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Harry Reid Busts Up Senate Precedent

Harry Reid

First Posted: 10/06/11 10:15 PM ET Updated: 12/06/11 05:12 AM ET

WASHINGTON -- Senate Majority Leader Harry Reid (D-Nev.) led Democrats in a precedent-setting move on Thursday evening, shutting down an effort by Senate Minority Leader Mitch McConnell (R-Ky.) to hijack the floor and force the chamber to move away from debate on Chinese currency manipulation and instead vote on President Obama's American Jobs Act.

The move raises all sorts of questions: Why would the Republicans, rather than the Democrats, be insisting on having the vote that the president has been demanding for weeks? What does Reid's move say about the filibuster? And why is the Senate debating a bill on Chinese currency anyway, one that the White House opposes and stands little chance in the House?

Senate Republicans, aware that some Democrats facing reelection are unwilling to vote for a jobs package that includes tax hikes on the wealthy, wanted to stage a vote to demonstrate the lack of party unity. But the chamber had already voted to move forward on a bill aimed at curtailing Chinese currency manipulation, which depresses the price of Chinese imports and hurts American manufacturers. That meant the chamber was in what's known as a post-cloture period.

McConnell moved to suspend the rules and shift debate over to the American Jobs Act. Reid argued that doing so amounted to another filibuster, because it required 60 votes to move back to the original bill, and so therefore was out of order. Sen. Mark Begich (D-Alaska), who happened to be the presiding officer at the time, asked the Senate parliamentarian what he thought. The parliamentarian advised Begich that McConnell's motion was in order.

Reid then appealed the ruling, following a script that advocates of ending the filibuster wrote long ago. What some senators call the "constitutional option," and what others call the "nuclear option," involves as a first step appealing a ruling that a filibuster is in order. The second step is to defeat a motion to table that appeal, which is exactly what happened next, with all but one Democrat sticking with Reid. (Sen. Ben Nelson (D-Neb.) voted against Reid; Sen. Barbara Boxer (D-Calif.) didn't vote.)

With the chair overruled, McConnell's motion was declared out of order, setting a narrow precedent that motions to suspend the rules are out of order during a post-cloture period.

But it also set a more important precedent. The advice of the parliamentarian is considered sacrosanct in the Senate. Reid's decision to overrule him opens a gate to similar efforts that could also be done by majority vote. Republicans were quickly threatening to use the new power once they return to the majority. (Reid was a proponent of filibuster reform in 2010, but didn't pursue an effort earlier this year to reduce the number of votes needed in the Senate to move legislation forward.)

"McConnell likes to think of himself as a parliamentary wizard, but he had his lunch eaten twice today by Harry Reid," said a Senate Democratic aide.

A spokesman for McConnell argued that Democrats only took the dramatic step to avoid embarrassment, and were trying to spin the developments as principled. McConnell, he said, always intended to try to have the extra votes.

Sen. John Cornyn (R-Texas) later tweeted that Reid's move to rein in McConnell was "tyranny."

The collision was set up after McConnell confidently predicted Wednesday night that the China currency measure would fail.

But sources familiar with negotiations over the vote said McConnell failed to account for how determined some of his own members were to pass the currency measure, including Sens. Lindsey Graham (R-S.C.) and Jeff Sessions (R-Ala.) -- both of whom have industries in their states harmed by China's trade edge.

"Graham and Sessions went and whipped behind McConnell's back, and they got people to switch," a staffer said.

McConnell then apparently settled on a consolation prize of forcing the Democrats to take tough post-cloture votes, including on the president's jobs bill and on a measure to bar the EPA from regulating farm dust.

McConnell initially wanted 10 votes, and Democrats were willing to give him five. They ultimately settled on seven, a Democratic source said, and they told McConnell which ones they would accept.

That left the Democratic leaders in a sour mood to begin with, but then McConnell tried to insist on the farm dust measure offered by Sen. Mike Johanns (R-Neb.).

"We accepted the embarrassing vote on the president's jobs bill," a Democratic source said. "Then he tried to jam the farm dust bill up our ass."

The problem for Democrats with the dust measure is that many don't want to undercut the EPA, and they also don't want to be made to look ridiculous by seeming to regulate natural dust at the expense of jobs. The EPA, however, has insisted the entire issue of regulating farm dust is a "myth." The agency has proposed toughening the standards to regulate particulate matter in the air.

Reid's move Thursday, in that context, is less abusive of Senate precedent than it first appears. The current rules create a situation in which two 60-vote thresholds must be met before a bill can pass, the first to end debate and the second to move to final passage. McConnell's move to suspend the rules could have created additional 60-vote hurdles, clearly in violation of the spirit of the post-cloture period, which is intended to be a short stretch until moving to final passage.

"What just took place here is an effort to expedite what goes on around here," Reid said, although he admitted he could be wrong.

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