Evaluating the NDAA amendment process
Last week, the Senate passed the National Defense Authorization Act for Fiscal Year 2021 (S. 4049; NDAA) by a vote of 86 to 14. Before its passage, the bill’s majority floor manager and chairman of the Senate Armed Services Committee, James Inhofe, R-Okla., congratulated his colleagues for a robust floor debate and amendment process.
“This is the first time we have done this. We have had amendments to a lesser degree in the past. This is the first time that the entire bill has been put together by members of the U.S. Senate…This is the first time there has been a bill that was entirely written by the members.”
Inhofe’s description of the NDAA amendment process appears justified when juxtaposed to the amendment process in other legislative debates in recent years. But a closer look at how Inhofe worked with the minority floor manager and ranking member of the Armed Services Committee, Jack Reed, D-R.I., to structure the NDAA debate suggests that his description of the amendment process is misleading.
The numbers do not support Inhofe’s claim that the NDAA amendment process as open and robust.
Submitted Amendments. Senators submitted 810 amendments to S. 4049 during its consideration on the Senate floor. But the number of submitted amendments does not indicate the extent to which a bill’s amendment process was open. According to Riddick’s Senate Procedure,
“Amendments which have been ordered to lie on the table and be printed, intended to be proposed to a bill subsequently, have no parliamentary standing, and cannot be regarded as pending amendments.”
Senators submit amendments in advance of offering them to legislation because it gives their colleagues an idea of what proposals they intend to offer to the underlying bill in the upcoming debate. Submitting amendments in advance helps facilitate that debate by making it possible for the amendments to be printed and distributed to all senators before their consideration on the Senate floor. Senators may also submit amendments that they have no intention of offering on the Senate floor. Doing so allows them to signal their interest in an issue to their constituents and other interested stakeholders.
Pending Amendments. Senators proposed (or offered) only 71 of the 810 amendments they submitted during the NDAA debate. (approximately 9 percent). Senators must first propose amendments before they become the pending business and are thus eligible for adoption or rejection. According to Senate precedents,
A Senator having the floor is entitled to offer, when amendments are in order, an amendment to a pending bill for immediate consideration.
The Senate adopted 68 (approximately 96 percent) of the amendments offered to the NDAA. The Senate rejected 2 amendments on up-or-down votes (approximately 3 percent) and tabled 1 (approximately 1 percent).
A Structured Process. A closer look at the 71 amendments that senators offered to the NDAA also undermines suggestions that the process was open. This is because how senators choose to dispose of amendments is a useful proxy for their significance or controversy. Senators typically clear minor, noncontroversial amendments by voice vote or unanimous consent and major, controversial amendments by roll-call vote.
Of the 71 amendments offered to the NDAA, only 7 received a roll-call vote (approximately 10 percent). Senators disposed of the remaining 64 amendments by unanimous consent and voice votes.
The disparity between roll-call votes and unanimous consent/voice votes to dispose of amendments suggests that the party leaders and floor managers structured the process to minimize rank-and-file senators’ ability to participate freely in it. This dynamic is evident in the Senate’s reliance on managers’ packages to process almost all of the amendments considered during the NDAA debate. Inhofe, Reed, and their staffs worked together closely throughout the debate to determine what amendments would be included in three separate packages and, by extension, what amendments would be blocked.
Inhofe acknowledged as much when he objected to Kirsten Gillibrand’s unanimous consent request that her amendment be included in one of the managers’ packages.
Even the amendments that received roll-call votes were determined in bipartisan talks between the floor managers (in consultation with the majority and minority leaders). Inhofe affirmed this in his floor remarks extolling the NDAA’s amendment process. Note: The seventh amendment that received a roll-call vote was Inhofe’s substitute amendment, S. Amdt. 2301.
“It was important to both Senator Reed and me to try to vote on at least a few individual amendments. This is something we haven’t been able to do in the last several years. We made this arrangement 2 weeks ago when we set up some six amendments to be voted on.”
Blocker Amendments, Veto Points, & 60-Vote Thresholds. Majority Leader Mitch McConnell, R-Ky., helped Inhofe and Reed control the NDAA amendment process by offering Amdt. 2080 to Inhofe’s underlying amendment in the nature of a substitute (i.e., the revised NDAA). McConnell used amendment. 2080 strategically to make it harder for rank-and-file senators to offer their own amendments to Inhofe’s substitute amendment without unanimous consent. Majority leaders, or their designees, typically use blocker amendments so that senators feel forced to accept higher vote thresholds on their amendments in exchange for the opportunity to offer them to legislation on the floor.
Setting 60-vote thresholds on amendments requires channeling all decisions regarding which amendments can be offered to legislation through a single veto point (i.e., the party leaders or floor managers). Once established, such a veto point enables the leader or floor manager to exercise disproportionate control over which amendments will be made pending to legislation on the Senate floor and to set the terms according to which those amendments will be disposed of.
Establishing a veto point is accomplished by putting the Senate in a parliamentary situation in which unanimous consent is needed to get an amendment pending to a bill. The primary tool utilized by majority leaders to accomplish this is the tactic of filling the amendment tree (or offering a blocker amendment like S. Amdt. 2080 in one of the available branches on the amendment tree such that further amendments are precluded by Senate precedents).
At that point, the majority leader or floor manager is free to focus on negotiations with interested rank-and-file senators to reach a unanimous consent agreement that provides for up-or-down votes on specified amendments without having to worry about a senator disrupting the controlled debate by offering a controversial, or otherwise unwanted amendment, without the leader’s or the floor manager’s permission.
Once the Senate is in a parliamentary situation in which unanimous consent is needed to get an amendment pending to legislation on the floor, majority leaders and floor managers can use their increased leverage to secure a higher vote threshold for adopting an amendment. The leaders and managers use the threat of not allowing amendments to get pending to compel rank-and-file senators to agree to the higher vote threshold on their amendment, even though doing so means that the amendment will most likely be rejected.
This dynamic is evident in the NDAA debate and amendment process. In that instance, 5 of the 7 amendments that received roll-call votes were subject to 60-vote thresholds. Inhofe’s committee substitute amendment (S. Amdt. 2301) was not subject to a 60-vote threshold. The Shaheen Amdt. 1729 was subject to a 60-vote threshold. However, the Senate vitiated the unanimous consent agreement that established the higher threshold and adopted the amendment by voice vote instead.
An open and robust amendment process in which senators participate equally to write legislation is not possible when a subset of senators (i.e., the party leaders and floor managers) have disproportionate control over the terms according to which rank-and-file members can offer amendments.