fact that he can act without McConnell's permission whenever he wants. Contrary to what Sanders alleges in his interview, McConnell does not have the power to prevent him, or any other senator, from acting on issues about which he cares. This is because all senators have the same powers to debate legislation and force votes.
How Sanders Can Force Action
Sanders has several tools to force action on the Senate floor without McConnell’s permission. Among them are making motions to proceed to legislation, offering so-called third-degree amendments and moving to postpone blocker amendments whenever McConnell fills the amendment tree to stop senators from offering their own proposals to legislation. In addition to forcing votes, threatening to use these tools gives Sanders leverage to extract concessions from McConnell in negotiations over when and how the Senate will act.
Motions to Proceed
It takes a simple majority of senators (usually 51) to vote to proceed to legislation before a formal debate on it can begin. Rule VIII of the Standing Rules of the Senate stipulates that motions to proceed to legislation are debatable (i.e., senators can filibuster them) in most circumstances. In those instances, a three-fifths majority of the Senate (usually 60) must vote to invoke cloture (i.e., end debate) on the motion over the objection of any senators who are able and willing to continue speaking.
The Senate's rules make no distinctions between senators when it comes to the motion to proceed to legislation or the ability to file cloture on it. Consequently, Sanders can offer motions to proceed to legislation whenever he wants. He does not do so and instead defers to McConnell to make such motions because it is more convenient for him. Sanders can chose not to defer to McConnell at any point if he is unsatisfied with how the majority leader is managing the Senate.
Of course, senators opposed to a vote on Sanders’ proposal may try to prevent one by filibustering it. Even so, once his motion to proceed is pending before the Senate, Sanders can force an eventual vote on it by filing cloture to end the filibuster. As with the motion to proceed, cloture motions can be filed by any senator. To set up a cloture vote, Sanders only needs 15 of his colleagues to co-sign the cloture petition to end debate.
If McConnell fills the amendment tree on a given piece of legislation, Sanders can also force action on his proposals by offering a third-degree amendment.
The Senate’s precedents stipulate: “Any senator recognized is entitled to offer an amendment when such amendment is otherwise in order, but he cannot offer an amendment unless he has been recognized or has the floor.”
If Sanders offers an amendment after the amendment tree has been filled, the presiding officer will rule that the amendment is not in order pursuant to the Senate’s past practice (though not its Standing Rules). When that happens, Sanders can appeal the ruling and request a vote. Doing so would force an eventual vote on a procedural question directly related to the amendment (whether or not the amendment should be made pending). The appeal represents an adjudication of the italicized portion of the precedent quoted above: namely, that an amendment is in order despite the fact that the amendment tree has been filled. It takes a simple-majority of senators present and voting (usually 51) to reverse the presiding officers ruling.
If the appeal is successful, offering a third-degree amendment creates another branch on the tree where the amendment is pending. By offering third-degree amendments, Sanders can ensure that the Senate will eventually vote on his proposal.
Motions to Postpone
Sanders may also move to postpone a McConnell blocker amendment and file cloture on the motion. Doing so forces a vote, albeit at a higher threshold (typically 60). Sanders can use the prospect of that vote as leverage to negotiate with McConnell over when he can offer another amendment. Under Rule XXII, a motion to postpone “to a day certain” is in order. Senate precedent’s state this unambiguously. “A motion to postpone an amendment to a day certain, or to postpone indefinitely, is in order under Rule XXII.” Postponing the blocker amendment has the effect of opening the branch on the amendment tree that it previously occupied. “One particular amendment to a bill having been postponed, other amendments to the same bill are in order for consideration.”
All Senators Are Equal
Contrary to Sanders’ claims, being the majority leader does not empower McConnell to prevent senators from forcing the Senate to act on their proposals. While past leaders have assumed a more significant role in managing the legislative process in recent decades, they have been empowered to do so every step of the way by the voluntary deference of rank-and-file senators like Sanders.
McConnell may decide what the Senate votes on in practice. But it is only because senators like Sanders let him. Consequently, Sanders is just as responsible for the Senate’s present dysfunction as McConnell. If the Senate is a do nothing body, it is because all senators, not just McConnell, refuse to act.