Negative Motions

[Larry R.]

If a member of the assembly makes a motion to approve something that they do not support just so the matter makes it onto the floor and can be disposed of, if they do not request a recorded vote (as per our legislation), the minutes paint a picture in which the member actually supported their  motion. The minutes then give the incorrect impression that the member in fact, wanted to the motion to be adopted. Is there a practical way to avoid this perception? Is it absolutely necessary to provide a positive motion or should a member simply put forward a negative motion if they believe that it serves a useful purpose? (RONR pp.104-105)  I believe that a recorded vote might be sufficient, but members often forget to request one and the minutes look awkward when the member votes against the motion he or she put forward. I feel as if I'm missing just a bit of information here that might help me better understand.

[George Mervosh]

No rule in RONR prohibits a member from making a motion that they may wish to see defeated.  "Negative motions" are not proper.  The member is free to vote against his motion but may not speak against it.  The impression from the minutes isn't something RONR worries about as the minutes are a cold hard record of the facts, and apparently the member himself wasn't worried about any such thing.  So all is well from a procedure perspective.

[Joshua Katz]

2 hours ago, Larry J. Randle said:

Is there a practical way to avoid this perception?

Yes - don't make motions you don't support. Instead, get someone else to make the motion, preferably someone who does support it. In any case, I'm not clear why it matters - or, if it matters to the member, why he nonetheless would make a motion he doesn't support, knowing it will go into the minutes. 

[Rob Elsman]

It is not terribly uncommon for a member to make a motion that he is opposed to, if he is confident the motion will be rejected. He will do this to have the society go on record as opposing what the motion proposes.

[Josh Martin]

3 hours ago, Larry J. Randle said:

Is there a practical way to avoid this perception?

Don’t make motions you don’t support. Or just accept that is perception will exist and be prepared to answer questions about it.

3 hours ago, Larry J. Randle said:

Is it absolutely necessary to provide a positive motion or should a member simply put forward a negative motion if they believe that it serves a useful purpose?

It is not quite an absolute, and such motions are in order if they serve a useful purpose. The relevant rule is that “A motion whose only effect is to propose that the assembly refrain from doing something should not be offered if the same result can be accomplished by offering no motion at all. It is incorrect, for example, to move "that no response be made" to a request for a contribution to a fund, or "that our delegates be given no instructions," unless some purpose would be served by adoption of such a motion. This could be the case, for example, if the membership of an organization wishes to make certain that a subordinate body, such as its executive board, will not take such action at a later date, or if the motion expresses an opinion or reason as to why no action should be taken.

It is preferable to avoid a motion containing a negative statement even in cases where the effect of the motion is to propose that something be done, since members may become confused as to the effect of voting for or against such a motion. Rather than moving, for example, that the association go on record as "not in favor of the proposed public bond issue," it should be moved that the association "oppose" or "declare its opposition to" the bond issue. In this connection, it should be noted that voting down a motion or resolution that would express a particular opinion is not the same as adopting a motion expressing the opposite opinion, since—if the motion is voted down—neither opinion has been expressed. A member may be in complete agreement with the views contained in such a resolution yet feel that his organization should not speak out on the matter, and he might therefore vote against the resolution.” (RONR, 11th ed., pgs. 104-105)

It is difficult to say how this applies here since we do not know the details of the motion, but a good test is to imagine that the particular motion is adopted, and then to imagine it is defeated. If these would both result in a clear, logical, and different outcome, that’s a good sign. If the result of one of these outcomes would be confusing, or if both outcomes are the same, something is wrong.

[Joshua Katz]

7 minutes ago, reelsman said:

It is not terribly uncommon for a member to make a motion that he is opposed to, if he is confident the motion will be rejected. He will do this to have the society go on record as opposing what the motion proposes.

Well, does it have that effect, though? If the society decides not to support Candidate X for office, it doesn't seem to follow that it opposes Candidate X for office. It seems even less to follow when we consider that a motion can fail on a tie vote.

[Atul Kapur]

3 hours ago, Joshua Katz said:

Well, does it have that effect, though?

Depends on the motion. If the motion is "to endorse a candidate in the upcoming election" and it is defeated, then the society has gone on record as opposing the idea of endorsing a candidate.

[Rob Elsman]

Adoption of a motion means that the society decides to do what the motion proposes.

Rejection of a motion means that the society expressly decides not to do what the motion proposes. This is materially different than saying that the rejection of a motion means that the society does not decide to do what the motion proposes. So, yes, the rejection of a motion will put the society on record that it has decided not to do what the motion proposed. See RONR (11th Ed.), p. 32.

Edited June 20, 2019 at 09:21 PM by reelsman
Add "expressly" before "decides"; make "expressly decides" bold font; add citation to the end.

[Joshua Katz]

I don't doubt you, but this continues to bother me, because it allows a tie vote to put the organization on record. It has the effect of making the general rule against negative motions more powerful than it at first seems: that rule limits which way a motion can be framed, which means it permits an equally-decided assembly to expressly decide on the negative side, but not the affirmative side. I'll have to mull over, in my head, whether I think that makes sense.

[Guest Zev]

7 hours ago, Joshua Katz said:

In any case, I'm not clear why it matters - or, if it matters to the member, why he nonetheless would make a motion he doesn't support, knowing it will go into the minutes.

I suspect that the reason is because this is a political organization or a legislative body of some sorts that must cater to a constituency.

[Larry R.]

Great discussion string here and yes, that last comment about this being a legislative body that has publicly elected officials is right on the mark, that is exactly the context in which my original question was asked. They seem to always be thinking about getting re-elected when election time comes so I think that raises the importance and relevancy of the conundrum I posed.

[Guest Zev]

The US House of Representatives has a parliamentary device called "Extension Of Remarks" in which a member can add remarks or observations to just about anything. On occasion they "explain their vote." On other occasions they take issue with another member's debate on the floor and upon seeing this the other member actually has his words that he delivered on the floor in debate changed to something else which makes the previous member's remarks look downright foolish and nonsense. I do not know if this practice is still being allowed.

[J. J.]

12 hours ago, Larry J. Randle said:

Great discussion string here and yes, that last comment about this being a legislative body that has publicly elected officials is right on the mark, that is exactly the context in which my original question was asked. They seem to always be thinking about getting re-elected when election time comes so I think that raises the importance and relevancy of the conundrum I posed.

It would be best for the body to adopted a rule covering this. 

[Gary Novosielski]

12 hours ago, Guest Zev said:

The US House of Representatives has a parliamentary device called "Extension Of Remarks" in which a member can add remarks or observations to just about anything. On occasion they "explain their vote." On other occasions they take issue with another member's debate on the floor and upon seeing this the other member actually has his words that he delivered on the floor in debate changed to something else which makes the previous member's remarks look downright foolish and nonsense. I do not know if this practice is still being allowed.

Oh, it is still allowed.  My former congressman used to send out copies of speeches he "made" on various subjects.  None of them were actually delivered on the floor.  They were simply a cut-and-paste job into the Congressional Record, Tune in to C-SPAN and after any period of discussion, someone will rise and "...ask unanimous consent that all members have five legislative days to revise and extend their remarks." 

But the Congressional Record is not the minutes of the House proceedings.  

 

[Gary Novosielski]

NUL
 

Edited June 23, 2019 at 04:53 PM by Gary Novosielski
Delete duplicate

[Joshua Katz]

A good reason not to rely on legislative history.

[Richard Brown]

1 hour ago, Joshua Katz said:

A good reason not to rely on legislative history.

That's a very good point... one that I had not thought of.  I recently reviewed the legislative history of a bill enacted by the Louisiana Legislature.  I watched the relevant portions of six separate floor and committee hearings in order to determine how to interpret a provision capable of two different interpretations.  The six occasions when the bill was debated convinced me that my initial interpretation was wrong and that the right interpretation was in fact the one I was hoping for.  I just did not initially read the actual bill that way because of poor draftsmanship.

[Joshua Katz]

1 hour ago, Richard Brown said:

That's a very good point... one that I had not thought of.  I recently reviewed the legislative history of a bill enacted by the Louisiana Legislature.  I watched the relevant portions of six separate floor and committee hearings in order to determine how to interpret a provision capable of two different interpretations.  The six occasions when the bill was debated convinced me that my initial interpretation was wrong and that the right interpretation was in fact the one I was hoping for.  I just did not initially read the actual bill that way because of poor draftsmanship.

In my view, there is certainly a hierarchy of legislative history, and yes, it's best use is when the enacted bill is truly ambiguous, as opposed to vague. (In federal law, that also appears to be when it is least used because it's when another doctrine kicks in, but let's leave that aside.) And certainly the actual debate, as opposed to the record, is far more likely to show the objective intent and understanding of the adopting body (here, the legislature) at the time, so I'd be far more comfortable watching, as you did, than trying to understand a law from the 'official' history. But I stand by my position that, when unambiguous, the legislature has adopted the written text, not whatever it wanted to adopt - and even if a video of the proceedings convinced me beyond doubt that they unambiguously meant the opposite of what the text says, the text should prevail. 

But, on your point, certainly we learn much more from the actual debates than what is written after the fact by well-paid law firms. As Justice Scalia put it, when judges used legislative history because it was there it may have had some value. But now it is there because judges use it, rendering it useless. (For some reason, this reminds me of Goodhart's Law - that once a measure becomes a target, it is no longer a useful measure. I pointed that one out constantly when I was teaching - not to students, but to administrators.) 

[Shmuel Gerber]

On 6/20/2019 at 6:05 PM, Joshua Katz said:

I'll have to mull over, in my head, whether I think that makes sense.

Is that better than mulling it over in your beer? :-)

[Joshua Katz]

1 hour ago, Shmuel Gerber said:

Is that better than mulling it over in your beer? 🙂

Probably.