Senate Rules Dispute Boils Over Into Rare Discharge Motion On Floor: Full Senate Finally On Record On Protecting Property From Eminent DomainFeb. 10, 2011
A bit of history was made — or at least attempted — Tuesday in the Senate. Senator Mark Obenshain (R-26, Harrisonburg), expressing the frustration of an arbitrary exercise of Senate rules by majority Democrats, made a discharge motion — a parliamentary procedure to bring to the floor of a legislative body a bill that has been defeated or bottled up in committee. A discharge motion hasn't been attempted in the Senate in nearly two decades (see Washington Post Virginia Politics Blog). It's considered desperate and an affront, especially in the "collegial" Senate, because it doesn't respect Senate procedure and the "committee process" (i.e., the opinion of your colleagues who have heard the patron, witness testimony and debate, and studied the legislation) — it's done with, so let it be — and slows down floor action. It's rare because those who attempt it often are ostracized by most, if not all, of their colleagues. Its required two-thirds majority vote also is difficult to achieve, so the risk-to-cost ratio isn't appealing.
However, it's on the books for a reason or it wouldn't be a rule — precisely when the committee process has degenerated into a, "the rules are what we say they are," selectively applied, moving target. Senate rules and tradition are that sub-committees take recommendation votes only, and that full committees hear every bill for a final vote. Last year, the Senate, in an unprecedented move, changed its rules after crossover to allow sub-committees (with as little as two votes) to kill House bills so as to save members from going on record on tough votes in full committee. Rule changes in midstream are almost unheard of, but even at that, Senate bills always have been given the courtesy of full committee hearings. Where's the "collegiality" in revoking that process? (While House rules allow for the killing of bills in sub-committee, it is in its rules, and they are applied equally, to all bills, throughout session.)
I got an inkling of the Senate mischief at this session's first meeting of the Privileges and Elections Committee. The chair, Senator Janet Howell (D-32, Reston), announced that no bill with a negative sub-committee vote would be brought to the full committee. Senator Obenshain asked if he heard correctly and, when told "yes," protested to no avail. But the discussion boiled over into a rules battle at a subsequent meeting (see Washington Post) when he tried to bring up bills and resolutions with negative sub-committee votes in full committee (see video below). Which brings us to Tuesday on the floor:
Senator Obenshain attempted to dislodge SJ 307, a proposed constitutional amendment to protect private property from government takings through eminent domain. It was defeated 4-3 in a Privileges and Elections sub-committee on an unrecorded party line vote (notice that omission here). Amazingly, only four unrecorded votes can thwart the will of the people in the Virginia Senate! A small forum in a cramped conference room on the third floor of the GAB is the venue for the debate and discussion on whether the commonwealth will protect one of its citizens' most cherished rights — the protection of private property from the oppressive government power of eminent domain.
But in a surprise move, after consulting with his caucus earlier that morning, Senator Obenshain got his full Senate vote on property rights during a marathon session to finish bills before crossover. He motioned "to suspend the rules" and bring SJ 307 directly to the floor. He was seconded by Senator Tommy Norment (R-3, Williamsburg). The motion properly before the body failed to get a majority, much less two-thirds, on a strict party line vote, 22-18. If SJ 307 made it to the floor through the committee process, it most likely would pass. Unfortunately, some Democrats adhered to process over propriety. The good news is that the Senate finally, after several years, has a recorded vote on property rights and that the GOP caucus united on this rare motion.
There should be a rule about that: The Senate majority preaches collegiality . . . except when hearing and voting on its members' legislation.