Adam L. Silverman
The USA Freedom Act, the slightly less invasive alternative to the USA PATRIOT Act, quietly failed in a late night vote yesterday in the Senate. The vote was 57 for and 42 against. Wait, what????
WARNING, WARNING - the following explanation on Senate procedure is largely for the non-American readers of SST who are not familiar with the strange arcana of the World's Greatest Deliberative Country Club er, um Body. Or for those readers who get all their news on American politics from Cable news. Here's what really happened late last night. The USA Freedom Act was not actually up for a vote to see if it passed as a piece of legislation - that only requires 51 senators to vote in favor of the pending legislation. Rather the vote late last night was a vote for cloture, which is a vote to cut of debate and proceed to the actual vote on the legislation. As a result of the manipulation of the Senate's internal rules beginning in the late 1990s for partisan gain* all legislation is now subject to a formal vote**, unless otherwise waived (through pre agreement between the Majority and Minority leaders) or through unanimous verbal consent to end debate. This formal vote to end debate, known as cloture, requires 60 votes in favor to proceed to the question. The question is the actual vote on the legislation. So while everything the Senate votes on only requires a simple majority of 51 votes to pass, with the exception of treaties, veto overrides, and to convict the accused in a Federal impeachment, cloture votes require a 2/3 majority (these last three are all Constitutional requirements). So while the news reporting will indicate, as Wired's reporting does that "Senate lawmakers voted 57-42 against the USA Freedom Act", that is not actual true or accurate. What really happened is only 57 senators voted in favor of ending debate and moving to the question, which is actually voting on the bill. Based on the cloture vote numbers there would have been enough Senatorial support for achieving the simple majority to pass the USA Freedom Act if the Senate actually got to the actual vote on the legislation, which it didn't. What it did late last night was vote on whether or not to vote on the actual bill. So when you read that the Senate voted against something 55-45 or 53 to 47 or what have you, 99% of the time you're actually reading reporting about a cloture vote, not a vote on the actual legislation. Sometimes you'll see this reported as the failure to break a filibuster, which is also wrong. These aren't filibusters and, in fact, no on has mounted an actual, real, honest to goodness filibuster in a long time in the US Senate. The result of all this is that even when a piece of legislation has majority support in the Senate it often fails to come up for an actual vote because the internal Senate rules have been manipulated to make everything a 2/3 majority vote before proceeding to an actual vote. To quote Mr. Pierce at Esquire: "This is your democracy America, cherish it".
* The original manipulation in the 1990s was to use the 2/3 cloture votes to prevent President Clinton's Federal Judicial Appointments to come up for a floor vote on their nominations, especially for the Federal Courts of Appeal. This began shortly after his impeachment fell apart in the Senate. The GOP caucus in the Senate effectively held up significant number of nominations, which left large vacancies for the next President, who they hoped would be a Republican, to fill. Their tactics paid off when President Bush took office in JAN 2001 and began to quickly nominate individuals to fill those vacant positions. When the Senatorial Democrats then tried to use the same tactic, they were immediately castigated by the GOP and branded in the media as obstructionists that wouldn't move on from how the 2000 election turned out.
** This doesn't include other things that impede passage of legislation or the consideration of nominees. These include single member holds - both open (as in we know which Senator has placed the hold on pending legislation or nomination) or closed (the Senator has asked the leadership for anonymity) and the blue slip process for nominees - where the committee chair will not accept a nominee for committee consideration if both of the Senators from that nominees home state do not concur with the nomination.