This month I (Paul Jenks) have turned over the quill to Will Hall and Dan Peake, two solitary Congressional floor monitors who work down the hall from me. I noted in last month's column that they perhaps are the only people who watch Congressional floor proceedings gavel to gavel; it is their primary responsibility. This gives them a perspective on each chamber (Dan covers the House of Representatives, Will covers the Senate) that is unique, but very illustrative, of how things work on the Floor of each chamber. Here is their perspective of an especially illuminating experience last month, just before Congress recessed for the holidays.
It was a rare Sunday session of the 109th Congress. After a few suspension bills, the conference report for the FY2006 Defense Appropriations Bill was filed around midnight. The report was over 530 pages long and certainly no member had the ability to read the entire report before it was voted on at 5:00 am. This bill (HR 2863) is a classic example of the way in which Congress sometimes works. Despite the charts, diagrams, and descriptions made in high school government textbooks, the "how-a-bill-becomes-a-law" process has several additional components that sometimes lead to chaotic and strange results.
The bill, which would normally pass with ease, was not without controversy. Provisions to open the Arctic National Wildlife Refuge (ANWR) to drilling and provide indemnity to drug companies who provide vaccines for avian flu were added to the conference report after it was closed. Leaders of the House and Senate added the indemnity clause despite assurances that the language would not be added in the bill.
After the report had been filed but before the report was voted on, House Appropriations Committee Ranking Member David Obey (D-WI) took to the floor to protest after reviewing the recently filed report. He objected to the non controversial bills being considered by unanimous consent at the time, saying it was his only means of speaking on the conference report. Rep. Obey said that Appropriations members were forced by Senate Majority Leader Bill Frist (R-TN) and House Speaker Dennis Hastert (R-IL) to insert the indemnity language. Rep. Obey, while clearly angry at the language, was more infuriated by what he saw as the subversion of the legislative process. "We are here tonight recognizing once again the orderly legislative process has been corrupted by a couple of muscle men in the Congress who think they have a right to tell everybody else that they have to do their bidding," Obey said.
Rep. Obey's predicament illustrates a delicate balance legislators must strike. If a member objected to particular language that is not germane to the bill, and feels so strongly that they vote against the entire bill based on those provisions, they may face electoral problems when they are asked back home in their district why they voted against troop funding, which is the main purpose of the bill. A member must be very conscious of the way a vote will look to his or her constituents despite having a personal belief against particular language in the bill, or in Rep. Obey's case, the unorthodox procedural actions that placed these provisions in the bill.
Several members recognized that the conference report would pass regardless of the controversial language, and it eventually did by a 308-106 vote. Most House members reserved their protest vote for the rule governing debate of the bill, HRES 639. The House, with few exceptions, needs to pass a resolution which dictates a rule for debating a bill before they take the bill up on the floor. Opponents of the indemnity language and drilling in ANWR argued that if the rule failed, the Rules Committee would be forced to provide a new bill that would have at least ANWR, if not other controversial measures, stripped. Their efforts failed, 214-201.
Because the Senate does not restrict debate in the way the House does, Frist was forced to file a cloture motion (which, if invoked, would limit debate and ensure a timely vote on final passage) on the conference report once it was received from the House on Monday. There must be at least two days between the filing of a cloture motion and a vote on that motion, so there was plenty of time for Senators to debate what was the most controversial provision in the bill: ANWR drilling. When this provision was added to the conference report, Sen. Ted Stevens (R-AK), the Senate's leading proponent for oil exploration in his home state, made several additional changes that were seen as a means for persuading undecided members to vote for cloture. Using the Congressional Budget Office's (CBO) estimates for the amount of revenue ANWR drilling would produce, Stevens earmarked these extra appropriations for several programs that members wanted in the bill. These included increased funding for hurricane relief in hurricane affected areas of Louisiana and Mississippi, as well as additional money for the Low Income Home Energy Assistance Program (LIHEAP). If cloture were not invoked, the ANWR provision and these last minute appropriations additions would be stripped from the bill.
Sen. David Vitter (R-LA) framed a vote against cloture as a vote against the people of his home state. He said New Orleans had already been flooded twice (by the initial hurricane damage and the levee breach), and holding relief funds from its residents would mean, "those same people will be flooded a third time, flooded by inaction, flooded by the results of partisan ideology and politics and getting all tangled up in arcane procedure," Vitter said.
Sen. Judd Gregg (R-NH) said voting against cloture would make Democrats and northern Republicans such as Sen. Olympia Snowe (R-ME), who had been advocating for additional LIHEAP funds for some time, hypocrites. "So if this bill goes down under the cloture motion, we lose the LIHEAP dollars, and all those folks who have come to the Chamber and claimed they were for LIHEAP will have to explain that," Gregg said. This argument swung some undecided members to Stevens' side. Sens. Snowe, Susan Collins (R-ME), and Norm Coleman (R-MN), all consistent ANWR drilling opponents, voted for cloture because of the LIHEAP funds.
Democrats argued that cloture should not be invoked because the last-minute provisions were an affront to the Senate's rules and procedures. Senate rule No. XXVIII states, "Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses." Because the ANWR provision was added to the conference report after it had been signed by conferees, Democrats said it was a clear violation of this rule. Sen. Maria Cantwell, who is one of the leading ANWR drilling opponents in the Senate, also argued that allowing this provision to pass would open a Pandora's box. She said it would set a precedent that would allow powerful members to insert into the defense appropriations bill any piece of controversial legislation that would normally not pass on its own.
Although Senator Stevens was able to get a clear majority of members on his side, he came just short of the 60 votes necessary to invoke cloture. The vote was 56-44, with four Democrats voting for cloture and three Republicans opposing it. Frist switched his vote to "no" at the last moment, but only as a procedural maneuver. Under Senate rules, the Senate Majority Leader can only to bring a cloture motion back to the floor for another vote if his vote was to vote against cloture.
However, the motion was never brought back up to the floor. Immediately after the vote, Frist asked for a quorum call. This is a parliamentary maneuver, which stops all action on the Senate Floor so that the clerk can call the roll and make sure a sufficient number of Senators are present to conduct business. Senators usually take this time to negotiate or decide how to proceed on a certain piece of legislation. Negotiations must have been fierce after this vote, for the quorum call lasted nearly nine hours. When Frist finally took to the floor in the late evening, he submitted a concurrent resolution that would require the deletion of the ANWR provision, as well as the ones relating to hurricane relief and LIHEAP. The resolution passed 48-45, and then the conference report passed 93-0.
Stevens wanted to state his position one last time. Before the vote on the resolution, Senator Stevens asked the Senate parliamentarian if any portions of the conference report would violate rule No. XXVIII once the ANWR provision was stripped. After the parliamentarian confirmed at least one provision would, Stevens insisted there were actually several. He then threatened to visit the state of every Senator who had voted against cloture and tell the people how their Senator's vote had hurt their lives. He also insisted the arguments made by Democrats on the floor against ANWR (including the ones from previous debates) assaulted his character and would make him reconsider using his seat on the powerful Appropriations and Commerce committees to advance their causes. "I am drawing the line now with a lot of people I have worked with before. I really am. I can't put in my mind the amount of time, the days I have spent with you working on your problems, and to know you said about me the things you said in the last 2 months. I say goodbye to the Senate tonight," Stevens said. As Stevens was bidding farewell, the public was receiving an introduction; an introduction to how procedure and personalities can turn an otherwise uncontroversial bill into a weeklong debacle.