Roll Calls, Lies, and Keystone XL

Yesterday, the U.S. Senate passed after extensive debate a bill greenlighting the construction of the Keystone XL Pipeline. The final vote was 62-32 in favor, two votes more than the 60 vote threshold required to avoid a filibuster. The Senate version of the bill will either go back to the House where they can pass it as is, or the House can request a conference committee to hash out the differences. If the House goes the conference route, the committee will produce a report subject to a straight up-down vote in both chambers. In either case, everyone anticipates that some form of Keystone legislation will be sent to the president within the next week.

But, it really doesn’t matter. Because President Obama has indicated he will veto any Keystone XL bill, as he believes that Congress is intruding on his presidential powers by authorizing an infrastructure project crossing an international boundary. And, as there are not enough votes in either chamber to override his veto, Keystone XL will be again delayed and remain unbuilt unless and until Obama gives the project his assent.

The political realities of Keystone did not prevent political gamesmanship in the wake of the vote here in Montana though. Republicans have been chomping at the bit to get this legislation passed, giving it the designation of Senate Bill 1 to signal the importance of the issue. But the legislation has been debated for weeks now and subject to scores of amendments. To expedite the bill’s passage earlier this week, Senate Majority Leader Mitch McConnell filed a cloture motion to end debate on the bill and prevent additional amendments from being considered. As you all know, a cloture motion is used either to prevent or stop an ongoing filibuster, and if it passes, places strict limits on further discussion before moving to a vote on final passage.

This cloture motion failed 53 to 39 (again, the motion needed 60 votes), with Montana Senator Jon Tester voting against cloture. Montana’s freshman senator, Steve Daines, supported McConnell and voted to end debate. 

 (Caption: Montana's congressional delegation, presumably before the vote on Keystone XL)

 Freshman Congressman Ryan Zinke immediately took the opportunity to blast Tester. “To me, a vote against the Keystone is a vote against Montana,” he said. “I’m a proud co-sponsor of the House bill to build the Keystone XL Pipeline because it is proven to be safe and in the best interest of Montana. I will always put Montana before raising money from special interests in Washington, D.C.” (Full story here).

Zinke implied, of course, that Tester’s a flip-flopper and in the pocket of special interests—special interests that are opposed to the construction of Keystone and the production of good paying Montana jobs.

Yesterday’s press release from Montana’s State Republican Party was much more hyperbolic than Zinke’s statement. Here is what they sent via e-mail to those subscribing to their list:

“Last November, Tester voted to build the Keystone XL pipeline.
On Monday, Tester joined Senator Democrats’ delay tactics and voted against the Keystone XL pipeline. 

• Tester claimed he wanted more amendments and debate but last November- when Tester voted for the Keystone XL pipeline- there were no amendments allowed and just 6 hours of debate. 
• Under the Republican-led Senate, there have already been “more amendment votes than in all of 2014 under Democratic control” on the Keystone bill alone.  And, the Senate has spent 3 weeks debating the bill. 

On Wednesday, Tester voted to support President Obama’s latest land power grab, allowing Obama to declare land in Phillips County a national monument and immediately halt construction of the Keystone XL pipeline.”

Both Congressman Zinke and the Montana Republican Party, in their eagerness to score political points, are pushing a narrative spun of cynicism and obfuscation instead of an honest consideration of the facts. And this, I find as a political scientist, quite disturbing. 

Let’s consider reality for a moment.

Tester supports construction of Keystone XL, but with some qualifications, and as he has since the project was proposed. I spoke with him about Keystone XL and energy development in the Bakken on Veteran’s Day in 2011 as we flew between Billings and Helena—an interview I conducted as part of the research for my book, Battle for the Big Sky. Here is the transcript verbatim:

David:                  Do you have any problems with more development in the Balkan?

Sen. Tester:          No. 

David:                  No?

Sen. Tester:          No.  As long as it's done right.  It's kind of like the Keystone pipeline, as long as it’s done right, you can do it.  Now, I'm going to tell you what.  There's a lot of times that this stuff isn't done right and taxpayers for generations and generations to come have to fix the problem.  Take a look at a lot of the abandoned mines around.  Yeah, they create a bunch of jobs and then when they left, it becomes a Superfund site the taxpayers have to pick up.  That isn't a false choice.  That should have been -- the rules should have been dictated early and that's what I'm saying is make sure we get the playing field established so that it is done right so that it isn't a false choice.

David:                Are you confident with the rules and regulations in place now that the Bakken can be drilled safely?

Sen. Tester:          Yeah. 

David:                Well then let me ask the follow-up question to that.  If we sit and put our eggs in the Bakken basket, don't we risk basically having Butte part 2 over again?  All this development happens, big towns happen, oil's gone, it collapses.  How do we, as a state, look beyond that?

Sen. Tester:          I don't know that I say we put all our eggs in the Bakken basket.  I think we've got incredible opportunities in wind and solar and renewable energies across the board, but we also need to do right because they can be done wrong, but do those right and expand upon those.  I think the Bakken [play], if that's all we're going to look at for energy future, big mistake, big mistake.  I think if we developed the Balkan right, there are going to jobs there for many, many years and there can be a level of energy security there for many, many years. 

David:                      But what about the environmentalist movement?  There's a number of folks that are really opposed to the pipeline, opposed to drilling the Bakken and ostensibly those people are going to be people who are probably going to want to vote for you and not Denny Rehberg [Tester’s opponent in 2012], isn't there a risk that they're not going to show up and turn out to help you?

Sen. Tester:          I always think common sense is going to be the deciding factor when it comes to elections and I think, if you develop in a common sense way, everybody can win.  That’s the basis of my Forest Jobs bill.  And there's going to be people on the hard right and the hard left that want it all their way, but that's not practical and it’s not common sense.  So you've got to be thoughtful about it.  You've got to make sure you do it right.  You've got to make sure that folks follow the rules.

                              And if agency folks don't follow the rules, by the way, I don't care if you're talking about benefits for veterans or you're talking about drilling in the Bakken or whatever, that's an important part of the equation.  So but no, I think enviros in the end can take a look at what I stand for.  You know, it is a good choice, it is a clear choice for them because you've got, on the one hand, the guy [Rehberg] who built the Keystone pipeline, come hell or high water and I'm saying let’s use our heads about this.  Let's do it right if we're going to do it.  And the same thing with drilling in the Balkan, let’s do it right. 

I searched Tester’s Senate press releases, available on his Senate website, for the term “Keystone XL” to further understand his position on Keystone XL.  The first mention of the project came in 2010, when Tester questioned TransCanada’s request to operate the proposed pipeline at a higher than standard pressure—a request which TransCanada withdrew at Tester’s urging. The press release aptly portrays Tester’s position on Keystone XL: He wants it built, but with certain restrictions. Completely in step, mind you, with what he told me in fall of 2011 more than a year later.

That’s the same pattern you see when reviewing Tester’s votes on amendments to Senate Bill 1. Tester supported some amendments mandating that the pipeline to be built with American material and labor. He voted for an amendment clarifying that products produced from tar sands would be subject to federal petroleum excise taxes. He supported an amendment requiring a renewable standard for electricity production. He opposed an amendment requiring the federal home heating assistance program to be funded at a minimum level, and another restricting the transportation of petroleum coke. 

Most of these amendments, including those Tester favored, failed. And despite the fact Tester has long supported amendments requiring the use of American labor and material in the construction of Keystone XL, he supported the bill on final passage. To be clear, Tester did not get his ideal Keystone XL bill. But he voted for it anyway—figuring, I suspect, that half a loaf was better than none.

You can see all the roll call votes on the Senate website here.

So, where’s the alleged flip flop? As far as I can tell, in my review of previous pieces of legislation and Senate amendments concerning Keystone XL going back to 2011, Tester has always supported the construction of Keystone XL.

The “flip flop” is because Tester did not vote in favor of cutting off debate on Senate Bill 1 says the Montana Republican Party. He’s not a Keystone XL “purist” because he favored more debate and more amendments.

Well, a funny thing happens when a party moves from the minority to the majority. Because all of the sudden, positions the party once took become, shall we say, inconvenient. 

When Republicans served in the Senate minority in the last Congress, they expressed indignity when Senator Reid did not allow them the courtesy of considering Republican amendments to Democratic-crafted bills. Democrats did not allow the amendment process to run its full course, they said, and they felt debate was rushed and did not consider the minority party’s point of view.

Here’s Republican Senator Orrin Hatch in a National Journal piece on Harry Reid’s ironclad control over the Senate floor agenda, achieved by filling the amendment tree (thereby shutting out the minority party in the amending of legislation): "When the Senate Democratic leadership decides to bring a bill to the floor, far more often than not we are blocked from offering any amendments," Sen. Orrin Hatch, R-Utah, said on the floor last week.” You can access the article here. Republicans, of course, vowed to allow more amendments and greater debate if only voters gave them a majority in the Senate.

Majority status means majority control, and it often means that in order to get things done, you have to shut down debate and control what can and cannot be discussed. It also means limiting the amending process. I’ll bet you good money that we’ll see far less amend-a-thons on future bills in the Republican-led Senate. The Republicans, while in the minority, doth protest too much.

On this point, the Republican Party’s press release was disingenuous. But what followed next was either disturbing or laughable. Take your pick.

One of the amendments voted upon by the Senate AFTER cloture failed was Senator Steve Daines’ Senate Amendment 132, which expressed the “sense of Congress” that restrictions should be placed on the president’s ability to create National Monuments. You can read the text of the amendment here.

Tester voted no on that amendment—a vote which he never would have taken had the cloture petition succeeded—the same cloture petition that Tester was criticized for voting against in the same press release! 

So Tester’s faulted for voting against cloture, and then he is criticized for endorsing “President Obama’s latest land power grab, allowing Obama to declare land in Phillips County a national monument and immediately halt construction of the Keystone XL pipeline.” At least, that’s what is spun in the press release. Don’t believe it.

Facts are stubborn things. Had Daines’ amendment passed, it would have done nothing to change existing statute.

There is no land grab in Phillips County—and even if there was or is, Senator Tester’s vote on Senate Amendment 132 certainly didn’t express his views on it. At best, Tester voting no suggests that he believes that the executive branch has and should have the power to protect land by declaring it a national monument under the Antiquities Act. Every president since has created at least one National Monument—including Gerald Ford and Ronald Reagan. It does not mean he wants President Obama to drop a national monument in Phillips County and stop Keystone XL because HE WANTS KEYSTONE XL BUILT.

The process of legislating is messy, tortuous, and complicated. To truly understand it requires taking each and every vote and placing it into its proper context. To do otherwise represents a gross distortion of the how the Senate and House operate, and at its core, represents elevating a politically-driven narrative at the expense of what Stephen Colbert termed as “truthiness.” 

Perhaps more importantly, no piece of legislation is perfect. To expect our legislators to vote for the perfect bill asks the impossible. No legislator can or should be held to that standard. But the way in which political operatives abuse roll call records, they aim to make us think there is only one way—the true way—to represent a political position and the interests of a place or a people. Everything else is craven and suspect. I fundamentally object to this standard, and to this particular misrepresentation of legislating. We ought to expect better of civic discussion and discourse.

One final point. Using the logic of the Montana Republican Party as expressed in their press release, I guess Senator Mitch McConnell hates Keystone, too, because he voted against his own cloture motion! He flip-flopped!

Don’t believe me? Go look it up here. 

No, of course not. He voted against it as a procedural matter so that he could later introduce a possible motion to reconsider on the bill. But hey, context doesn’t matter, right?