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Beltway Confidential

The New York Times sided with Chuck Schumer --- it shouldn't have

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Beltway Confidential,Timothy P. Carney,Ted Cruz,Chuck Schumer,The New York Times

Liberal Democrat Sen. Chuck Schumer says Sen. Ted Cruz "switched" his voting strategy while facing total failure Wednesday on a vote to open debate on the bill to fund government.

Conservative Republican Sen. Mike Lee says Cruz always planned on supporting the vote to open debate, and that Cruz was always whipping against the vote to end debate.

New York Times congressional correspondent Jonathan Weisman has officiated this debate — in favor of Schumer. But a full accounting of evidence suggests Schumer is wrong, and Lee is right — and that the New York Times should issue a correction.

The basic issue: There are two cloture votes involved in passing the continuing resolution to fund the government after Sept. 30. Cruz voted for one cloture motion and plans to oppose the other. I think Weisman and Schumer are conflating the two cloture votes — and they're not the only ones.

Here's my case, in brief (with more exhibits provided below).

Cruz said, early in his marathon speech: "The first vote we are going to take on this is a vote on what is called cloture on the motion to proceed. ... That will simply be a vote whether to take up this bill and to begin debating this bill. I expect that vote to pass overwhelmingly, if not unanimously."

Then Cruz continued: "The next vote we take will occur on Friday or Saturday and it will be on what is called cloture on the bill. That is the vote that matters."

Despite this, Weisman claims Cruz originally promised to vote no on the motion to proceed, and that Lee's and Cruz's current claims constitute "revisionist history." Weisman's first bit of evidence comes from what Cruz said on Fox News Sunday he would oppose:

"Any vote for cloture, any vote to allow Harry Reid to add funding for Obamacare with just a 51-vote threshold."

This, at first seems ambiguous — which cloture is Cruz talking about? Cloture on motion to proceed, or cloture on the bill?

The immediate context, however, makes it clear Cruz was talking about cloture on the bill itself. You see, cloture on the motion to proceed would not allow Reid to amend the bill with only 51 votes, Josh Huder, cloture expert Georgetown's Government Affairs Institute tells me. Only cloture on the bill would empower Reid to amend the bill with 51 votes. Reid's office tells me the same thing.

Chip Roy, Cruz's chief of staff, wrote on Twitter last week: "Senate R's can stop Reid by voting against cloture on the bill after Reid attaches amendment to strip defund."

I asked Weisman about this on Twitter, and he responded: "How do u explain the organized deluge of callers ahead of Wednesday vote, McConnell's defense & the timing of Cruz's performance?"

I explain the deluge of callers by saying what should be obvious now: Senate procedure is confusing, especially when there are two votes called "cloture." I think many grassroots conservatives got confused.

Senate Conservatives Fund, the primary outside driver of the defund effort, has been pushing its people to call all week. "Nobody told these senators to oppose the motion to proceed," Hoskins wrote me. I would put it more precisely: SCF didn't tell people to tell senators to oppose the motion to proceed.

FreedomWorks told its supporters during the long speech to "Call your Senators right now and demand the Stand with Cruz. Tell them to Defund, Delay, and Dismantle Obamacare. This is our best opportunity to stop Obamacare and we don't have much time!"

Many callers probably interpreted "this is our best opportunity" as being the very next vote. I think "this" meant the CR.

Heritage Action's script said, "ending debate would mean that Harry Reid only needs 51 votes to strip the defund language from the House-passed bill." Ending debate is not beginning debate.

As far as Cruz's timing? That added to the confusion, I think. It would have been more fitting for him to do his speech before cloture on the bill, but that being on a Friday, he wouldn't have gotten the media attention.

So, I'm sure Weisman and Schumer and many of the angry Republicans Weisman cites misunderstood Cruz, because Cruz didn't say which motion to proceed and his filibuster was oddly timed. But the evidence all suggests Cruz has been consistent, Lee was right, and Weisman and Schumer are wrong.

If you're undecided, here's the fuller evidence. First, the relevant portions from Weisman's piece:

Mr. Cruz’s “yes” vote angered fellow Senate Republicans, baffled Democrats and confused conservative activists who had mobilized to stand with him against any procedural step forward.

On Sunday he made clear that he opposed cutting off debate — called cloture — unless the majority leader, Harry Reid, agreed that 60 votes be required to strip the bill of language that would gut the health care law. On “Fox News Sunday,” Mr. Cruz, a freshman from Texas, declared his opposition to “any vote for cloture, any vote to allow Harry Reid to add funding for Obamacare with just a 51-vote threshold.”

“A vote for cloture is a vote for Obamacare,” Mr. Cruz said.

Yet after the vote on Wednesday, Senator Mike Lee, Republican of Utah, said Mr. Cruz had never intended to oppose the motion to take up the bill, an assertion contradicted by Mr. Cruz’s words and procedural motions for days before the tally. Aides to senior Republican senators fumed that they had been deluged by conservative activists pressing for a “no” vote.

On the Democratic side, Senator Charles E. Schumer of New York said that “the only reason Ted Cruz switched to ‘yes’ is that he would have had so few people voting with him it would have been embarrassing.”

Here's Cruz's full quote from his speech:

Let me tell you how this is likely to unfold. Senate majority leader Harry Reid has said he intends to offer an amendment to determine the future of our health care system and based on the public press reports--and I would note you have to rely on the public press reports because this body doesn't know, but based on the public press reports, that amendment is going to fully fund ObamaCare. It is going to strip the language the House of Representatives passed to defund ObamaCare and listen to the American people.

The central vote the Senate will take on this fight will not occur today and it will not occur tomorrow. The first vote we are going to take on this is a vote on what is called cloture on the motion to proceed. Very few people not on this floor have any idea what that means and even, I suspect, a fair number of people on this floor are not quite sure what that means. That will simply be a vote whether to take up this bill and to begin debating this bill. I expect that vote to pass overwhelmingly, if not unanimously. Everyone agrees we ought to take this up, we ought to start this conversation.

The next vote we take will occur on Friday or Saturday and it will be on what is called cloture on the bill. That is the vote that matters. Cloture on the bill, the vote Friday or Saturday, is the vote that matters.

Why is that? Because that vote is subject to a 60-vote threshold. If Republicans vote with Democrats, then this body will cut off debate on the bill. Cloture is simply cutting off debate. It is saying we are not going to talk about it anymore, we are silencing the voice of the Senate, we are silencing the voice of the people, and we are cutting off debate.

Why does that matter? Because once cloture is invoked, the rules of the Senate allow the majority leader to introduce the amendment to fund ObamaCare and then to have it pass with just 51 votes, not 60--51. As the Presiding Officer is well aware, there are more than 51 Democrats in this body. Postcloture, after this body has voted to cut off debate, the Democrats can vote on a straight party-line vote to fund ObamaCare. Madam President, I am going to let you in on a dirty little secret. When that happens, every Republican, if we get to that point, will vote against it and every Republican will then go home to his or her State and say: Look, I voted against ObamaCare.

The relevant portions of Cruz's Fox News Sunday appearance:

In my view, Senate Republicans should stand united to stop Harry Reid from changing the House bill and, in particular, from inserting the funding from Obamacare with 51 votes. That's going to be the fight procedurally whether he's able to use a straight party line vote, just Democrats, to put Obamacare back.

And you know what? If Senate Republicans stand together, we can stop Harry Reid from doing it ...

We can filibuster and say we will not allow you to add the funding back for Obamacare with just 51 votes and it takes —

If Harry Reid says, you know what, I'm going to run the Republicans over. I'm going to ignore the bill passed by the House of Representatives, I'm going to ignore the will of the people and I'm going to do this on a 51-vote threshold — then, from my mind, it should be easy decision for Senate Republicans to stand united and to support House Republicans.

And I'll tell you, any vote for cloture, any vote to allow Harry Reid to add funding for Obamacare with just a 51-vote threshold, a vote for cloture is a vote for Obamacare.

The relevant Senate rules, explained by Niels Lesniewski of Roll Call:

After cloture is invoked with at least 60 votes, any pending amendments that are germane to the underlying measure (such as one to strike part of the text) automatically get votes at the end of 30 hours of debate — with simple majority thresholds for adoption. Here’s the actual language from Rule XXII:

After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins.

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