July 24, 2015

This morning, the Senate took a number of steps to get debate going on its surface transportation bill, the DRIVE Act, by voting to bring up an unrelated veterans benefits bill (H.R. 22) that will be used as a legislative vehicle for the measure.

By a vote of 51 to 27, the Senate agreed to the motion to proceed to H.R. 22 and made it the pending business of the Senate. (22 Senators skipped the anticlimactic vote, since the Senate had earlier got 62 votes to invoke cloture on that motion, and the assumption was that if it could get 62, it could certainly get a simple majority of those who showed up this morning. In this case, the motion only needed 40 “yes” votes, being half-plus-one of 78.)

Senator Majority Leader Mitch McConnell (R-KY) then offered an amendment in the nature of substitute to H.R. 22- amendment #2266, as modified. The modifications drop one of the offsets, make further adjustments to the HTF transfers (including the addition of a $300 million transfer to the HTF from the LUST Trust Fund), further lower highway and transit spending in the first three years of the bill by $1.6 billion and $235 million respectively, and make other modifications described here staring on page 2. ETW has updated the tables that show authorization levels, projected Highway Trust Fund balances and the pay-fors, and those tables can be found here.

McConnell then offered more amendments: an amendment to substitute #2266 offered by Sen. Mark Kirk (R-IL) to reauthorize the Export-Import Bank; an amendment to the Kirk amendment repealing Obamacare, an amendment to H.R. 22 directly providing a two-month HTF extension to September 30, and a second-degree amendment to the two-month extension changing the date.

By doing all this, McConnell has “filled the amendment tree” and Senate rules do not allow any other amendments to be offered until one of the pending amendments has been withdrawn or otherwise disposed of.

(McConnell could have filled the tree with meaningless amendments instead of those last two, so the fact that a two-month HTF extension was offered as a perfecting amendment to H.R. 22 may be meant to give the Senate a backup plan in case debate on H.R. 22 stalls or if the McConnell substitute does not get 60 votes for cloture next week.)

McConnell then filed four cloture petitions: on the Obamacare amendment, on the Ex-Im amendment, on the substitute for H.R. 22 containing the text of the DRIVE Act, and on H.R. 22 itself.

What happens next?

The Senate now stands adjourned until Sunday afternoon. Under Senate rule XXII, all amendments that Senators may propose to offer to the DRIVE Act (McConnell substitute amendment #2266) must be filed at the desk by 2:30 p.m. on Sunday, so they should all be printed in the Congressional Record first thing Monday morning.

At 3 p.m. on Sunday afternoon, there will be three consecutive roll call votes:

• Motion to invoke cloture on McConnell amendment #2328 (Obamacare repeal). This will not get 60 votes, and then the cloture motion will be withdrawn.
• Motion to invoke cloture on Kirk amendment #2327 (Export-Import Bank reauthorization). This will most likely get 60+ votes, which starts a 30-hour post-cloture clock running on the Kirk amendment.
• Senator Cruz’s appeal of the ruling of the chair that it is not in order for him to offer his amendment #2301 (Iran sanctions) because it would be a “third degree” amendment (amendment to an amendment to an amendment), which is prohibited under Senate rules and general parliamentary law. This appeal only requires a simple majority but is unlikely to succeed.

After that, things get hazy. 30 hours from Sunday afternoon would be Monday night, at which point the Senate would have a final vote on the Ex-Im reauthorization amendment. At that point, McConnell will probably call a vote on invoking cloture on his DRIVE Act substitute #2266 itself. This is important not just because it starts another 30-hour post-cloture debate clock, but also because invoking cloture automatically rejects any pending non-germane amendments and prohibits any further non-germane amendments from being offered. (Germane in this case means to the DRIVE Act, not to H.R. 22 itself.)

If McConnell gets 60 votes and cloture is invoked on substitute amendment #2266 on Monday night, then a 30-hour period commences in which germane amendments to the DRIVE Act might be offered and voted on. But in the Senate, there are no guarantees that Senators will be able to offer amendments and get a vote.

30 hours from Monday night would be the wee hours of Wednesday morning, at which point McConnell would either have a vote on adopting the DRIVE Act substitute amendment #2266 to H.R. 22 or else get unanimous consent to move the time of the vote to late Tuesday night or first thing Wednesday. Then there would be a fourth and final cloture vote, this one on H.R. 22 itself, and 30 hours later, a vote on passage of H.R. 22 as amended.

One important note: McConnell changed strategy again, and now, if H.R. 22 is passed, it will have one big substitute amendment that combines DRIVE and Ex-Im instead of two separate DRIVE and Ex-Im amendments.

The bill would then go to the House, where the last votes before September are scheduled to be at 3 p.m. next Thursday and where opposition to simply rubber-stamping the Senate’s 1,000-page transportation bill plus an Ex-Im reauthorization appears to be hardening. The House has a wide variety of procedural options when responding to a Senate amendment to a House bill – persons willing to get into the procedural weeds can refer to this Congressional Research Service report.