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“Should I stay or should I go now? If I go there will be trouble. And if I stay it will be double.” – The Clash
The words “schedule” and “Congress” don’t always mesh.
But the formal Senate schedule has long had senators taking off at the end of this week until early September for the customary “August recess.”
Only thing is, President Trump and some conservatives pushing for approval of the SAVE America Act don’t want the Senate to beg off. They assert that the Senate should remain in session until it passes the bill, which requires proof of citizenship to vote.
“I think there’s nothing more important than they pass the SAVE America Act. I think they should stay,” said President Trump. “They do what they want. But I think they should stay.”
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The Senate has already defeated two efforts to adopt the SAVE America Act. So there’s not an obvious pathway to alter those previous outcomes. Senate Majority Leader John Thune, R-S.D., has rebuffed the President’s demands to stay in session.
“I don’t think having a Congress sitting around here for the month of August and quorum calls or having to vote on Democrat amendments is probably a good use of anybody’s time,” said Thune.
There’s tension between the South Dakota Republican and the President over the Senate’s legislative realities. Thune may be Majority Leader. But Thune believes the President bears responsibility for changing some minds on Capitol Hill.
“We have in the past suggested to he and his team to come up here and visit with some of my Republican colleagues,” said Thune. “Now if he can change the facts and start moving some of those senators who are noes into yesses, then we have a different conversation. But that’s just the reality.”
As always, it’s about the math. And the SAVE America Act lacks the votes.
“I know Sen. Thune says the votes aren’t there. I’m not saying he’s wrong. I’m just saying people change their mind sometimes,” argued Sen. John Kennedy, R-La.
But it doesn’t look like there will even be a vote on that, unless something ripens quickly.
That’s where Sens. Mike Lee, R-Utah, Ted Cruz, R-Texas, Roger Marshall, R-Kas, Rick Scott, R-Fla., and others have suggested the Senate shouldn’t go on break unless they pass the bill.
So what happens next?
Let’s say we get to Friday night. The Senate has taken its final vote of the summer. Maybe to confirm Todd Blanche as Attorney General. Perhaps the measure named after late Sen. Lindsey Graham, R-S.C., which sanctions Russia. The Senate is ready to finish until mid-September. In recent years, the Senate has not voted on a resolution to go out of session for weeks on end. That’s where SAVE America Act proponents would attempt to block such an effort. But its immaterial since there is no vote.
In the not too distant past, the House and Senate often approved “adjournment resolutions.” But not right now. Such a plan must align with the wishes of the House of Representatives. Article I, Section 6 of the Constitution bars either body for adjourning for more than three days “without the Consent of the other.” The House isn’t around to approve an adjournment resolution. It’s been out of session for a couple of weeks now. Moreover, it’s not clear that the House could adopt an adjournment resolution.
So, under the Constitution, each body must – at a minimum – hold a brief “pro forma” session where lawmakers convene for just a few seconds and then immediately gavel out. That meets the Constitutional requirement.
But there’s the rub.
When the Senate wraps up, Thune or one of his lieutenants would usually go to the floor and ask “unanimous consent” that the Senate meet on a series of Mondays and Thursdays or Tuesdays and Fridays between now and September. These are the “pro forma” sessions, convening at three-day intervals. But if Lee or someone wants to object, they’re stuck. The Senate can’t green light the set of pro formas. The Senate must have buy-in of all 100 senators.
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But an objection in this case hardly blocks the recess or compels debate – let alone a vote or passage – on the SAVE America Act.
If Thune or his designee can’t get unanimous consent, the only option they have is to move to meet again the next day. Let’s say 9 a.m. ET. If someone objects to the time, it will meet at noon et under the Senate’s default protocols.
That said, this is where someone could force what might constitute the de facto “vote to go on recess.” A Republican senator might demand a vote on the Senate adjourning for the day on Friday and meeting on Saturday. This is not a vote to “go on recess.” But it’s the closest someone can engineer a possible vote related to Senate action.
A motion to adjourn is not debatable on the floor. But it is amendable. Someone could offer another option about when the Senate should meet. But that’s about it.
On this hypothetical Saturday session, it’s possible that Thune could simply get recognition and ask for the Senate to adjourn for the day again. One of those pushing the SAVE America Act doesn’t even get recognized to speak. However, if Thune is gracious and is willing to allow someone to have their say, they could get the floor and hold it as long as they want.
Note that doing so does not constitute a filibuster. Filibusters are efforts by senators to stop something. In this case, advocates of the SAVE America Act are trying to start something. So no filibuster. This would just be a really long speech. But Thune might not let it come to that. And even though they’ve chattered about it a lot, the strongest advocates of the SAVE America Act have not taken advantage of their prerogatives as senators and gone down to hold the floor at length.
Keep in mind that SAVE America Act advocates could potentially do this and push for recognition on the floor on all subsequent days during the August recess. Thune could block them from speaking because the order of the day is to convene and adjourn during a pro forma session. And if the SAVE America Act faction were to push for a vote, all it takes is another senator to block them on the floor.
One might ask the question about whether the SAVE America Act group might demand a “live” quorum call (where all senators must report to the floor for attendance) or even the more extreme motion of “instructing the Sergeant at Arms to arrest” absent senators and bring them to the floor. Well, this works at cross purposes during August. The reason? The Senate doesn’t have a quorum. In the old days, the Senate took quorum calls to establish if enough senators present were present to do business. It violates the Constitution to conduct business without a quorum present.
The SAVE America Act coalition may prove that there aren’t enough senators in Washington to conduct business. That helps make their point. But it also forces the Senate to adjourn because it can’t operate without a quorum.
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These gambits might not achieve the legislative goal of passing the SAVE America Act. But there are other benefits for SAVE America Act advocates. A series of lengthy speeches could potentially delay the recess. These Republican senators could argue that they are willing to stay and debate the SAVE America Act while their colleagues fled Washington for summer. Such a maneuver would focus attention on the issue. It would draw a contrast between senators willing to fight for the issue and those who went home. The effort might impress President Trump. And such a maneuver could show divides between them and Thune – who the President often chastises.
But pass the SAVE America Act? It’s not going to do that. And some Republican senators emphasize the importance of taking a few weeks off so their colleagues can campaign.
“The worst case scenario is for us is to stay all the way through and then we lose the Senate in the days ahead,” said Sen. James Lankford, R-Okla., on Fox. “Then President Trump is dealing with all the impeachment crazy all over again.”
Remaining in Washington for the next five weeks would pull the most vulnerable GOP senator off the trail, Sen. Susan Collins, R-Maine.
Collins was crystal clear when pressed by yours truly whether she would campaign and miss her first roll call vote since entering the Senate in 1997.
“I don’t miss votes,” said an emphatic Collins.
So don’t expect the Senate to forgo the recess at the end of the week.
In fact, a decision by the Senate to go on recess may even work to the political advantage of those pushing for the SAVE America Act. They can then rail against Thune’s leadership and their colleagues for not passing the bill. Again, they don’t score the legislative outcome. But they sure rack up some political points.
This is why those philosopher kings who comprise the band The Clash may have been on to something. If the Senate stays, Republicans can’t pass the SAVE America Act. But if they go, certain GOP senators can rabble rouse.
There’s trouble whether senators stay or go.
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