Losing isn’t required to play the game

By James Wallner

The way in which the Senate considered the minibus appropriations bill (HR 6147) last week was a classic example of how its leaders (and bill managers) use so-called blocker amendments to control floor action. Doing so effectively forces rank-and-file senators to accept a higher vote threshold (60) to pass their amendments in exchange for the opportunity to offer them in the first place. Sixty-vote thresholds are required routinely to disadvantage efforts by rank-and-file members to change legislation on the Senate floor. And the rapid increase in their use suggests that they aren’t going away any time soon.

THE SOLUTION

But senators don’t have to accept losing as the condition for playing the game. They can instead ignore efforts to block their amendments. This is because rank-and-file senators do not need the permission of their leaders (or bill managers) to offer amendments to legislation on the Senate floor. That is, they can offer their amendment even when a blocker amendment is pending and then appeal the subsequent ruling of the Senate’s Presiding Officer (i.e. Chair) that it is not in order. That effectively forces a recorded vote in relation to their amendment. While those senators behind the blocker amendment can prevent a vote on the appeal by filibustering it, doing so would prevent the underlying legislation from passing, thereby undermining the reason for offering the blocker amendment in the first place.

This tactic is consistent with the Senate’s Standing Rules and development of its current precedents governing the amendment process. It was the driving force behind that process’s creation.

Specifically, the Standing Rules do not regulate the number of amendments that members are currently allowed to offer to legislation at the same time. That is instead governed by the Senate’s precedents and is reflected in the four amendment trees that its members follow today.

THE HISTORY

Each amendment tree evolved over time. Yet their evolution was not haphazard. The precedents that created them are based on general parliamentary law and were intended to facilitate the orderly consideration of amendments on the Senate floor. For example, one precedent precludes so-called third-degree amendments. Specifically, the early Senate prohibited vertical third-degree amendments (i.e. an amendment to an amendment to an amendment to pending legislation) and horizontal third-degree amendments (i.e. a competing first- or second-degree amendment to pending legislation) because their use would make the floor debate on a bill too confusing.

According to this logic, the Senate’s original prohibition on third-degree amendments was not intended to block senators from offering amendments altogether. The expectation was that while a third-degree amendment would be out of order, an identical first- or second-degree amendment would be allowed once that branch on the tree opened. This interpretation is supported by Senate practice for much of the institution’s history.

Yet even with such assurances, senators soon felt that the amendment process was still too cumbersome when the prohibition on third-degree amendments was applied strictly. In response, senators gradually added new branches to the amendment trees, thereby permitting both vertical and horizontal third-degree amendments where they had been previously prohibited. The primary motivation behind each expansion was the desire of senators to make the amendment process more responsive to their needs.

While today’s leaders (and bill managers) use these same amendment trees to instead disadvantage senators, rank-and-file members still retain the option to add new branches when the existing trees become too restrictive. Put differently, senators can reject efforts to disadvantage their amendments by ignoring any pending blocker amendments and offering them anyway.

THE MECHANICS

The Senate’s precedents stipulate that “Any senator recognized is entitled to offer an amendment when such amendment is otherwise in order, but he cannot offer an amendment unless he has been recognized or has the floor.” A blocker amendment follows precedent to block members from offering their own amendments. However, a senator may attempt to offer an amendment even though a blocker amendment is pending. In such a situation, the Chair would rule that the amendment is not in order pursuant to the Senate’s precedents. At that point, the member could appeal the ruling of the Chair and request a recorded vote. Their appeal represents an adjudication of the italicized portion of the precedent quoted above; namely, that an amendment is in order even though the amendment tree has been filled.

Offering an amendment in this manner effectively forces the Senate to vote on procedural questions directly related to the amendment being offered. Procedural votes have been viewed as substantive votes when the question is directly related to the underlying policy and the tactic is utilized on a regular basis. For example, the perception of cloture has evolved from being simply a procedural vote to the point that it is viewed by many as a substantive vote today. Votes on third-degree amendments could thus be characterized as substantive votes. That gives rank-and-file senators leverage with which to push back on efforts by their leaders (and bill managers) to force them to accept higher, 60-vote, thresholds in exchange for doing the job for which they were elected.

This article originally appeared in the Legislative Procedure blog on August 3, 2018.

James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.