Will There Be A Senate ‘Quick Gavel’ On Immediate Effect for Whitmer’s Tax Plan?
Article IV, Section 18, of the Michigan Constitution reads:
“…the record of the vote and name of the members of either house voting on any question shall be entered in the journal at the request of one-fifth of the members present. . . .”
One-fifth of the Senate’s 38 members would be eight. At least eight senators requesting a record roll call for I.E. is all that’s required for such a vote to be held. However, none of the chamber’s 20 Democrats ordinarily would make such a request for HB 4001, because that would trigger a roll call vote that they (and Whitmer) are convinced they would lose. However, well more than eight Republicans would make such a request. Last Thursday, majority Democrats allowed a vote on I.E. for HB 4001. Predictably, it failed, because I.E. requires a 2/3 majority — 26 votes — meaning that the 20 Democrats needed at least half a dozen Republicans to reach the magic number 26. But fewer than six Republicans were willing to vote for I.E. So Democrats have now moved to reconsider that vote, and Tuesday we can expect them to invoke, through a new resolution, the ‘nuclear option’ for the first time ever, and have presiding officer Garlin Gilchrist (Whitmer’s Democratic lieutenant governor) simply “fail to see” (or hear) well more than just eight voices (or hands waving before him) on the Senate floor demanding a roll call vote. Gilchrist will declare that he has not seen 1/5 (eight members) support for a roll call and therefore can gavel through’ I.E. on the measure without a roll call vote.
So what? Hasn’t this been done before? In the House, yes, but not in the Senate. Some Democratic revisionists claim that, in the ‘old days,’ there was no counting of I.E. votes in the Senate at all. For example, back in the 1960s and ’70s, the revisionists claim that the Senate Secretary at the time, Beryl (Ken) KENYON, worked a ‘sleight of hand’ that produced I.E. on many pieces of legislation. They contend that, after the record roll call vote to pass a particular bill was completed, the presiding officer at the podium (usually a Republican) would honor a request from the majority floor leader for a vote on I.E. At that point, Kenyon would wave a block or wand of wood or plastic in a sweeping motion across the chamber and announce a number, seemingly out of ‘thin air,’ and intone, “Mr. President, there are 26 aye votes for immediate effect,” The presiding officer would bang the gavel and onward they went.
The Democratic old-timers spin this procedure as a piece of Republican chicanery whereby Kenyon was given license to quickly and authoritatively tabulate and announce that there were 26 votes for I.E. without actually counting voices or raised hands.
But the historical revisionists fail to note that Kenyon’s procedure occurred only when there was no controversy between the two caucuses as to whether I.E. should be applied to the bill, which was most of the time. In fact, many times a minority Democrat was the presiding officer.
The truth is that Kenyon’s ‘trick’ vote count on I.E. wasn’t used on bills where there was controversy. In 1971-74, the Senate was split, 19-19, so there needed to be some consensus before a bill was passed in the first place, let alone given I.E. Also, if a member truly questioned the tally on an I.E. vote, a record roll call vote could be requested by one-fifth of the members, which was always recognized and then applied. Bottom line: votes on I.E. ‘back in the day’ were never an issue. They wouldn’t be now, either, if one Democratic senator honors his principles. Back in 2012-13 when he was a member of the state House, now-state Senator Jeff Irwin (D-Ann Arbor) railed against the majority House Republicans’ trampling on the rights of the minority (Democrats) in votes on I.E. In fact, Irwin joined in a lawsuit challenging the Republicans’ ploy in court. If Irwin applies the same standard today that he did then, he certainly couldn’t vote to change the rules. But, with hypocrisy on steroids, we can expect that’s exactly what he will do.
Here’s ‘the rest of the story’ on partisan gamesmanship on I.E. from longtime legislative attorney Bruce Timmons, now retired in Okemos. Timmons worked for both Democrats and Republicans in the House and has seen it all:
“Many of the news media are so new to following the Legislature that the (rumored) prospect of a Senate change to its rules on Immediate Effect (I.E.) that they may have forgotten, or have never known, how the practice of honoring requests for roll call votes became a systematic practice of denying a record roll call for I.E. I have seen claims that the Senate Democrats would simply be following what Republicans have done in the House –- with the unstated presumption that Republicans started the practice of ignoring motions for a vote on I.E. because that is all they have experienced in their recent, very limited coverage of the Legislature. .
“My memory goes back farther. The falling of the dominoes was begun by House Democratic leadership in the 1980s. While both Rs and Ds have extended the violation of Article IV, Sections 18 and 27, since then, a change to Senate Rules by the current Democratic majority to follow the recent practice in the House would be the final domino. It has never happened before.
“When I started as in intern during the Special Session in the Fall of 1967, and for several years afterwards, there were votes on requests for record roll calls on motions, amendments, and I.E.
“During the 1980s, I was on the Republican policy staff and on the House Floor when Democratic leadership [in power 1969-1992] decided they had had enough of the welfare amendments drafted for state Rep. David Jaye (R-Shelby Twp) ) that embarrassed vulnerable incumbents when they voted ‘no’ on Jaye’s amendments. Therein began the systematic violation of Article IV, Section 18, which reads, emphasis added:
“…the record of the vote and name of the members of either house voting on any question shall be entered in the journal at the request of one-fifth of the members present. . . .” The slippery slope had begun.
“That departure from historic practice began as non-recognition of Rep. Jaye (who rapped on the mic when ignored) to speak on his amendments and requesting record roll calls. That practice was further extended to include an avoidance of roll call votes for I.E. altogether.
“It became common during farewell speeches by retiring House Members (and a few times in between) to tweak Speakers, Speakers Pro Tem, and other regular presiding officers about their diminished eyesight toward their left where Republicans sat (when Dems were in charge) or to the right where Dems sat (when Republicans had the majority), even offering a pair of enlarged eyeglasses.
“At one stage, there was a negotiated practice that, if the Republican Floor Leader [I believe it was Rep. Don Van Singel at the time] asked for a record roll call, that request would be honored –- and for a while, it was.
“… But the Republican caucus became increasingly testy about Dems not recognizing GOP members and requests for roll calls, so on one key issue – I can’t remember the session, bill, or issue – but with advanced notice to Capitol press, the entire Republican caucus rose up to demand a roll call –- and got it. It may have preceded the negotiated practice noted in the paragraph above.
“When Andy Dillon (D-Redford) became Speaker in 2007, he made a declaration in his acceptance speech as to how he was going to change the culture of the House by guaranteeing that Members would be recognized. There would be “no exception,” in his own words, from 2007 House Journal No. 1 (Jan. 10), page 23, emphasis added:
“ … Unfortunately, while sitting in this chamber during my first term I saw partisanship run amok and threaten the very foundation of this institution and everything our ancestors fled from and fought for. No agendas were produced prior to session, members of the minority party seeking to speak on an issue were not recognized, and, even worse, members out in the seats were not allowed to see the details of legislation before their votes had to be cast. I promise you that will never happen during my tenure as Speaker. Agendas will be published, every member will be recognized and everyone will be allowed to read a bill or an amendment before they have to vote on it. No exceptions!“
“I recall hearing his raised voice. Ha! That pledge lasted until the first occasion when a record roll call made a difference – and then a sudden ‘change of heart’ by Dillon lasted the rest of his four years as Speaker. Hypocrisy runs deep on this subject.
“House Rules at the time allowed written motions. During their caucuses, Republican members would sign blank motions requesting record roll calls sufficient to support the motion (one-fifth of the Membership per Art IV, Sec.18). When key amendments or other motions arose, the blank would be filled in and handed to the Clerk.
“Well, little precedents … are destined to evolve and bite the originating party. Just after I retired at the end of 2012, majority House Republicans –- to forestall Dems from using written motions –- produced a set of House Rules, adopted on the first day of the 2013-14 session, that dropped the possibility of the written motion in Rule 55 and required oral motions upon recognition of the presiding officer, specifically including “I.E.” [House Journal No. 1, Jan. 9, 2013, Rule 55, page 15]
“That rule continues today. Here is the current House Rule 55, with emphasis added:
“Procedural Motions, Rule 55: Except as otherwise provided in the rules, all procedural motions, including, for purposes of this rule, those for immediate effect, record roll call, and division, shall be made orally after recognition by the Presiding Officer.”
“The result? When habitually not recognized, the minority party (whether D or R) in the House never gets to make that oral motion. That is what today’s press corps has seen and expects to be business-as-usual.
“Nonetheless, to the credit of Senate Republicans right through 2022, they resisted calls to gavel I.E. votes instead of requiring a count.
“Fast Forward to the Present: If Senate Democrats change the Senate rules to allow only a voice vote for I.E. (instead of a count), the last bastion of compliance with Art. IV, Sec. 27, requiring a 2/3 vote for immediate effect, will have fallen –- as the final step in the dominoes begun by House Democrats in the mid-1980s. Yes, Republicans in the House certainly leveled some of those dominoes. Yes, the Democratic Speaker in 2007 promised to stop the practice but did not; he followed it. House Democrats tipped the first domino and Senate Democrats may knock over the last one.
“Then, Art. IV, Sec. 27, along with Art. IV, Sec. 18, will be among the deadest and least complied with provisions of the Michigan Constitution. [And the Attorney General and Supreme Court will not contest it, IMHO.]
“Final comment: I have long been convinced that this non-recognition of members in the House to speak on amendments or to seek recognition to request record roll call votes on amendments and I.E. –- conduct born of expediency that makes a mockery of the Constitution lawmakers have sworn to uphold –- has contributed to a loss of respect for the institution of the Legislature to which they belong. This behavior has been created by the Legislature’s very members toward their own colleagues, of whichever party. Both parties share the blame. Will that final domino now fall in the state Senate, with the same or greater consequences?”
Tim Sullivan says
Excellent article, Bill, and informative.
How much of Tim Skubick’s money would you like to bet on whether Senator Irwin (Mitch’s son, I believe) will hold onto his position when he was in the House?
Middle and High School teachers should use it in their civics classes. Not to mention TV and print reporters in their stories on what is happening in Lansing. Who knows, maybe they will take the opportunity to ask state legislators they will interview why they are willing to be parties to flagrant violations of the State Constitution.
Or our Attorney General as to why she will let it slide.
We know the courts will simply say it is a political and not judicable issue. I just wonder what other parts of the Constitution they will effectively turn into dead letter issues. Apparently, the parts of their oaths of office to uphold the Constitution is – flexible – right now.
An incredibly informative yet heartbreaking report today. I always believed that the Constitution was to be protected and respected by those we voted for to serve in the Legislature. The Michigan Constitution should not be treated as just mere “guidelines” which Legislators pick and choose from but unfortunately they do. I believe that both political parties indeed share responsibility for what’s going to happen Tuesday.
It’s clear to me now that in 2023 we’re going to see another “first time for everything” with presiding officer, Lt Governor Garlin Gilchrist, using the “nuclear option” on the Senate Floor aforementioned above.
Mr. Sullivan brought up some really great points in his comments here too this morning. Thank you.
Tim Sullivan says
David L Richards says
It would seem if the courts ignored the state constitution on the basis of deference to the political process, we don’t have a state constitution, at least none with regard to the procedures in the legislature.
Jack Lessenberry says
This is why we very much need Ballenger’s memory and encyclopedic knowledge of how Lansing works. I’ve been around for a long time, but as a mere boy of 71, I always learn from him, even when we disagree.
Dennis C Muchmore says
Great synopsis Bill and of course, much thanks to our old colleague Bruce Timmons. The Senate was somewhat more gentlemanly (with a tsk, tsk coming from Lorraine and Connie) in the 70’s, but certainly not more genteel. Let’s see I think it was Coleman who once told me when people were questioning some ruling: “We make the rules, we break the rules” and he was on the other side…
John C Stewart says
Yes, Bill-thanks to my Presbyterian buddy-Alma College grad Bruce Timmons we have Garlin Gilchrist dropping the “Nuclear bomb” this week as President of the STATE SENATE
Your former CMU student, Dennis Lennox, (I was honored to speak to your Class when Dennis was in the Class) is quoted as saying after the Republican Convention and election of Karamo as Chair, that “INSTITUTIONALLY, THE REPUBLICAN PARTY IS DEAD”
I don’t think the Republican Party ever got this low in the 1960’s with the John Birch Society.
Karamo’s elevation was due to two factors:
(A) the female delegate vote supported her;
(B) she was even more MAGA-oriented than Trump’s own endorsed candidate, Matt Deperno.
Scott Greenlee was the best candidate and finished a distant third.
Bruce Timmons says
Glad to be a contributor. But to John, you got the Presbyterian part right but not the MIAA college. My alma matrie is Kalamazoo College.
Richard McLellan says
Excellent analysis from Bruce as usual.
But I have another suggestion; change the IE requirement in the Constitution.
A public act under the present Constitution does not become law until (a) 90 days after sine die, or (b) with a 2/3 vote on IE in both chambers.
Back in the day, before even Bruce Timmons and Bill Ballenger, the 90 days after sine die made sense in the pre-internet era. Michigan was an agrarian state and it often concluded business in the early summer when They had deadlines. Thus, the bills enacted would take effect before the end of the year. Immediate effect was only used for urgent matters where 2/3 would agree. But when the Democrats took over, then-Speaker Bill Ryan hated the deadlines. He said he accepted being beaten if he did not have the votes, but “didn’t want to be defeated by the clock.” Ryan started the process of keeping the Legislature in session until late December so he would have more time to enact his bills. This led to the consequence that most public acts (without IE) would not take effect until 90 days into the next year. The legislators then started voting IE on most bills, undermining the very purpose of the provision. Here is what a bipartisan constitutional amendment could look like: (1) provide that every public enacted will take effect in 90 days after the governor signs it unless (a) it is given a later effective date [sometimes there is a reason, eg, to make the law effective on Jan.1], or (b) with immediate effect after a 2/3 vote on a roll call vote.