Sen. Flake has options to force a vote

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By James Wallner

Jeff Flake wants to force Senate action on President Trump’s tariffs by delaying the confirmation process for judicial nominees. But the gambit already appears to have fallen short. According to one report, Flake’s effort has received little support among Senate Republicans since he first announced it on Sunday. Given the hesitance of his colleagues to slow down the confirmation process, Flake should consider two additional options for forcing a tariff vote. If used properly, each option gives Flake leverage to extract concessions in negotiations over when and how the Senate will ultimately deal with the issue.

1. Amendment Option: Flake could offer an amendment to the Farm Bill (HR 2) once the Senate votes to begin debate on the legislation this week. If the farm bill’s managers, or leadership for that matter, tries to block his amendment, Flake could ignore their efforts and offer it anyway. I discussed this option in a post yesterday. The procedural details of how senators can offer controversial amendments without “permission” are discussed in more depth here and here. The option guarantees that the Senate will adjudicate Flake’s proposal in some way.

2. Motion to Proceed Option: Flake could also move to proceed to standalone legislation. While this option requires more steps than simply offering an amendment to legislation already under consideration, it still enables Flake to force a vote over the objections of his colleagues and should thus also be understood as a source of leverage.

To work, Flake must first ensure that his proposal is on the Senate’s legislative calendar. The Calendar is the list of standalone measures eligible for floor consideration and consists chiefly of legislation reported by the Senate’s committees. It may also include legislation placed there directly by senators pursuant to Rule XIV in an effort to bypass committee consideration of their proposals.

Once his legislation is on the Calendar, Flake may make a motion to proceed to its consideration. According to the Senate’s precedents, “motions to proceed to the consideration of bills and resolutions on the Calendar are usually made by the Majority Leader or his designee.” But under the Standing Rules (and precedents) any senator may also move to proceed to a measure. In short, it is not only the majority leader’s prerogative.

Motions to proceed are debatable. That means senators opposed to Flake’s effort may prevent a tariff vote by filibustering it. Even so, there are two ways to force a vote over such objections once the motion to proceed is pending before the Senate (i.e. after Flake makes it). First, Flake may file cloture on the motion to end the filibuster. As with the motion to proceed, cloture motions can be made by any senator. To set up a vote, Flake only needs 15 other senators to join him in signing a cloture petition to end debate.

Flake may also move to table (i.e. defeat/kill) his motion to proceed. This may seem counter-productive at first. After all, isn’t Flake trying to pass the motion? On closer inspection, motions to table offer Flake some advantages in this scenario. The most important one is that they aren’t debatable. That means Flake can use a tabling motion to trigger an immediate vote. Since the tactic is intended to give him leverage in negotiations over when and how the Senate will consider the tariff issue, demonstrating that his opponents do not have the votes to table his motion to proceed is sufficient. Of course, a majority of senators must vote not to table the motion for Flake to derive any leverage from trying to table it.

More later on the hurdles associated with these options.

James Wallner is a senior fellow at the R Street Institute and a member of Legislative Branch Capacity Working Group.