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The Sausage Factory

Voting Present as a Legislative Tactic

Sometimes in Washington, you can take sides by doing absolutely nothing.

The House Democrats did precisely that recently when they refused to vote on an amendment, offered by the Republican Study Committee (RSC), that would have replaced the budget resolution being considered on the Floor. (When a Member offers an amendment, like the one in question, that would completely replace the underlying bill or another amendment, it is called an “amendment in the nature of a substitute”.)

When a bill or amendment is up for a vote, a Representative may vote “aye”, “no”, or “present”, which is a refusal to take sides. A “present” vote does not count towards or against the passage of a bill, but it contributes towards the quorum, which is the minimum number of Members required in attendance for the body to conduct business legally.

In this case, 171 Democrats voted “present”, 14 voted “no”, and 15 did not vote at all. The amendment failed 104-132.

Now in this case, the Democrats didn’t vote “present” because they hadn’t studied the amendment or because they were genuinely indifferent to it. They were using it to mess with the majority party’s legislative plans. The Washington Post reported that, shortly before the vote, House Minority Whip Steny Hoyer urged his party to vote “present” because it “takes Democrats out of the equation so the American people can see just how extreme the Republican conference truly is”. Democrats contend that the Study Committee budget is extreme because it balances the budget four years from now (rather than a decade or longer), while sharply reducing entitlement benefits. Of course, this was the talking point. The real reason was to embarrass the Republicans.

The ideal result for the Democrats would have been if the RSC Budget had actually won and replaced the Ryan Budget.  This would have been a major humiliation for the Republican Party nationally, and would likely have resulted in pulling the budget from the Floor.  It would have had the effect of undoing four years of talking points about the lack of a Democrat budget in the Senate.  This was not far-fetched: To prevent this outcome a number of members of the RSC were forced to vote against their own amendment.

From a policy perspective, this was a risk-free move for the Democrats, even if the Republicans defeated the amendment. None of their priorities was really at risk in this strategy.

The Democrats’ attempt to portray its opponents as extreme is probably one of the most common tactics in American politics. Senate Republicans, for instance, tried to do essentially the same thing when they offered President Obama’s budget, which the Upper Chamber soundly defeated. Similarly, it’s also like offering “poison pill” amendments, which one party offers to force votes on politically unpalatable positions. This gives rise to “November Amendments” – or amendments whose entire purpose is to embarrass an opposition amendment by forcing a vote on something that will make a pithy, if misleading, 30-second campaign ad in the next election.

What is actually interesting is how the Democrats played the politics game, by most of them voting “present”. That’s the unusual part – not the attempt to politicize the legislative process. In the House, a body in which the majority party can enjoy an almost totalitarian control over the legislative process, the minority has few tools at its disposal to shape legislation on the Floor. In this case, they engaged in what might be called  “parliamentary jujitsu.” In jujitsu, a competitor tries to use his opponent’s momentum and weight against him; here the Democrats cleverly used the amendment process against the Republicans. For instance, as noted by the Politico, if the Democrats had voted “no”, some Republicans could have voted “yes” to position themselves as strong conservatives, knowing full well that the budget would never pass. Thus, the Democrats used a “divide-and-conquer” strategy both to try to embarrass the Republican leadership and exacerbate tensions between the conservative and the “even-more-conservative” members of the GOP Conference.

The Democrats tried this maneuver in 2011 as well. But other than that, it’s rarely used. During this Congress, on most recorded votes, no one has voted “present”. Most of the times when there is a present vote, only one person votes that way – usually because they have declared a personal conflict of interest or to make a political point; aside from the vote in question today, only twice this Congress has more than one person voted present, and even then, it was only two people.

Voting present in this case was a legislative tactic. As one expert pointed out, sometimes the majority party relies on the minority party to either ensure a measure fails or succeeds. When the minority votes present en masse, they are forcing the majority party leadership to work extra hard to round up enough votes to guarantee their desired outcome.

The Republicans could have avoided all this by resorting to royalty.  There are two procedural tools the majority often uses know as the King and Queen of the Hill.  These are special rules that give the majority greater control over possible outcomes.

Normally when a substitute amendment replaces a bill, no further amendments are allowed.  That would have been the case had the RSC Budget passed.  But, a King of the Hill special rule issued by the Rules Committee allows votes on multiple substitutes with the stipulation that the last one to pass trumps all the others.  Of course the substitute preferred by the majority party is positioned to be the final substitute voted on.  For instance, had the RSC Budget passed, it would not have mattered as long as the Ryan budget received a majority of votes at the end.  Ryan would have been King of the Hill.

This may sound like dirty pool, but it was intended to allow members of both parties to cast “show votes” for certain budgets, knowing that in the end, the responsible thing would be done.  Another substitute traditionally offered besides the RSC Budget is the Congressional Black Caucus budget.  As the RSC budget allows conservative members to thump their chests, the Congressional Black Caucus budget allowed liberals to cast a vote popular with their constituents.  As long as the King of the Hill rules was in effect, Members did not have to worry about their more parochial amendment actually passing.

A Queen of the Hill rule is only slightly different – this allows for multiple substitutes, but in this case, the substitute with the most votes is declared the winner – slightly more risky than the rigged King of the Hill rule, but less dangerous than allowing a substitute to eliminate the Budget Committee’s carefully crafted budget blueprint.

For whatever reason, the Republican leadership did not resort to the royal options, created the opportunity for parliamentary mischief by the Democrat Whip.

Since the “present” vote tactic is used so infrequently, it is hard to say how useful it will be. Hoyer said that this was done to show the American people how “extreme” the Republicans are. The American people were not paying attention to this vote, so the only way it will become an issue for Republicans is if Democratic attack ads are particularly effective. However, those would most likely only be successful in competitive districts, in which cases, the Republicans probably voted against the amendment anyways. So we can safely conclude the move has primarily benefited the sundry Washington legislative procedure wonks (like us), who get all jazzed up over rarely used parliamentary tactics.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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