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In the advise and consent process, should the minority party refuse to participate in a floor vote and the majority has only 50 members, can the vice president's presence for a vote create a quorum?

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No. From the Senate Rules, Rule VI:

  1. A quorum shall consist of a majority of the Senators duly chosen and sworn.

The Vice President is not defined as a Senator in "PRESENTATION OF CREDENTIALS AND QUESTIONS OF PRIVILEGE" section of the rules.

The Vice President would be precluded from participating from quorum call votes.

  • The definition of quorum is in the constitution, which supersedes the senate rules. The presentation of credentials section does not go into the definition of who is a senator, so it is not relevant to this question. The definition of who is a senator is also found in the constitution. There's not much there to explicitly exclude the vice president, but it is pretty clear by implication that it isn't the intention. – phoog Jun 27 '18 at 20:44
  • thanks for that answer. I thought that would be the case.... now we get to see if the Democrats have the guts to not give the Republicans a quorum on Supreme court vote – John Lyons Jun 27 '18 at 21:33
  • @JohnLyons You might want to read up on the ability to compel quorums. – K Dog Jun 27 '18 at 21:47
  • @phoog The Constitutional text reads: and a majority of each shall constitute a quorum to do business. The Senate rules define conditions that the Senator is sworn in and the certification process. These are complimentary layers. Likewise the implications of Rules 2, although it's not a definition as you state. That's why I stated that the Vice President wasn't defined in that area. – K Dog Jun 27 '18 at 21:52
  • According to sec VI, the absence of a quorum calls for a quorum call or adjournment or a recess. What penalties are incurred by refusing to report to the floor for the creation of a Quorum? In other words, what do they have to loose? – John Lyons Jun 27 '18 at 21:56
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The Vice President is not a Senator, and so may not participate in quorum calls. The constituion calls the VP "President of the Senate", but states that "The Senate of the United States shall be composed of two Senators from each State". Thus the VP is not a senator. If only 50 Senators and the VP are present, then a quorum does not exist.

However such a strategy is unlikely to succeed. The Senate presumes quorum unless a Senator suggests otherwise (even when it is obvious that fewer than 51 Senators are present). If a party has 50 Senators then they simply don't suggest that a quorum is not present, and no roll call is taken. The Senate can continue its business without interuption

If a quorum count is demanded, and fails, the Sergent-at-Arms can require Senators to attend, if necessary he can arrest Senators to compel them to attend:

If a quorum fails to vote, the Senate can, by motion, direct its sergeant at arms to compel the attendance of absent Senators or even to arrest absentees in order to establish a quorum. [see Riddick’s Senate Procedure, pp. 214-224] The Senate rarely finds it necessary to take this step. Senate rules and Procedure

  • I've seen this in action (not in the Senate, but in another body operating under Roberts). What tends to happen is that business hums along normally even with technically too few people until the moment someone present gets ticked about a decision that was made and raises a "point of order" that a quorum does not exist. At that point the presiding officer is forced to agree, and adjourns the body (assuming of course nobody feels like arresting people). But everything done up to that point still holds. – T.E.D. Jun 28 '18 at 0:23
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    I call dibs on a movie script about defiant Democratic Senators fleeing the capital for some plush resort, pursued by US Marshals (federal version of Texas events of 2000s) – user4012 Jun 28 '18 at 1:52
  • @T.E.D.: 51 senators (50 majority + 1 minority) are enough to establish quorum, so that doesn't work. – Kevin Jun 28 '18 at 2:03
  • @Kevin - Good point. I'll delete that second comment. – T.E.D. Jun 28 '18 at 5:49

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