Who's Afraid of Mitch McConnell?
The Vice President of the United States is the President of the Senate. To disarm Mitch, all MVP Kamala Harris has to do is follow the Constitution.
Guest Column by Lisa Marie Kerr
AMERICA’S CONGRESS is now wholly disabled by the whim of one man elected in one state. Mitch McConnell has rendered the Senate a legislative nullity. He has functionally amputated an entire chamber of Congress. And he has used that mutilation to erase the House as well. Hundreds of needed bills languish undebated and unvoted. Pandemic relief, election protection, immigration and tax reform—these urgent House-passed priorities never reach the Senate floor, while Trump blithely cages infants and doles out needed medicines and hospital beds to his crime cronies.
But even if Georgia’s runoff fails to produce a Democratic Senate majority, the big problem of Mitch may be a small one after January 20, 2021. Gridlock is a relatively new crisis. The Senate used to work better, and was designed to work better. Once seated as the Senate’s constitutional presiding officer, Vice President Kamala Harris can break gridlock by recognizing any senator to bring any House-passed bill to the floor. She can do that without altering any Senate rule with a procedural vote. And she should.
Vice President Harris will become President of the Senate (automatically) under Article I, Section 3, which also recognizes that the Senate can “choose their other officers,” including majority and minority leaders. But Art. I, Sec. 3 does not give such “other officers” the Vice President’s power to preside, which includes the power of “priority recognition”—that is, allowing a Senator to speak on the Senate floor, and thus to move a bill into debate. Until the mid-20th-century, the Vice President used the presiding officer’s power of priority recognition to develop the Senate into the world’s greatest deliberative body, cultivating a forum for open debate and compromise that transcended partisan lines. When the House passed a bill, any Senator recognized by the Vice President (acting as presiding officer) could move it to the floor, be seconded by another Senator, and proceed into debate and a vote.
The Standing Rules of the Senate give its presiding officer abundant power. But they do not require the Majority Leader to be that presiding officer. Delegation of priority recognition from the Vice President to the Majority Leader is not required by any written Rule of the Senate, or by any of its Standing Orders. As Vice Presidents took on greater executive duties, they simply began delegating the chair to chosen Senators. The Senate’s official history acknowledges that this “informal practice” crystalized into ongoing delegation to the Majority Leader in 1937, thus creating an “emperor without clothes.”
Delegation of presiding power has become a habit that none question—like cigarette smoking in the 60s. But the malignant cancer of delegation to Mitch McConnell is not required by the Constitution—and I argue that when delegation is chronically abused to block bills from the Senate floor, it is the duty of the Vice President to reclaim her presiding power. Obstructing is not presiding. It is blocking the air from our legislative lungs.
You may ask: “Wouldn’t reclamation of the Vice President’s constitutional presiding power required a change in the rules of the Senate? And doesn’t that need a two-thirds majority vote—which we won’t have, even if Warnock and Ossoff both win their Georgia runoffs?” Ah, but delegation of the Vice President’s constitutional presiding power is found nowhere in the Senate’s Rules. Rule XXIII, “Privilege of the Floor,” only determines who can be recognized by the presiding officer, not who can act as that presiding officer. Hence, the solution I propose—having Vice President Harris recognize, in her capacity as as presiding officer, a Senator to move a House-passed bill—would pose no conflict with Rule XXIII. Nor would it conflict with any other standing rule, because the Majority and Minority Leaders would retain their non-presiding powers. And any spurious points of order blocking such action could be rejected by the Vice President herself—as the presiding officer.
Reclaiming the presiding power would not require the Vice President to attend every session, or strip her of executive duties. She would remain free to delegate on an individual basis to a Senator chosen to move a specific bill forward. She could even restore presiding power to the Majority Leader, on condition that it not be further abused. Original Senate bills could still move through committee for preliminary analysis, pursuant to existing Senate Rules. Motions to proceed and for cloture would still be governed by Senate Manual Sec. 74 (standing order). Amendments to such House bills would still proceed in conference under Cleaves’ Manual of the Law, by precedents incorporated in Senate Manual Sec. 200, et seq.
Can courts stop the Vice President from reclaiming her power to preside on behalf of the nation? They cannot. Who would have standing to sue here? Only the Majority Leader. Would a court recognize any right to retain presiding power by a Majority Leader? No. The Constitutional power granted to the Vice President to preside over the Senate may not be limited by the Senate’s own internal deliberations.
How would Americans benefit if our nationally-elected Vice President followed my suggestion to break gridlock, thus allowing House-passed bills (and others) to come to the floor? It would not guarantee every bill’s passage, especially if the GOP retains a bare majority, but it would make compromise more likely, through markup and reconciliation. The number of opposing votes may change when those votes must be cast on record, after robust open debate. Public disdain and electoral consequences may deter public blocking of a bill Senators are willing to block behind closed doors. And open floor votes and debate would eliminate the travesty of a single man elected by a single state’s voters blocking legislation that the vast majority of Americans demand.
Imagine, for example, how different our Supreme Court might look if Merrick Garland’s nomination had been moved to the floor and debated. Many Republicans supported him in the past, and the seat would have been his, if the presiding power had been reclaimed by then-Vice President Biden. Imagine how glowing our national picture might have been if bills with genuine bipartisan support, like immigration reform and election protection, had passed both chambers during Obama’s administration through a robust process of debate, amendment and markup, presided over by a nationally-elected Vice President—rather than dying on the bleak desk of a man who proudly declares himself America’s “Grim Reaper.”
In short, the Senate’s historic role as “world’s greatest deliberative body” requires that open deliberation take place as described in the Constitution—not behind closed doors, and certainly not inside the head of one man elected by 1.2 million voters in the 26th most populous state in the Union. Does our Vice President have a duty to take back presiding power on behalf of the American people? I argue that she does. In a pandemic where 3,000 lives per day hang in the balance, that duty is clear. Once seated, she should exercise and/or delegate her constitutional presiding power only in a manner that allows American policy to move forward. Our entire Article I legislative power has been usurped by Mitch McConnell—contrary to the Constitution’s organizing principle of self-government.
End this nightmare, Madam Vice President. Please.
Lisa Marie Kerr is an attorney and social worker who lives in West Virginia and tweets as @thatshockratees.
For further reading, please check out the earlier take on this at NewsFlector.
Photo credit: Gage Skidmore. McConnell speaking at CPAC 2014 in Washington, when his hands were not yet purple.
Hi, folks! I've been handling most of the attacks via Twitter, because it's challenging to manage two forums at once. But a point that's worth addressing here is "how would/should VP respond if GOP retained its majority, then voted to suspend/amend a Senate Rule depriving the presiding officer of power." Paragraph 6 of the article wasn't as strong as it could have been, on that point.
The problem with that attack is encapsulated in the Senate's official history (cited graf 7) - https://www.senate.gov/artandhistory/history/minute/Priority_Recognition_of_Floor_Leaders.htm
The Senate's official history on its dot.gov site recounts the Constitutional fact that the majority leader's presiding powers are derivative of the presiding power informally delegated by the VP. A power delegated can be taken back, so the Senate history accurately describes the majority leader as "an emperor without clothes."
The question arises: if the VP took presiding power and used it to give priority to a senator, for purposes of moving a House-passed bill to the floor, and the House purported to override that action by 1) self-recognizing the ML to do something different, and then 2) sustaining a point of order limiting the VP's presiding power, what would be the legal basis and remedy for that action? Several principles intersect here that arise from agency rulemaking. But first, we have to recognize the Supremacy Clause - the Constitution is a superior law to any other law, rule or precedent. The Senate Rules describe the powers of the Presiding Officer, and can be suspended or amended by the majority, but that action would not be valid if it deprived the VP of her constitutional presiding power. The Constitution is supreme over the rule, not the other way around.
Then, you need to look at Senate Rules restricting the presiding power like other rulemaking - it must be within the scope of its statutory authorization (or, here, constitutional authorization). The Constitution endows the Senate with power to "chuse its other officers" but not that of the presiding officer, the VP. So to the extent Senate Rules were applied to the contrary, it would violate Art. 1 Sec. 3.
And then, return to the central idea that the majority leader's presiding power is derivative from and delegated by the VP - or, a glass cannot be smaller than the water poured from it. If the Senate limited the presiding officer's powers, those limitations would have to apply to the majority leader and the VP equally, or conversely would be an unconstitutional limitation of the VP's presiding power. We have ample precedent in the executive agency context, analyzing whether a rulemaking exceeds its statutory authorization. The Constitution being the supreme statute under its own Supremacy Clause, a rulemaking that made the deriviative ML power larger than the originating VP power would violate those precedents.
How would that play out? If VP recognized a Senator to move a bill, and Moscow Mitch tried to stop her? A floor fight on this topic COULD generate a Supreme Court petition, and in this hypothetical, VP would have standing to petition for it, and I believe the court would hear it and resolve in her favor. Would that take more than a minute? Sure? Is it worth teeing up and doing? Good God, there are hundreds of blocked House-passed bills that would save and improve American lives. Many have wide popular support and would peel off enough GOP votes to pass the Senate, or cause the rejecting Senators to lose their seats if their votes were on record. Sure, it's worth doing.
Another point was raised - didn't the early Senate successfully rebel against the VP's presiding powers? Any occurrence prior to Marbury v. Madison isn't relevant to the constitutional framework here, because at that time, SCOTUS did not assert jurisdiction to review laws or rulemaking.
OMG I hope Madam Vice President does this! There is so much sitting on that desk waiting to be voted on. This sounds do-able, thank you, Lisa, and Thank you, Greg!