Senators Can Use Made-up Motions to Force Votes

During a rare Sunday session, John Kennedy, R-La., asked unanimous consent to pass a proposal (S. Res. 526) to change the Senate rules. S. Res. 526 would require senators to wait until a government shutdown ended before receiving their pay. Brian Schatz, D-Hawaii, objected to Kennedy’s request and then left the floor.

Kennedy’s subsequent effort to offer a motion he “made up” and his exchange with the presiding officer show how the Senate’s rules give individual senators the power to force a vote on any question.

Kennedy could have advanced S. Res. 526 - and his made-up motion - using those rules rather than requesting unanimous consent.

The Senate’s Presiding Officer

Unlike in the House, where the majority has delegated significant power to the Speaker to manage floor debate, the Senate has not done so. This is because the majority cannot guarantee that its chosen presiding officer will preside. The Constitution designates the vice president as president of the Senate (Article I, Section 3, Clause 4) and permits the Senate to elect a president pro tempore (Article I, Section 3, Clause 5) — but the president pro tempore may only preside in the vice president's absence. Any power senators delegate to the president pro tempore would therefore also vest in the vice president whenever he presides, giving the majority little control over how that power is exercised because the vice president is not accountable to the Senate majority.

Forcing Floor Action 

Without a Speaker-like presiding officer, any senator can initiate action on a question by first seeking recognition from the presiding officer. After being recognized, a senator may make a motion. If the presiding officer rules that the motion is out of order, the senator can appeal the ruling to the entire Senate and request a vote. 

Rule XIX requires the presiding officer to “recognize the senator who shall first address him.” While presiding officers have granted priority recognition to the majority leader, minority leader, majority bill manager, and minority bill manager (in that order), their power of recognition isn’t discretionary. Senators have rebuked the presiding officer in the past when they believe he was abusing his recognition power. In 1975, Russell Long, D-La., criticized the vice president for refusing to recognize another senator while presiding over the Senate. “The Presiding Officer presides over the Senate…He does not own this body.” 

Once recognized, a senator may make a motion – even a made-up one –by appealing the presiding officer’s ruling that it isn’t in order. Rule XX states, “a question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the presiding officer without debate, subject to an appeal to the Senate.” Senate precedent states, “Any senator may take an appeal from the ruling of the chair.”

A senator may then force action on the appeal by requesting the “Yeas and Nays” (i.e., asking for a roll-call vote), provided they have sufficient support. The Constitution guarantees the ability of one-fifth of senators to request the Yeas and Nays (Article I, section 5, clause 3). And Senate Rule XII states, “when the yeas and nays are ordered, the names of senators shall be called alphabetically; and each senator shall, without debate, declare his assent or dissent to the question.” The rule also stipulates, “no motion to suspend this rule shall be in order, nor shall the presiding officer entertain any request to suspend it by unanimous consent. Consequently, any senator can force action on a question with the support of a sufficient second, which is defined as one-fifth of the members present. (Depending on the size of the Senate’s quorum, the number required to force a vote is between eleven and twenty.)

If a majority of senators vote to overturn the presiding officer’s ruling, the underlying motion is considered made. And Senate precedents state, “this decision of the Senate becomes a precedent for the Senate to follow in its future procedure until altered or reversed by a subsequent decision of the chair or by a vote of the Senate.” 

The Takeaway

The vice president presides over the Senate. The Constitution lets any senator call for a recorded vote if enough members agree. These factors stop the Senate from becoming a majoritarian body like the House. Kennedy could have moved forward with his rules change by making a motion, appealing the presiding officer’s ruling, and requesting a recorded vote, rather than seeking unanimous consent.