You may have noticed the media talking about upcoming ethics "trials" for Reps. Charlie Rangel (D-NY-15) and Maxine Waters (D-CA-35). But is it really a trial? You don't see a lot of ethics cases getting to this stage, so most people don't have much to compare these proceedings to.

I've had a look at the rules of the ethics committee (PDF) -- and by the way, the official name is the Committee on Standards of Official Conduct -- and it turns out that a "trial' is a pretty fair description of what goes on, even if it's not the term the committee uses. But you can hardly blame the media for taking the "trial" shortcut rather than going with "adjudicatory hearing." Especially when you read the description of those hearings, convened by a selected subcommittee:

At an adjudicatory hearing, the subcommittee may require, by subpoena or otherwise, the attendance and testimony of such witnesses and production of such books, records, correspondence, memoranda, papers, documents, and other items as it deems necessary.  Depositions, interrogatories, and sworn statements taken under any investigative subcommittee direction may be accepted into the hearing record.

The adjudicatory subcommittee shall, in writing, notify the respondent that the respondent and respondent’s counsel have the right to inspect, review, copy, or photograph books, papers, documents, photographs, or other tangible objects that the adjudicatory subcommittee counsel intends to use as evidence against the respondent in an adjudicatory hearing.  The respondent shall be given access to such evidence, and shall be provided the
names of witnesses the subcommittee counsel intends to call, and a summary of their expected testimony, no less than 15 calendar days prior to any such hearing.  Except in extraordinary circumstances, no evidence may be introduced or witness called in an adjudicatory hearing unless the respondent has been afforded a prior opportunity to review such evidence or has been provided the name of the witness.

There's plenty more, but suffice to say that the set-up is pretty recognizable as a trial, even if that's not the term they use. Witnesses, oaths, cross examinations, etc. The whole bit.

As I understand it, the last such proceeding was the one that ended in the recommendation of expulsion for former Rep. Jim Traficant (D-OH). So it's been a while, and the Traficant case was pretty much open-and-shut, so there's really not a lot of experience out there in dealing with serious and contested adjudicatory hearings.

Basically, though, the subcommittee appointed to hear the case will be (like the full committee) evenly divided between Republicans and Democrats, and will be responsible for deciding whether "clear and convincing evidence." That's a standard of proof somewhat lower than a criminal court's requirement of proof of guilt "beyond a reasonable doubt," which probably grows out of the House's interest in ensuring that Members avoid the appearance of impropriety as zealously as impropriety itself. If a majority of the subcommittee concludes that any of the allegations have been sufficiently proven, that result is reported to the full committee. Charges not sufficiently proven according to the subcommittee vote are considered as dropped.

A report from the subcommittee that one or more charges has been considered sufficiently proven triggers a penalty phase before the full committee. At this stage, the committee can hear from counsel for both sides, but generally, no further witness testimony is taken. It's the full committee that decides in this last stage whether to handle the matter at the committee level with a Letter of Reproval (for less serious violations), or whether to recommend that the full House take some more severe action. Committee Rule 24(e) sets forth the following options:

 (1)  Expulsion from the House of Representatives.
 (2)  Censure.
 (3)  Reprimand.
 (4)  Fine.
 (5)  Denial or limitation of any right, power, privilege, or immunity of the Member if under the Constitution the House of Representatives may impose such denial or limitation.
 (6)  Any other sanction determined by the Committee to be appropriate.

And 24(g) describes the standards by which the sanctions are meted out:

(g)  With respect to the sanctions that the Committee may recommend, reprimand is appropriate for serious violations, censure is appropriate for more serious violations, and expulsion of a Member or dismissal of an officer or employee is appropriate for the most serious violations. A recommendation of a fine is appropriate in a case in which it is likely that the violation was committed to secure a personal financial benefit; and a recommendation of a denial or limitation of a right, power, privilege, or immunity of a Member is appropriate when the violation bears upon the exercise or holding of such right, power, privilege, or immunity. This clause sets forth general guidelines and does not limit the authority of the Committee to recommend other sanctions.

Why does the committee only recommend punishment to the full House rather than hand it down itself? Our old friend (from discussion of the filibuster reform issues), Article I, Section 5, clause 2 of the Constitution:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

The right to punish Members, then, resides with the House, and is not delegable to committees and/or subcommittees, though the adjudicatory phase can be.

So those are the basics of what to look out for. Thanks, Committee on Standards of Official Conduct, for putting your rules online!

The House is not in session this week. They're recessed for the month of August and are due to return the week of September 13th.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 9:30am

The Senate will convene at 9:30am and immediately proceed to Executive Session to consider the nomination of Elena Kagan to by Associate Justice of the Supreme Court. The Senate will recess from 12:30 until 2:15pm to allow for the weekly caucus meetings.

Debate time on the Kagan nomination will be controlled as follows:

• Chairman Leahy –first 30 minutes
• Ranking Member Sessions—next 30 minutes
• 10:30 until 11am equally divided and controlled between the Leaders, or their designees
• 11-12:30pm equally divided and controlled, with the Majority controlling the first 45 minutes;
• 2:15pm-8:15pm divided in one hour alternating blocks, with the Majority controlling the first block
• 8:15pm and beyond continuing to be divided in one hour alternating blocks of time.

Well, uh... hmm. What do you really want me to tell you about this?

The only thing even remotely insightful about Senate proceedings that I had to tell you was already covered by Joan yesterday. You should read about that.

I really don't have a lot to tell you. They're not giving me a lot to work with, not that what they are doing isn't important. Seriously. But I'm kind of glad about that. I'm supposed to be on vacation.

There are some committee hearings, though. You wanna read about them? They're below the fold.

I'm out!

The House is not in session this week. They're recessed for the month of August and are due to return the week of September 13th.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 2:00pm

Following Leader remarks, the Senate will proceed to a period of morning business until 3:00pm with senators permitted to speak therein for up to 10 minutes each.

Following morning business, the Senate will resume consideration of the House Message on H.R.1586. At 5:45pm, the Senate will proceed to a roll call vote on the motion to invoke cloture on the motion to concur with amendment #4567 (Teacher Funding and FMAP) in the House amendment to the Senate amendment to HR1586.

Next week, in addition to considering the Teacher funding and FMAP amendment, the Majority Leader would like to consider an energy bill, the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States, and any other items cleared for action on the Legislative or Executive calendars.

Uh-oh! The sun rose, so you know what that means. A cloture vote in the Senate! Today's cloture vote is on the substitute amendment that will strip the original text out of H.R. 1586 -- which started out as a re-authorization bill (definition) for the Federal Aviation Administration (FAA), but will now become the vehicle for funding the teacher jobs and aid to the states that got stripped out of the supplemental the week before last. Remember what that was all about?

Why strip out the contents of an FAA authorization? Because the offset for the spending comes in part from closing the foreign tax credit loophole, which means it's a revenue measure. And revenue measures are supposed to originate in the House, under the Constitution. Remember? So they're taking a bill from the House and "amending" it so that they can comply with the rule. This bill originated in the House. They're just taking every single thing in it out and putting in something completely new. Ta-da!

So they'll be working on getting cloture on that substitute amendment. But just for fun, I'll point out that the entire history of this bill is that the House passed it in March of 2009. The Senate didn't even take it up until a full year later, in March of 2010, and when it did, it slogged through two full weeks of debate on it, amended it, and sent it back to the House. The House agreed to the Senate amendments and added still more amendments (which took them all of one day, by the way) and sent it back to the Senate again. So the reason I'm telling you all this is so that you'll recognize that what they're voting on today is a cloture motion on the motion to concur in the House amendment to the Senate amendment with an amendment.

I wish I was kidding you.

The good news here is that since it's just a motion to concur with an amendment, the one cloture vote is all they'll need. Whether or not they can get it done, no one yet knows. But at least it's just one cloture motion.

The amendment, as I understand it, is fully paid for with cuts made elsewhere, which means it meets the demands of the Maine Senators and therefore should pass muster in the cloture voting. But then again, Republicans have Democrats over a barrel in that it's a week before they're supposed to adjourn for recess, and Democrats also are apparently entertaining ideas of taking up and finishing an energy bill and the nomination of Elana Kagan to the Supreme Court. A failed cloture vote might mean abandoning the teacher funding and state aid until after the recess, in order to take a shot at the other agenda items. Frankly, they should probably think about dropping the energy bill instead, since it's pretty well watered down and  is mostly of little interest to serious environmentalists at this point. Better to spend their time on Kagan and making sure there are some teachers still working come September.

But hey, that's just me. I'm just a regular chump with kids in school, so what do I know?

The week's committee schedule -- limited just to the Senate since the House is already gone -- appears below.

In the House, courtesy of the Office of the Majority Leader:

FLOOR SCHEDULE FOR FRIDAY, JULY 30, 2010

House Meets At... 9:00 a.m.: Legislative Business
First Vote Predicted... 10:00 – 11:00 a.m.
Last Vote Predicted... Evening

"One Minutes" (5 per side)

H.R. 3534 - Consolidated Land, Energy and Aquatic Resources Act (Reps. Rahall/Oberstar – Natural Resources/Transportation and Infrastructure) (Subject to a Rule)

H.R. 5851 - Offshore Oil and Gas Worker Whistleblower Protection Act (Rep. George Miller (CA) – Education and Labor) (Subject to a Rule)

Possible Further Action on H.R. 1264 - Multiple Peril Insurance Act (Rep. Taylor – Financial Services)

Suspensions (3 Bills)

1. H.R. __ - To increase the flexibility of the Secretary of Housing and Urban Development with respect to the amount of premiums charged for FHA single family housing mortgage insurance (Rep. Frank – Financial Services)
2. H.R. 4862 - To permit Members of Congress to administer the oath of allegiance to applicants for naturalization (Rep. Serrano - Judiciary)
3. H.R. __ - Small Business Tax Relief Act (Reps. Murphy (NY)/Owens – Ways and Means)

Postponed Suspension Votes (4 Bills)

1. H.Res. 1558 - Expressing the sense of the House of Representatives that fruit and vegetable and commodity producers are encouraged to display the American flag on labels of products grown in the United States, reminding us all to take pride in the healthy bounty produced by American farmers and workers (Rep. Cardoza - Agriculture)
2. H.R. 5901 - Real Estate Jobs and Investment Act (Rep. Crowley - Ways and Means)
3. H.Res. 1566 - Recognizing and commemorating The Fiftieth Anniversary of the Student Nonviolent Coordinating Committee (SNCC) and the National Sit-In Movement (Rep. Lewis (GA) - Judiciary)
4. H.R. 5414 - To provide for the conveyance of a small parcel of National Forest System land in the Francis Marion National Forest in South Carolina (Rep. Brown (SC) - Agriculture)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 9:30am

Following any leader remarks, the Senate will proceed to a period of morning business with senators permitted to speak for up to 10 minutes each.

There will be no roll call votes during Friday’s session of the Senate. The next vote will occur around 5:30 and 5:45pm on Monday, August 2. That vote will be on the motion to invoke cloture on the motion to concur with amendment #4557 (Teacher Funding and FMAP) with respect to HR1586.

The House gets ready to close up shop for six weeks after today's work, so there's a lot of clean-up going on. Three substantive items to be brought subject to a rule top the list, though they might not get to all of them. First on the chopping block, it seems, is the continuing struggle of Rep. Gene Taylor (D-MS-04) to wring some relief for Gulf Coast home and business owners out of insurance companies who denied policy holders adequate coverage in the wake of Hurricane Katrina. Not that Taylor could be bothered to do the same for people all over the country similarly victimized by their health insurers, but hey, it's a nice thought, I'm sure.

Also up under regular order, two bills responding in different ways to the Gulf oilcano disaster, including new BANANAS candidate, the CLEAR Act. CLEAR stands for "Consolidated Land, Energy and Aquatic Resources." That's not so awful. I'll give that just a 2. Aquatic is a little bit of an unnecessary flourish, but it's not crazy. What's it do? It reforms mineral extraction leasing policy, and establishes a new Office of Federal Energy and Minerals Leasing within the Department of the Interior.

The other oilcano-related bill up today is the Offshore Oil and Gas Worker Whistleblower Protection Act -- or as I call it, OOGWWPA. I like to say it as, "Ooga-whoppa" and insert it into the lyrics of Blue Swede's 1974 hit, "Hooked on a Feeling." But that's just me.

Also of interest, the as-yet unnumbered bill being brought to the floor under suspension of the rules (Did we get a waiver for suspensions on Friday? I don't recall seeing that.) and designated the Small Business Tax Relief Act. I suppose this is another stab at isolating stuff from the Small Business Jobs bill that's stalled in the Senate and sending it through on its own, as they did with unemployment benefits extensions not long ago, when combining it with other items appeared to bog it down.

On the Senate side, another interesting move. Harry Reid will move to strip out the text of an FAA authorization bill and substitute instead language to address the additional domestic spending that was itself stripped out of the supplemental appropriations bill the other day. That's $10 billion for teacher job retention and $16.1 billion for FMAP (Federal Medical Assistance Percentage) payments. (That's Medicaid money for the states.) Like the House did and appears to be doing again, the Senate will now isolate out a popular piece of a bill that's stalled and try to get that to a vote.

Why strip out the contents of an FAA authorization? Because the offset for the spending comes in part from closing the foreign tax credit loophole, which means it's a revenue measure. And revenue measures are supposed to originate in the House, under the Constitution. Remember? So they're taking a bill from the House and "amending" it so that they can comply with the rule. This bill originated in the House. They're just taking every single thing in it out and putting in something completely new. Ta-da!

Anyway, that'll require a cloture vote (of course!), so the Senate will be back in next week, even as the House heads out on recess.

No committee meetings are scheduled for today, so that's it. Nothing below the fold!

In the House, courtesy of the Office of the Majority Leader:

FLOOR SCHEDULE FOR THURSDAY, JULY 29, 2010

"One Minutes" (10 per side)

H.R. 5850 - Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2011 (Rep. Olver – Appropriations) (Subject to a Rule)

H.R. 5893 - Investing in American Jobs and Closing Tax Loopholes Act of 2010 (Rep. Levin – Ways and Means) (Subject to a Rule)

Suspensions (10 Bills)

1. H.R. 5900 - Airline Safety and Federal Aviation Administration Extension Act of 2010 (Rep. Oberstar - Transportation and Infrastructure)
2. H.R. 5901 - Real Estate Jobs and Investment Act (Rep. Crowley - Ways and Means)
3. H.R. 847 - James Zadroga 9/11 Health and Compensation Act (Rep. Maloney - Energy and Commerce)
4. H.R. 5320 - Assistance, Quality, and Affordability Act of 2010 (Rep. Waxman - Energy and Commerce)
5. S. 3372 - Modifying the date on which the Administrator of the Environmental Protection Agency and applicable States may require permits for discharges from certain vessels (Sen. Boxer - Transportation and Infrastructure)
6. H.Res. __ - Recognizing and commemorating The Fiftieth Anniversary of the Student Nonviolent Coordinating Committee (SNCC) and the National Sit-In Movement (Rep. Lewis (GA) - Judiciary)
7. H.R. 5414 - To provide for the conveyance of a small parcel of National Forest System land in the Francis Marion National Forest in South Carolina (Rep. Brown (SC) - Agriculture)
8. H.R. 2476 - Area Recreational Opportunity Enhancement Act (Rep. DeGette - Agriculture)
9. H.J.Res. 90 - Expressing support for designation of September 2010 as "Gospel Music Heritage Month" and honoring gospel music for its valuable and longstanding contributions to the culture of the United States (Rep. Jackson-Lee - Oversight and Government Reform)
10. H.Res. 1527 - Congratulating the United States Men's National Soccer Team for its inspiring performance in the 2010 FIFA World Cup (Rep. Gohmert - Oversight and Government Reform)

Postponed Suspension Votes (3 Bills)

1. H.Con.Res. 266 - Expressing the sense of Congress that Taiwan should be accorded observer status in the International Civil Aviation Organization (Rep. Berkley - Foreign Affairs)
2. H.R. 3040 - Senior Financial Empowerment Act (Rep. Baldwin - Judiciary)
3. H.Res. 1558 - Expressing the sense of the House of Representatives that fruit and vegetable and commodity producers are encouraged to display the American flag on labels of products grown in the United States, reminding us all to take pride in the healthy bounty produced by American farmers and workers (Rep. Cardoza - Agriculture)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 9:30am

Following any Leader remarks, the Senate will resume consideration of H.R.5297, Small Business Jobs bill. There will then be 1 hour for debate prior to a cloture vote on substitute amendment. The time prior to the vote will be equally divided and controlled between the two Leaders or their designees, with the final 10 minutes reserved for the two Leaders or their designees, with the Majority Leader controlling the final 5 minutes.

At approximately 10:40am (depending on how much Leader time is used), the Senate will proceed to a roll call vote on the motion to invoke cloture on the Baucus-Landrieu amendment #4519 (Substitute) to HR5297, Small Business Jobs.

The filing deadline for second degree amendments to Baucus-Landrieu amendment #4519 (Substitute) and the underlying bill is 10:00am tomorrow, Thursday, July 29.

Recess is coming. Congress will be out of session for six weeks! No better way to go into it than 13 suspensions, I say. But there'll be a little substance, too. An appopriations bill, and that's nothing to sneeze at. Transportation/HUD, at that. That's no MilCon, if you know what I mean! But you probably don't. I'm not even sure I know what I mean. People get a little punchy when there's a recess on the horizon. That might explain how so many horrible things tend to get passed just before one.

Anyway, aside from the appropriations bill, the other substantive bill on the schedule is H.R. 5893, the "Investing in American Jobs and Closing Tax Loopholes Act of 2010." Sounds familiar, but the bill number tells me it's relatively new. The reason it sounds familiar, though, is that the original tax extenders/unemployment benefits extension bill that fell apart weeks ago was once called the "American Jobs, Closing Tax Loopholes and Preventing Outsourcing Act," and was designated H.R. 4213. It's also a bill that was once sponsored by former Ways & Means Committee Chairman Rep. Charlie Rangel (D-NY-15), but his name was replaced with that of the new Chairman, Rep. Sandy Levin (D-MI-12) when Rangel got into ethics trouble and had to step down. Unemployment benefits having been split off and passed separately, it looks like the House is now coming back to the pieces that were left behind.

On the Senate side... a cloture vote! Wow! Who would have guessed it? This time, it's on the Small Business Jobs bill -- that bill that's been on the floor for a month, and on which the leadership has "hoped to reach an agreement" for just as long. Looks like they've agreed not to agree, at least for the time being.

A successful cloture vote means the Senate would be limited to just 30 more hours of debate, which is a great topper to the 30 days they've already spent on it, don't you think? Of course, if they really needed all 30 hours, that would mean they couldn't vote on passage of the bill until 4:30 on Friday, and nobody wants to be here on 4:30 on a Friday before the August recess. So don't be surprised to see a successful cloture vote followed by a yielding back of time and/or an actual agreement to limit time and get to a vote sooner. See? Getting to that agreement was just a matter of time! Have faith, folks!

Today's committee schedule and Will's Picks for Hot D-on-R Action appear below. Still no objection (that I know of) from Will to that title, so I'm sticking with it.

I think we all knew that the growing call for filibuster reform was going to meet with some resistance eventually.

Well, here it is:

Senior Democrats say Reid will not have the votes to change the rule at the beginning of next year.

"It won’t happen," said Sen. Dianne Feinstein (D-Calif.), who said she would "probably not" support an effort to lower the number of votes needed to cut off filibusters from 60 to 55 or lower.

Sen. Daniel Akaka (D-Hawaii) echoed Feinstein: "I think we should retain the same policies that we have instead of lowering it.

"I think it has been working," he said.

Sen. Mark Pryor (D-Ark.) said he recognizes his colleagues are frustrated over the failure to pass measures such as the Disclose Act, campaign legislation that fell three votes short of overcoming a Republican filibuster Tuesday.

"I think as torturous as this place can be, the cloture rule and the filibuster is important to protect the rights of the minority," he said. "My inclination is no."

Sen. Jon Tester, a freshman Democrat from Montana, disagrees with some of his classmates from more liberal states.

"I think the bigger problem is getting people to work together," he said. "It’s been 60 for a long, long time. I think we need to look to ourselves more than changing the rules."

Sen. Ben Nelson (D-Neb.), who is up for reelection in 2012, also said he would like the votes needed for cloture to remain the same.

"I’m not one who think it needs to be changed," he said.

There are plenty of reasons to believe it's still possible to get these Senators on the same page with reformers, but I won't go into them all just yet. We've got to give them some time and talk things out with them first.

But there is one thing I'd like to address directly right now, and that's the statement from Jon Tester, who said that he thought the real problem was "getting people to work together."

Well, who couldn't agree to that? Right? But here's where I'm going to guess that Sen. Tester and I differ in our approach. For him, the emphasis is probably on "together," whereas for me, the emphasis is on "work." Because the Senate isn't "working," but they're "together" whether they like it or not.

The Senate's not working, because there are something like 400 bills that have been passed by the House during the 111th Congress that the Senate has failed to consider. The Senate's not working, because there are dozens and dozens of executive nominations gathering dust. But most of all, the Senate's not working because it doesn't take any work to stop it from working. And that's what the Republicans are interested in doing. Worse, current rules make stopping the Senate from doing its work the easiest thing in the world to do.

That's just plain wrong, and I'll bet anything Senator Tester would agree with that. I'm guessing that's true because Senator Tester seems like the kind of guy who prides himself on his hard work, whether it's on the farm or in the Senate.

And he strikes me as a fair guy, too. So I know he'll understand when I say that if you want to allow for extended debate to let the minority be heard, that's fine.

But it's not free.

You should have to work -- and work hard -- to be able to stop an important bill. You should have to work yourself half to death to be able to derail an entire legislative agenda. And quite frankly, you shouldn't count on ever seeing the light of day again if you're looking to bottle up the entire agenda of the biggest Senate majority elected in decades. It should be that hard to do.

But it's not. Most times, you don't even have to lift a finger. And you know Jon Tester can't really be OK with that.

The filibuster is no longer a measure of the courage and dedication of a single Senator, fighting against all odds to demand that his voice be heard. Today's filibuster is the coordinated act of an entire party caucus, and it's hardly ever aimed at getting additional debate time, but rather at stifling debate and preventing Senators from doing the job we sent them to Washington (and paid them with your tax dollars) to do. And that's to vote. To make the tough calls and the hard decisions on public policy, and choose a direction for America. They're not doing it though. And they're not doing it because the filibuster makes it impossible for them to do it. (But that's not stopping their paychecks, in case you were wondering!)

Stopping an entire legislative agenda -- or even just demanding a little bit of extra time to debate and consider an important decision -- ought to take real, honest, hard work. And that should mean being on the floor to participate in that debate you demanded. How can anybody "work together" if one side doesn't even have to show up?

That's the current state of the filibuster. The minority need only show up once in a while to vote "no" on whether or not to end debate, but they don't have to show up more than one at a time to actually participate in that debate. Just talk about nothing, one at a time, and then pass it on to a colleague when you feel like heading out for a drink. And once in a while, call in your buddies to show up to say "no."

That's not work.

But the majority does have to do the hard work. They're the ones who prepare measures for floor consideration. Who shepherd it through committee. Who gather support for it among colleagues and interest groups and constituents. Where's the "work" from the minority? All they do in this "working together" business is show up and say "no."

Well, I imagine that even Senator Tester would like to see that change. Only there's no way to change it without opening up to the possibility of changing Senate rules, because so long as there's no way to make Senators do their work, he can wish all day long that his Republican colleagues would "work together" with him and it won't make a damn bit of difference. Maybe he has been wishing, but I certainly haven't seen it happening. Have you? It must not be working real well. And I've got to believe that the reason it's not working real well is that the rules make it so that you have more power when you refuse to work than you do when you agree to pitch in.

That's got to change. And if Jon Tester doesn't think so, I'd love to hear him tell me why.

In the House, courtesy of the Office of the Majority Leader:

FLOOR SCHEDULE FOR WEDNESDAY, JULY 28, 2010

House Meets At... 10:00 a.m.: Legislative Business
First Vote Predicted... 1:00 – 2:00 p.m.
Last Vote Predicted... 7:00 – 8:00 p.m.

"One Minutes" (15 per side)

H.R. 5822 - Making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2011 (Rep. Edwards (TX) – Appropriations) (Subject to a Rule)

Suspensions (16 Bills)

1. H.R. 4692 - National Manufacturing Strategy Act of 2010 (Rep. Lipinski - Energy and Commerce)
2. H.R. 5156 - Clean Energy Technology Manufacturing and Export Assistance Act of 2010 (Rep. Matsui – Foreign Affairs)
3. H.R. 1875 - End the Trade Deficit Act (Rep. DeFazio - Ways and Means)
4. H.Res. 1481 - Supporting the goals and ideals of "National Save for Retirement Week", including raising public awareness of the various tax-preferred retirement vehicles and increasing personal financial literacy (Rep. Schwartz - Ways and Means)
5. H.R. 1796 - Residential Carbon Monoxide Poisoning Prevention Act (Rep. Matheson - Energy and Commerce)
6. H.Res. 1499 - Honoring the achievements of Dr. Robert M. Campbell, Jr., to provide children with lifesaving medical care (Rep. Wasserman Schultz - Energy and Commerce)
7. H.R. 2480 - Truth in Fur Labeling Act (Rep. Moran (VA) - Energy and Commerce)
8. S. 1789 - Fair Sentencing Act of 2010 (Sen. Durbin - Judiciary)
9. H.R. 5751 - Fee on Lobbyists Act (Rep. Kilroy - Judiciary)
10. H.R. 5872 - General and Special Risk Insurance Funds Availability Act of 2010 (Rep. Frank - Financial Services)
11. Senate Amendments to H.R. 5610 - Independent Living Centers Technical Adjustment Act (Rep. George Miller - Education and Labor)
12. H.R. 5874 - Making Supplemental Appropriations for the United States Patent and Trademark Office for the Fiscal Year Ending September 30, 2010 (Rep. Mollohan - Appropriations)
13. H.R. 5875 - Making Emergency Supplemental Appropriations for Border Security for the Fiscal Year Ending September 30, 2010 (Reps. Price (NC)/Giffords - Appropriations)
14. H.Res. 1558 - Expressing the sense of the House of Representatives that fruit and vegetable and commodity producers are encouraged to display the American flag on labels of products grown in the United States, reminding us all to take pride in the healthy bounty produced by American farmers and workers (Rep. Cardoza - Agriculture)
15. H.R. 4658 - Benton MacKaye Cherokee National Forest Land Consolidation Act (Rep. Duncan - Agriculture)
16. H.R. 5669 - To direct the Secretary of Agriculture to convey certain Federally owned land located in Story County, Iowa (Rep. Latham - Agriculture)

Postponed Suspension Votes (4 Bills)

1. H.Res. 1543 - Honoring the educational significance of Dr. Jane Goodall's work on this the 50th anniversary of the beginning of her work in Tanzania, Africa (Rep. Polis - Education and Labor)
2. H.Con.Res. 266 - Expressing the sense of Congress that Taiwan should be accorded observer status in the International Civil Aviation Organization (Rep. Berkley - Foreign Affairs)
3. H.R. 3040 - Senior Financial Empowerment Act (Rep. Baldwin - Judiciary)
4. H.R. 5827 - Protecting Gun Owners in Bankruptcy Act of 2010 (Rep. Boccieri - Judiciary)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 9:30am

Following any Leader remarks, the Senate will proceed to a period of morning business for 1 hour with senators permitted to speak therein for up to 10 minutes each. The Republicans will control the first 30 minutes and the Majority will control the next 30 minutes.

Following morning business, the Senate will resume consideration of H.R.5297, Small Business Jobs bill. Cloture was filed on the substitute amendment #4519 and the underlying bill. As a result, there is a 1:00pm filing deadline for germane first degree amendments to the Reid for Baucus-Landrieu substitute amendment (SA4519) and HR5297.

Not a controversial day on the Hill today. Twenty suspensions potentially up for votes today, and this time, they're all your basic, non-controversial suspension material. It's topped off by a little substantive work, but it's one of the traditionally least-controversial pieces of substantive work that's done all year, the military construction and VA appropriations bill.

On the Senate side, the sun is expected to rise, which means there's another cloture filing getting a mention on the schedule. But just to keep things truly boring, the cloture vote won't come until tomorrow. Today will be spent debating the Small Business Jobs bill... again. That bill, by the way, has been on the floor (with fingers crossed for reaching an agreement!) for a full month now. Who knew it would be so difficult to get agreement on creating jobs in small business? Everyone who hasn't had their head up their ass about the fact that there won't be any deals with Republicans. It's Senate GOP policy not to allow any "wins" for Democrats. Period.

Seriously. A month. For small business jobs. If you were watching the filibuster reform panel I did at Netroots Nation last Saturday and heard my answer to the "why can't they make 'em really filibuster" question, this is your illustration of the effect of the "two track" system. If you weren't following, here's the deal: the two track system was adopted in the 70s as a reform in filibuster practice. Previously, a bill that was being filibustered remained the pending business on the floor, and you couldn't do anything else until it was resolved. As a reform, they decided that there should be multiple "tracks" for bills to move on, so if one was being filibustered, you could just set it aside and work on something else. But the upshot of that reform was to make it very tempting to just not go back to anything that was being filibustered, meaning that objecting Senators could delay those bills indefinitely without actually having to occupy the floor to do it.

Hence, the Small Business Jobs bill "on the floor" for a month, without anything happening, and without anyone having to take the floor and talk to delay it.

And that's your filibuster reform story for the day. But while I have you:

Disclosure: I'm doing paid work on filibuster reform in the Senate, supported in part by CREDO Action and Blue America. We need your help to continue this work, and you can do it at no cost to you by signing CREDO Action's petition. Or hell, let it cost you something and go donate at Blue America's ActBlue page.

Today's committee schedule and Will's Hot D-on-R Action Picks appear below.

Just noticed this didn't go up, for some reason. Apologies.

In the House, courtesy of the Office of the Majority Leader:

FLOOR SCHEDULE FOR TUESDAY, JULY 27, 2010

House Meets At... 9:00 a.m.: Morning Hour
10:00 a.m.: Legislative Business
First Vote Predicted... 2:00 – 3:00 p.m.
Last Vote Predicted... 5:00 – 6:00 p.m.

"One Minutes"

Suspensions (22 Bills)

1. Senate Amendment to H.R. 4899 - Supplemental Appropriations Act, 2010 (Rep. Obey – Appropriations)
2. H.R. 5730 - Surface Transportation Earmark Rescission, Savings, and Accountability Act (Rep. Markey (CO) - Transportation and Infrastructure)
3. H.Con.Res. 258 - Congratulating the Commandant of the Coast Guard and the Superintendent of the Coast Guard Academy and its staff for 100 years of operation of the Coast Guard Academy in New London, Connecticut (Rep. Courtney - Transportation and Infrastructure)
4. H.Res. 1401 - Expressing gratitude for the contributions that the air traffic controllers of the United States make to keep the traveling public safe and the airspace of the United States running efficiently (Rep. McCarthy (NY) - Transportation and Infrastructure)
5. H.Res. 1366 - Recognizing and honoring the freight rail industry (Rep. Hare - Transportation and Infrastructure)
6. H.R. 5825 - To review, update, and revise the factors to measure the severity, magnitude, and impact of a disaster and to evaluate the need for assistance to individuals and households (Rep. Hill - Transportation and Infrastructure)
7. H.Con.Res. 266 - Expressing the sense of Congress that Taiwan should be accorded observer status in the International Civil Aviation Organization (Rep. Berkley - Foreign Affairs)
8. H.Res. 1538 - Condemning the July 11, 2010, terrorist attacks in Kampala, Uganda (Rep. Davis (CA) - Foreign Affairs)
9. H.R. 5138 - International Megan's Law of 2010 (Rep. Smith (NJ) - Foreign Affairs)
10. H.R. 5849 - To provide for an additional temporary extension of programs under the Small Business Act and the Small Business Investment Act of 1958 (Rep. Velazquez - Small Business)
11. H.R. 5681 - To improve certain administrative operations of the Library of Congress (Rep. Brady (PA) - House Administration)
12. H.R. 5682 - To improve the operation of certain facilities and programs of the House of Representatives (Rep. Brady (PA) - House Administration)
13. H.R. 415 - Fallen Heroes Flag Act (Rep. King (NY) - House Administration)
14. H.R. 3040 - Senior Financial Empowerment Act (Rep. Baldwin - Judiciary)
15. Senate Amendment to H.R. 2765 - Securing the Protection of our Enduring and Established Constitutional Heritage Act (Rep. Cohen - Judiciary)
16. H.R. 5281 - Removal Clarification Act of 2010 (Rep. Johnson (GA) - Judiciary)
17. H.R. 2780 - Federal Restricted Buildings and Grounds Improvement Act (Rep. Rooney - Judiciary)
18. H.R. 5827 - Protecting Gun Owners in Bankruptcy Act of 2010 (Rep. Boccieri - Judiciary)
19. H.R. 5143 - National Criminal Justice Commission Act of 2010 (Rep. Delahunt - Judiciary)
20. H.R. 5810 - Securing Aircraft Cockpits Against Lasers Act of 2010 (Rep. Lungren - Judiciary)
21. H.R. 4748 - Northern Border Counternarcotics Strategy Act of 2010 (Rep. Owens - Judiciary)
22. H.R. 5662 - Simplifying the Ambiguous Law, Keeping Everyone Reliably Safe Act of 2010 (Rep. Loretta Sanchez - Judiciary)

H.Con.Res. 301 - Pakistan War Powers Resolution (Rep. Kucinich – Foreign Affairs) (Privileged Resolution)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 10:00am

Following any Leader remarks, there will be a period of morning business with senators permitted to speak therein for up to 10 minutes each with the time until 12:30pm equally divided and controlled between the two Leaders or their designees. The Majority will control the first 30 minutes and the Republicans will control the next 30 minutes.

The Senate will recess from 12:30 until 2:15pm to allow for the weekly caucus meetings.

The republican Leader or this designees will control the time from 2:15pm until 2:30pm and the Majority Leader will control the remaining time until 2:45pm. At 2:45pm, the Senate will proceed to a cloture vote on the motion to proceed to the consideration of S.3628, the DISCLOSE Act.

Votes:
2:45pm roll call vote on the motion to invoke cloture on the motion to proceed to the DISCLOSE Act (S.3628).

Yes, twenty-two suspensions on the calendar for the day. But look out for the first one, it's a doozy! Does anyone say "doozy" anymore? Spellcheck doesn't appear to think so. What's that mean, anyway?

Yes, the supplemental appropriations bill is slated to come to the floor tomorrow under suspension of the rules. Remember, that means it'll require a 2/3 vote (290 votes in a full House) to pass. Which makes it look like it's their intention not to pass it.

Now, it's listed merely as consideration of the Senate amendment to H.R. 4899, and I'm not entirely certain what amendment that means. The original H.R. 4899 passed the House and went to the Senate without any war money in it. The Senate added war funding and sent it back to the House. The House insisted that it would only accept the war money if there was additional emergency domestic spending tacked on and sent that back to the Senate. The Senate tried to invoke cloture on the motion to agree to the House's amendment but couldn't get the job done, and instead later merely disagreed to it by unanimous consent.

That's where it gets hazy for me. Although it's clear that the Senate didn't agree to the House's latest changes, it's not clear that they amended the bill in any way, so I'm not entirely sure what amendment the House thinks it's voting on tomorrow. But if it's somehow the Senate's old amendment adding the war funding without the domestic funding (or something similar), the fact that it's coming to the floor under suspension of the rules tells us that they're not particularly interested in having it actually pass. Maybe they're just looking to formalize the state of disagreement between the houses and ask for a conference. Or maybe this is their way of having a vote before leaving for recess, but not giving in to the Senate's unwillingness to consider additional domestic funding. Hopefully this will become clearer as the day goes on.

On the Senate side, it's another cloture voting day, this time on what appears to be the 109th cloture motion filed in the 111th Congress. We are 30 motions shy of tying the all-time record for such filings, which goes all the way back to... the Congress before this one.

But hey, the good news is that if they invoke cloture today, they will have agreed to have just 30 more hours of debate on the question of whether or not to begin debate on the DISCLOSE Act. Think about that and then tell me we don't need filibuster reform.

Today's committee schedule, along with what I'm calling "Will's Picks for Today's Hot D-on-R Committee Action" -- despite the fact that it might not be all that hot, and I think the guy who prepared the list actually prefers to be called William -- appears below the fold.

The procedural picture on exactly how the House will vote on consideration of the war supplemental has cleared up, and you're not going to like it.

As the question is framed, the House will be voting on a straight-up cave-in to the Senate position, i.e., that the supplemental should fund some limited number of domestic priorities plus the war efforts, but not the additional money for aid to the states, teacher retention, etc.

If the motion passes today, that would mean the very complex and carefully structured rule passed by the House back on July 1st was all for naught. Remember, though, that the motion is being brought to the floor under suspension of the rules, which requires a 2/3 vote to pass. Sadly, it now appears there's some chance that that could actually happen.

How did we get here? Well, if you're interested, take a few minutes to review the details in the posts listed below.

• What happened on the war supplemental
• What happened on the war supplemental, part II: the Senate amendment
• What happened on the war supplemental, part III: the trade-off

Together, these posts describe the fine line the House leadership had to walk in order to give the various factions of the Democratic Caucus a chance to have votes on the different approaches they favored, chief among them the insistence of House Appropriations Committee Chairman David Obey (D-WI-07) that the House not agree to the Senate's demand for war funding without demanding funds for other domestic priorities as their price. It was a bold attempt to leverage moderate and conservative anxiety about the need for war funding (lest anyone invoke the dreaded "support the troops" attack against them), but also viewed as a less-than-principled sell out by activists opposed to the wars and/or those who hoped to see the Democrats' campaign pledge to stop funding those wars through supplementals strictly honored.

House Democrats did indeed construct a complex rule that allowed for votes on several proposals aimed at bringing the Afghanistan war to a conclusion, and one including additional spending on emergency domestic priorities, plus a special provision requiring that at least one such proposal be adopted before the bill would be allowed to proceed to the Senate for additional action. That very unusual rule design guaranteed that at least one House demand would be written into the bill before it was presented again to the Senate.

And in fact the House did end up attaching the additional funding as its ransom for the war money. But after all the effort and complexity, the Senate simply said, "No thanks," and the House is now set to vote on whether or not to say, "Oh, OK. Sorry."

Technically, the vote will be on a motion that the House recede from its amendment to the Senate amendment, meaning that they'll vote on withdrawing the amendment they fought so hard to pave the way for with that complex rule, and instead agree to the bill as the Senate sent it back to them at the end of May.

Earlier today, I noted that the motion would be coming under suspension of the rules and thought that perhaps that indicated that they weren't particularly eager for it to pass all that easily, since doing things that way would require a 2/3 vote. But as the day has worn on, it seems the thinking is more that Republicans might in fact support passage of the Senate version of the bill on the theory that it: 1) funds the war, which they like, and; 2) represents a defeat for House Democrats who wanted additional domestic spending to save teacher jobs, aid the states, etc. Of course, the Senate version of the bill is basically the original House bill from March, with both war money and additional domestic funding tacked on, meaning that for House Republicans to help pass this motion today, they'll have to vote for domestic spending they originally opposed, even though the levels of such spending have only increased since they first opposed it.

But that's no problem for Republicans. It's enough of a win for them that they're spending war money and denying House Democrats what they wanted in exchange. Deficit, shmeficit, the Dems who wanted to help actual Americans got beat.

So, why suspend the rules and make it harder than it has to be? There are probably a number of reasons. But one might be this: Republicans are happy to vote with a hundred or so Dems to get this war funding passed, even at the cost of a little hypocrisy on domestic spending. But they don't want to be seen "voting with Nancy Pelosi" -- i.e., with the Democratic leadership -- on a rule for the bill, even though they'd cheerfully vote for the bill later the same day. And between Republican game-playing and Democrats resistant to the cave-in, the rule might be defeated. Suspension does away with the need for a rule and allows Republicans to go right to supporting the war money (and being hypocritical on the domestic money), without first having to "vote with Pelosi."

Could the bill be defeated under suspension and the war funding stalled? Absolutely. Getting to 2/3 is never a given, and if the 162 Members who voted for the McGovern amendment demanding timelines for withdrawal from Afghanistan held out, we'd have to go back to the drawing board. But that's not looking likely.

I'm going to address this one more time:

Democrats are likely to start the next Congress with a majority, even if they lose the election quite badly. With sufficient unity, they could change the rules before work begins again. But it'll be a pretty raw move: Neutering the opposition after the voters favored them at the polls is a bit hard to defend on principle, and it's even harder when the principle in question is that the Senate should be governed democratically.

[...]

My oft-expressed preference is for Republicans and Democrats to figure something out jointly and set it into motion such that it either phases in over the next few years or begins six years from now, when we don't know who'll be in control. But if that's not going to happen, then members of both parties have to be thinking: Do they really want to be the side the rules get changed on, rather than the side that changes the rules?

I think it's a fair-ish idea, considered in a vacuum, but I'm unwilling to be the only fair party at the table, and see very little advantage in dealing in good faith with the other party, considering that they would have forced us to the table on account of their dealing with us in such remarkably bad faith.

I'd also say that what we're fixing here is the Senate as an institution, and that doesn't belong to one party or the other. The Senate needs to be able to operate, regardless of who's running it. The country stands to benefit from this fix, and the question of which party the voters want to run a working Senate is a separate issue, and one they're perfectly familiar with deciding. If they don't like the way Democrats do it, they'll fix that. Casting the fate of the Senate rules to the wind doesn't promote small d democratic accountability.

From a more partisan perspective, I'd add that the rules need to be changed, and making the change requires some very heavy lifting. I think the benefit of having done that work ought rightly to go to the team that does the work. If the other team would like to have the benefit of that work, they can convince the American people to give it to them in the next election after this one. But for myself, I wouldn't give it away in a lottery.

In the House, courtesy of the Office of the Majority Leader:

First Vote of the Week... Monday 6:00 p.m.
Last Vote Predicted... Friday p.m.

MONDAY, JULY 26, 2010

On Monday, the House will meet at 12:30 p.m. for Morning Hour debate and 2:00 p.m. for legislative business with votes postponed until 6:00 p.m.

Suspensions (9 Bills)

1. H.Res. 1504 - Recognizing and honoring the 20th anniversary of the enactment of the Americans with Disabilities Act of 1990 (Rep. Hoyer - Education and Labor)
2. H.R. 3101 - Twenty-first Century Communications and Video Accessibility Act (Rep. Markey (MA) - Energy and Commerce)
3. H.Res. 1058 - Honoring and praising the Sojourn to the Past organization on the occasion of its 10th anniversary (Rep. Lewis (GA) - Education and Labor)
4. H.Res. 1543 - Honoring the educational significance of Dr. Jane Goodall's work on this the 50th anniversary of the beginning of her work in Tanzania, Africa (Rep. Polis - Education and Labor)
5. H.Res. 1456 - Congratulating the University of Dayton men's basketball team for winning the 2010 National Invitation Tournament basketball championship (Rep. Turner - Education and Labor)
6. H.Con.Res. 275 - Expressing support for designation of the week beginning on the second Sunday of September as Arts in Education Week. (Rep. Speier - Education and Labor)
7. H.R. 1320 - Federal Advisory Committee Act Amendments (Rep. Clay - Oversight and Government Reform)
8. H.Con.Res. 226 - Supporting the observance of "Spirit of '45 Day" (Rep. Filner - Oversight and Government Reform)
9. H.Res. 1525 - Honoring the 50th anniversary of the publication of "To Kill a Mockingbird", a classic American novel authored by Nelle Harper Lee of Monroeville, Alabama (Rep. Bonner - Oversight and Government Reform)

TUESDAY, JULY 27, 2010 AND THE BALANCE OF THE WEEK

On Tuesday, the House will meet at 9:00 a.m. for Morning Hour debate and 10:00 a.m. for legislative business. On Wednesday and Thursday, the House will meet at 10:00 a.m. for legislative business. On Friday, the House will meet at 9:00 a.m. for legislative business.

Suspensions (25 Bills)

1. H.R. 5730 - Surface Transportation Earmark Rescission, Savings, and Accountability Act (Rep. Markey (CO) - Transportation and Infrastructure)
2. H.Con.Res. 258 - Congratulating the Commandant of the Coast Guard and the Superintendent of the Coast Guard Academy and its staff for 100 years of operation of the Coast Guard Academy in New London, Connecticut (Rep. Courtney - Transportation and Infrastructure)
3. H.Res. 1401 - Expressing gratitude for the contributions that the air traffic controllers of the United States make to keep the traveling public safe and the airspace of the United States running efficiently (Rep. McCarthy (NY) - Transportation and Infrastructure)
4. H.Res. 1366 - Recognizing and honoring the freight rail industry (Rep. Hare - Transportation and Infrastructure)
5. H.R. 5825 - To review, update, and revise the factors to measure the severity, magnitude, and impact of a disaster and to evaluate the need for assistance to individuals and households (Rep. Hill - Transportation and Infrastructure)
6. H.Con.Res. 266 - Expressing the sense of Congress that Taiwan should be accorded observer status in the International Civil Aviation Organization (Rep. Berkley - Foreign Affairs)
7. H.Res. 1538 - Condemning the July 11, 2010, terrorist attacks in Kampala, Uganda (Rep. Davis (CA) - Foreign Affairs)
8. H.R. 1623 - International Megan's Law (Rep. Smith (NJ) - Foreign Affairs)
9. H.R. 3040 - Senior Financial Empowerment Act (Rep. Baldwin - Judiciary)
10. Senate Amendments to H.R. 2765 - Securing the Protection of our Enduring and Established Constitutional Heritage Act (Rep. Cohen - Judiciary)
11. H.R. 5281 - Removal Clarification Act of 2010 (Rep. Johnson (GA) - Judiciary)
12. H.R. 2780 - Federal Restricted Buildings and Grounds Improvement Act (Rep. Rooney - Judiciary)
13. H.R. 5827 - Protecting Gun Owners in Bankruptcy Act of 2010 (Rep. Boccieri - Judiciary)
14. H.R. 5143 - National Criminal Justice Commission Act of 2010 (Rep. Delahunt - Judiciary)
15. H.R. 5810 - Securing Aircraft Cockpits Against Lasers Act of 2010 (Rep. Lungren - Judiciary)
16. H.R. __ - To provide for an additional temporary extension of programs under the Small Business Act and the Small Business Investment Act of 1958 (Rep. Velazquez - Small Business)
17. H.R. 5681 - To improve certain administrative operations of the Library of Congress (Rep. Brady (PA) - House Administration)
18. H.R. 5682 - To improve the operation of certain facilities and programs of the House of Representatives (Rep. Brady (PA) - House Administration)
19. H.R. 415 - Fallen Heroes Flag Act (Rep. King (NY) - House Administration)
20. H.R. 2480 - Truth in Fur Labeling Act of 2009 (Rep. Moran (VA) - Energy and Commerce)
21. H.R. 5320 - Assistance, Quality, and Affordability Act of 2010 (Rep. Waxman - Energy and Commerce)
22. H.R. 1796 - Residential Carbon Monoxide Poisoning Prevention Act (Rep. Matheson - Energy and Commerce)
23. H.R. 5156 - Clean Energy Technology Manufacturing and Export Assistance Act of 2010 (Rep. Matsui - Energy and Commerce)
24. H.R. 4692 - National Manufacturing Strategy Act of 2010 (Rep. Lipinski - Energy and Commerce)
25. H.R. 847 - James Zadroga 9/11 Health and Compensation Act (Rep. Maloney - Energy and Commerce)

H.R. 5822 - Making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2011 (Rep. Edwards (TX) – Appropriations) (Subject to a Rule)

H.R. __ - Department of Transportation, and Housing and Urban Development and Related Agencies Appropriations Act, 2011 (Rep. Olver – Appropriations) (Subject to a Rule)

Further Action on H.R. 4899 - Supplemental Appropriations Act, 2010 (Rep. Obey – Appropriations) (Subject to a Rule)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Monday:

Convenes: 3:00pm

Following the prayer and pledge, the Senate will resume consideration of the motion to proceed to S.3628, a bill to amend the Federal Election Campaign Act of 1971 to prohibit foreign influence in Federal elections, to prohibit government contractors from making expenditures with respect to such elections, and to establish additional disclosure requirements with respect to spending in such elections (DISCLOSE Act).

There will be no roll call votes during Monday’s session of the Senate.

Votes:
There will be no roll call votes on Monday, July 26.

Tuesday:

Votes:

2:45pm roll call vote on the motion to invoke cloture on the motion to proceed to the DISCLOSE Act (S.3628).

August is coming, and in Washington that means recess. Like, for the whole month. This is serious business. Or not-business, I suppose. And what better way to get ready for a month without any legislative business than to spend the week leading up to it on 34 suspensions? Well, that and a few appropriations bills, which means spending money. There are three "approps" bills on the schedule for this week. Two are regular, annual appropriations bills (of which there are 12) which are normally passed to fund government operations. Military construction, usually among the least controversial each year, is up this week. But I wouldn't have guessed that we'd see Transportation/HUD leading into the recess. That usually sparks a little more fight, though probably not as much as Labor/HHS.

The real fight, if there is one, will be over the supplemental. We've been talking about the supplemental for a while now, but by way of background, it's not (supposed to be) one of the routine 12 annual bills (one each from the 12 appropriations subcommittees) that fund the government. They're for "emergency" spending not covered or otherwise unforeseen by the 12 regular bills. But they've become routine nonetheless -- mainly used for funding the apparently unforeseen multiple wars -- and that alone is something of a sore point for retiring Appropriations Committee Chairman David Obey (D-MN-07).

Obey has drawn a line in the sand this year, insisting that including the war funding in the supplemental (a practice that Democrats including President Obama campaigned on the promise of ending) was out of the question unless critical domestic priorities were funded along with the war. The House sent out a supplemental that at first had no war funding, but it was added by the Senate and sent back to the House. That's when Obey said OK, but there's got to be this additional domestic funding.

Well, the Senate just said no to that last week and handed it back to the House. So the question this week is whether the House insists on its position, or buys into the old line about how the whole 60 vote thing makes it so tough in the Senate, and wouldn't it just be better if the House would just STFU and pass what the Senate tells them they're comfortable passing? Stay tuned to see how that one comes out. And yes, that makes the supplemental your filibuster reform story of the day, though it's still developing.

On the Senate schedule this week: the DISCLOSE Act, billed as the legislative response to Citizens United, and a BANANAS favorite.

This week's committee schedule appears below, thanks to the work of Main Street Insider intern William Schoell. And this week, Will has provided his top picks for the hottest committee action. Find it all "below the fold."

Here's a little something I turned up while going over a Joan McCarter post from a couple weeks ago. It's the post that led me to the Ezra Klein piece that I just wrote about.

The topic was the failure of Democrats to adopt a formal budget resolution for fiscal year 2011, meaning that the reconciliation process would be unavailable to them. Ezra gave some interesting background with this quote:

Senate Democrats are hanging this one on the House. "It was our intent in a budget resolution to include those instructions," Sen. Debbie Stabenow told me. "And we passed such a resolution out of committee."

And indeed, it's true. She's talking about S. Con. Res. 60. And the reconciliation instructions are there in black and white:

SEC. 401. RECONCILIATION IN THE SENATE.

(a) Deficit Reduction Instruction- The Committee on Finance shall report to the Senate a reconciliation bill or resolution not later than September 23, 2010, that consists of changes in laws, bills, or resolutions within its jurisdiction to reduce the deficit by $2,000,000,000 for the period of fiscal years 2010 through 2015.

(b) Statutory Debt Limit Instruction- The Committee on Finance shall report to the Senate a reconciliation bill or resolution not later than December 10, 2010, that consists of changes in laws, bills, or resolutions within its jurisdiction to increase the statutory debt limit by an amount no more than $50,000,000,000.

OK, so, wanna see something cool? Compare those instructions to the instructions from S. Con. Res. 13, the budget resolution for fiscal year 2010:

SEC. 201. RECONCILIATION IN THE SENATE.

(a) Committee on Finance- The Senate Committee on Finance shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014.

(b) Committee on Health, Education, Labor, and Pensions- The Senate Committee on Health, Education, Labor, and Pensions shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014.

(c) Submissions- In the Senate, not later than October 15, 2009, the Senate committees named in subsections (a) and (b) shall submit their recommendations to the Senate Committee on the Budget. Upon receiving all such recommendations, the Senate Committee on the Budget shall report to the Senate a reconciliation bill carrying out all such recommendations without any substantive revision.

Yes, there are other differences, obviously. But the bolded part is what interested me. You get it, right?

I laid it out back in March.

§ 641. Reconciliation

(a) Inclusion of reconciliation directives in concurrent resolutions on the budget
A concurrent resolution on the budget for any fiscal year, to the extent necessary to effectuate the provisions and requirements of such resolution, shall—
  (1) specify the total amount by which—
         (A) new budget authority for such fiscal year;
         (B) budget authority initially provided for prior fiscal years;
         (C) new entitlement authority which is to become effective during such fiscal year; and
         (D) credit authority for such fiscal year,
contained in laws, bills, and resolutions within the jurisdiction of a committee, is to be changed and direct that committee to determine and recommend changes to accomplish a change of such total amount;

I told you that the Budget Act permitted reconciliation to be used on pending legislation that hasn't been passed yet.

And the best bet going at the time was that nobody would ever again make the mistake of writing reconciliation instructions that didn't specifically say "laws, bills or resolutions."

And though that budget was never passed, at least the lesson was learned.

You're welcome! We'll get 'em next time, eh?

Oh well.

Here's something else for us to puzzle out.

Back when Congressional Democrats made the decision not to proceed with a formal budget resolution for fiscal year 2011, Ezra Klein was justifiably disappointed:

The 2010 elections, however, are likely to return a much-reduced Democratic Senate majority. As the situation stands, Democrats couldn't pass unemployment-insurance legislation with 59 votes, because they couldn't quite get to 60. If they have only 52 members in their caucus, they really have no chance. That's why setting down reconciliation instructions now was so important: It was their best chance to actually govern next year.

[...]

But the fact remains: By not passing a budget with reconciliation instructions this year, Democrats are setting themselves up for further gridlock and failure next year. If you can't get 51 votes for a budget when you have 59, you sure can't get 60 votes for controversial legislation when you only have 52.

I'd say a lot of people think that's right. So, good.

Now, here's Ezra on filibuster reform:

You can't return from an election in which the public decisively voted for the Republicans and then say that in the interests of democratic governance, you're taking away the tools Senate Republicans use to exert control over legislation. The difficulty with procedural reform is that it's both hard to do and it's never quite the right time. When you've got enough power to do it, you're probably trying to pass actual legislation that you can show to voters. When that power ebbs, procedural issues seem more urgent, but you don't have the power to pursue them.

So here's the question: If the failure to pass reconciliation instructions so that they can govern next year means that Democrats are setting themselves up for further gridlock and failure, which in turn means it's likely to return a much-reduced Democratic Senate majority, what do we think would be the result of Democrats continuing to cripple themselves with the filibuster?

Reconciliation and filibuster reform are two very different procedural issues, but the common denominator here is that both enable the Senate majority to actually implement an agenda, and in so doing increase their chances for survival.

In the House, courtesy of the Office of the Majority Leader:

FLOOR SCHEDULE FOR THURSDAY, JULY 22, 2010

House Meets At... 10:00 a.m.: Legislative Business
First Vote Predicted... 11:00 a.m. – 12:00 p.m.
Last Vote Predicted... 4:30 – 5:30 p.m.

"One Minutes" (10 per side)

Motion to Concur in the Senate Amendments to H.R. 4213 - Unemployment Compensation Extension Act of 2010 (Rep. Levin – Ways and Means) (Subject to a Rule)

H.R. 1264 - Multiple Peril Insurance Act (Rep. Taylor – Financial Services) (Subject to a Rule)

Postponed Suspension Votes (2 Bills)

1. H.R. 5341 - To designate the facility of the United States Postal Service located at 100 Orndorf Drive in Brighton, Michigan, as the "Joyce Rogers Post Office Building" (Rep. Dingell - Oversight and Government Reform)
2. H.R. 1469 - Child Protection Improvements Act of 2009 (Rep. Schiff - Judiciary)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 9:30am

Following any Leader remarks tomorrow, Thursday, July 22, the Senate will proceed to the immediate consideration of S.Res.591, a resolution recognizing and honoring the 20th anniversary of the enactment of the Americans with Disabilities Act. There will be up to 2 hours for debate equally divided and controlled between Senators Harkin and Enzi or their designees.

Upon the use or yielding back of time, the Senate will proceed to the consideration of H.J.Res. 83, a joint resolution approving the renewal of import restrictions contained in the Burmese Freedom and Democracy Act of 2003. There will then be up to 20 minutes for debate equally divided between Senators Baucus and McConnell or their designees.

Upon the use or yielding back of time, the Senate will proceed to vote on the resolutions. Senators should expect 2 stacked roll call votes to begin around 12:00 noon. Those votes will be on the following items: - Passage of H.J.Res. 83, a joint resolution approving the renewal of import restrictions contained in the Burmese Freedom and Democracy Act of 2003; and - Adoption of S.Res. 591 , a resolution recognizing and honoring the 20th anniversary of the enactment of the Americans with Disabilities Act.

The Senate will resume consideration of the Small Business Jobs bill upon disposition of these resolutions.

Votes:
12:00 noon votes: - Passage of H.J.Res. 83, a joint resolution approving the renewal of import restrictions contained in the Burmese Freedom and Democracy Act of 2003; and - Adoption of S.Res.591, a resolution recognizing and honoring the 20th anniversary of the enactment of the Americans with Disabilities Act.

So, Netroots Nation has put me in "weekend" mode. Only it's not the weekend. And with the time shift, I felt like I was up early enough to get the post done on time. Only... I wasn't. Because it's Pacific time. Sorry about that!

The news-y work for the day is in the House, where the unemployment benefits extension saga finally wraps up, with a vote on a rule and then a motion to concur in the Senate amendment to H.R. 4213. The Senate, you'll recall, invoked cloture on their amendment on Tuesday. But Republicans weren't ready to let go, and not only ran out most of the 30 hour post-cloture clock, but tried to suspend the rules on post-cloture amendments to sneak a few more votes in under the wire.

In the end, though, the die was cast (Vegas, again) and work on the bill wrapped up in the Senate and then moved over to the House on schedule. The House yesterday passed a waiver for the same day consideration of a rule for their motion to concur, and then this morning reported that rule out, so no more delays are anticipated. Just to give you something to eyeroll at, 15 Democrats voted against the waiver. See their names in the roll call highlighted in red, here. The usual suspects, of course.

In the Senate, the equivalent of the suspension votes we so often see in the House, plus a return to... that small business jobs bill that the Senate has been "hoping to work out an agreement on" for, like, two weeks now. Just to demonstrate the continuing strength of the theme, what kind of agreement are they trying to work out? Well technically, it's a unanimous consent agreement that will lock in a time limit on the debate and on which amendments (or how many) will be permitted. But lurking behind it all is -- you guessed it -- the threat of a filibuster. If you can't get a unanimous consent agreement, then the only way to get this bill to the floor and start the debate is with a motion to proceed, and that's subject to a filibuster. If you have 60 votes locked up, you can just start the (admittedly tedious) process and move on. But if you don't, then you find yourself having to "try to reach an agreement" for two weeks, even when you know you have enough votes to actually pass the bill, which itself requires just a simple majority. (You'll notice, for instance, that the unemployment bill actually had just 59 votes for final passage. But since the filibuster had been dispensed with, it didn't matter. (For the curious, Ben Nelson voted no both on cloture and final passage. Evan Bayh and David Vitter skipped the vote on final passage.)

So that's the (belated) story. Today's committee schedule appears below.

If you didn't know I was the sort of person who likes to take every opportunity to talk about filibuster reform, you might think asking a question like the one posed in my title meant I was talking about immigration reform. Or same sex marriage rights. Or the repeal of Don't Ask, Don't Tell. Or climate change legislation. Or any one of a dozen things that someone always thinks it's "just not the right time" for.

And if you did know what sort of person I was, you'd know that I don't think it's any accident that a discussion of filibuster reform would inevitably invoke the ongoing search for "the right time" for all of these issues.

But I have a much more specific reason for bringing that point up. Two, in fact. And they're the recent posts on the subject of filibuster reform by Matthew Yglesias (with whom I'll be appearing on a panel at Netroots Nation on this very subject, this Saturday at 4 Pacific) and Ezra Klein.

Here's Yglesias:

The concern I have is that the political timing is wrong. Back in late 2008, I wrote a piece for The Atlantic about the evils of the filibuster, and had more progressive institutions been on the bandwagon back then I think it’s quite easy to imagine the Senate exercising Udall’s "constitutional option" amidst the hope and enthusiasm associated with the beginning of the Obama administration. If that had happened, more progressive bills could have passed (liberals like it!), vulnerable members could have ducked more tough votes (moderates like it!), and the economy would be in better shape (incumbents like it!), but of course it didn’t happen. Now 18 months later, Washington is older and wiser on these matters. But will it really be politically feasible to adopt a more sensible ruleset with a less-popular President Obama and a diminished majority in the Senate?

Now Klein:

You can't return from an election in which the public decisively voted for the Republicans and then say that in the interests of democratic governance, you're taking away the tools Senate Republicans use to exert control over legislation. The difficulty with procedural reform is that it's both hard to do and it's never quite the right time. When you've got enough power to do it, you're probably trying to pass actual legislation that you can show to voters. When that power ebbs, procedural issues seem more urgent, but you don't have the power to pursue them.

Well, valid points. But political ones, rather than strictly practical ones. Ironic, since it's my recollection that in 2008, one of the practical arguments was that you couldn't do reform right away because it would have been too frightening or unsettling somehow, to come charging into power and then upset the apple cart of tradition. And besides, having elected a "post-partisan" President, it was now incumbent upon Democrats to make the case that they'd try to do things the old-fashioned way, and if Republicans abused the filibuster in the face of offers of bipartisanship, then the argument for reform would only become stronger.

In that sense, perhaps it's right to say it's "never quite the right time" for reform. Or at least that there will always be an argument for why it's not. Of course, that might just as well mean it's never quite the wrong time, either.

But if you're going to evaluate the propriety of filibuster reform in political terms, then there's little reason to exclude another political point. When will the next "opportunity" arise to change the rules under this calculation? Well, it would have to be at a point when the electorate had sent a clear signal about entrusting the stewardship of the Senate to some one party or another, I suppose. And if the retention of the majority by the Democrats isn't strong enough a signal for the time being right for reform, then it must either be when Democrats next put together a majority as large as the one they came in with in 2008 (and it's been decades since that's been the case), or when Republicans are able again to control the Senate (which was the case just a few short years ago). Only then, I suppose, will the "correct" signals have been sent by the electorate. Of course, my thinking is that the next most likely time for the filibuster rules to be reformed -- that is, Democrats don't do it next year -- is when the Republicans can get rid of it themselves, when they don't need or want them anymore.

If you're going to admit the argument that Democrats ought to take the political ramifications into account (and why shouldn't they?), then let's take them all into account. Perhaps Democrats ought to think about how they might be able to benefit from reform, by being able to passing stronger and more robust legislation which they can hold up as a record of accomplishment which differentiates them more clearly from Republicans. Because the alternative, I believe, is to wait to become the political victims of the change at the hands of Republicans, who are not likely to reward Dems for their "fairness" in agreeing to delay reform.

But there's more that puzzles me about the question of the political legitimacy of reform in 2010. What troubles, specifically, do we think Democrats might face if the rules changed when Dems had a smaller majority, but still a majority?

Would Democrats' political opponents claim their power was somehow illegitimate? That they ought to be thrown out of office on some imagined technicality? That they were conducting some sort of illegitimate power grab in order to force through a radical or even socialist agenda?

Oh no! I hope we never have that happen!

On a slightly more serious note, I have to ask whether it would be OK for Republicans to one day make this change based simply on retaking the majority, or whether they and Democrats both would have to wait until there was once again a majority of the size Democrats had in this Congress? How big must a majority be before it feels comfortable changing the rules?

I think you probably see where I'm going with this. We're headed toward imposing a supermajority requirement for getting rid of the supermajority requirement -- which is to say that reform would be impossible.

This is not to say that it's flatly invalid to raise concerns about the political optics of pursuing reform with a narrower majority. But I think it's fair to ask how big a majority should have to be, and whether the numbers would be the same for Republicans as it appears to be for Democrats. And if it's not strictly a numbers thing, then how should we judge whether the correct signals have been sent? And finally, if we're not all that confident that Republicans would pause to weigh the political optics of reform should they regain the majority, how much time should Democrats invest in worrying about it themselves?

Offhand, I'd say there's more to be confident about in the political optics of doing something than there is in hoping to be rewarded for your forbearance.

Anyway, you can watch me puzzle this out with Matt Yglesias in a Netroots Nation panel this Saturday at 4pm Pacific. We'll be in room Brasilia 6, which means you can watch the panel live via streaming video here.

Disclosure: I'm doing paid work as a Fellow for ProgressiveCongress.org in addressing the necessity of filibuster reform in the Senate. The Fellowship is being supported in part by CREDO Action and Blue America. You can help support this work by signing CREDO Action's petition and/or donating at Blue America's ActBlue page.

In the House, courtesy of the Office of the Majority Leader:

FLOOR SCHEDULE FOR WEDNESDAY, JULY 21, 2010

House Meets At... 10:00 a.m.: Legislative Business
First Vote Predicted... 12:30 – 1:30 p.m.
Last Vote Predicted... 4:00 – 5:00 p.m.

"One Minutes" (15 per side)

Suspensions (7 Bills)

1. H.R. 4380 - U.S. Manufacturing Enhancement Act of 2010 (Rep. Levin - Ways and Means)
2. Senate Amendments to H.R. 725 - Indian Arts and Crafts Amendments Act (Rep. Pastor - Natural Resources)
3. S. 1053 - To amend the National Law Enforcement Museum Act to extend the termination date (Sen. Murkowski - Natural Resources)
4. H.R. 2693 - Federal Oil Spill Research Program Act (Rep. Woolsey - Science and Technology)
5. H.R. 5716 - Safer Oil and Natural Gas Drilling Technology Research and Development Act (Rep. Gordon - Science and Technology)
6. H.Con.Res. 292 - Supporting the goals and ideals of National Aerospace Week (Rep. Ehlers - Science and Technology)
7. H.Res. 611 - Supporting the goals and ideals of "Fragile X Awareness Day" (Rep. Hare - Energy and Commerce)

H.Res. 1537 - Same Day Consideration Rule - Waiving a requirement of clause 6(a) of rule XIII with respect to consideration of certain resolutions reported from the Committee on Rules (Rep. Slaughter – Rules)

Motion to Concur in the Senate Amendments to H.R. 4213 - Restoration of Emergency Unemployment Compensation Act (Rep. Levin – Ways and Means) (Subject to a Rule)

Postponed Suspension Votes (5 Bills)

1. H.Res. 1411 - Honoring the service and commitment of the 111th Fighter Wing, Pennsylvania Air National Guard. (Rep. Schwartz - Armed Services)
2. H.R. 5341 - To designate the facility of the United States Postal Service located at 100 Orndorf Drive in Brighton, Michigan, as the "Joyce Rogers Post Office Building" (Rep. Dingell - Oversight and Government Reform)
3. H.Res. 1513 - Congratulating the Saratoga Race Course as it celebrates its 142nd season (Rep. Murphy (NY) - Oversight and Government Reform)
4. H.R. 5566 - Prevention of Interstate Commerce in Animal Crush Videos Act of 2010 (Rep. Gallegly - Judiciary)
5. H.R. 1469 - Child Protection Improvements Act of 2009 (Rep. Schiff - Judiciary)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Convenes: 9:30am

Following any Leader remarks, there will be a period of morning business for 1 hour with senators permitted to speak therein for up to 10 minutes each. The Republicans will control the first 30 minutes and the Majority will control the final 30 minutes.

Following morning business, the Senate will resume consideration of the House Message on H.R.4213, a bill to extend Unemployment Insurance benefits through November 30, 2010, post-cloture. Cloture limits debate to 30 hours. If all time is used, the time would expire around 9pm Wednesday. However, we would like to reach an agreement to yield back some of the post-cloture debate time so that we may complete action at a reasonable time tomorrow.

Following disposition of HR4213, (Unemployment Insurance), the Senate will resume consideration of H.R.5297, the Small Business Jobs bill.

Roll call votes are expected to occur throughout the day.

Unemployment extension is the order of the day, in both houses. If you thought we were done with that yesterday, no dice. (Dice! Ha! I'm traveling to Las Vegas! Yeah, OK. Uh, anyway...) Yesterday's voting saw cloture invoked on the unemployment extension bill, but Republicans weren't ready to give up and actually allow people to start getting their benefits ASAP, even though there was no longer anything they could do to prevent it -- which is apparently something they really, really wanted. That's because cloture rules allow for up to 30 hours of post-cloture "debate" before there has to be a vote on actually passing the thing they've invoked cloture on. And I say "debate" in scare quotes, because I don't think there's anything anyone's really planning on saying about this thing. They just want to run the clock out of spite. So they're doing it. Though there's some hope they might just give up and cut a deal and let it go.

Once they do get done with things, they'll send that over to the House (physically, having it carried over by a clerk and announced in the House when it gets there), and the House will have to vote again.

Yes, the House has already voted on unemployment extensions. Several times. And they even voted on this bill before. But the last House action on this was to pass a separate, stand-alone unemployment bill, separate from the tax extenders/unemployment bill that once occupied the shell of H.R. 4213. The Senate, however, opted not to take up that separate bill, but instead to strip everything out of H.R. 4213 that wasn't unemployment extensions and pass that instead. Which means the House has to vote on the latest version of H.R. 4213 again, since it's been amended by the Senate since they last touched it. No idea yet why they went with that move instead of just passing the House's stand-alone, since it's said that they're substantively identical now.

The House, for its part, wants to get this done as quickly as possible, so they're passing a special rule waiving the ordinary rule that prohibits the consideration of... a rule for a bill (in this case, the unemployment bill) on the same day it's reported from the Rules Committee. This is something that regular Today in Congress readers have seen before. Once they waive the same day rule, they'll be clear to take up the rule for the unemployment bill itself, and then the bill. Or rather, the motion to concur in the Senate amendment to the bill.

Easy as pie! Get it?

If you do, and you're feeling like you want to be confused again, today's full committee schedule appears below the fold.

Part I: Why can't they just change the rules?

In Part I, we discussed how Rules V and XXII work together to create a situation in which it is ordinarily assumed to be impossible to change the Rules of the Senate without a 2/3 vote. Or rather, that invoking cloture on a rules change requires a 2/3 vote. In a full Senate, that's 67 votes -- even more difficult to achieve than the 60 needed for cloture on other matters.

One thing worth noting in any thorough discussion, though, is that the requirement of Rule XXII on cloture for rules changes is actually 2/3 of Senators present and voting. That's a different way of establishing the threshold than is used for cloture on other matters, when it's calculated as 3/5 of Senators duly chosen and sworn. Three-fifths of Senators duly chosen and sworn (also known as a "constitutional three-fifths") means three-fifths of the number of Senators currently in office, whether they're present on the floor to vote or not. In a full Senate, that's the familiar 60-vote threshold. And by the way, they round up when calculating that threshold. If there are fewer than 100 Senators duly chosen and sworn, you have to clear the 3/5 barrier with a full vote. There are no fractional votes. So when there are 99 Senators duly chosen and sworn, although 3/5 of 99 is 59.4, you still need 60 votes for cloture. At 98 Senators chosen and sworn, you only need 59. Two-thirds of Senators present and voting, though? That's just what it sounds like. Absentees don't count, and neither do abstentions, if any (though "present" would count). That's not ever likely to make a practical difference, since very few Senators would be willing to skip a vote on something as potentially important as a rules change, and it's not likely that there would be great numbers absent on the first day of a new Congress. But it's worth noting.

At any rate, vote counting anomalies notwithstanding, getting the votes together to make a rules change is not an easy thing to do if there's any serious opposition. Still, I want to take one more moment to reiterate that Rule XXII says you need a 2/3 vote for cloture on any rules change. It does not say you need a 2/3 vote to actually change the rule. Which means that the rule on actually changing the rules is that you need a simple majority to do it. What you need 2/3 of Senators present and voting for is to say that it's time for objectors to shut up and vote. But that's another thing to bear in mind during the debate. The Senate rules imply, as does the Constitution, that the Senate's actual rule-making requires just a simple majority.

So how can they change that rule? Well, answering that question first requires asking how to reconcile the combined force of Rules V and XXII with the Constitution's Article I, Section 5, clause 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence  of two-thirds, expel a Member.

You'll note that the Constitution does not say what kind of vote counting threshold is required for determining the rules of a house's proceedings. According to the canons of construction -- that is, the generally accepted rules for statutory interpretation -- where there's no explicit supermajority requirement, none will be presumed to exist. That's a conclusion that can only be given still more weight given the fact that the original body of the Constitution does in fact explicitly spell out supermajority requirements in seven specific instances (and twice more in amendments):

•  Convicting an Impeachment (2/3 majority in the Senate - Article 1, Section 3)
• Expulsion of a member of one house of Congress (2/3 vote of the house in question - Article 1, Section 5)
• Override a Presidential Veto (2/3 majority in both the House and the Senate - Article 1, Section 7)
• Ratify a treaty (2/3 majority in the Senate - Article 2, Section 2)
• Passing of a Constitutional Amendment by Congress (2/3 majority in both the House and the Senate - Article 5)
• Calling for a Constitutional Convention (2/3 of the state legislatures - Article 5)
• Ratifying a Constitutional Amendment (3/4 of the states - Article 5)
• Restore the ability of certain rebels to serve in the government (2/3 majority in both the House and the Senate - 14th Amendment)
• Approval of removal of the President from his position after the Vice President and the Cabinet approve such removal and after the President contests the removal (2/3 majority in both the House and the Senate 25th Amendment)

So if the Constitution grants each house the right to set its own rules of procedure and makes no mention of a supermajority being necessary, how do you square that with the combination of Senate Rules V and XXII? Which set of instructions prevails? The Constitution or the Senate Rules?

Well, although you might be inclined to say that the Constitution ought to trump pretty much anything, the only thing that's even close to certain about this question is that it's one that can only be answered by the houses of Congress for themselves. And however they may choose to answer it, it's probably beyond the reach of the courts or any other authority to challenge their decision. The Constitution would seem pretty unambiguous about that. The right to determine these rules belongs to each house. That means no one else. And it means that even if everybody else thinks it's a no-brainer for the Constitution to win out, that doesn't mean much if you don't have the votes to back you up.

So in that sense, this question is like any other that comes before the legislature. Logic can only carry you so far. It's the votes that matter, and the voting machines (or in the case of the Senate, the clerks) don't care what your logic is. They just want to know if you say "aye" or "no."

Next up, then, will be examining the mechanisms by which the Senate might settle this question for itself.

Disclosure: I'm doing paid work as a Fellow for ProgressiveCongress.org in addressing the necessity of filibuster reform in the Senate. The Fellowship is being supported in part by CREDO Action and Blue America. You can help support this work by signing CREDO Action's petition and/or donating at Blue America's ActBlue page.

In the House, courtesy of the Office of the Majority Leader:

FLOOR SCHEDULE FOR TUESDAY, JULY 20, 2010

House Meets At... 10:30 a.m.: Morning Hour
12:00 p.m.: Legislative Business
First Vote Predicted... 2:00 – 3:00 p.m.
Last Vote Predicted... 4:00 – 5:00 p.m.

"One Minutes"

Suspensions (18 Bills)

1. H.R. 5266 - National Commission on Children and Disasters Reauthorization Act of 2010 (Rep. Brown (FL) - Transportation and Infrastructure)
2. H.R. 5545 - To deauthorize a portion of the project for navigation, Potomac River, Washington Channel, District of Columbia, under the jurisdiction of the Corps of Engineers (Rep. Norton - Transportation and Infrastructure)
3. H.R. 5301 - To extend the period during which the Administrator of the Environmental Protection Agency and States are prohibited from requiring a permit under section 402 of the Federal Water Pollution Control Act for certain discharges that are incidental to normal operation of vessels (Rep. LoBiondo - Transportation and Infrastructure)
4. H.Res. 1463 - Supporting the goals and ideals of Railroad Retirement Day (Rep. Perriello - Transportation and Infrastructure)
5. H.R. 5604 - Surface Transportation Savings Act of 2010 (Rep. Perriello - Transportation and Infrastructure)
6. H.Res. 1516 - Recognizing the 65th anniversary of the end of World War II, honoring the service members who fought in World War II and their families, and honoring the service members who are currently serving in combat operations (Rep. Skelton - Armed Services)
7. H.Res. 1411 - Honoring the service and commitment of the 111th Fighter Wing, Pennsylvania Air National Guard. (Rep. Schwartz - Armed Services)
8. H.Res. 1483 - Recognizing the exemplary service and sacrifice of the soldiers of the 14th Armored Division of the United States Army, known as the Liberators, during World War II (Rep. Gingrey - Armed Services)
9. H.R. 4842 - Homeland Security Science and Technology Authorization Act of 2010 (Rep. Clarke - Homeland Security)
10. H.R. 4684 - National September 11 Memorial & Museum Commemorative Medal Act (Rep. Nadler - Financial Services)
11. H.R. 5341 - To designate the facility of the United States Postal Service located at 100 Orndorf Drive in Brighton, Michigan, as the "Joyce Rogers Post Office Building" (Rep. Dingell - Oversight and Government Reform)
12. H.Res. 1513 - Congratulating the Saratoga Race Course as it celebrates its 142nd season (Rep. Murphy (NY) - Oversight and Government Reform)
13. H.R. 5283 - Help HAITI Act of 2010 (Rep. Fortenberry - Judiciary)
14. H.R. 5532 - International Adoption Harmonization Act of 2010 (Rep. Lofgren - Judiciary)
15. H.Res. 1470 - Honoring the life, achievements, and distinguished career of Chief Justice William S. Richardson (Rep. Djou - Judiciary)
16. H.R. 5566 - Prevention of Interstate Commerce in Animal Crush Videos Act of 2010 (Rep. Gallegly - Judiciary)
17. S. 1749 - Cell Phone Contraband Act of 2010 (Sen. Feinstein - Judiciary)
18. H.R. 1469 - Child Protection Improvements Act of 2009 (Rep. Schiff - Judiciary)

• Conference Reports may be brought up at any time.
• Motions to go to Conference should they become available.
• Possible Motions to Instruct Conferees.

In the Senate, courtesy of the Office of the Majority Leader:

Following any Leader remarks, there will be a period of morning business with the time until 12:30pm equally divided and controlled between the two Leaders or their designees. The Majority will control the first 30 minutes and the Republicans will control the next 30 minutes. Senators are permitted to speak therein for up to 10 minutes each.

The Senate will recess from 12:30 until 2:15pm to allow for the weekly caucus meetings.

At 2:15pm, Carte Goodwin, of West Virginia, will be sworn as senator.

Following the swearing in, the Senate will resume consideration of the House Message on H.R.4213, Unemployment Insurance Extension, with the time until 2:30pm equally divided and controlled between the two Leaders or their designees.

At 2:30pm, the Senate will proceed to a roll call vote on the motion to invoke cloture on the motion to concur in the House amendment to the Senate amendment to H.R.4213, a bill to extend Unemployment benefits through November 2010.

Votes:
2:30pm roll call vote on the motion to invoke cloture with respect to H.R.4213, which extends Unemployment benefits through November.

Busy work for the House, but don't tell the sponsors of the suspensions on today's schedule that I said so. Besides, I really shouldn't complain about the fact that they're moving so many items without acrimony or division, should I? Anyway, the House needs something to do while they wait for the supplemental to come back. It's a real patchwork quilt of suspensions, in terms of the committees they're coming from today. I guess most of the backlog is getting cleared out in these suspension marathons, and stringing together 18 of them for today required tapping the reserves of half a dozen different committees.

In the interest of giving us something to talk about, I'll note that H. Res. 1470 (Honoring the life, achievements, and distinguished career of Chief Justice William S. Richardson) marks the first measure accidental Rep. Charles Djou (R-HI-01) has been able to bring to the floor. So congratulations there. Also, we have a mild BANANAS Alert: I'll give the Help HAITI Act a 3 on the Scale. In full, it's the "Help Haitian Adoptees Immediately to Integrate Act." Not awful. Plus it's got Haitian Adoptees in it, so you can't be too harsh in your judgments.

On the Senate side, though, we have a little excitement. The new Senator from West Virgina, who is not Carlton, your doorman, but rather Carte Goodwin, will be sworn in at 2:15, and then called upon to vote on cloture on the tax extenders/unemployment extension bill at 2:30. And at 10 this morning, the Senate Judiciary Committee meets for an executive business meeting during which we'll expect to see a vote on the nomination of Elana Kagan to the Supreme Court.

Today's full committee schedule appears below the fold.