Who's Afraid of Mitch McConnell?
The Vice President of the United States is the President of the Senate. To disarm Mitch, all MVP Kamala Harris has to do is follow the Constitution.
Lisa Kerr
Dec 15
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Guest Column by Lisa Marie Kerr
AMERICA’S CONGRESS is now wholly disabled by the whim of one man elected in one state. Mitch McConnell has rendered the Senate a legislative nullity. He has functionally amputated an entire chamber of Congress. And he has used that mutilation to erase the House as well. Hundreds of needed bills languish undebated and unvoted. Pandemic relief, election protection, immigration and tax reform—these urgent House-passed priorities never reach the Senate floor, while Trump blithely cages infants and doles out needed medicines and hospital beds to his crime cronies.
But even if Georgia’s runoff fails to produce a Democratic Senate majority, the big problem of Mitch may be a small one after January 20, 2021. Gridlock is a relatively new crisis. The Senate used to work better, and was designed to work better. Once seated as the Senate’s constitutional presiding officer, Vice President Kamala Harris can break gridlock by recognizing any senator to bring any House-passed bill to the floor. She can do that without altering any Senate rule with a procedural vote. And she should.
Vice President Harris will become President of the Senate (automatically) under Article I, Section 3, which also recognizes that the Senate can “choose their other officers,” including majority and minority leaders. But Art. I, Sec. 3 does not give such “other officers” the Vice President’s power to preside, which includes the power of “priority recognition”—that is, allowing a Senator to speak on the Senate floor, and thus to move a bill into debate. Until the mid-20th-century, the Vice President used the presiding officer’s power of priority recognition to develop the Senate into the world’s greatest deliberative body, cultivating a forum for open debate and compromise that transcended partisan lines. When the House passed a bill, any Senator recognized by the Vice President (acting as presiding officer) could move it to the floor, be seconded by another Senator, and proceed into debate and a vote.
The Standing Rules of the Senate give its presiding officer abundant power. But they do not require the Majority Leader to be that presiding officer. Delegation of priority recognition from the Vice President to the Majority Leader is not required by any written Rule of the Senate, or by any of its Standing Orders. As Vice Presidents took on greater executive duties, they simply began delegating the chair to chosen Senators. The Senate’s official history acknowledges that this “informal practice” crystalized into ongoing delegation to the Majority Leader in 1937, thus creating an “emperor without clothes.”
Delegation of presiding power has become a habit that none question—like cigarette smoking in the 60s. But the malignant cancer of delegation to Mitch McConnell is not required by the Constitution—and I argue that when delegation is chronically abused to block bills from the Senate floor, it is the duty of the Vice President to reclaim her presiding power. Obstructing is not presiding. It is blocking the air from our legislative lungs.
You may ask: “Wouldn’t reclamation of the Vice President’s constitutional presiding power required a change in the rules of the Senate? And doesn’t that need a two-thirds majority vote—which we won’t have, even if Warnock and Ossoff both win their Georgia runoffs?” Ah, but delegation of the Vice President’s constitutional presiding power is found nowhere in the Senate’s Rules. Rule XXIII, “Privilege of the Floor,” only determines who can be recognized by the presiding officer, not who can act as that presiding officer. Hence, the solution I propose—having Vice President Harris recognize, in her capacity as as presiding officer, a Senator to move a House-passed bill—would pose no conflict with Rule XXIII. Nor would it conflict with any other standing rule, because the Majority and Minority Leaders would retain their non-presiding powers. And any spurious points of order blocking such action could be rejected by the Vice President herself—as the presiding officer.
Reclaiming the presiding power would not require the Vice President to attend every session, or strip her of executive duties. She would remain free to delegate on an individual basis to a Senator chosen to move a specific bill forward. She could even restore presiding power to the Majority Leader, on condition that it not be further abused. Original Senate bills could still move through committee for preliminary analysis, pursuant to existing Senate Rules. Motions to proceed and for cloture would still be governed by Senate Manual Sec. 74 (standing order). Amendments to such House bills would still proceed in conference under Cleaves’ Manual of the Law, by precedents incorporated in Senate Manual Sec. 200, et seq.
Can courts stop the Vice President from reclaiming her power to preside on behalf of the nation? They cannot. Who would have standing to sue here? Only the Majority Leader. Would a court recognize any right to retain presiding power by a Majority Leader? No. The Constitutional power granted to the Vice President to preside over the Senate may not be limited by the Senate’s own internal deliberations.
How would Americans benefit if our nationally-elected Vice President followed my suggestion to break gridlock, thus allowing House-passed bills (and others) to come to the floor? It would not guarantee every bill’s passage, especially if the GOP retains a bare majority, but it would make compromise more likely, through markup and reconciliation. The number of opposing votes may change when those votes must be cast on record, after robust open debate. Public disdain and electoral consequences may deter public blocking of a bill Senators are willing to block behind closed doors. And open floor votes and debate would eliminate the travesty of a single man elected by a single state’s voters blocking legislation that the vast majority of Americans demand.
Imagine, for example, how different our Supreme Court might look if Merrick Garland’s nomination had been moved to the floor and debated. Many Republicans supported him in the past, and the seat would have been his, if the presiding power had been reclaimed by then-Vice President Biden. Imagine how glowing our national picture might have been if bills with genuine bipartisan support, like immigration reform and election protection, had passed both chambers during Obama’s administration through a robust process of debate, amendment and markup, presided over by a nationally-elected Vice President—rather than dying on the bleak desk of a man who proudly declares himself America’s “Grim Reaper.”
In short, the Senate’s historic role as “world’s greatest deliberative body” requires that open deliberation take place as described in the Constitution—not behind closed doors, and certainly not inside the head of one man elected by 1.2 million voters in the 26th most populous state in the Union. Does our Vice President have a duty to take back presiding power on behalf of the American people? I argue that she does. In a pandemic where 3,000 lives per day hang in the balance, that duty is clear. Once seated, she should exercise and/or delegate her constitutional presiding power only in a manner that allows American policy to move forward. Our entire Article I legislative power has been usurped by Mitch McConnell—contrary to the Constitution’s organizing principle of self-government.
End this nightmare, Madam Vice President. Please.
Lisa Marie Kerr is an attorney and social worker who lives in West Virginia and tweets as @thatshockratees.
For further reading, please check out the earlier take on this at NewsFlector.
Above is from: https://gregolear.substack.com/p/whos-afraid-of-mitch-mcconnell
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How the Vice President Limits the Power of Senate Majorities
“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”— ARTICLE I, SECTION 3, CLAUSE 4
On September 7, 1787, delegates to the Federal Convention meeting in Philadelphia voted to make the Vice President the Senate’s Presiding Officer.
Most of the delegates present supported doing so. Yet among those in opposition was Elbridge Gerry of Massachusetts, who believed that the arrangement would give the President too much influence over the Senate due to “the close intimacy that must subsist between the President and Vice President.” Similarly, George Mason of Virginia asserted during the debate that the Vice President’s role would be “an encroachment on the rights of the Senate” and a violation of the separation of powers.
Notwithstanding these warnings, it is possible that the delegates did not fully appreciate the consequences of their decision at the time. For example, Connecticut’s Roger Sherman suggested prior to the vote that the arrangement was needed to give the Vice President a job to do.
Regardless of the delegates’ reasons, their decision to designate the Vice President as the Senate’s Presiding Officer has had a major impact on the institution’s development. It limits majority power, protects minority rights, and thus continues to shape the Senate and the way that its members make decisions today. In short, the Vice President’s role effectively precludes the Senate from turning into a majoritarian legislative body like the House of Representatives.
Unlike in the House, where a chamber majority can select the Speaker, the Constitution does not allow senators to choose their own Presiding Officer. The House today is organized by a majority party whose members voluntarily delegate significant authority to a powerful Speaker to preside over the institution. But in the Senate, the Constitution makes it unlikely that members will do the same because it charges the Vice President with administering the institution’s rules and ensuring order in the legislative process.
Admittedly, Article I, section 3, clause 5 of the Constitution permits senators to select a President pro tempore to fill in as Presiding Officer when the Vice President is unable to do so.
Despite this, senators have been reluctant to empower the President pro tempore to the extent that doing so would also augment the Vice President’s ability to control their deliberations. This is because they are unable to prevent the Vice President from reclaiming his position as Presiding Officer whenever he wants. In such a scenario, the Vice President would be free to exercise any powers previously delegated to the President pro tempore in a way that could be harmful to senators’ interests.
The result of all of this is that the Senate keeps its Presiding Officer relatively weak. Yet that makes it harder for the majority party to exert control over the legislative process. In general, the Senate’s operations have remained relatively decentralized and its rules permissive while the House has grown centralized and restrictive.
The consequence of this is that Senate minorities have more power to obstruct the majority than their counterparts in the House. While the recent use of the nuclear option in 2013 and 2017 to eliminate the judicial filibuster suggests that majorities may be less likely to tolerate obstruction in the future, the Vice President’s role as the Senate’s Presiding Officer makes it possible for a minority to obstruct the majority, even if the legislative filibuster is eventually nuked.
For example, a minority may object to routine unanimous consent requests to confirm presidential nominations and pass legislation. This would limit the majority’s ability to move its agenda through the Senate by significantly increasing the institution’s workload in terms of time spent conducting recorded votes.
The majority is unable to limit the minority’s ability to use this tactic on a permanent basis. This is because Article I, section 5, clause 3 of the Constitution states “and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal.” In other words, any senator can force a recorded vote on a question before the Senate with the support of a sufficient second, which is defined as one fifth of the members present. As such, any effort by the minority to systematically force recorded votes on nominations and legislation to obstruct the majority would need at least eleven, but not more than twenty, members to be successful.
Theoretically, the majority could ask the Presiding Officer to refuse recognition to a senator for such purposes. But doing so on a repeated basis would require delegating to whomever was presiding over the Senate the discretionary power to recognize members and to determine if a sufficient second is present. And since senators cannot guarantee how the Vice President would use such power in the future, such a delegation of authority is unlikely.
The Vice President’s role also highlights the relative weakness of the Senate leadership compared to its counterpart in the House. In contrast to the Speaker, who is chosen by the entire House membership, the majority leader is not selected via a vote of the full Senate. Rather, the floor leader of the party that controls most of the Senate’s seats becomes the majority leader by default.
The majority leader’s power is derived from the fact that his colleagues defer to him to order the chamber’s deliberations. But the leader’s ability to do that job depends on his being recognized first by the President pro tempore (or the Vice President depending on who is presiding).
Since any member can technically make a motion to consider legislation or a nomination under the Senate’s rules, being the first to do so enables the majority leader to set the schedule and control the agenda to a limited degree.
Priority of recognition also allows the leader to block votes on undesirable amendments. The ability to be recognized first before other members enables the majority leader to “fill the amendment tree,” or offer the maximum allowable number of amendments to legislation, and file cloture on a bill before other senators have a chance to debate the measure and offer amendments.
The right of recognition is thus the foundation on which leadership power is based in the contemporary Senate.
Yet the majority leader’s priority of recognition ultimately depends on the Vice President.
The leader was first granted priority of recognition in 1937 pursuant to a ruling made by Vice President John (“Cactus Jack”) Nance Garner while presiding over the Senate. But the 1937 ruling is not irreversible. Any Vice President presiding over the Senate in the future could just as easily break with past practice and recognize another senator in lieu of the Majority Leader.
The result of the Vice President’s role in the Senate is that the institution is less efficient than it would otherwise be if it had a powerful Presiding Officer like the House. Yet senators have tolerated such inefficiency to the extent that it is the price of their retaining control over the legislative process.
Senate majorities have exhibited an interest in empowering their leadership in recent years as obstruction and the value of floor time have both increased significantly. Nevertheless, it remains unlikely that senators would reevaluate delegating significant authority to the Presiding Officer due to the polarization and partisan conflict in the contemporary environment.
Imagine a Democratic majority allowing Vice President Dick Cheney or Mike Pence, or a Republican majority allowing Vice President Joe Biden, a significant voice in how the Senate sets its agenda and conducts its business!
And if that remains the case, Senate minorities will be able to obstruct the majority, with or without the filibuster.
Above is from: https://www.legislativeprocedure.com/blog/2018/8/10/how-the-vice-president-limits-the-power-of-senate-majorities
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For a fuller development of the history of Senate Majority Leader and the Priority of Recognition GO TO: https://mappingsupport.com/p2/political/_pdf/priority-recognition-mitch-mcconnell.pdf
