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(Editor’s note: This piece originally appeared in Legislative Procedure on October 29, 2018.)

Senators often blame their leaders whenever they are frustrated with how the Senate works. Yet they too are responsible for its operations. While today’s leaders exercise more control over the legislative process than at any other time in the Senate’s history, rank-and-file senators also have tools to direct how their leaders manage the institution. For example, Republicans can take a small step towards changing how their floor leader manages the Senate by amending their conference rules when they next meet after the November elections. Taking such a small step may not immediately change the Senate. It would, however, symbolize senators’ desire to rebalance their relationship with their leaders. By directing the floor leader to share more information with them via the hotline system, Republicans can make it easier to participate in the legislative process. That, in turn, gives otherwise frustrated senators the opportunity to acknowledge their responsibility for the status quo and to take steps to change it.

Leadership Responsibilities

The Republicans’ conference rules spell out the responsibilities they have assigned to each of their leadership positions. Specifically, Rule IV tasks the conference chair (John Thune, R-S.D.) with presiding over party meetings and performing “other duties as may be assigned to him by the Conference.” The conference vice chair (Roy Blunt, R-Mo.) is tasked with keeping “accurate minutes of all Conference proceedings” and exercising “the same powers and duties to call meetings of the Conference” in the chair’s absence. The assistant floor leader, or whip, (John Cornyn, R-Texas) “shall assist in securing attendance of members” in conference meetings and on the Senate floor. The policy committee (chaired by John Barrasso, R-Idaho) advises “all Senators on legislative matters” and, when applicable, prepares and presents “recommendations for action by the Conference.”

In Rule IV, Republicans also delegate to their floor leader (Mitch McConnell, R-Ky.) the power to deal with all questions of procedure on the Senate floor after consulting with those members in the conference who have an interest in the issue under consideration. It stipulates,

The Floor Leader shall perform the customary duties of the Majority or Minority Leader, as the case may be, on the floor of the Senate and shall have full authority to deal with all questions of procedure after consulting the Republican Senators who are concerned.

A principal-agent relationship between Republican senators (i.e., the principals) and the Republican floor leader (i.e., the agent) is implicit in this section of Rule IV. In theory, rank-and-file senators hire a floor leader to do a specific job for them. That is, senators task a floor leader with managing the legislative process to help them achieve their goals.

Service-Oriented vs. Outcome-Oriented Leadership

Republican senators delegate power to their leaders and give them the necessary autonomy to make important decisions associated with managing the Senate floor. In the past, leaders like Mike Mansfield, D-Mont., and Robert Byrd, D-W.Va., used their powers to facilitate the participation of interested members in the legislative process on the Senate floor. At the time, the job of a floor leader was understood by senators to be service-oriented. Rank-and-file senators deputized individual colleagues to serve as leaders because the inclusive and deliberative process characteristic of the Senate would be too chaotic without them.

In contrast, today’s leaders appear to be more outcome-oriented than their predecessors. They use their delegated powers and autonomy to control the legislative process, structuring it to secure their colleagues’ support for a predetermined course of action. Consequently, leaders use their influence to regulate their colleagues’ participation in the legislative process instead of facilitating it.

The transition from a service-oriented to an outcome-oriented leadership model is reflected in the evolving understanding among Republican floor leaders of the process by which they keep their colleagues informed of significant floor developments like unanimous consent requests. Leaders implement Rule IV’s directive to consult with concerned senators using a so-called hotline system that notifies their colleagues of floor developments via phone and email. Senators with concerns are instructed to inform their leaders immediately. The hotline system was initially envisioned as a service that leaders offered to rank-and-file senators, freeing them up to focus on other activities without sacrificing their procedural rights. While they were doing so, their leaders would monitor the floor and object to unanimous consent requests on their behalf (as well as keep them alert to other important developments).

Yet beginning in the 1980s, Republican leaders Howard Baker, R-Tenn., and Bob Dole, R-Kan., made significant changes to the hotline system that undermined the principal-agent relationship. Baker announced in 1982 that he would no longer treat member notifications as binding. In other words, the Republican leader would no longer object automatically to unanimous consent requests when asked to do so by his colleagues. Dole expanded on Baker’s changes in 1986, notifying Republican senators that he would no longer keep such requests in confidence.

Notwithstanding the debate over secret holds (as Dole’s actions illustrate, they aren’t very secret), the hotline system at present is still understood by Republican senators as a service they are provided by their leaders. Yet its utility to them is dependent on the information the floor leader is willing to share. And recent frustration suggests that Republicans may not know what has happened (or will happen) in key debates on the Senate floor in recent years. This further undermines the proper functioning of the principal-agent relationship because senators cannot know if something of concern has happened and direct their leaders to react if they aren’t notified of developments as they occur.

Republican vs. Democratic Hotlines

The limited nature of the information Republicans have receive from their leaders via the hotline system is illustrated by juxtaposing a typical Republican hotline with its Democratic counterpart. The first hotline below was written by Republican leadership staff and was sent to all Republican offices. The second hotline was written by Democratic leadership staff and was shared with all Democrats. Both hotlines addressed the same stage in the 2012 farm bill debate. Compare the time each hotline was sent and the information provided.

REPUBLICAN HOTLINE (SENT 5:30 PM)

Subject: S. 3240- Farm Bill Amendment Update

It is expected that Senator Reid will ask unanimous consent for a limited amendment list to the farm bill after the vote. The list is not finalized but members who have an interest in the farm bill consent should remain on floor after the vote. We should have the final list or a consent during the vote so members can check to see if their amendments are included.

DEMOCRATIC HOTLINE (SENT 4:41 PM)

Subject: HOTLINE-S.3240: FARM BILL- AMENDMENTS AND PASSAGE

The Majority Leader asks unanimous consent that when the Senate resumes consideration of S.3240, the pending motion to recommit be withdrawn; that amendment #2390 be withdrawn; that the Stabenow-Roberts amendment #2389 be agreed to; the bill, as amended, be considered original text for the purposes of further amendment; that the following amendments and motions be the only first degree amendments and motions in order to the bill:

– Akaka #2440 (highly fractionated tribal lands);

– Akaka #2396 (tribal relations office);

– Baucus #2429 (Livestock);

– Bingaman #2364 (multi-state aquifers);

– Brown (OH) #2445 (rural development);

– Cantwell #2370 (pulse pilot);

– Casey #2238 (technical/study -federal milk marketing)

– Coons #2426 (poultry insurance study);

– Feinstein #2422 (conservation innovation grants);

– Feinstein #2309 (insurance recall);

– Gillibrand #2156 (SNAP);

– Hagan #2366 (crop insurance – plain language);

– Kerry #2187 (commercial fishermen);

– Landrieu #2321 (rural development loans);

– Manchin #2345 (dietary study);

– Merkley #2382 (organic crop insurance);

– Schumer #2427 (acer);

– Udall(CO) #2295 (bark beetle);

– Warner #2435 (rural broadband)*;

– Wyden #2442 (microloans);

– Wyden #2388 (farm to school);

– Leahy #2204 (rural development);

– Nelson(NE) #2242 (rural housing);

– Klobuchar #2299 (transportation study);

– Carper #2287 (poultry feed research);

– Sanders #2254 (biomass);

– Thune #_______ side-by-side to Durbin-Coburn #2439 (crop insurance);

– Durbin-Coburn #2439 (crop insurance);

– Grassley #2167 (pay cap marketing loans);

– Grassley #2168 (pay limit peanuts);

– Sessions #2174 (SNAP);

– Nelson(NE) #2243 (SNAP);

– Sessions #2172 (SNAP);

– Paul #2181 ($250,000 income limit);

– Alexander #2191 (wind loans);

– McCain #2199 (catfish);

– Toomey #2217 (organic/AMA);

– DeMint #2263 (broadband funding);

– DeMint #2262 (SoS Free MKT);

– DeMint #2268 (Loan guarantees);

– DeMint #2276 (checkoffs);

– DeMint #2273 (broadband);

– Coburn #2289 (MAP);

– Coburn #2293 (Limit Millionaires);

– Lee #2313 (Forest Legacy);

– Lee #2314 (CSP/CRP cut);

– Boozman #2355 (Ag research, law info);

– Boozman #2360 (TEFAP);

– Toomey #2216 (remove study catfish coverage);

– Toomey #2226 (energy title);

– Toomey #2159 (sugar);

– Lee Motion to Recommit (FY 2008 levels);

– Johnson(WI) Motion to Recommit;

– Chambliss #2219 (conservation crop insurance);

– Chambliss #2340 (sugar);

– Chambliss #2432 (FMPP);

– Chambliss #2329 (ARC);

– Ayotte #2195 (GAO crop insurance fraud report);

– Toomey #2247 (paperwork);

– Blunt #2246 (veterans);

– Moran #2403 (food aid);

– Moran #2443 (beginning farmers)

– Vitter #2363 (pets);

– Coburn #2214 (convention funding);

– Reid, or designee, side-by-side to Johanns #2372 (aerial inspections);

– Johanns #2372 (aerial inspections);

– Murray side-by-side (sequestration) to McCain #2162;

– McCain #2162 (Sequestration report – DoD); and

– Rubio #2166 (RAISE Act).

That at 2:15pm, Tuesday, June 19th, the Senate proceed to votes in relation to the amendments in the order listed alternating between Republican and Democratic sponsored amendments; that there be no amendments or motions in order to the amendments prior to the votes other than motions to waive points of order and motions to table; that there be two minutes of debate equally divided in the usual form in between the votes and all after the first vote be ten minute votes; that the Coburn #2214; Reid, or designee, side-by-side to Johanns #2372; Johanns #2372; Murray side-by-side to McCain #2162; McCain #2162 and the Rubio amendment #2166 be subject to a 60 affirmative vote threshold; that upon disposition of the amendments, the bill, as amended, be read a third time; that there be up to ten minutes equally divided in the usual form prior to a vote on passage of the bill, as amended, if amended.

If your Senator has an objection, please contact the Democratic Cloakroom. Do not reply to this message.

The difference between the two hotlines is striking, especially since the Democrats’ hotline was sent almost one hour before the Republican hotline ran.

Reform Options

Republicans can strengthen the hotline system, thereby making it easier for them to play an active role in the legislative process, by changing how their floor leader manages it. Two different reform options are outlined below. (They are not mutually exclusive, and this list is not exhaustive.)

OPTION A

Republicans can reform the hotline system to ensure they receive detailed information on the text of proposed unanimous consent agreements before they are propounded on the Senate floor. Republicans can ensure they have access to the same information as their Democratic colleagues by directing their floor leader to include all relevant information in future hotlines.

Rule IV (as amended; new text in bold)

The Floor Leader shall perform the customary duties of the Majority or Minority Leader, as the case may be, on the floor of the Senate and shall have full authority to deal with all questions of procedure after consulting with the Republican Senators who are concerned. In notifying Republican Senators, the Republican leader shall hotline the text of all unanimous consent requests prior to their being propounded on the Senate floor.

OPTION B

The hotline system currently operates on a negative check-off system. That is, leaders assume senators have granted their consent if they do not respond to a hotline. While such an approach may not pose problems concerning minor/uncontroversial bills, it could be an issue when used to notify senators of unanimous consent requests for significant/controversial measures that would restrict their ability to offer amendments, limit debate time, and schedule a vote on passage. The stakes involved in such instances may justify Republicans taking extra steps to ensure that they really do consent to the hotline in question.

To that end, Rule IV could be amended to specify instances in which an affirmative response by each member is required before the Floor Leader can consider a hotline cleared.

Rule IV (as amended; new text in bold)

The Floor Leader shall perform the customary duties of the Majority or Minority Leader, as the case may be, on the floor of the Senate and shall have full authority to deal with all questions of procedure after consulting with the Republican Senators who are concerned. The Republican leader shall consider hotlines involving major legislation as cleared when they have received the affirmative approval of all Republican senators. ‘Major legislation’ shall be defined as any measure that,

is more than X pages in length;

has not been reported by the committee of jurisdiction;

the text of which has not been publicly available for X days.

Note: The definition for major legislation above is for illustrative purposes only. Senators may adopt a definition based on any criteria that best suits their specific needs.

Filed Under:
Topics: Legislative Procedure
Tags: James Wallner