This was a motion to bring to an immediate vote, the resolution setting the terms of debate for H.R. 3326; that bill provided 2010 fiscal year funding for the Department of Defense.

The resolution setting the terms for debate limited the number of amendments that could be offered to the bill. The Republican minority had been engaged in an ongoing effort against what it said was an unfair practice of the Democratic majority of limiting the number of amendments that could be offered on bills, especially spending bills such as H.R. 3288.The Democrats were taking the position that a limitation on the number of amendments was necessitated by the need to keep to a congressional schedule of passing all spending bills in a timely manner. In recent years, Congress had been well behind schedule in completing spending bills, and had failed to pass all of them before the beginning of the fiscal year they covered.

Rep. Flake (R-AZ) had been among the most vocal opponents of the limitation on amendments. He argued against ordering the previous question and against the resolution. Flake raised a point of order and said the Democratic majority “has shut down what has traditionally been an open process.” He added: “(I)n recent years, this bill has been rife with earmarks, (or legislatively mandated grants inserted at the request of individual Members) . . . There are 1,102 earmarks stuffed into this bill, and nearly 550 of them, worth at least $1.3 billion, are going to private, for-profit companies.” Flake characterized the insertion of earmarks as “corrupting”.

Flake referred to the Democratic claim that a limitation on amendments was needed to keep to a congressional schedule, and said “(Y)ou cannot vet more than 1,000 earmarks, more than 550 of which are no-bid contracts to private companies, in 18 minutes . . . Maybe the trains are running on time, but we're not doing our job here.” Flake acknowledged that “when Republicans were in the majority . . . we did a few things that we shouldn't have. But . . . No matter how the Republicans, when they were in power, didn't want to see amendments . . . they allowed them . . . this (amending) process has been traditionally open.”

Rep. Polis (D-CO) was leading support for the resolution setting the terms for debate and for ordering the previous question on it. He noted that that the resolution permitted several amendments to be offered. Polis also argued that the purpose of the point of order raised by Rep. Flake was to delay “consideration of this (spending) bill and, ultimately, stopping it. I hope my colleagues will again vote ‘yes’ so we can consider this legislation on its merits and fund the important defense needs of our nation and not stop it on a procedural motion . . . .”

Flake responded by saying: I'm not trying to delay this process unnecessarily. This (point of order) isn't a dilatory tactic. It's just about the only way we can stand and actually register objection to this closed process.”

The motion passed by a vote of 245-176 along almost straight party lines. Two hundred and forty-four Democrats and one Republican voted “aye”. One hundred seventy-one Republicans and five Democrats voted “nay”. As a result, the House moved to an immediate vote on the resolution setting the terms for debate for the bill providing fiscal year 2010 funding for the Department of Defense.