There are two reasons why the Senate should eliminate the filibuster, according to Democrats. First, Republicans use the filibuster to make it harder for Democrats in the Senate to pass legislation. Second, the filibuster empowers a minority of senators to block legislation supported by a majority.

Yet, a recent Senate debate on the COVID-19 Hate Crimes Act (S. 937) suggests that the Democrats’ effort to eliminate the filibuster is not just to overcome minority obstruction or uphold majority rule principles. This is because Democrats consistently prevented senators from debating S. 937 by keeping the legislation off of the Senate floor while negotiations over how to structure its consideration unfolded behind closed doors. And Democrats imposed a particular set of rules when the Senate eventually debated the bill to structure their deliberations. Those rules violated majority-rule principles by empowering Democrats to block two Republican amendments backed by a majority of senators.

DEMOCRATS DELAY DEBATE

According to its sponsors, S. 937 would raise awareness of hate crimes against Asian Americans and Pacific Islanders. In addition, the bill would direct the Department of Justice to issue guidance and provide grants to help state, local, and tribal law enforcement agencies improve their ability to police and report such crimes during the ongoing COVID-19 pandemic.

Senators debated S. 937 on the Senate floor for eight days. That is, senators agreed to begin debating the bill on Thursday, April 15, by approving a motion to proceed to its consideration. And senators concluded their debate on Thursday, April 22, by passing the bill by a vote of 94 to 1.

In reality, however, senators did not debate S. 937 on the Senate floor for eight days. The Senate was in session (i.e., open for business) only five days during those eight days. It was not in session – and therefore closed for business – on three days (Friday, April 16, Saturday, April 17, and Sunday, April 18). And the Senate did not consider S. 937 on four of the days it was in session (Thursday, April 15, Monday, April 19, Tuesday, April 20, and Wednesday, April 21). Instead, the Senate considered S. 937 meaningfully on only one day (Thursday, April 22). And they structured that day’s debate in advance to make it easier for the Senate to pass S. 937 without changes beyond what Democrats had agreed to in private negotiations.

APRIL 15

On Thursday, April 15, senators began their debate on S. 937 by approving a motion to proceed to its consideration. But instead of then proceeding to consider the bill, senators immediately stopped the debate and proceeded to consider other business. Specifically, Majority Leader Chuck Schumer, D-N.Y., moved to proceed to executive session (i.e., its procedural posture when considering presidential nominations and international treaties) to consider President Joe Biden’s pick for Associate Attorney General (Vanita Gupta). The Senate approved Schumer’s motion by a vote of 49 to 45. Democrats voted for it even though doing so meant agreeing to stop the floor debate on S. 937.

Once in executive session, Schumer moved to discharge the Senate’s Judiciary Committee from further consideration of the nomination. Schumer’s maneuver meant that up to four hours of debate could elapse before the Senate could resume its consideration of  S. 937. Under the terms of S. Res. 27, that time is divided equally between the Democrats and Republicans (up to two hours each). And Democrats did not yield their time back to resume the debate on S. 937 sooner. They instead matched Republicans speaker for speaker. Some Democrats even participated in the discussion on several different occasions. Consequently, Democrats likely consumed more overall time than Republicans.

Democrats did not try to resume the debate on S. 937 after the Senate approved Schumer’s discharge motion. The majority leader instead proceeded to call up two Biden nominations for the Senate to consider. And Schumer signaled that Democrats would continue to keep S. 937 off of the Senate floor in the future when he filed cloture on both nominees. This is because filing a cloture motion triggers an automatic vote in the future on whether to invoke it and – if invoked – a limited period of debate.

The Democrats’ intent to keep S. 937 off the floor is also evident in their decision to keep S. 937 off the floor while senators waited to vote on the two cloture motions (i.e., while the cloture motions “ripened”). According to the provisions of Rule XXII, the soonest senators can vote on cloture is 25 hours after it was filed.  (Senators often vote on cloture several days later when it is filed at the end of the week.) That left senators a day (or more) to debate S. 937 on the Senate floor during its eight-day consideration.

But the Senate did not use that time to debate S. 937. Schumer asked unanimous consent that the Senate enter into a period of morning business instead of debating the bill. Under the terms of the subsequent unanimous consent agreement (i.e., “UC”), senators were allowed to speak on the Senate floor for up to ten minutes each. And they could not use that time to engage in meaningful debate (i.e., “conduct legislative business”).

APRIL 19

The Senate resumed its consideration of S. 937 when it convened on Monday, April 19. At that point, Schumer offered an amendment to S. 937 that incorporated changes to the original bill agreed to in bipartisan negotiations between Mazie Hirono, D-Hawaii, and Susan Collins, R-Maine.  Schumer drafted his amendment to be an amendment in the nature of a substitute. That is, he offered an amendment (S. Amdt. 1445) to the original bill (S. 937) that would remove (i.e., “strike”) everything in it and then add (i.e., “insert”) new text (i.e., “language”) in its place. While much of the language in Schumer’s amendment was identical to the original bill, his maneuver – striking everything all at once and adding everything all at once – was the most efficient way to amend different parts of the original bill at one time.

The Senate did not continue to debate S. 937 after Schumer offered his amendment. It then proceeded to executive session to consider more presidential nominations. In other words, Schumer reset the debate on S. 937 by offering a substitute amendment to it and then taking the bill off of the floor to prevent other senators from trying to do the same thing. Instead of debating S. 937, the Senate entered another period of morning business (at Schumer’s request).

APRIL 20

The Democrats’ strategy of keeping S. 937 off the floor while negotiations continued behind closed doors continued on Monday, April 20. Before it adjourned the previous day, Schumer asked that the Senate stop debating S. 937 at 12:00 p.m. so that it could pivot to executive session to resume its consideration of Biden’s Department of Justice nominees.

Under the terms of Schumer’s request, the soonest the Senate could resume its debate on S. 937 was approximately 2:30 p.m. But the Senate did not bring S. 937 back to the floor until later that evening. In part of that time, Democrats opted to attend a briefing on Afghanistan instead of debating S. 937.

When the Senate eventually resumed its debate on S. 937 later that evening, Schumer filed two cloture motions – one to end debate on the substitute amendment (S. Amdt. 1445) that he offered on April 19 and one to end debate on the underlying original bill (S. 937). Before Schumer filed cloture, however, senators had not had an opportunity to debate or amend S. 937, much less filibuster the bill. Again, this is because Democrats repeatedly prioritized other business over debating S. 937 during that time.

After Schumer filed the cloture motions, he asked consent that the Senate enter into a period of morning business in which senators could not conduct legislative business. In short, Schumer stopped the debate on S. 937 after filing the two cloture motions.

APRIL 21

Democrats moved to keep S. 937 off the Senate floor and delay its consideration when the Senate reconvened on April 21. After the Senate confirmed Biden’s Associate Attorney General pick, Schumer moved to discharge the Armed Services Committee from further consideration of Biden’s nominee to be Under Secretary of Defense for Policy (Colin Hackett Kahl) instead of bringing the bill back up for debate. Schumer’s maneuver again meant that the Senate would not resume its debate on S. 937 for up to four hours. However, Democrats did not match Republicans speaker-for-speaker during the subsequent debate over the discharge motion.

The Senate resumed its consideration of S. 937 after it approved Schumer’s discharge motion. But instead of debating the bill, Schumer asked unanimous consent to delay that debate until the following day (Thursday, April 22).

“Mr. President, I ask unanimous consent that the cloture motions with respect to amendment 1445 and S. 937 be withdrawn; that when the Senate resumes consideration of S. 937 on Thursday, April 22, the following amendments be reported by number and they be the only amendments in order: Cruz-Kennedy No. 1456, Lee No. 1425, Blackburn No. 1458; further, that at 11:30 a.m., the Senate vote in relation to the amendments in the order listed; that amendment No. 1445, as amended, if amended, be agreed to; the bill be considered and read a third time; and the Senate vote on passage of the bill, as amended, with 60 affirmative votes required for adoption of the amendments and passage of the bill, with 4 minutes of debate equally divided prior to each vote, all with no intervening action or debate; and, finally, that the motions to reconsider be considered made and laid upon the table with no intervening or debate.”

— MAJORITY LEADER CHUCK SCHUMER, D-N.Y.

In short, Schumer asked to waive the Senate’s rules and to impose a particular set of rules to structure the upcoming debate. Accordingly, Schumer’s UC expedited the debate on S. 937 by scheduling a final vote on passage. It also specified the amendments senators could offer, required 60 votes to adopt those amendments, and limited debate on them to four minutes each (two minutes equally divided between their proponents and opponents). The Senate then entered another period of morning business (at Schumer’s request).

DEMOCRATS BLOCK AMENDMENTS

The Senate considered three amendments to the updated version of the COVID-19 Hate Crimes Act (S. Amdt. 1445). It first rejected an amendment (S. Amdt. 1456) that Ted Cruz, R-Texas, offered to have prohibited federal funding for higher education institutions that discriminate against Asian Americans. The Senate next rejected an amendment (S. Amdt. 1425) that Minority Leader Mitch McConnell, R-Ky., offered on behalf of Mike Lee, R-Utah. Lee’s amendment would have required the Department of Justice to report to Congress regarding state restrictions on religious exercises during the pandemic. The Senate then rejected an amendment (S. Amdt. 1458) that Marsha Blackburn, R-Tenn., offered to narrow the scope of the Department of Justice’s guidance to state, local, and tribal law enforcement agencies.

60-VOTE THRESHOLDS

The Senate rejected all three amendments. A coalition of 49 senators (consisting of all Republicans) voted to adopt the Cruz and Lee amendments. A coalition of 48 senators (consisting of all Democrats) voted to reject the Cruz and Lee amendments. But the Senate rejected the Cruz and Lee amendments even though a majority of senators voted for each of them. This is because Democrats required that 60 senators vote for them before they can be added to S. 937 instead of the simple majority of senators usually needed under the Senate rules. (A majority of senators voted against the Blackburn amendment.)

While Cruz, Lee, and Blackburn agreed on the previous day to require 60 votes to pass their amendments, the Democrats made it more likely that they would do so by preventing them from offering amendments to the bill until they first agreed to a higher vote threshold for their adoption. Senate majorities may block amendments by filling the amendment tree. In this case, the Democrats opted instead to keep S. 937 off the floor – and not subject to amendment – until the Senate locked in the 60-vote requirements by UC.

Both Democratic and Republican majorities have pressured senators to agree upfront to a 60-vote threshold for adopting their amendment in exchange for being allowed to offer it (under the Senate’s practices regulating how many floor amendments can be pending to a bill at the same time). But the frequency in use has increased significantly beginning in the 109th and 110th Congresses.

The practice is also at odds with the Democrats’ case against the filibuster because it empowers a minority of the Senate to block legislative proposals supported by a majority.

THE TAKEAWAY

When taken together, these two aspects of the COVID-19 Hate Crimes Act debate reveal that Republican filibusters were not responsible for slowing the Senate’s consideration of the bill. Instead, Democrats – not Republicans – kept S. 937 off the floor for all but one of the eight days before its passage. And Democrats – most of whom oppose the filibuster and Rule XXII’s three-fifths majority requirement to end one – set up the floor debate on the final day of debate to make it harder for a majority of senators to amend S. 937. They did so by waiving the Senate’s rules and requiring three-fifths of senators (60) to approve Republican amendments instead of a simple majority (typically 51).