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Understanding Boxer’s Procedural Gambit

Posted By Dan Holler On November 3, 2009 @ 12:28 pm In Energy | Comments Disabled

Today, Republican Senators boycotted the scheduled markup of the Kerry-Boxer (S.1733) cap-and-trade bill because the Environmental Protection Agency did not complete a comprehensive economic analysis [1]of the legislation. Senator Boxer (D-CA), who chairs the committee, had threatened to break with committee precedent and move forward without the participation of Republicans. According to CQ Politics [2]:

Because two members of the minority party must attend in order for a markup to proceed, Boxer has scheduled a “committee business meeting” — an apparent procedural gambit designed to allow work without a GOP quorum.

Ultimately, she decided to postpone consideration and said in a statement [3]:

To meet your concerns, however, and in the spirit of collegiality, I have arranged for a recess of the markup to take place Tuesday, November 3, at 2:30 pm, so that EPA can be available to answer questions from EPW members on its analysis. In addition, we are offering to extend the deadline for first-degree amendments on the Minority side until close of business tomorrow. Of course, we will follow the rules of the Committee and the Senate as we proceed.

At the moment, Senator Boxer seems intent on moving forward without a comprehensive economic analysis, which means she will move without Republican participation and potentially run afoul of committee rules, which state [4]:

BUSINESS MEETINGS: At committee business meetings, and for the purpose of approving the issuance of a subpoena or approving a committee resolution, one third of the members of the committee, at least two of whom are members of the minority party, constitute a quorum, except as provided in subsection (d).

Boxer and her staff appeared to have latched on to the exception provided in subsection (d), which states:

(d) REPORTING: No measure or matter may be reported to the Senate by the committee unless a majority of committee members.

One reading of the committee’s rules is that this exception would allow Boxer to pass the bill out of committee. However, it would preclude amending the legislation in committee which may alienate some of the committee’s moderate Democrats who are uneasy with many of the bill’s provisions. Alternatively, as chair, Boxer could interpret the rules to mean amendments could be debated and voted upon even without participation of the minority. Both scenarios have been described as “nuclear” and “toxic.”

The American people should be very concerned how this process is playing out. Much like the debate over health care reform, the Senate is engaging in an opaque process and may very well trounce the rights of the minority.


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URL to article: http://blog.heritage.org/2009/11/03/understanding-boxer%e2%80%99s-procedural-gambit/

URLs in this post:

[1] not complete a comprehensive economic analysis : http://www.foundry.org/2009/10/27/epa%e2%80%99s-economic-analysis-of-the-boxer-kerry-cap-and-trade-bill/

[2] CQ Politics: http://www.cqpolitics.com/wmspage.cfm?docID=cqmidday-000003237351

[3] statement: http://epw.senate.gov/public/index.cfm?FuseAction=Majority.PressReleases&ContentRecord_id=b828a02e-802a-23ad-4805-e350a1238a26&Region_id=&Issue_id=

[4] state: http://epw.senate.gov/public/index.cfm?FuseAction=CommitteeResources.CommitteeRules

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