Historical Development of the Senate's Amendment Process
R Street Policy Study No. 111, September (2017).
In recent years, Senate majority leaders have utilized a complex assortment of rules and practices to exert greater control over the institution’s decision-making process than at any point in its history. The principal means by which they establish such control is their ability to block amendments on the Senate floor by filling the amendment tree. Despite the increased importance of the amendment process to the efforts of Senate majorities to control the agenda, we have, at best, only a limited understanding of how that process developed. This represents a significant limitation of the current literature given the increased controversy surrounding the practice of filling the amendment tree in the Senate today. This white paper fills in the gap in the current literature by considering key developments in the evolution of the Senate’s amendment process. Specifically, it focuses on the timing and sequence of changes in how amendments are considered on the Senate floor and the impact of such changes on the number of amendments simultaneously permitted on legislation. Examining the development of the Senate’s amendment process improves our understanding of the significant institutional change observed in that chamber represented by the rapid rise of the practice of filling the amendment tree.
A Beginner's Guide to the Senate's Rules
R Street Policy Study No. 107, September (2017).
The overall structure of Senate procedure is derived from five primary sources: The Constitution; the Standing Rules of the Senate; statutory rules passed by Congress and signed into law by the president; standing orders; and informal precedents. It is the interaction of each of these component parts that forms the procedural architecture under which the decisionmaking process unfolds within the institution.
A Parliamentary Guide to Enforcing the Byrd Rule in the Reconciliation Process
Heritage Foundation Backgrounder No. 3206, 23 March (2017).
Determining how the Byrd Rule should be enforced in the reconciliation process is not straightforward. Applying the restrictions in the rule’s “merely incidental” test to the effort to repeal and replace Obamacare requires interpreting both the statutory language that created the rule and the targeted provision in the underlying bill. In contrast, the Byrd Rule clearly assigns responsibility for its enforcement to the Senate’s Presiding Officer, who is charged with determining whether or not a provision is eligible to be included in reconciliation. By extension, the Presiding Officer is not required to follow the advice of the Senate’s Parliamentarian regarding how the rule should be applied in particular parliamentary situations. Determining how to enforce the Byrd Rule in such situations where the meaning of the Senate’s rules is ambiguous or silent is consistent with the institution’s past practice.
A Rules-Based Strategy for Overcoming Minority Obstruction of a Supreme Court Nomination
Heritage Foundation Backgrounder No. 3187, 23 January (2017). (with Ed Corrigan)
The current Standing Rules of the Senate empower a majority of the institution’s members to overcome a filibuster and confirm a nominee to serve on the U.S. Supreme Court. Specifically, persistent minority obstruction may be curtailed by strictly enforcing Rule XIX (the two-speech rule) on the Senate floor. Doing so simply requires the Senate to remain in the same legislative day until the filibustering members have exhausted their ability to speak on the nominee in question.
The Implications of Regular Lame-Duck Sessions in Congress for Representative Government
Heritage Foundation Backgrounder No. 3154, 6 September (2016). (with Paul Winfree)
Barring exceptional circumstances Congress should not consider major legislation or presidential nominations during lame-duck sessions. Doing so undermines representative government by weakening the accountability link between the American people and their elected representatives. In recent years, Members of Congress have planned on taking up controversial issues during lame-duck sessions in order to avoid explaining their votes to the electorate. Congress now increasingly relies on lame-duck sessions to conduct its regular work. This practice undermines the ability of the American people to hold their representatives accountable because it allows Members to deliberately postpone unpopular decisions until after their constituents cast their votes.