Saturday, May 19, 2012

Pow Wow's comment, one year on

Pow Wow's comment, one year on

BDBlue mentioned in comments to this post at The Sideshow an excellent comment from last year to a post by Glenn Greenwald called "The Patriot Act and bipartisanship". That comment by Pow Wow is difficult to find thanks to the permalink at Salon being screwed up, so I thought I'd post it here to make a direct link for it.

[Two countries divided note: For reasons I have never been given an explanation for, the parliamentary term "tabled", in the United States, means the opposite of what it means everywhere else.]

pow wow
Tuesday, May 24, 2011 01:50 AM +0100

Resistance is NOT (yet) futile, thanks to Rand Paul

Let me see if I can coherently explain - even for Senate-myth-saturated audiences (which are remarkably, if unconsciously, resistant to criticism of "bipartisan" Party dogma) - how and why Rand Paul came to singlehandedly hold the power, if he so chooses, to delay S. 1038 into the weekend, without "filibustering," ahead of the Senate's planned week-long Memorial Day recess next week. [I've linked to a lengthier general explanation.]

Before I do that, though, read what Rand Paul himself said on CNN Friday night (May 20th), for a rare insider's view of what the Senate is today, courtesy of both Parties:

Senator Rand Paul: "We go week after week in the Senate and do nothing. I feel like sometimes I should return my check because I go up, they do no votes and no debate. Look at this horrendous debt crisis - we don't debate that either.

Anderson Cooper: "Really, you feel like that? You feel like you're not doing anything there?"

Paul: "Yes. I feel... Absolutely. We go up week to week and there's no debate in Congress. No debate in the Senate. We sit idly by. Some weeks we vote on two-three non-controversial judges and we go back home. It, really..."

Cooper: "Why is that?"

Paul: "I'm trying to get a vote on Libya. They say they don't have time. I was told, when I wanted to bring up my resolution on Libya - which I did force them to, but I had to kinda capture the floor..."

Cooper: "It got tabled like 90-10..."

Paul: "Yeah, and they weren't too happy with me because I used some parliamentary procedures to gain access to the floor, and they came running down to the floor. They were apoplectic that I had taken over the floor, and the thing is is that we should be having these debates on the floor - they don't want to have any debate. I'm asking right now to vote on Libya - I have a resolution saying we're in violation of the War Powers Act. It's hard for me to get the floor unless I somehow sneak on the floor when no one's looking to try to get a vote. Why would we not want to debate great Constitutional questions? When I ran for office, that's what I thought - there will be great and momentous debates on the floor. We don't have any because they prevent the debates from ever even beginning."

Cooper: "Senator Rand Paul, appreciate your coming on. Thank you."

Paul: "Thank you."


"They" in this case being the Party (= fundraising) organizations and their leadership, which operate almost entirely off the public record and out of public view. Their objective at all times: avoid unpredictable democratic floor action, and the accountability of public debate.

To meet that objective the Parties basically gave the Senate the 'boiling frog' treatment. Slowly, over years - imperceptibly enough to have escaped journalistic notice of a sudden, shocking dismantling of the Senate - a fake quorum call (which doesn't call the quorum, but does suspend all floor business until lifted by unanimous consent, or by the Majority Leader) that was once a rare interruption to floor proceedings instead itself became the essence of Senate floor proceedings.

In other words, what was once informally used as a procedural pause on occasion, when floor debate needed to be suspended so Senators could briefly confer with each other off the record, now instead predominates in the Senate, hour after hour, day after day, week after week, with only an occasional speech or business action interrupting the non-quorum-call "quorum call's" idling away of Senate time. [See Paul's description above.]

Note, first, that this pernicious Fake Quorum Call (FQCall) is controlled by the Majority Leader (he can lift it at any time), and its existence is not formalized under any Senate rule.

Note, next, that in the absence of the FQCall, the Presiding Officer of the Senate is obligated under Senate rules to put the pending question to a simple-majority vote of the Senate, unless someone seeks the floor to debate (or requests an actual quorum call, to verify that there is a Constitutional quorum of Senators present).

By putting those facts together, I hope it's clear that, absent the FQCall, under default Senate rules and procedure, if no business or debate (or a real, live quorum call) is ongoing, nothing can stop a simple-majority vote on the pending business from being put to the Senate by the Presiding Officer while the Senate's in session.

And, thus, if the Senate this week was operating under default order and procedure, Rand Paul would have had to conduct an actual, extended-debate filibuster to singlehandedly "temporarily block" action on S. 1038.

So what's happened to change the situation, from that ordinary, default Senate order, to something else?

In addition to the usual (unchallenged) abuse of the FQCall, 18 Democratic Senators, including Harry Reid, voluntarily filed a cloture motion last Thursday to try (as is their wont) to impose a different, supermajority set of (Rule 22) procedures on the Senate - to replace the default, simple-majority public debating rules (held in abeyance by the FQCall) despite no unanimous consent agreement to do so.

Thus, Rule 22 cloture rules replaced default Senate rules when Thursday's cloture motion passed Monday, and they empower Senators to simply "object" to further action until Rule 22 says the Senate may proceed.

Significantly, Rule 22 mandates 30 hours of debate on the pending question after passage of a cloture motion. Unanimous consent is required to waive those 30 hours of debate, and we know that someone - presumably Rand Paul, but possibly someone else (we don't know because the FQCall creates a Senate that operates in backroom secrecy) - already "objected" Monday to waiving the 30 post-cloture hours of debate on the motion to proceed to S. 1038. Because the motion to proceed itself has not yet received a vote, and S. 1038 is thus not yet officially before the Senate.