American Culture

Senate procedure: it's not a three-ring circus, it's full-tilt clown war

I think the educated, informed and politically active electorate on all sides get the three-ring circus metaphor for our government. There just needs to be more of them, on all sides. Let’s see what happens, though, when I look, with beginner’s eyes, at the nuts ‘n’ bolts under the hood of the the Klown Kar in the lead-up to the featured act. For this exercise, I’ll use a bit of legislation currently up for debate, S.1726, Withholding Tax Relief Act of 2011, a bill to repeal the imposition of withholding on certain payments made to vendors by government entities.

I first became aware of this issue by following Sen. Jon Tester (D-MT) on Facebook. A comment there challenged Sen. Tester’s stance on job creation by calling attention to a vote several weeks ago where he broke with party on job creation. Sadly, the comment didn’t provide any salient details. Since it piqued my curiosity, I started to dig. Just that very day (well, of the comment), Sen. Tester had voted against party lines, so that couldn’t be it. As I scanned back through his voting record, sure enough I learned that he voted with the GOP on October 20, 2011, On Cloture on the Motion to Proceed (Motion to Invoke Cloture on the Motion to Proceed to S. 1726). But what the hell does that even mean? This voter intended to find out.

As it turns out, cloture is a parliamentary procedure. If a motion for cloture passes, debate on a bill ends. In the US Senate, motion for cloture is essentially a call to break a filibuster. From

In the United States, which has a long history of filibuster in the Senate, cloture was not adopted until 1917, with Rule 22. If a motion for cloture is put forward in the Senate, it requires a three fifths vote to pass, and there can be no more than 30 hours of debate on the topic after the motion for cloture passes. In this sense, cloture is used to limit debate and to hasten a vote, rather than to cut off debate entirely.

Tester broke ranks from the Democrats to vote with the GOP to break filibuster (debate) on a Motion to Proceed for a bill. GOP needed 3/5 (or 60 votes). Final vote was 57-43. GOP missed it by 3 votes. Dems avoided the end of debate, but no thanks to one of their own.

But where in that is any of the context? The comment that triggered all this volunteered nothing but the clue that led to the date on which Tester’s vote for something was cast, and now we know what that something was. At first pass, it doesn’t look like much.

Before we get to the substance of the something, however, let’s take a look at the timing and context of this vote. From Congress Matters:

The last cloture vote, on the substitute, was expected to pass without much Republican opposition, even though normally Senate Republicans have come to oppose such measures by rote, just to cause trouble. Now, there was a time in the now-distant past where once the amendment process was over with, appropriations bills generally passed in the Senate with large, bipartisan majorities. But those days are over with, and I expected a large majority in favor of cloture on the substitute primarily because Senate rules say that when cloture is invoked on a measure, that measure remains the exclusive pending business of the Senate until there’s a vote on passage. With the weekend coming, and a recess to follow, allowing cloture on the substitute means the Senate breaks for a week without any further consideration of any part of the American Jobs Act, including any reconsideration of the cloture motion on it that was rejected earlier yesterday. Not such a bad outcome, if you’re a Republican. And if you’re a Democrat, well, progress was made. So… cloture!

There won’t be any more action today. The Senate meets in pro forma session twice next week, and reconvenes the week following. That puts us into November, with the bulk of the appropriations work still unfinished, about two weeks left (at that point) on the current continuing appropriations bill that’s keeping the government open, and about three weeks from the supposed Super Committee deadline. So when the Senate returns on Halloween, we start the countdown on yet another government shutdown scare. Boo!

As it turns out, Tester’s vote was part of Roll Call 178 at 10:24 PM, the last cloture vote of the day (even though there was still quite a bit of other Senate activity that followed).

It might not seem like it yet, as the nuts ‘n’ bolts can be damned tedious things, but this is actually the plot thickening here. Tester broke ranks with the party to end a filibuster going into a weekend and a recess with much Senate work pending, Obama’s American Jobs Act matters to clear, and the 24/7 news cycle darling, the Super Committee, schedule to explode fabulously one way or the other within a month. As if that’s not juicy enough, we also have a bit of understated chicanery from no less than McConnell. See, he’s the one who moved for cloture. Faux pas! Also from Congress Matters:

And by the way, it’s pretty unusual for the Minority Leader to be filing cloture motions on his own. It’s one of those things that’s “simply not done” in the Senate. By golly gee, it is being done! Will you look at that?

For the moment, let’s just go ahead and be generous. This was merely McConnell being a little tired and cranky at the end of a long, well-paid day in the Senate, right?

So we know the Tester vote, what it was for, the timing, and even have some inkling that there was something unseemly in the whole thing. Surely Tester knew that it was impolitic for McConnell to be the one moving for cloture, after all.

Now, exactly what the heck is the bill under consideration, anyway? The short version is that the Withholding Tax Relief Act of 2011 would “repeal a tax code provision scheduled to take effect in 2013 that will require the government to withhold 3 percent of its payments to contractors and vendors” (Chicago Sun-Time Post-Tribune). And what would you know, it’s McConnell’s bill, co-sponsored by 20 Republicans, including the likes of Scott Brown, Marc Rubio, David Vitter and John McCain. This can only be good. Oh, I get it. Sponsor a bill these guys like and then move to cut off debate. “It’s mine, dammit, we can’t debate this.” Unseemliness heaped on unseemliness, of, for and by McConnell. Color us surprised.

If the short version is finally starting to get the hair on the back of your neck to prickle, just you wait. To fully understand what the Withholding Relief Act of 2011 is all about, first you’d probably want to read the text of the bill. For now, don’t worry about it. As bills go, it’s really short and sweet. However, to understand it in its entirety, you’d just need to research the following (just kidding, skip the text in green):

  • It repeals Section 511 of the Tax Increase Prevention and Reconciliation Act of 2005 (it’s a tax cut – Bush years, lest we forget)
  • Internal Revenue Code of 1986 then applies as though it had never been so amended (Reagan years!)
  • It rescinds $30 billion in appropriated discretionary funds (oh, it’s a spending cut and a tax cut)

Of course, since it mentions something else outside the present bill, we don’t know off the top of our heads what section 511 has to say. Yet. To see what it is that McConnell and his tittering, jeering cronies are so eager to cut, I guess we’d best go look that up, too, while we’re at it. To understand that, we only need to understand this:

  • Just add a new paragraph (t) to the end of Internal Revenue Code, § 3402, Income Tax Collected at Source (which is only 6,000+ words of tax law, if you want to know what (t) changes)

Luckily, this proposed (t) only has three sub-paragraphs and (2) only has nine and (3) only has one. How bad can it be? Now we just need to look up and comprehend all of the ramifications of the following:

  • “This chapter” United States Code, Title 26, Subtitle C, Chapter 24, Collection of Income Tax at Source on Wages, which is where § 3402 happens to be
  • “Chapter 3” U.S.C., Title 26, Subtitle A, Chapter 3, Withholding of Tax on Nonresident Aliens and Foreign Corporations
  • U.S.C, Title 26, Subtitle C, Chapter 24, §3406 – Backup Withholding
  • U.S.C. Title 26, Subtitle F, Chapter 61, Subchapter A, Part III, Subpart B, §6050M – Returns Relating to Persons Receiving Contracts from Federal Executive Agencies
  • U.S.C. Title 26, Subtitle C, Chapter 24, §3403 – Liability for Tax
  • U.S.C. Title 26, Subtitle C, Chapter 24, §3404 – Return and Payment by Governmental Employer
  • U.S.C. Title 26, Subtitle F – Procedure and Administration (except for Chapter 75, Subchapter A, Part I, §7205 – Fraudulent Withholding Certificate or Failure to Supply Information) as it relates to Chapter 24.

Naturally, looking all that up is just the hairy, scary beginning, because each of those references is likely to be rife with more references veritably infested with if’s, and’s, but’s, then’s and not’s.

The short and sweet of it, as I figure it, is that back when the Tax Increase Prevention and Reconciliation Act of 2005 was hammered out, the GOP had to throw at least a few bones to the Dems to get the rest of their agenda through, and Section 511 of that act was one of those bones. Now that Obama’s American Jobs Act is getting sliced and diced, the GOP is falling all over itself to take back a six year-old bone that levies a mere three percent tax on payments to contractors and vendors.

Naturally, the right wing casts a 3% withholding as an attack on jobs because it inhibits job creation by private contractors. However, just how many jobs would $30 billion in spending create or, alternately, how many jobs would a $30 billion cut destroy? As with most things Congressional, we won’t get any straight answers because the real answer is that the actual number of jobs affected would the difference between what’s “stifled” in the private sector and what’s created by government spending, plus or minus. And that’s just from this one very un-sexy debate in which Jon Tester runs a fifth column play for the GOP.

With that kind of complexity, is it any wonder our government is seen as a three-ring circus? I humbly submit that it’s so much worse than that. To follow the metaphor of the three-ring circus, the typical voter would have to at least be somewhat fluent in the basics of the three rings. Study after study shows that they are not. The American public has been dumbed down to embarrassing levels. As a result, rather than having a largely intelligent, informed and politically active electorate that at least relies on trustworthy sources to thoroughly and reliably do this kind of legwork for them and offer up a reasoned analysis for somewhat easier consumption, we have a largely under-educated, mis- and dis-informed, apathetic electorate content to let ill-considered sources let them know how to interpret what they see. And what do they see? A full circus? Not anymore. That would be too complicated.

Now all they get is a single Klown Kar with two clowns, a red one and a blue one. Blue Klown piles out of the left side from the back and wields a huge inflated mallet. Red Klown piles out of the right and wields a huge, floppy pair of rubber scissors. And we hoot and holler while Blue Klown tries to bop Red Klown and Red Klown tries to clip Blue Klown’s mallet. Think Tom and Jerry, but less smart. As for the car, you might notice that nobody is driving. For that matter, nobody even really understands the engine anymore. Now the engineers just place bets in the back alley as to whether the Klown Kar should even run at all.

As for me, I’ve got my popcorn and my cotton candy. For the most part, I’ll root for a clown based on my best guesses, gut instincts, and general principles. That’s all I’ll have time for. Sometimes I’ll do the legwork, at least some of it. I’ll raise some questions and pose some concerns. I’ll continue to rely on sources far better informed (I hope) than I. And I’ll try to not think too much about the time I first peeked under the hood. The clowns are so much… oooh! Shiny!

2 replies »

  1. You write that 3402(t) “levies a mere three percent tax on payments to contractors and vendors,” but this is incorrect. This was not a tax, but a withholding. It was not, in effect, new revenue, as it would have been applied to taxes owed at the end of the year.

  2. Dear Nitpicker, thank you very much for catching that error. It seems that you are indeed correct. This evening I’ll make it a point to follow up on that a bit more and submit a correction to the post. I’ll be extra glad to do so, because if anything it will help make a stronger case for why Sen. Tester jumping across the party line is even more detrimental (at least as far as Dems might be concerned). The GOP cutting spending while also cutting a tax could be positioned as a balancing act. “Less money going in, so less money coming out.” By just impairing federal cash flow without actually changing the net revenues they appear to be saying, “the money’s there, but less money will still come out.” By all means, if my logic on that point appears to be in error, please let me know.