HEALTH CARE REFORM -- (Senate - December 21, 2009)
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Mr. DeMINT. Parliamentary inquiry, Mr. President:
Does rule XXII of the Standing Rules of the Senate provide that on a measure or motion to amend the Senate rules, the necessary affirmative vote shall be two-thirds of the Senators present and voting?
The PRESIDING OFFICER. It does.
Mr. DeMINT. Further parliamentary inquiry: Is it also the case that on numerous occasions, the Senate has required a two-thirds cloture vote on bills that combine amendments to the Senate rules with other legislative provisions that do not amend the rules?
The PRESIDING OFFICER. That would require a two-thirds vote.
Mr. DeMINT. I have numerous examples here. We did it twice this year on S. 2349, and I could read those, but I will spare the Chair all of these. I am just trying to get at a concern we have.
Am I correct that with respect to these bills, there was a combination of legislative provision and rules changes, and the Chair ruled that because there--and I am referring to earlier this year, those I referred to where we required the two-thirds cloture. Am I correct on these previous bills that with respect to the bills, there was a combination of legislative provisions and rules changes, and the Chair ruled that because there were rules changes, a two-thirds vote was required?
The PRESIDING OFFICER. If there were changes to the Standing Rules of the Senate, a two-thirds vote would have been required to invoke cloture.
Mr. DeMINT. I thank the Chair.
Am I also correct that the Senate has required a two-thirds cloture on amendments to bills, where the amendments combine legislative provisions and rules changes? I have a number of references to bills when this was done, if there is any question, and I have given them to the Parliamentarian for consideration. Is there an answer? I mean, I know there have been amendments to bills that we required two-thirds because they include rule changes. I just wanted to get a confirmation from our Parliamentarian.
Is that, in fact, the case, where two-thirds cloture on amendments to bills have been required to have a two-thirds vote because of the rules changes included in them?
The PRESIDING OFFICER. The Chair would have to check that for a future answer.
Mr. DeMINT. I believe the Parliamentarian does have references for when this has been done. I am quite certain it has.
But as the Chair has confirmed, rule XXII, paragraph 2, of the Standing Rules of the Senate states that on a measure or motion to amend the Senate rules, the necessary affirmative vote shall be two-thirds of the Senators present and voting.
Let me go to the bill before us because buried deep within the over 2,000 pages of this bill we find a rather substantial change to the Standing Rules of the Senate. It is section 3403, and it begins on page 1,000 of the Reid substitute. These provisions not only amend certain rules, they waive certain rules and create entirely new rules out of whole cloth.
Again, I will skip over some examples, but let me read a few of these provisions that amend the Senate rules which are contained in section 3403 of the Reid substitute.
Section D titled ``Referral:''
The legislation introduced under this paragraph shall be referred by the Presiding Officers of the respective Houses to the Committee on Finance in the Senate and to the Committee on Energy and Commerce and the Committee on Ways and Means in the House of Representatives.
The bill creates out of whole cloth a new rule that this specific bill must be referred to the Senate Finance Committee.
Another example under section C, titled ``Committee Jurisdiction:''
Notwithstanding rule 15 of the Standing Rules of the Senate, a committee amendment described in subparagraph (A) may include matter not within the jurisdiction of the Committee on Finance if that matter is relevant to a proposal contained in the bill submitted under subsection (c)(3).
Clearly a rule change.
So there is no pretense that this bill is being referred under the rules to the committee of jurisdiction. Now it is allowing the Finance Committee to add whatever matter it wants to the bill regardless of any rules regarding committee jurisdiction. And for a good measure, the bill even specifically states that it is amending rule XV.
Let me just skip over a number of other examples referring to rules just to try to get to the point here because it goes on and on, and I have pages here.
There is one provision that I found particularly troubling, and it is under a section C titled ``Limitation on Changes to This Subsection:''
It shall not be in order in the Senate or in the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.
This is not legislation. This is not law. This is a rule change. It is a pretty big deal. We will be passing a new law and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law. I am not even sure it is constitutional, but if it is, it most certainly is a Senate rule. I don't see why the majority party wouldn't put this in every bill. If you like your law, you most certainly would want it to have force for future Senates. I mean, we want to bind future Congresses.
This goes to the fundamental purpose of Senate rules, to prevent a tyrannical majority from trampling on the rights of the minority or of future Congresses.
Therefore, I would like to propound a parliamentary inquiry to the Chair. Does section 3403 of this bill propose amendments to the Standing Rules of the Senate? Further parliamentary inquiry: Does the inclusion of these proposed amendments to the Senate rules mean that the bill requires two-thirds present and voting to invoke cloture?
The PRESIDING OFFICER. The section of the proposed legislation addressed by the Senator does not amend the Standing Rules of the Senate, and therefore its inclusion does not affect the number of votes required to invoke cloture.
Mr. DeMINT. Is the Chair aware of any precedent where the Senate created a law and in doing so created a new rule that--and I am quoting from our bill:
It shall not be in order in the Senate or in the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change--
Is the Chair aware that we have ever put this type of binding legislation on future Congresses in a bill?
The PRESIDING OFFICER. It is quite common to do that.
Mr. DeMINT. I would ask the Chair to get those references, if the Parliamentarian would, to us.
Mr. President, another parliamentary inquiry: If this new law will operate as a Senate rule, making it out of order for Senators to propose amendments to repeal or amend it--I have been in Congress 11 years. I have never heard of an amendment being called out of order because it changes something that was done before. How is that different than the types of Senate rulemaking for which our predecessors in their wisdom provided a two-thirds cloture vote? This seems to be a redefinition of words, in my mind.
Mr. President, it is clear that the Parliamentarian is going to redefine words, as I am afraid he has done as part of this process before. But this is truly historic that we have included rules changes in legislation, and yet we are ignoring a rule that requires a two-thirds cloture vote to pass it. I believe it is unconstitutional. I believe it subverts the principle we have operated under, and it is very obvious to anyone that it does change a rule. It is clear that our rules mean nothing if we can redefine the words we use in them.
I yield the floor.
The PRESIDING OFFICER. The Chair will note that it is quite common to include provisions affecting Senate procedure in legislation.
Mr. DeMINT. Is there a difference between Senate procedures and rules?
The PRESIDING OFFICER. Yes
Mr. DeMINT. So the language you see in this bill that specifically refers to a change in a rule is not a rule change, it is a procedure change?
The PRESIDING OFFICER. That is correct.
Mr. DeMINT. Then I guess our rules mean nothing, do they, if we can redefine them.
I thank the Chair. I yield the floor.