A Lesson in Senate Procedure for Herman Cain: How Impeachment Really Works

Presidential candidate Herman Cain has made headlines for telling a group of bloggers that impeaching President Obama would be a "great thing." Without commenting on the merits of any impeachment, we wanted to point out further comments that Cain made about the Senate's role in impeachment that suggests he doesn't understand exactly how the process works.

Specifically (according to Politico):
"That’s a great question and it is a great — it would be a great thing to do but because the Senate is controlled by Democrats we would never be able to get the Senate first to take up that action, because they simply don’t care what the American public thinks. They would protect him and they wouldn’t even bring it up," Cain said, citing the administration's position on the Defense of Marriage Act as an impeachable offense.

… There are a number of things where a case could be made in order to impeach him, but because Republicans do not control the United States Senate, they would never allow it to get off the ground."

Read more: http://www.politico.com/news/stories/0811/61518.html#ixzz1VLG1HM6V

Herman Cain's suggestion that the Senate Democrats "wouldn't even bring [an impeachment of President Obama] up" betrays a lack of understanding about the House and Senate roles in impeachment. Since one of the things this blog does is convey the complex elements of Senate procedure and history for the general public, and because impeachment is such an important thing to understand, we hope to shed some light on how the process actually works.

(1) Only the House can impeach.
While the U.S. House of Representatives and U.S. Senate are part of the same system, their roles are substantially different. Impeachment is solely the prerogative of the House of Representatives. The House of Representatives
introduces articles of impeachment (basically an indictment in the judicial sense), and members of the House serve as the "managers" of the impeachment. These managers gather evidence, present their findings to the Senate, and examine witnesses at trial.

(2) Only the Senate can try the impeachment.
The smaller size, longer terms, and more dignified character of the U.S. Senate makes it appropriate to act as the judge and jury. When the House is ready with the articles of impeachment, the Senate receives the House managers of the impeachment. At 1 o'clock on the day following the presentation of the articles by the House managers (or before by order of the Senate), the Senate will proceed to consider the articles and continue until final judgment has been rendered. Therefore, Senate Democrats can't just stop an impeachment from the House from gaining a proper trial in the Senate.

(3) It requires two-thirds of the members present to convict on an article of impeachment. The Constitution further requires that judgment be made on the basis of treason, bribery, and other high crimes and misdemeanors.

(4) When the President or the Vice President is on trial, the Chief Justice of the United States presides.

(5)The impeachment proceedings can be directed to a special committee, which will operate on the same procedures as a full impeachment trial unless ordered otherwise by the Senate.

(6)The Senate operates on 26 special rules that govern the impeachment trial process, which are clarified by several additional precedents.
Anyone who watches Senate proceedings regularly would be shocked at how differently the Senate acts as a court of trial. In the normal Senate, the job of presiding officer is usually delegated to a newer member. Senators come and go as they please and only mingle together during roll call votes. Those votes might take 15 minutes or more with Senators likely to signal their yea or nay vote to a clerk.

During an impeachment trial, the President Pro Tempore (the most senior member of the majority party, currently Senator Daniel Inouye of Hawaii) is more likely to preside. The Senate becomes shockingly quiet and dignified. In front of the dais where the prseiding officer, the clerks, and additional staff sit are two semicircular desks. On one side sit the House managers, acting as the prosecution. On the other side is the defense legal team. In front of each person is a glass of tall ice water. The Senate can issue subpoenas, and defense and prosecution alike can question witnesses and present evidence. A Senator wishing to present his or her own question must do it in writing through the presiding officer. All Senators must swear an oath.

When the vote on the first article of impeachment comes, Senators sit very somberly at their desks as the roll is called alphabetically. When a Senator's name is called, the Senator will rise from the desk, say "Guilty" or "Not Guilty," and sit back down. This process continues through each article of impeachment.

Senate impeachment proceedings are probably the most well-attended proceedings of the Senate. However, the Senate has excused Senators from attending before. In the trial of Alcee L. Hastings, a United States District Judge from Florida who is now a member of the House of Representatives and its Rules Committee, four members of the Senate who were in the House of Representatives at the time that the House voted on the articles of impeachment were excused.

Senate Passes Temporary FAA Extension Bill By Unanimous Consent

The U.S. Senate temporarily broke a deadlock between the House and the Senate on a bill reauthorizing the Federal Aviation Administration. The inability of the House and Senate to agree on the matter led to the furloughing of 4,000 federal employees and 70,000 construction workers, as well as the loss of millions of dollars in revenue from airline ticket taxes.

The extension runs through September 16, at which point the House and the Senate may fight over reauthorization again.

Here are the issues which caused the deadlock:

(1)Rural Flight Subsidies
The House GOP wanted to cut $16 million dollars in subsidies to 13 rural airports around the country. The House GOP portrayed it as a deficit cutting move, while Senate Democrats insisted that the GOP simply introduced this issue to gain leverage in negotiations on the main sticking point -- labor issues. The loss of revenue from ticket taxes in these few weeks of disagreement would exceed the cost to the government from rural subsidies.

(2)Labor: National Mediation Board
The real sticking point in the House-Senate conference on the FAA bill appears to be labor. The National Mediation Board is a government agency that regulates labor in the airline and railroad industries and provides guidelines for resolving labor disputes. Republicans want to maintain a rule providing for 51 percent of all employees to be able to vote and form a union. Democrats assert that only a majority of the people actually having the election should be necessary to form a union.

Delta Airlines
Both Senator Johnny Isakson (R-Georgia) and Senator Jay Rockefeller (D-WV) have called attention the the role of Delta Airlines in this fight. Delta and Northwest recently merged. Northwest has a union shop while Delta is a non-union shop. Isakson implied that Democrats were acting out of spite towards Delta's non-union policy, while Rockefeller suggested that House GOP members were allied with Delta and anti-union forces.

A Compromise?
Senator Johnny Isakson (R-GA), who has been appointed one of the conferees between the House and the Senate on the FAA bill has suggested that the Republicans and Democrats could find common ground on the NMB by allowing judicial review of NMB decisions. Since we're not specialists in labor law, it's not clear what exactly this would entail. However, Isakson has noted that the National Labor Relations Act has a similar provision, and we think this could be a good starting point for the resumption of this battle in six weeks.

Is Congress Losing The Art of Compromise?

Above: Speaker of the House Sam Rayburn (D-TX), who said "Any jack--- can kick down a barn, but it takes a carpenter to build one."

The late Speaker of the House Sam Rayburn exuded the color and character that once graced Capitol Hill. As an alternating Speaker of the House and House Minority Leader during the Roosevelt years and the 1950s, everyone referred to him as Mr. Sam. After work, he would duck away to a quiet location in the Capitol called the "Board of Education," where he would down bourbon and munch on raw Texas vidalia onions from a barrel right next to the table.

While Speaker Rayburn crystallized his power over the House of Representatives, he never forgot that the primary function of the majority and the minority was the governance of the United States. Freshman member Tip O'Neill, who went on to become Speaker during the late 1970s and through the Reagan administration, remembers what Mr. Sam had to say when he became Minority Leader after the Republicans took over the House:

Any jack--- can kick down a barn, but it takes a carpenter to build one.

Under Minority Leader Rayburn, his party would protect its rights but share the burden of governance. Members of Congress come to Washington to build a better country, not to lead a revolution. And Speaker Tip O'Neill, the liberal Democrat from Massachusetts who featured that quote in his book, Man of the House, worked with Ronald Reagan to push through some significant initiatives on taxes. O'Neill and Reagan agreed that they would battle it out each workday, but after 6pm, both would be friends.

As the Senate and House enter a period of recess following the debt ceiling fight, we'll use this blog to tell you about leaders from all parties and both chambers of Congress (with an emphasis on the Senate) who have put the national interest first.

Here are some preliminary ideas:
Henry Clay
Edmund Ross
Richard Russell
Gerald Ford
Everett Dirksen

We hope to hear your thoughts on this and more. Do you want your Senators and Representatives to kick down the barn, or do you want to elect carpenters who will build the barn?

Final Vote Results, S.365, Budget Control Act of 2011

The following 7 Democrats joined a group of 19 conservative Republicans to vote against the deal: Frank Lautenberg (New Jersey), Bob Menendez (New Jersey), Jeff Merkley (Oregon), Bernie Sanders (I-Vermont), Ben Nelson (Nebraska), Kirsten Gillibrand (New York), Tom Harkin (Iowa)

Yeas: 74
Akaka (D-HI)
Alexander (R-TN)
Barrasso (R-WY)
Baucus (D-MT)
Begich (D-AK)
Bennet (D-CO)
Bingaman (D-NM)
Blumenthal (D-CT)
Blunt (R-MO)
Boozman (R-AR)
Boxer (D-CA)
Brown (D-OH)
Brown (R-MA)
Burr (R-NC)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Cochran (R-MS)
Collins (R-ME)
Conrad (D-ND)
Coons (D-DE)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
Durbin (D-IL)
Enzi (R-WY)
Feinstein (D-CA)
Franken (D-MN)
Hagan (D-NC)
Hoeven (R-ND)
Hutchison (R-TX)
Inouye (D-HI)
Isakson (R-GA)
Johanns (R-NE)
Johnson (D-SD)
Kerry (D-MA)
Kirk (R-IL)
Klobuchar (D-MN)
Kohl (D-WI)
Kyl (R-AZ)
Landrieu (D-LA)
Leahy (D-VT)
Levin (D-MI)
Lieberman (ID-CT)
Lugar (R-IN)
Manchin (D-WV)
McCain (R-AZ)
McCaskill (D-MO)
McConnell (R-KY)
Mikulski (D-MD)
Murkowski (R-AK)
Murray (D-WA)
Nelson (D-FL)
Portman (R-OH)
Pryor (D-AR)
Reed (D-RI)
Reid (D-NV)
Risch (R-ID)
Roberts (R-KS)
Rockefeller (D-WV)
Schumer (D-NY)
Shaheen (D-NH)
Snowe (R-ME)
Stabenow (D-MI)
Tester (D-MT)
Thune (R-SD)
Udall (D-CO)
Udall (D-NM)
Warner (D-VA)
Webb (D-VA)
Whitehouse (D-RI)
Wicker (R-MS)
Wyden (D-OR)

Nays: 26
Ayotte (R-NH)
Chambliss (R-GA)
Coats (R-IN)
Coburn (R-OK)
DeMint (R-SC)
Gillibrand (D-NY)
Graham (R-SC)
Grassley (R-IA)
Harkin (D-IA)
Hatch (R-UT)
Heller (R-NV)
Inhofe (R-OK)
Johnson (R-WI)
Lautenberg (D-NJ)
Lee (R-UT)
Menendez (D-NJ)
Merkley (D-OR)
Moran (R-KS)
Nelson (D-NE)
Paul (R-KY)
Rubio (R-FL)
Sanders (I-VT)
Sessions (R-AL)
Shelby (R-AL)
Toomey (R-PA)
Vitter (R-LA)

Senate: S.365, Budget Control Act of 2011

At 9:30am Tuesday, the Senate will convene and begin consideration of the House message to accompany S.365, the Budget Control Act of 2011. This is the bill that passed the House today.

The House took an existing Senate bill that had been referred to a House committee and added the Budget Control Act as a substitute amendment. This means that the amendment strikes everything in the original bill and inserts the language of the debt ceiling deal (the original bill was Senator Tom Harkin's bill to make a technical amendment to the Education Sciences Reform Act of 2002. Therefore, the Senate's task will simply be to concur in the amendment.

The Senate should have more than enough votes to concur with the House. No votes may come from Tea Party Senators like Rand Paul, Mike Lee, Jim DeMint, and others - but the broad majority of the Democrats and Republicans will vote for the bill. Senator Bernie Sanders (I-VT) may also vote against the bill.

We'll have more updates as time limits are set and the Senate votes on the substitute.