The standard view of the Senate considers its rules and practices to be a constraint on senators’ behavior. But Senate-watchers should resist conceptualizing the institution’s rules and practices as a constraint on the behavior of senators because policy outcomes in a given legislative debate reflect more than the preferences of rank-and-file members and their leaders. The processes senators use to aggregate their preferences in the course of making collective decisions also mattes. The Senate’s rules and practices determine how its members prioritize problems, when and how they consider legislative solutions to those problems, and which senators participate in the process more than others.

In short, outcomes in the Senate are never independent of the process by which senators choose them.

Rules Are Leverage

This suggests that senators may skillfully use the rules and practices that regulate the legislative process in the Senate to achieve their goals; to advantage their preferred outcomes. By extension, senators may, when needed, attempt to alter the range of possible outcomes in a debate by using the Senate’s rules and practices to change the process altogether. This logic applies to all senators alike, regardless of whether they are in the majority or the minority party or if they constitute a minority of the majority party.

Acknowledging that the Senate’s rules and practices are a source of leverage that senators may employ to achieve their goals inside the institution empowers rank-and-file members in both parties to force their colleagues to consider their amendments in a legislative debate on the floor. This is evident in how the senators process managers’ packages during their consideration of major legislation on the Senate floor.

Floor Managers

Senators in the majority and minority parties designate floor managers to manage debate on a particular bill. Today’s floor managers are almost always the chairman (majority party) and ranking member (minority party) of the committee that reported the legislation (or the committee of jurisdiction if the legislation bypassed committee consideration and went straight to the floor).

In the case of the National Defense Authorization Act for Fiscal Year 2021 (S. 4049; NDAA), the floor managers are James Inhofe, R-Okla. (chairman of the Armed Services Committee), and Jack Reed, D-R.I. (ranking member of the Armed Services Committee). John Hoeven, R-N.D., acknowledged the central role that both Inhofe and Reed played in crafting the NDAA prior to its consideration on the Senate floor.

We [the Senate] should be able to move this NDAA legislation quickly because the chairman and the ranking member have put together a good bill for our national security and for our Armed Forces.

Floor managers also play an important role managing the amendment process and floor debate on the bills they crafted in committee. To help them do so, Senate precedents give a bill’s floor managers priority of recognition just behind the majority and minority leaders. According to Riddick’s Senate Procedure,

When the manager of a measure seeks recognition at the same time as another Senator (other than one of the leaders) the Chair should recognize the manager.

Managers’ Packages

Floor managers facilitate debate on large omnibus legislation like the NDAA by packaging noncontroversial amendments together and asking unanimous consent that the Senate adopt them en bloc. Doing so expedites floor debate by avoiding having to consider each amendment separately. Floor managers and their staff compile managers’ packages while floor debate continues on the underlying legislation. Any controversial amendments that senators’ deem inappropriate to be included in a package of noncontroversial amendments are considered separately (at least in theory).

For example, Inhofe notified his colleagues on June 29, shortly after debate began on the NDAA, that he and Reed had “reached an agreement on the first managers’ package.” Inhofe altered rank-and-file senators that he and Reed, in conjunction with Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-N.Y., would be “hotlining” the list of amendments included in the managers’ package “with the hopes of clearing it and adopting those amendments” after the Senate convened on the following day.

The Senate almost always adopts managers’ packages by unanimous consent or voice vote. While it is not required to do so, filing cloture on a managers’ package in an effort to overcome senators’ objections to it defeats its purpose of expediting the amendment process more generally. For that reason, such packages typically include only noncontroversial amendments.

The strategic use of managers’ packages also helps floor managers to assemble the votes to invoke cloture on the underlying legislation. That is, senators whose amendments are included in managers’ packages are considered to be more likely to vote for cloture and final passage of the underlying legislation.

A Source of Leverage

Rank-and-file senators can use the managers-package process as leverage to achieve their goals in a legislative debate. For example, a senator may threaten to object to a unanimous consent request to adopt a managers’ package in an attempt to force the floor managers to include their amendment in the package or to ensure that it receives an up-or-down vote on the Senate floor.

An exchange between Inhofe and Kirsten Gillibrand, D-N.Y., during the NDAA debate highlights this tactic.

On July 2, Inhofe asked unanimous consent that the Senate adopt the first managers’ package (which consisted of sixty-two amendments). When the Presiding Officer asked if there was an objection, Gillibrand reserved her right to object.

Senators reserve the right to object to a unanimous consent request when they want to make a counter unanimous consent request. If another senator objects to the counter unanimous consent request, the senator reserving the right to object may either object to the original request, withdraw his or her objection, or make another counter unanimous consent request.

In her exchange with Inhofe, Gillibrand reserved her right to object to his unanimous consent request. She noted that the managers’ package proposed by Inhofe did not include her amendment (S. Amdt. 1932) dealing with sexual assault in the military. Gillibrand then made a case that her proposal should be included in the list of noncontroversial amendments. She pointed out that it was identical to “a bill that the Presiding Officer and I have worked on and a bill that the majority leader has voted for” (i.e., the Military Justice Improvement Act) Gillibrand then delivered a short speech arguing why her colleagues should consider the amendment noncontroversial.

This amendment, this bipartisan and commonsense reform, leaves the majority of uniquely military crimes within the chain of command. It would only remove the decision making over whether to prosecute serious crimes to independent, trained, unbiased military impartial prosecutors.

Yet Gillibrand revealed in her remarks, albeit inadvertently, that her colleagues did not consider her amendment to be noncontroversial, therefore explaining why Inhofe and Reed did not include it in the managers’ package.

I have asked for a vote, Mr. Chairman and Mr. Ranking Member, for 5 years in a row. This is the fifth year I am denied a vote. It is the fifth year that you are saying to our service members that you don’t care, and you don’t want to fix the system.

At the end of her remarks, Gillibrand proposed a counter unanimous consent request. “Mr. Chairman, I would like to modify your request to include amendment No. 1932 to just get a vote on it.”

At that point, Inhofe reserved the right to object to Gillibrand’s counter unanimous consent request and committed to work with her on advancing the policies reflected in S. Amdt. 1932 in a bid to get Gillibrand to withdraw her threatened objection. Inhofe skillfully avoided taking a position on Gillibrand’s amendment and justified his objection to her counter unanimous consent request by hinting that not objecting would mean that another senator would object to the managers’ package once Gillibrand’s amendment was added to it. After making his commitment to help Gillibrand in the future, Inhofe objected to her counter unanimous consent request.

This is a first step. We have a lot of things happening after this. We are going to be on the Senate floor for hours and hours. You will have ample time to entertain your amendment, and I would be very happy to assist you in that. For that reason, I would not want to jeopardize those 60 names and amendments that I have already offered, to jeopardize their efforts by adding your language, and so I do object.

Gillibrand responded responded graciously. “Thank you, Mr. Chairman. I will withdraw my objection, and I look forward to working with you on the floor.”

The Senate adopted the managers’ package immediately after the exchange between Inhofe and Gillibrand.

The Takeaway

In this case, Gillibrand threatened to object to a managers’ package to advance her legislative priorities on the Senate floor during the NDAA debate. She used the managers’ package as leverage to secure a commitment from Inhofe, one of the bill’s floor managers, to work with her to get a vote on her amendment.

It is important to note that Inhofe’s commitment does not guarantee Gillibrand a vote on her amendment. Other senators may object to getting her amendment pending by unanimous consent. Inhofe could use his priority of recognition to offer Gillibrand’s amendment to the NDAA. But he would be unlikely to do so if it jeopardized passage of the underlying legislation.

While objecting to Inhofe’s unanimous consent request to adopt the managers’ package would not have guaranteed that Gillibrand’s amendment received an up-or-down vote on the Senate floor, it could have made it harder for the floor managers to assemble the votes necessary to pass the NDAA over senators’ objections with the Senate having considered few, if any, amendments to it.. By withdrawing her objection instead, Gillibrand is giving up her leverage in the hope that doing so will push Inhofe to help her get a vote on her amendment at some point in the debate.

Gillibrand will have less leverage to force her colleagues to consider her amendment if Inhofe does not follow through on his commitment. Alternatively, she could have assessed the seriousness of Inhofe’s commitment by asking unanimous consent that her amendment be made pending to the NDAA instead of asking that it be added to the managers’ package. Had she done so, Gillibrand would have forced Inhofe to take a position on her amendment, thereby revealing the strength of his commitment to help her get her amendment pending in the future. Inhofe objecting to Gillibrand’s modified counter unanimous consent request suggests that he would be unlikely to help her get her amendment pending to the NDAA in the future.

Note: As of July 22, Gillibrand’s amendment to the NDAA has not received a vote. It was also not included in a second managers’ package proposed by Inhofe and Reed.

Filed Under:
Topics: Legislative Procedure