11:31 AM Eastern - Thursday, October 29, 2009

Understanding the Senate cloture process

The health care debate has been long and hard fought. As we near the time when we expect the Senate to take up a bill and vote on reform, there are a lot of questions about what exactly will be happening from a procedural standpoint. After all, the Senate has a lot of complicated and misunderstood rules. Foremost among them are cloture and the filibuster.

First, filibusters really don't happen the way they did when Mr. Smith went to Washington. Instead, the word filibuster is commonly used to refer to any time a bloc of 41 or more senators vote against considering a piece of legislation or letting it come to a floor vote. This week Andy Stern wrote in an op-ed on Huffington Post that there is no such thing as a Republican filibuster, because the GOP caucus only has 40 votes. As a result, the only way health care reform can be blocked is if members of the Democratic caucus join the Republicans to oppose moving forward.

Second, the Senate is governed largely by consensus. Things don't get done without either everyone agreeing to them or there being a vote to see where the members of the Senate stand. One of the tools the Senate uses to keep the wheels turning is cloture. Cloture is simply a vote on whether or not to end consideration of an issue or piece of legislation for the time being. In our one hundred member Senate, there must be sixty votes in favor of cloture for a cloture motion to pass and the Senate to move forward. The Congressional Research Service has a great, detailed report on filibusters and cloture (PDF link), but I'm going to try to distill some of it here to explain what we expect to come during the health care debate.

To understand the procedure on cloture votes and filibusters on health care, it's important to look at the general process. After the Senate HELP Committee and Senate Finance Committee bills have been merged, the final bill will need to be brought to the Senate floor. Because the health care reform bill deals with funding, the Senate will need to use a bill from the House Ways and Means Committee in order to introduce the legislation - the Senate health care reform bill will be offered as a substitute amendment to that House bill. Offering a new bill as a substitute to a bill from the House is common Senate procedure and the House bill in question doesn't even have to relate to health care.

There are likely going to be three big points in the Senate debate of health care reform legislation that will almost certainly be subject to cloture votes. Each one of these votes will require sixty senators in favor of moving forward, yet none of them will be on the actual health care reform bill itself!

1.Cloture Motion on Motion to Proceed to Measure's Consideration: This will be the first step, where the Senate will ask itself: Do enough of us want to start debating specific health care reform legislation on the floor? Assuming that 60 senators do, the process will continue;

If Cloture on the Motion to Proceed is "invoked" (a fancy senate term for saying 60 Senators voted yes) then the Motion to Proceed will be adopted by a majority vote and the Senate will start debating the House bill that I mentioned above. Next the very first thing that will happen is that the "merged" Finance/HELP Committee bill will be offered as a complete substitute to the House bill. Then the fun really begins. Senators offer dozens of amendments, the Majority and Minority Leaders try to work out Unanimous Consent agreements, which I will explain below, to get lots of the amendments votes and sometimes Senators even filibuster each other's amendments. But sooner or later the Majority Leader says that is enough. That's when...

2.Cloture Motion on Manager's Amendment (Substitute Amendment): After considerable debate and amendment to the substitute, the Majority Leader will file Cloture on the Substitute. If there are 60 votes here, the Merged reform bill/Substitute as amended will get an up or down vote after 30 hours of post cloture consideration. Then...

3. Cloture Motion Filed on Measure (Final Passage): After the Substitute Amendment is adopted, the Senate still needs to bring debate on the entire bill to a close, so in oder to get to final passage of the health reform bill in the Senate, there will be one more cloture vote -- on the final bill (or to get super technical, on that old house bill as amended by the Substitute). Assuming 60 senators support getting to a final vote on the bill they've just spent days and weeks amending and debating (not to mention months doing the same in Committee), then there will be an opportunity for the health care reform bill to receive a straight up-or-down vote.

What should you expect when you see a cloture motion? Lots of debate and delay. After cloture is filed, it takes one day and an hour to ripen. So if a cloture motion is filed on Monday, it cannot be voted on until Wednesday. After the motion for cloture is voted on, there is then 30 hours of debate for post-cloture consideration. This time period includes debate, roll call votes, and quorum calls. Basically each of these three big procedural steps prior to a cloture motion and vote on cloture will add a number of days before the next soonest step can be reached. This is why we expect the entire Senate floor debate of health care reform to be a process that could last, at minimum, a couple of weeks.

Now I haven't talked at all about amendments...and we should expect to see dozens or hundreds filed. The reality is that anything that is debatable is subject to cloture, so that includes amendments to the bill that is brought to the floor. While it's possible that the entire floor debate and amendment process is filled with cloture votes (making it a very long and drawn-out process), it's more likely that the Senate will agree to a Unanimous Consent Agreement to govern debate and amendments. The UC Agreement sets out exactly how much time every amendment will be given for debate, how much time Republicans and Democrats will get to speak, and how many votes it will take to pass that amendment. Expect more controversial amendments to require 60 votes to pass, while less controversial ones will take a simple majority.

How does all of this process relate to the goal of passing meaningful health care reform legislation? The opponents of health care reform in the Senate will be given at least three major opportunities to stop this bill from getting a simple up-or-down vote. In each case, they will use procedure to try to stop legislation that the American public overwhelmingly supports. Health care reform is so important that it must receive an up-or-down vote to determine its outcome. Anything less is unacceptable.

Between now and the first Motion to Proceed to health care reform, there will be many twists and turns in the fight. The substance of the bill will change. The number of people that it helps will hopefully grow larger. But at the end of the day, this is vital legislation that deserves a straight up-or-down vote from the Senate. Even those members who are opposed to the underlying bill itself should not hide behind procedural hurdles to prevent it from receiving an up-or-down vote. If they oppose reform, that can best be expressed through debate of the bill, through the amendment process, and on final passage. The issue of health care reform is simply too important to be defeated by a minority of the Senate, hiding behind procedure.

We'll have more updates on Senate and House procedure as the legislative fight progresses. Stay tuned for updates!

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