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Here's an article about possible "hardball" tactics Democrats could use under Biden/Harris, if they don't get control of the Senate: https://reason.com/volokh/2020/12/11/potential-constitutional-hardball-in-a-republican-controlled-senate/

I am interested in factual (as factual as possible anyway) responses to the question of whether the following tactic is in fact legal. (Not opinions as to the wisdom or effectiveness of this tactic!)

Is it true, as this article argues, that the VP could technically choose not to follow certain precedents (not even Senate rules--just certain precedents of practice) and recognize the minority leader instead of the majority leader as the first to take the floor and set the agenda?

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    The author, Josh Blackman, is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. Josh Blackman is "the author of three books" and "nearly five dozen law review articles" and has "twice testified before the House Judiciary Committee". What reason could there be to question whether these two tactics are in fact legal? – Rick Smith Dec 13 '20 at 13:57
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    @RickSmith - If highly regarded lawyers were always correct (or at least always agreed) about what is legal, all Supreme Court decisions would be unanimous. – Obie 2.0 Dec 13 '20 at 19:11
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    @Obie2.0 - Even highly-regarded lawyers don't always agree on any particular case, because the facts are rarely the same. Legal Advice: Pound the Facts, Pound the Law, Pound the Table. And, jurists have different views about how the law should be interpreted. – Rick Smith Dec 13 '20 at 20:59
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    @Fizz - With respect to the second tactic, Josh Blackman was quoting another law professor, Neil Buchanan. Buchanan notes that it's "custom to let the majority leader set the schedule" and provides an example where the minority leader "took control of the Senate floor". – Rick Smith Dec 13 '20 at 21:14
  • @Fizz - I should have noted that the quotes "custom to let the majority leader set the schedule" and "took control of the Senate floor" came from a CNN article not Buchanan. – Rick Smith Dec 13 '20 at 22:09
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And is it true, as this article argues, that the VP could technically choose not to follow certain precedents (not even Senate rules--just certain precedents of practice) and recognize the minority leader instead of the majority leader as the first to take the floor and set the agenda?

The Vice President could recognize the minority leader, sure. However, the majority of the Senate can make its own rules (The Constitution provides that "Each House may determine the Rules of its Proceedings") and can overrule any ruling the Vice President could make on its rules. I doubt the minority leader would have time to actually do anything before this was objected to.

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Technically... The short version is yes. The long version is a bit more dynamic

The Senate does not have rules as much as precedents. The one that's important here is called Priority Recognition

[I]n 1937, Vice President John Nance Garner, a former Speaker of the House who valued leadership prerogatives, announced a new policy. Under the Senate rule requiring the presiding officer to "recognize the Senator who shall first address him," Garner established the precedent of giving priority recognition to the majority leader and then to the minority leader before all other senators seeking to speak. These two 1937 developments–priority recognition and front-row seating–contributed greatly to the evolution of modern Senate floor leadership.

It's this precedent that gives the Majority Leader such broad power. The Majority Leader is recognized first if they want to be heard and nothing happens on the floor without their approval. Only if they do not wish to speak do other members get heard.

What this hardball tactic involves is that Vice President would

  1. Regularly attend the Senate when it is in session. Most VPs do not attend the Senate regularly, since they have little to do in most cases (it's rare you have a tie needing a VP vote)
  2. Refuse to recognize the Majority Leader first. Without that precedent in place, all Senators are effectively equal

This technically works because the VP as the President of the Senate is a Constitutional power. Once the VP is in charge, they could recognize anyone they wanted.

The catch here is you would merely override the Majority Leader's power to block floor votes. In other words, you can't actually pass anything without a majority.

Let's assume you have a 52-48 Senate (where the VP represents the minority). The VP could force a floor vote on any Presidental cabinet member or nominee by recognizing a member of their own party, who would ask for a vote. The other party would, indeed, be powerless to stop them from forcing it to a vote. But in doing so, they would all but assure that the majority would vote together against the nominee. The same goes for any legislation. There would be some indirect benefit (now you have Senators on the record instead of just the Majority Leader), but you would severely damage any chance of bipartisan compromise. The majority (now relegated to the back seat, as it were) would simply vote down things largely in protest.

Eventually you come to an election. Assuming this goes on for two years, you're going to have partisan rancor at an all-time high. It's possible this starts to affect the House as well. The Senate majority party could be highly energized, while the minority party struggles to explain why they won't let the majority work as a majority. It could politically backfire. In the meantime, the President is unable to get anything done requiring legislation.

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    Excellent answer! I've never quite understood the source of the Majority leader's power before. You seem much more bullish on this strategy than D M above – are they wrong that the majority could just change the rules to reassert the majority leader's total power? – divibisan Dec 14 '20 at 16:14
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    @divibisan Like I said, this seems to technically work. The majority cannot simply remove the VP because they Constitution put them there. The Senate has a lot of moving parts, though, and there could be some obscure rules the Majority can use to bend it back their way. Once you blow up decorum, everything becomes fair game. – Machavity Dec 14 '20 at 16:21
  • @divibisan - This Introduction (second and third paragraphs) explains the tradition and this Summary identifies what Senators can do when the tradition is not respected. – Rick Smith Dec 14 '20 at 17:00
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    I'm not sure how "making senators vote" would raise partisan rancor over what it is today in the USA. I mean, "the president isn't an American", "the other party are traitors", "lock up the opposing candidate" level rancor has been going on for more than a decade. In addition, exactly how much did the last Democratic president "get done" when he didn't do this? For about 6 years, little more than budgets could pass. – Yakk Dec 14 '20 at 20:16
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    @FrederikVds I've seen it play both ways. There wasn't much outrage when either party removed the confirmation filibuster, but the confirmation fight over Kavanaugh became galvanizing to Republicans. This isn't some "mere procedure" either. Folks even on the Left might be appalled at how it plays out if Harris bullies the Senate Republicans. – Machavity Dec 15 '20 at 0:43
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It sounds very good, and I wish it were true. Unfortunately, it is not.

TL;DR: No, Kamala Harris will not be able to take control of the Senate's agenda away from McConnell if Democrats don't win both Georgia runoffs. A simply majority vote of the Senate determines how it operates and if she tries, the GOP majority will simply change the rules to formalize the informal policies that give McConnell his power.

The Constitution states that "each [chamber of Congress] may determine the Rules of its Proceedings."

Senate Rule XX (often referred to as the "nuclear option") reads, in applicable part:

A question of order may be raised at any stage of the proceedings...[such a question] shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate...and every appeal therefrom shall be decided at once, and without debate.

Rule XX means that no matter what the Rules of the Senate may say or what the President of the Senate may want to do, a simple majority of the Senate can always change the current language of a Rule into whatever the majority wants the Rule to be.

In November, 2013, we saw Rule XX in action when Senator Harry Reid used a simple majority to change the Rules so that McConnell's minority could not "filibuster" President Obama's nominees (other than the Supreme Court). The exchange on the floor went like this:

Mr. REID. I raise a point of order that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote. [The phrasing is complicated, but this is Senator Reid stating the new rule he would like to put into effect.]

The PRESIDENT pro tempore. Under the rules, the point of order is not sustained. [The chair, after consultation with the parliamentarian, disagrees with Reid's "interpretation" of the Rule as it now stands.]

Mr. REID. I appeal the ruling of the Chair and ask for the yeas and nays. (48–52 vote on upholding ruling of the chair) [Reid appeals the ruling, though he knows that the chair is actually interpreting the rule as written and wins his appeal 52-48 (the chair loses the vote 48-52).]

The PRESIDENT pro tempore. The decision of the Chair is not sustained.

The PRESIDENT pro tempore. Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair. (Congressional Record of November 21, 2013)

And thus, the threshold for cloture votes was changed; the simply majority of vote of the Senate is binding.

I provide the text from 2013 of Rule XX in action so that I can now illustrate, using almost identical procedure, what would happen if a future Vice President Kamala Harris were to decide not to abide by the convention of "Priority Recognition," established in 1937 by Vice President Nance.

The moment Vice President Harris (who would be "The PRESIDENT" in the Record), started to recognize someone other than Sen. McConnell at the start of the day's business, the following (hypothetical) exchange would occur:

The PRESIDENT. I recognize [anyone who is not McConnell].

Mr. MCCONNELL. I raise a point of order that under rule XIX(1)(a) the Majority Leader, who shall be the Senator chosen by the political party with which a majority of the members of the Senate affiliate, must be recognized by the Presiding Officer first.

The PRESIDENT. Under the rules, the point of order is not sustained.

Mr. MCCONNELL. I appeal the ruling of the Chair and ask for the yeas and nays. (48–52 vote on upholding ruling of the chair, Harris loses)

The PRESIDENT. The decision of the Chair is not sustained.

The PRESIDENT. Under the precedent set by the Senate today, January 21, 2021, the Presiding Officer shall first recognize the Majority Leader. That is the ruling of the Chair.

And just that fast, Vice President Nance's informal policy would become a binding precedent of the Senate and the meaning of Rule XIX(1)(a) would be changed.

There would be nothing that President of the Senate Harris would be able to do about it.

This is why, in the 83 years since Vice President Nance adopted this informal rule, no Vice President affiliated with the minority party of the Senate has attempted the move that folks spreading this argument seem to think Harris could just walk in and do on January 21. The rules currently support her ability to do so, it's just that the rules would be changed in one vote.

For better or worse, the Senate governs itself by majority rule and the Constitution makes the Vice President the Presiding Officer, not dictator of the Senate.

This "hardball" tactic will not be employed; not because Democrats can't play hardball, but because it would fail immediately.

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    On "the simply majority of vote of the Senate is binding" and similar: note that this is not actually binding in any useful sense, because the procedural vote could go the other way tomorrow. Great answer. – fectin Dec 15 '20 at 18:11
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    @fectin It's binding on the VP. It's not binding on the Senate itself. – D M Dec 15 '20 at 21:54
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Let me present another aspect of this issue.

The constitution grants the VP the power to preside over the senate and also grants the senate the power to adopt its own rules. Presumably the power to preside has some substantive meaning. Thus, any rules the senate adopts for the purpose of eliminating or reducing the power to preside would be unconstitutional.

Of course my statement above begs the question as to the constitutional meaning of preside.

Here is one way to frame the question: Does the power to preside over the senate, which is granted to the vice president by the Constitution, include the implied power to recognize which senator will have the floor when multiple senators are seeking to be recognized?

Assume Harris has constitutional power to decide which senator speaks first. How might that work?

If the presiding officer recognizes someone from the minority party to speak first about a proposed bill, the minority party is unlikely to fill the amendment tree. Any such bill (full of minority amendments) would be highly unlikely to pass the senate since the majority party would rightly feel shut out of the process. Instead, even though speaking first the minority party would have to leave room in the tree for amendments by the majority party.

Guess what! This approach allows bills the administration is promoting to at least reach the senate floor for debate. It also forces the parties to at least try to compromise. And when the debate is over the senators will have to vote on issues and run for re-election on their voting record. This sure sounds to me like the way the senate is supposed to work.

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  • It is profoundly unlikely that the Supreme Court would agree to review a dispute over the Constitutional meaning of "preside" in the situation you describe. In general, both chambers of Congress have been allowed to make, interpret, and enforce their own rules. If they say that "presiding" does not include deciding who gets to speak (or, that it is subject to some rule-based limitation), then in practice there is no organ of government with the power to overrule that interpretation of the Constitution. – Kevin Dec 30 '20 at 23:42
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Since the time of my post I have done additional research. It turns out that there is a strong senate precedent from 1915 showing the following.

  1. The presiding officer has complete discretion when deciding which senator to recognize.
  2. The presiding officer’s decision as to which senator to recognize cannot be appealed to the full senate.

Assuming republicans retain the majority, VP Harris could preside over the senate and recognize any democrat senator as being allowed to ‘speak first’.

Yes, you see a lot of references to 1937. All that happened then is that the presiding officer described how they would exercise their discretion when deciding which senator to recognize. Nothing that was said or done in 1937 changed the precedent that was set in 1915.

One possible way this might be used is to pick up some moderate republican votes for things that enjoy wide bi-partisan support among voters. Another way it can be used is to force republicans to vote on issues where McConnell has not allowed votes. Senators have to run for reelection on their voting record.

I wrote all this up along with citations and am hosting it on my server in a PDF file which you can find at: https://mappingsupport.com/p2/political/_pdf/priority-recognition-mitch-mcconnell.pdf

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