Capitol to Capitol | April 3, 2017

Potential Fillibuster Meltdown: Will the Senate Go Nuclear?

Last Tuesday, Senate Majority Leader Mitch McConnell told reporters that Supreme Court nominee Neil Gorsuch will be confirmed this Friday, April 7. This week, we will find out if he will be forced to employ a change to the Senate rules, known as the "nuclear" option, to keep his vow.

Changes to Senate procedure are rare because amending the chamber's Standing Rules requires a two-thirds vote of the Senators present and voting (67 if every Senator is present and voting) to invoke cloture, or to end debate, on the motion to proceed. Of the Standing Rules, Rule 22 is perhaps the most well know. It states that to invoke cloture on any "matter pending before the Senate . . . except on a measure or motion to amend the Senate rules" there must be a vote of "three-fifths of Senators duly chosen and sworn." In effect, as there are 100 Senators, this rule requires 60 Senators to vote to end debate on any matter before the Senate, including votes on nominations. At least, that was the case until the middle of the 113th Congress.

On Nov. 21, 2013, then-Majority Leader Harry Reid (D-Nev.) went "nuclear". The "nuclear option" is the process of changing Senate procedure by establishing a new precedent rather than changing the rules. This method, also known as the "Constitutional option" because the Constitution does not say anything about Senate rules, allows a simple majority vote to change Senate procedures by affirming or rejecting the presiding officer's interpretation of Senate rules. Reid, who was angered by a Republican filibuster of an Obama nominee to the D.C. Circuit Court of Appeals, raised "a point of order that the vote on cloture under rule [22] for all nominations other than for the Supreme Court of the United States is by majority vote."

Reid's fellow Democrat, Senator Patrick Leahy (D-Vt.), who was presiding over the chamber, ruled against the leader's point of order since Rule 22 requires a three-fifths cloture vote on nominations. Reid than appealed Leahy's ruling to the full Senate, which voted 48-52 against the ruling of the chair. The presiding officer responded that "under the precedent set by the Senate today . . . the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair."

This week, as Senate Democratic Leader Chuck Schumer has signaled his intent to filibuster the Gorsuch nomination when it makes it to the Senate floor, at least eight Democrats must vote with the chamber's 52 Republicans for cloture to be invoked. While it is believed that several Democrats who are up for election next year in states won by President Donald Trump will likely vote for the cloture motion, it is increasingly unlikely that there will be enough to make it to 60.

In the event cloture is not achieved, McConnell will have to make a tough choice, either move on to other business and leave the Supreme Court seat vacant, or go nuclear and forever change the confirmation process of Supreme Court nominees. We will find out soon enough.

Background on the Standing Rules of the Senate

"A knowledge of the Senate's formal rules is not sufficient to understand Senate procedure, and Senate practices cannot be understood without knowing the rules to which the practices relate."
– Rules and Procedure, United States Senate

  • While the Constitution states that quorum constitutes a simple majority of the members of each house of Congress (51 in the Senate), it gives each chamber the power over its own rules.
  • For changes to its code of Standing Rules, the Senate has typically adopted Senate Resolutions (S. Res.), which only require adoption in the Senate chamber to pass.
  • Measures, including proposed changes to Senate Rules, are debatable.
  • Senate Rules place no general, overall limits on how long a debatable question can be considered or how long individual Senators can hold the floor in debate. However, by unanimous consent of the chamber, the Senate can limit time for the consideration of measures.
  • In the absence of unanimous consent, the only mechanism provided by Senate Rules for imposing time limits on debate is the motion for cloture (Rule XXII, paragraph 2), which requires a three-fifths vote of the full membership of the Senate (currently 60 votes if there is no more than one vacancy).
  • If the Senate votes for cloture on any debatable question, further consideration of the question is limited to 30 additional hours, after which a final vote on that question would occur.
  • For changes to the Standing Rules, cloture can be invoked only by vote of two-thirds of Senators voting, with a quorum present. (This majority is now often referred to as "67 votes," as it assumes that all Senators are present and voting. However, the votes required would be fewer if not all Senators vote, because the requirement is based on the total number voting.)
  • As the Standing Rules of the Senate require a two-thirds of Senators voting to invoke cloture to end debate, changing the rules, especially controversial changes, can be quite difficult. 

President Issues Enegry Independence Executive Order

DYK?

CafĂ© Ground Zero – the deadliest hot dog stand in the world.

Rumor has it that during the Cold War, the Russians never had any less than two missiles aimed at the hot dog stand once located at the center of the Pentagon's courtyard. They thought this was the Pentagon's most top secret meeting room, and the entire Pentagon was a large fortress built around it.

Reportedly, Soviet satellite images captured groups of U.S. military officers entering and exiting the hot dog stand at about the same time every day and thus concluded that the stand was the entrance to an underground bunker. Or, as was the case, the officers just really liked hot dogs.

On March 28, President Trump issued an Executive Order entitled 'Promoting Energy Independence and Economic Growth,' aimed at "promoting [the] clean and safe development of our countries vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation." Many of the actions described in the order either begin a formal administrative process to review and potentially revise regulations, or rescind climate related actions taken by President Obama.

Review of the Clean Power Plan
Of most significance to states, the order directs the Environmental Protection Agency (EPA) to begin the process of reviewing, and potentially revising or rescinding, its Clean Power Plan Final Rule (CPP), as well as all related rules and agency actions. Should EPA decide to take any action, such action would be accomplished via the administrative procedures act and would likely take many months, if not years, to complete. Previously, on Sept. 27, 2016, the D.C. Circuit Court of Appeals, sitting en banc, heard oral arguments to the case and is expected to issue a decision shortly, although many analysts and experts anticipate that the case will be appealed to U.S. Supreme Court, regardless of which side prevails. 

Trump's action also directs EPA to rewrite a similar rule which sets carbon dioxide emission standards for new power plants. Twenty-four states are currently challenging the existing final rule in North Dakota et. al. v. EPA, with oral arguments scheduled for April 17, 2017. The EO directs the Attorney General to request all legal proceedings governing both rules be held in abeyance, or remanded, pending the completion of administrative review.

Review of Past Federal Agency Actions
In addition to the provisions concerning CPP, the order lifts a moratorium on new coal mining leases previously enacted by the Department of Interior in January 2016. The EO also directs the Bureau of Land Management (BLM) to review both its 2015 hydraulic fracturing final rule which updated 30-year-old regulations for oil and gas fracturing on federal, and tribal lands, as well as its 2016 methane venting and flaring rule that is aimed at reducing methane emissions and "wasted" gas from public and tribal lands. Further, EPA is directed to review a 2016 final rule which set new emission standards for the oil and natural gas sector for new, reconstructed and modified sources.

Rescinding Federal Climate Change Guidance
The EO rescinds guidance issued by the White House Council on Environmental Quality in August 2016 regarding how federal agencies should consider climate change when evaluating proposed federal actions in accordance with the National Environmental Policy Act (NEPA). Additionally, the order rescinds guidance concerning the calculation of the social cost of carbon (SCC), which was used by federal agencies when calculating the impacts, costs and benefits, of a particular agency action.

Next Steps
Finally, the order directs all federal agencies to immediately identify, and "appropriately suspend, revise, or rescind," all rules which inhibit domestic energy production or use. The order gives each agency 120 days to submit their initial review to the Office of Management and Budget detailing specific recommendations to "alleviate, or eliminate aspects of agency actions that burden domestic energy production."

NCSL Contacts: Ben Husch; Kristen Hildreth

DYK?

Each year, the National Cherry Blossom Festival commemorates the 1912 gift of 3,000 cherry trees from the mayor of Tokyo to the city of Washington, DC. The gift and annual celebration honor the friendship between the United States and Japan and the close relationship between the two countries.

It took the coordination of many to ensure the arrival of the cherry trees. A first batch of 2,000 trees arrived diseased in 1910, but that did not deter the parties from trying again. Key figures in the two countries, including First Lady Helen Herron Taft, ensured the success of second attempt and more than 3,000 trees arrived in Washington in 1912. In a simple ceremony on March 27, 1912, the First Lady and the wife of the Japanese ambassador planted the first two trees from Japan on the north bank of the Tidal Basin in West Potomac Park. 

FCC Privacy Rules
President Trump is expected to sign a resolution that passed Congress last week repealing Internet privacy protections that were approved by the Federal Communications Commission in the final days of the Obama administration. The rules, which had not yet gone into effect, would have put tough restrictions on what internet service providers could do with consumer data collected. For example, under the FCC's rules, providers would have needed permission from customers before collecting and sharing data, including user's health and financial details, web browsing history, app usage and geo-location.

Consumer and privacy groups, along with many Democrats, condemned the resolution stating that the rules protected internet users from companies that seek to monetize their activity. Opponents of the privacy rules complained that it placed an undue burden on broadband providers while giving an edge to large Internet companies like Facebook and Google who would be free to collect user data without asking permission. Even with the repeal of the rules, phone and cable companies will still be subject to the "Wiretap Act", a federal law that imposes on broadband providers a "duty to protect the confidentiality" of customer information, and restricts them from using some customer data without approval.

With the privacy rules no longer going into effect, more states will likely consider regulating specific practices by broadband providers. Currently, two states, Nevada and Minnesota, require Internet Service Providers to keep private certain information concerning their customers, unless the customer gives permission to disclose the information. Both states prohibit disclosure of personally identifying information, but Minnesota also requires ISPs to get permission from subscribers before disclosing information about the subscribers' online surfing habits and Internet sites visited.
For more information on state laws related to internet privacy, click here.
NCSL Contact: Neal Osten

South Dakota Nears SCOTUS on Online Sales Tax Case

DYK?

On this day in 1860, the first Pony Express mail, traveling by horse and rider relay teams, simultaneously leaves St. Joseph, Mo., and Sacramento, Calif. Ten days later, on April 13, the westbound rider and mail packet completed the approximately 1,800-mile journey and arrived in Sacramento, beating the eastbound packet's arrival in St. Joseph by two days and setting a new standard for speedy mail delivery. Although ultimately short-lived and unprofitable, the Pony Express captivated America's imagination and helped win federal aid for a more economical overland postal system.

This past week, Amazon, the largest electronic commerce company in the world, announced they will now collect sales taxes in every state that impose them on Amazon sales, which excludes third-party sellers that sell on the Amazon platform. With states unable to collect over 26 billion dollars in sales taxes per year from out-of-state purchases, this was welcome news for state budgets. But while this news may be helpful, Amazon is just one company and states are actively looking to collect owed sales taxes from all large online retailers.

In the absence of federal action, states have sought solutions to the remote sales tax loophole to protect their budgets as well as level the playing field for their main street retailers. This year, at least 60 remote sales tax measures have been introduced in 30 states. Alabama, Virginia and Wyoming have all passed measures that have been signed into law. Generally, states have looked at three approaches to level the playing field between brick and mortar business and online retailers: 1) establishing economic nexus; 2) creating reporting/notification requirements on non-collecting out-of-state sellers, or 3) imposing requirements on online marketplaces or marketplace providers. For more detailed information on how these approaches differ, check out our latest episode of Our American States, NCSL's podcast.

The flurry of state activity this year follows the trail that the state of South Dakota blazed in 2016. South Dakota's economic nexus law, S.B. 106, required out-of-state retailers with annual in-state sales exceeding $100,000 or that had 200 separate transactions, to collect and remit that state's sales tax. State lawmakers presented the law as a direct challenge to the U.S. Supreme Court ruling in the case of Quill Corp. v. North Dakota, which reaffirmed a previous court decision prohibiting states from imposing sales and use tax collection obligations on sellers without an in-state physical presence.

Correctly anticipating a challenge to the law's constitutionality (which occurred even before it went into effect), S.B. 106 included provisions that aimed to fast track any legal challenges through the South Dakota courts with the goal of making it to the doorstep of the U.S. Supreme Court as soon as possible. Last month, in its opinion on the law, South Dakota's Sixth Judicial Circuit agreed that the Quill ruling is now antiquated, given the growth in technology and e-commerce, but the court still ruled against the state's law given current U.S. Supreme Court precedent. This means that the South Dakota Supreme Court will now consider the matter before it can be appealed to the Supreme Court, which could occur as early as this fall.

NCSL Contact: Max Behlke, Jake Lestock

Supreme Court Decides Significant Special Education Case

On March 22, in an unanimous opinion, the U.S. Supreme Court in Endrew F. v. Douglas County School District held that schools must do more than provide a "merely more than de minimis" education program to students with disabilities, effectively expanding the scope of students' special education rights. The court held that public school districts must offer students with disabilities an individual education plan (IEP) "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."

Per the federal Individuals with Disabilities Education Act (IDEA), a student with a disability receives an IEP, developed with parents and educators, which is intended to provide that student with a "free and appropriate public education" (FAPE). In Endrew F., the Court stated that if "progressing smoothly through the regular curriculum" is not "a reasonable prospect for a child, his IEP need not aim for grade level advancement. But his educational program must be appropriately ambitious in light of his circumstances." The "de minimis" language struck down by the SCOTUS ruling had been set forth in a 2008 opinion written by Judge Neil Gorsuch in Denver's 10th Circuit U.S. Court of Appeals.

The high court's decision was handed down the same day as Gorsuch's confirmation hearing in the Senate Judiciary Committee. When questioned, Gorsuch said, "If I was wrong ... I was wrong because I was bound by circuit precedent, and I'm sorry... The Supreme Court is our boss, and we respect their last word, they are final."

NCSL Contact: Lucia Bragg

The Mar. 27, 2017 Capitol-to-Capitol can be found here

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NCSL's Advocacy in Washington

NCSL's Washington staff advocate Congress, the White House, and federal agencies on behalf of state legislatures in accord with the policy directives and resolutions that are recommended by the NCSL Standing Committees and adopted by the full conference at the annual NCSL Legislative Summit Business Meeting. As a result of the advocacy that is guided by these policies positions, NCSL is recognized as a formidable lobbying force in state-federal relations.

NCSL Staff in Washington, D.C.

  • Neal Osten | 202-624-8660 | Molly Ramsdell | 202-624-3584 | Directors
  • Max Behlke | 202-624-3586 | Budgets and Revenue
  • Danielle Jarchow |202-624-8686 | Communications, Financial Services and Interstate Commerce
  • Lee Posey | 202-624-8196 | Education
  • Rachel Morgan | 202-624-3569 | Health and Human Services
  • Jon Jukuri  | 202-624-8663 | Labor, Economic Development and International Trade
  • Susan Frederick | 202-624-3566 | Law, Criminal Justice, and Public Safety
  • Ben Husch | 202-624-7779 | Natural Resources and Infrastructure