Senator Dan Coats of Indiana, speaking in the Senate Chamber on Wednesday, February 15, 2012, shortly after Majority-Party Leader Harry Reid once again “filled the tree” (to prevent the offering of – and votes on – floor amendments in the Senate Chamber) on an important, complex (multi-committee) piece of legislation just made pending before the Senate (the Surface Transportation Act reauthorization, or highway bill, S. 1813); so far Harry Reid has twice “filled the tree” on this bill, after the Senate agreed to the motion to proceed to the legislation on 2/9 in advance of another long Senate weekend – thus, on 2/15, the Senate was finally reconvened and ready to address the newly-pending legislation, when Reid first moved to block floor amendments, and Coats then made these remarks:
Mr. COATS. Madam President, I come to the floor today frustrated, as many of us are, that once again we are not able to address legislation in the way the Senate is designed to address it, which is to debate, to discuss, to offer amendments, and to vote. Once again the majority leader has decided he didn’t like some of the proposed amendments and, therefore, is trying to shut off all opportunity to provide amendments. We are allowed to come down and give our little speeches, but there is no debate, there is no back and forth, there is no record of where we stand on certain issues except for final passage. I think the American people want more than that. That is not why they sent us here.
This is my second time in the Senate, with a 12-year gap in between my terms, and a lot of people ask me what has changed since my first time here. I say one thing that has dramatically changed–and which didn’t happen my first time in the Senate–is that we used to be able to come to the floor and essentially offer any amendment at any time to any bill. That is the difference between Senate procedure and the rules in the House of Representatives. We don’t have a Rules Committee that dictates which amendments can be offered and which ones can’t. This is supposed to be a body where we have an open discussion, where any Member can offer any amendment to any bill at any time. So in my first 10 years, that is what we did. It made for long nights, it made for long days, but we were performing the function our Founding Fathers designed for this body to fulfill.
Somehow it worked out. We went on record. Our yea was yea, and our nay was nay, and it was all there for the public to see. The amendments that were offered, the debate that took place, and the vote that was conducted were all there. Then we went home and explained why we voted yes or why we voted no. But the public had full transparency.
Today, and in this period of time–and I have just been here a year and a month in my second stint in the Senate–it is very seldom we have that opportunity.
Once again, on the highway bill, which affects every American in every State, we have finally gotten to the real thing. Our side has put up some amendments, and the majority has looked at them and said: No, we don’t want our Members to have to vote on those, so we [that is, Majority Leader Reid, in collusion with his Caucus] will use a procedure called “filling the tree.”
Now, that doesn’t mean anything to Americans–filling the tree. What am I talking about? There is a [standard parliamentary] procedure in the Senate where we can only offer so many amendments to a particular bill before we are precluded from offering another [until the earlier amendments have received a vote]. The majority leader of the Senate–whether Republican or Democrat–has the opportunity, if he or she wants to take it, to gain the floor [through the courtesy of being the first to be recognized by the Presiding Officer] and procedurally put us in a position where no amendments can be offered and then move to talking about it and to immediate debate [at least so long as both Parties maintain their abuse of the Fake Quorum Call, as I’ve detailed – pow wow].That is not the way we should proceed. I was prepared to give this highway bill a real chance. I have some real problems with the bill that is before us. The House is passing legislation that has many things in it I like–some things I don’t like–and we were all looking for an opportunity to try to address those particular concerns.
I have a particular concern with the bill that is brought before the Senate because this bill, for starters, goes into the general fund and beyond the sales tax for gasoline purchases fund.
[…]
Secondly, there is an inequitable treatment to States. I bring this chart to show how this affects various States.
[…]
They are pretty big States and have a real stake in this and would have had a real stake in this amendment. These States would have had an opportunity to vote for or against this amendment had I been allowed to offer it. The States of Texas, Georgia $283 million, New Jersey, Florida, California, Ohio, Virginia, Michigan, Illinois, and on it goes. […]
[…]
I also had amendments I was going to add that would give States greater flexibility in terms of how they use the money they receive. We have all heard the stories about money being diverted to things that a State doesn’t want because there is a formula attached to the legislation that says you have to spend X percent of money on certain projects, such as bike paths and walking paths and other so-called enhancements. I am not against that. I use those. I jog on bike paths and appreciate some of those enhancements. But that ought to be a State decision in terms of how it allocates its money and not a Federal decision because a one-size-fits-all dictated by a particular piece of legislation simply does not take into account the individual needs of a particular State. […]
Finally, another amendment I would have liked to offer, if not for the majority leader’s refusal for an open-amendment process, is one that would have limited the scope of eligible transportation enhancement projects. We hear these reports every day about crumbling roads and unsafe bridges. Yet what we are doing in this bill is limiting how a State determines where it puts its funds. I think we ought to narrow that option, if not take it away.
To wrap up, let me just say I think it is very unfortunate that we have resorted to a system where if the other side–and I would say this to my leader if my party was in the majority. This is not how the Senate is supposed to operate. Someone from the other side who has an amendment we don’t like, they ought to have the opportunity to offer that amendment and they ought to have the opportunity to debate that amendment and to require [/receive] a vote on that amendment.
And, I interrupt Senator Coats to add, floor amendments deserve more than just a cowardly, power-abusing vote “to table” – that is, more than a vote to refuse to vote on the merits of a measure, up or down. As was just done, after weeks of Fake Quorum Call-assisted delay, on the Blunt amendment (S.A. 1520) addressing the new Executive Branch health care regulation imposed on religious institutions (quoting Blunt: such as “…the Catholic hospitals, the Baptist universities, the Catholic schools of all kinds, the Christian schools of all kinds, the Muslim daycare centers…” that will be required to offer health services coverage they now do not because of the tenets of their faith, or else pay the government a fine). The Democratic majority (specifically, Patty Murray) finally “move[d] to table” the Blunt amendment (which was filed on February 9) on Thursday, March 1 (the motion to table passed, 51-48), after highway bill floor manager Barbara Boxer, and others, seeking partisan advantage, had talked and lamented for days and weeks about the supposedly insupportable burden posed by a debate about that non-germane amendment to the highway bill legislation, without, in the end, ever actually debating/revising or voting on the merits of the Blunt amendment. Meanwhile, that one amendment was allowed (again, by the Party abuse of the Fake Quorum Call, and by Reid repeatedly “filling the tree”) to stop all other floor action on the highway bill, while members of both Parties shoveled more fuel on the Party-nursed rhetorical fires that are consuming the nation’s political discourse – generating, in the interim, more heated animosity (and campaign donations, and polling numbers), but precious little light. (And then the Party order-takers were rewarded for their Party-line voting obedience by being informed by Harry the Boss that they needn’t bother putting in an appearance in Washington, D.C., for the next 4 and a half days – after which they would only be needed, at noon this coming Tuesday, to cast their votes on the first of the latest pair of Democratic supermajority cloture motions that Reid, with the help of his Caucus, filed Friday to end “debate” on the unamendable-by-floor-vote highway bill.)
Senator Coats continued:
Then we can vote yes or we can vote no and the public can judge us accordingly. But to simply shut it all down and not give anybody that opportunity I think is not the kind of procedure we want.
Finally, let me simply say this bill brought before us is a flawed bill. Without the process of amending it or the opportunity to amend, to fix what we think is wrong with it, puts us in a position where it is impossible to say we can vote for something such as this.
For the reasons I have articulated and for other reasons that will come out as we make these speeches on the floor but don’t have a chance to offer amendments, I simply cannot support this bill as it is.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will [pretend to…] call the roll.
Of course, as a veteran of the Senate, Dan Coats cannot be unaware of his (and every other submissive, Party Caucus-collaborating incumbent’s) own agency in the decline of deliberative, public, democratic debate and amending in that legislative body, as I outlined in this comment in the thread of my last FDL reader-diary (in October, 2011):
Therefore, upon the return of a live Senate floor – meaning that when Senators are otherwise engaged in committee meetings or elsewhere, the Senate would be in temporary recess, rather than in (unchallenged) Fake Quorum Calls – that particular abuse of process by Reid (“filling the tree”) would be foiled, unless every time one of his meaningless amendments received its vote, he immediately called up another such amendment, and the process repeated itself. But somehow I don’t see Senators standing still for a series of such meaningless votes, while they (and onlookers) watch the Majority Leader repeatedly try to steal and suppress their right to act as public representatives of the people in the public legislative body to which they were elected.
The same unhealthy dynamic has contributed to the many abuses of the “secret hold,” that the Senate went to some lengths [in 2011] to try to reform, although, typically, without addressing the primary underlying cause. That cause is the fact that replacing a live Senate floor with a Fake Quorum Call means that unanimous consent must be obtained (or favors begged from Party leadership) – nowadays almost always off the public record – to arrange for a time to vote, in lieu of simply letting the Senate work its will live, in response to a motion, with the Presiding Officer putting the (simple-majority) question when debate ceases – no unanimous consent required.
I wrote that 10/2011 diary after watching the ugly scene in the Senate on the evening of October 6th, when the Democratic Caucus mutely fell into line behind Senator Reid – enforced by arm-twisting in the well of the Senate Chamber that was plainly visible – to establish a senseless new Senate precedent that reversed, without debate or just cause, an earlier, sensible and rarely-invoked Senate precedent. The new 10/6/2011 parliamentary precedent will block every Senator in future from being able to simply make a motion to suspend the post-cloture rules of the Senate, for the purpose of offering for a floor vote a germane amendment to a piece of legislation pending before the Senate. [An offering of amendments which, as Senator Coats indicates above, quite recently used to be, and still should be, the normal practice – by right – in the Senate, as its rules provide.] Such motions-to-suspend the rules (which, unlike unanimous consent requests to suspend the rules, may only be made with one day’s advance notice) were then, and are now, required to receive 67 affirmative votes for passage, before the merits of the attached amendment may even be considered. A few such notices of planned motions-to-suspend the rules had in fact been filed at that time by a few Republicans because, yet again, Majority Leader Reid had abused his power to “fill the tree” (that is, to block all floor amending) for the entire time (pre and post-cloture) that the currency-bill measure at issue had been pending before the Senate. In the face of that undemocratic (not to mention record-breaking) abuse of power by Reid (fully backed by his Party Caucus), the ability to make a motion to suspend the rules (again, requiring 67 votes to pass, as opposed to routine unanimous consent requests to do the same) was a sliver of power that the Senate minority still retained to force an actual (if supermajority) public floor vote related to an amendment – even though (like the 51-vote-threshold motion-to-table favored by the majority) still not a vote on the actual merits of a measure. But apparently even that rarely-used avenue to publicly-accountable floor votes, and its associated resistance to his clamp-down on Senate floor action, was too much for Boss Reid and his Party accomplices to bear, so the Senate itself was harmed – not either Party – in order that Harry Reid might vent his vindictiveness, and prevent public, democratic deliberations in the national legislative body he dishonorably oversees as Senate Majority Leader.
Thus – since we can’t do it for Coats and the others, and power concedes nothing without a demand – I’ll repeat the following two paragraphs from my closing comment in that October 7th diary, which focused on this serious, destructive, and unremedied, abuse-of-power pattern.
No Senator should make the mistake of assuming that their institution (in contrast to the House) has been, is now, or ever will be immune to the designs on power of unscrupulous, scheming men with hidden, or (like Harry Reid) open, hostility to the best traditions of full and fair democratic debate and governance, when the temptations of power are within their reach. Such men have tried before – as Henry Clay did, when he unsuccessfully tried to institute the debate-gagging “hour rule” in the Senate, as it was instituted in the House in 1841-1842 – and, as evidenced by the ugly Democratic Caucus schemes of 10/6/11, will try again in future, undoubtedly while professing nothing but the best of intentions, to limit the freedom of debate and the equal right of members to publicly act and be heard in the Senate. [To wit, Harry Reid on Friday, 3/2/12: “This legislation is critical. At the end of this month, the end of March, the highway bill is no more. […] The quickest way to get it done would be to invoke cloture.” …on his backroom-designed, floor-amending-blocked package…]
It is to the great credit and honor of the Senators who preceded today’s incumbents, that our Senate remains intact today – at least as to its formal rules and most of its precedents, in stark contrast to its deplorable current Party-promoted practices. [See the unusually frank, public (and very welcome) insider-descriptions of such practices in the recitation of Senator Coats above, or in the transcription at the beginning of this post of comments by Senator Paul in a 2011 national television interview, or in recent, heated floor comments on 10/6/11, excerpted here, by Senator Corker and Senator Wicker.] For the sake of good government, it is vital that today’s incumbents likewise safeguard their institution for themselves and for those who will follow, by preserving “profitable debate and floor rights that allow members to impart information valuable to the Senate and the country” and by preventing “the transaction of business in ignorance of what they are about by those who are doing it.”
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Update, Friday, 3/9/12:
- As I indicated in brief on Twitter as it was happening, resisting Senators like Dan Coats helped to force through a Party agreement late Wednesday, 3/7, that removed Majority Leader Reid’s blockage of the amendment tree, and allowed the Senate to finally begin to debate and vote on floor amendments to the highway bill/Surface Transportation Act reauthorization (S. 1813), on Thursday, March 8th.
Senator Coats – and any others who spoke out publicly – along with those who applied pressure out of public view, deserve great credit for stopping in its tracks the latest undemocratic power play by Harry Reid and his Party. As a result of their efforts – which necessarily included voting against the Democratic cloture motion at noon on Tuesday (it failed, 52-44) – Senator Coats is going to be able to offer an amendment on the floor, for a vote, next Tuesday, related to the second concern he mentions in his remarks above (to require that all states get back from the highway trust fund at least as much gas-tax revenue as they put into it). Coats spoke about that amendment again late Thursday, after the first round of amendment votes had finished for the day and week (which were non-germane amendments that, under the 3/7 unanimous consent agreement, needed 60 votes to pass). Also, as can be seen below, two major Democratic amendments – neither germane to the highway bill (so not in order post-cloture, if cloture had been invoked) – were also belatedly given a chance for a floor vote Thursday, and passed, after Tuesday’s Democratic cloture motion had been defeated – yet none of the Democratic Senators involved helped the Republicans to make that floor amendment opportunity happen by voting against their Party’s cloture motion.
Indications are (1st, 2nd, 3rd, & 4th source) that the day and a half of further floor inaction that transpired between the offering of a Unanimous Consent Request by Mitch McConnell at midday Tuesday (see below) – to allow the Senate to proceed to 30 floor amendment votes (a UCR to which Harry Reid objected, although Democratic amendments were included, and non-germane amendments were required to receive 60 votes) – and the acceptance of a similar Unanimous Consent Request offered by Harry Reid just after 10 p.m. Wednesday evening (see below) – also to allow the Senate to proceed to 30 floor amendment votes – turned primarily on whether, and if so when (after the President had personally lobbied some Democratic Senators, and predetermined the vote outcome on at least one amendment), President Obama’s re-election campaign secretly told the Democratic Senate leadership to proceed with/agree to a highway bill floor amendment Unanimous Consent Request.
If true, that is just the latest stark illustration of how dangerous today’s top-down, rigid Party control of the Senate (and House) is – with its backroom, inter-branch dealmaking, submissively enabled by Party members – to open government, and to the maintenance of the separation of powers, and all the checks and balances, and safeguards, those vital Constitutional divisions provide. [Not to mention how such presidential interference in Congressional affairs needlessly inflames the passions of authoritarian Party followers (of both sides) immersed in the presidency-obsessed national media culture.]
One factor that may have gone into the backroom Party/presidential-campaign calculations is the fact that letting the Senate actually do its job, with members publicly working their will on the floor on the highway bill, will allow the Democratic Senate Leadership, seeking partisan advantage, to point to the successful “bipartisan” end result (a “jobs” bill, as the Party has been framing it) as superior to any one-sided highway bill generated by the (Republican) House – as this performance of petty, scripted taunting of Speaker Boehner by the Democratic leadership on Thursday has already demonstrated.
For the sake of comparison, listed below are the two Unanimous Consent Requests offered this week (first by one Party, then by the other), for the consideration of floor amendments to S. 1813 (requests requiring unanimous consent because all members of the Senate – including those nominally not Party members – continue to willingly allow the Fake Quorum Call to supplant the live Senate floor).
Senator McConnell on Tuesday, March 6th, just before noon’s scheduled cloture vote:
I would ask unanimous consent that the pending Reid amendment be withdrawn, that it be in order to offer a new perfecting amendment cleared by both leaders which contains the three titles [from different committees]; further, that the following nonrelevant amendments be in order to S. 1813, and they be subject to the 60-vote affirmative threshold; Senator Collins No. 1660, Boiler MACT; Senator Vitter No. 1535, OCS; Wyden side-by-side relevant to Hoeven No. 1537; Hoeven No. 1537 related to the Keystone Pipeline; Levin amendment on offshore tax havens; McConnell or designee relevant to Levin amendment; a Cantwell amendment on energy tax extenders; a McConnell or designee amendment relevant to the Cantwell amendment; Menendez amendment on natural gas; and a Coburn amendment, No. 1738, on duplication.
I further ask unanimous consent that the following highway-related amendments also be in order: DeMint No. 1756; Coats No. 1517; Blunt No. 1540; Paul No. 1556; Portman No. 1736; Portman No. 1742; Corker No. 1785; Corker, on highway trust fund, No. 1786; Hutchison No. 1568; McCain No. 1669; and 10 highway-related amendments to be offered by the majority leader or his designee. I further ask unanimous consent that following the disposition of the above-listed amendments and the managers’ package of amendments to be cleared by both managers of the bill, the bill be read a third time and the Senate proceed to vote on passage of the bill, as amended. Finally, I ask unanimous consent that following passage of S. 1813, the bill be held at the desk and that when the Senate receives the companion measure from the House, the Senate proceed to its immediate consideration, all after the enacting clause be stricken, the text of S. 1813 as passed be inserted in lieu thereof; that the bill then be read three times and passed, the Senate insist on its amendment, request a conference with the House, and the Chair be authorized to appoint conferees on the part of the Senate with a ratio agreed to with the concurrence of both leaders.The PRESIDING OFFICER. Is there objection?
Mr. REID. Reserving the right to object.
The PRESIDING OFFICER. The majority leader.
Mr. REID. […] I will take a look at it, but I object.
The PRESIDING OFFICER. Objection is heard.
Senator Reid on Wednesday evening, March 7th, shortly after 10 p.m.:
Mr. President, I ask unanimous consent that the motion to recommit be withdrawn; that the pending second-degree amendment be withdrawn [these two steps begin to “unfill” the amendment tree, to allow for the offering/adoption of real amendments]; that the Reid of Nevada amendment No. 1761 be agreed to; that the bill, as amended, be considered original text for the purposes of further amendment; that the following amendments be the only first-degree amendments remaining in order to S. 1813: Vitter No. 1535 [failed to pass 3/8]; Baucus or designee relative to rural schools [that is, federal lands Payment In Lieu Of Tax funding, which passed 3/8]; Collins No. 1660 [failed to pass 3/8]; Coburn No. 1738 [failed to pass 3/8]; Nelson of Florida, Shelby, Landrieu No. 1822 [this is a major piece of legislation called the RESTORE Act, concerning the Gulf oil spill, and passed 3/8], with a modification in order if agreed to by Senators Nelson of Florida, Shelby, Landrieu, and Baucus; Wyden No. 1817 [re Keystone XL pipeline; failed to pass 3/8]; Hoeven No. 1537 [re Keystone XL pipeline; failed to pass 3/8]; Levin No. 1818 [re offshore tax havens; passed by voice vote 3/8]; McConnell or designee with a side-by-side to Stabenow No. 1812; Stabenow No. 1812; Demint No. 1589; Menendez-Burr No. 1782; DeMint No. 1756; Coats No. 1517; Brown of Ohio No. 1819; Blunt No. 1540; Merkley No. 1653; Portman No. 1736; Klobuchar No. 1617; Corker No. 1785, with a modification; Shaheen No. 1678; Portman No. 1742; Corker No. 1810; Carper No. 1670; Hutchison No. 1568; McCain No. 1669, modified with changes at the desk; Alexander No. 1779; Boxer No. 1816; and Paul No. 1556;
that on Thursday, March 8, at a time to be determined by the majority leader, after consultation with the Republican leader, the Senate proceed to votes in relation to the amendments in the order listed; that the following amendments be subject to a 60-vote affirmative threshold: Vitter No. 1535; Baucus or designee relative to rural schools; Collins No. 1660; Coburn No. 1738; Nelson of Florida-Shelby-Landrieu No. 1822; Wyden No. 1817; Hoeven No. 1537; McConnell or designee side-by-side to Stabenow No. 1812; Stabenow No. 1812; DeMint No. 1589; Menendez-Burr No. 1782; that there be no other amendments in order to the bill or the amendments listed other than the managers’ package and there be no points of order or motions in order to any of these amendments other than budget points of order and the applicable motions to waive; that it be in order for a managers’ package to be considered and, if approved by the managers and the two leaders, the managers’ package be agreed to; further, the bill, as amended, then be read the third time and the Senate proceed to a vote on passage of the bill, as amended, and if the bill is passed, it be held at the desk; finally, that when the Senate receives the House companion to S. 1813, as determined by the two leaders, it be in order for the majority leader to proceed to its immediate consideration, strike all after the enacting clause and insert the text of S. 1813, as passed by the Senate, in lieu thereof; that the House bill, as amended, be read the third time, a statutory pay-go statement be read, if needed, and the bill, as amended, be passed, the motions to reconsider be considered made and laid upon the table; that upon passage, the Senate insist on its amendment, request a conference with the House on the disagreeing votes of the two Houses and that the Chair be authorized to appoint conferees on the part of the Senate.The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.