Leader Schumer and Senators Whitehouse and Padilla Take to Senate Floor to Expose Republican Hypocrisy, Get Answers Directly from Parliamentarian; Schumer and Senate Democrats Protest Unprecedented Action that Would Turn Over Senate Control to…

Washington, D.C. – This evening, Senate Democratic Leader Chuck Schumer (D-NY), Senator Sheldon Whitehouse (D-RI) and Senator Alex Padilla (D-CA) took to the Senate Floor to ask a series of parliamentary inquiries on Senate Republicans’ intention to go nuclear on the California Waiver CRA.  Senate Democrats confirmed—on the congressional record—that the Republicans’ plan to move forward would be against the Parliamentarian’s guidance, and thus, the very definition of eliminating the filibuster and going nuclear. Below are the Senators’ remarks and the Presiding Officer’s responses on behalf of the Senate Parliamentarian, which can also be viewed here.

Senator Padilla: Mr. President, I ask unanimous consent that the following senators be permitted to speak for up to five minutes each: myself, Senator Whitehouse, and Democratic Leader Schumer.

Presiding Officer: Without objection.

Padilla: Thank you, Mr. President. I rise today with my colleagues to make very, very clear, not just to our Republican colleagues but to history of exactly what's at stake. Let there be no doubt that the Senate Republicans are threatening to go nuclear on Senate procedure to gut California's Clean Air Act waivers. But this isn't just about California's climate policies and this isn't just about the scope of the Congressional Review Act, this isn't just about eliminating the legislative filibuster. No. What Republicans are proposing to do would go far beyond just eliminating the filibuster. If they insist on moving forward, federal agencies will now have unilateral power to trigger privilege on the Senate floor with no institutional check from the legislative branch. Just as EPA has submitted California's waivers with full knowledge that they are not actually rules, other agencies will now be free to submit any type of action going back to 1996. Think licenses, permits, leases, loan agreements, drug approvals. There would be no limit. Now, we've been safe from this kind of abuse until now because the Senate has a process—a process in place for the Government Accountability Office to help the Senate Parliamentarian determine privilege for the purposes of the CRA. Republicans are threatening to throw that process out. The consequences of throwing the rulebook out the window will be very, very serious, Mr. President, but it's not too late to turn back. Republicans must understand exactly what they're doing. Today, I think it's important to establish some facts about the process that protects the Senate from agencies that try to game the system. Mr. President, I have a parliamentarian inquiry.

Presiding Officer: The Senator will state his inquiry.

Padilla: Mr. President, is it correct that the then-Senate Parliamentary, in 2008, in coordination with bipartisan Senate leadership and committee staff, developed a Senate procedure for determining what qualifies for expedited consideration under the Congressional Review Act when an agency fails to submit an action to Congress and that a precedent under that procedure was first established in 2012?

Presiding Officer: Based on information publicly available, yes, that is correct.

Padilla: And is it correct that that procedure – which uses a GAO determination as to the nature of the Agency action – whether or not it is a rule – has been implemented numerous times by Senators on both sides of the aisle, including one occasion where a GAO letter gave rise to a joint resolution of disapproval which became law?

Presiding Officer: Based on information that is publicly available, yes, that is correct.

Padilla: Thank you, Mr. President. I yield the floor.

Senator Whitehouse: Mr. President, I join the Ranking Member of the Rules Committee with a parliamentary inquiry of my own.

Presiding Officer: The Senator will state his inquiry.

Whitehouse: Is it true that, unless a piece of legislation is privileged under a rule or statutory provision or is the subject of a unanimous consent agreement, motions to proceed to that legislation are generally fully debatable? 

Presiding Officer: Yes, that is correct.

Whitehouse: That is correct. For those of you following this at home, fully debatable 60 votes are required to end debate which Republicans do not have. Now Mr. President, I have a further parliamentary inquiry.

Presiding Officer: The Senator will state his inquiry.

Whitehouse: Is it commonplace for Senate offices and for whichever Senator is presiding over the Senate to consult with the Parliamentarian to determine whether and in what manner expedited procedures apply under a host of statutes, including the War Powers Act, the National Emergencies Act, the Congressional Budget Act, and the Congressional Review Act?  

Presiding Officer: Yes, that is correct.

Whitehouse: Again, for those of you following this at home, it means this is the commonplace way in which the Senate operates and when it becomes the parliamentarian's call on a matter and not anyone else's call. So in the congressional review act matter before us, here's what happened: Both sides drafted written memoranda to the parliamentarian. Both sides presented oral arguments to the parliamentarian. The parliamentarian asked questions of both sides and the parliamentarian, our neutral referee, reached a decision. That all took place here in the senate, actually over there in the LBJ room. The GAO was not even in the room when the arguments were made, and that decision, the decision of the parliamentarian is what is now at hand in what is about to happen here in the senate. And with that, let me note the presence on the floor of the Democratic Leader and yield the floor.

Leader Schumer: Is it true that the Parliamentarian advised Leadership Offices that the joint resolutions of disapproval regarding the California waivers at issue do not qualify for expedited consideration under the Congressional Review Act? 

Presiding Officer: While the chair has no personal knowledge of those circumstances, the parliamentarian has advised me that such advice was given.

Schumer: Thank You Mr. President.

Before I yield I want everyone to understand what the essence of my question was. This week, the Republicans want to use a legislative tool known as the CRA, in an unprecedented way, to repeal emissions waivers that the fossil fuel industry has long detested. The CRA has never been used to go after emission waivers like the ones in questions today. The waiver is so important to the health of our country and particularly to our children. To go nuclear on something as significant as this—and to do the bidding of the fossil fuel industry—is outrageous.

And we just heard, in response to my inquiry just now, that the Parliamentarian affirmed this: that these California waivers are not eligible for the expedited procedures that the CRA affords.  That means that legislation to repeal these waivers should be subject to a 60-vote threshold in the Senate.

To use the CRA in a way that Republicans propose, is going nuclear. No ands, ifs, or buts.