Majority Leader knows how the Senate should operate

Majority Leader knows how the Senate should operate

On January 8, 2014, Majority Leader Mitch McConnell, R-Ky., gave a floor speech on the Senate's dysfunction. It is a terrific analysis of the Senate's proper role in our political system and the underlying problems that prevent it from functioning as it should.

In his speech, McConnell pledges to restore the committee process, allow members to offer amendments, and require the Senate to work longer hours if Republicans won a majority later that year and he became the majority leader.

Of course, Republicans did win a majority. And McConnell became majority leader. Yet since then, the Senate has only further deteriorated.

Nothing is inevitable in politics, even in the Senate

Nothing is inevitable in politics, even in the Senate

The future is not inevitable. And it cannot be predicted with certainty. There is no iron law of history according to which events unfold inexorably.

This is especially true in Congress where, according to Stanford University political scientist, Keith Krehbiel, members with incomplete information make policy decisions on a daily basis under conditions of uncertainty.

Yet despite this, a number of senators appear confident that they can predict with certainty what will happen in the future. In my previous post, I pointed to recent comments by Ted Cruz (R-Texas) regarding the filibuster. He confidently asserts that its days are numbered. “I think if the Democrats ever regain the majority, they’ll end legislative filibuster…That’s where their conference is.”

Cruz’s comments reflect the broader sentiment among Senate Republicans. That is, they are certain that their Democratic colleagues will eliminate the filibuster in the future when they retake the majority. The irony is that Republicans’ confidence about the fate of the filibuster has driven them to push for abolishing it first.

What the Senate’s past tells us about a future nuclear option

What the Senate’s past tells us about a future nuclear option

“It is difficult to make predictions, particularly about the future.”

We would do well today to heed Mark Twain’s version of the well-known proverb regarding our inability to say with certainty what tomorrow will bring. Politics, after all, is a complex and dynamic process. Recent events alone should inject a dose of humility in our assumptions about what the future holds.

But in the Senate, members appear more certain than ever that they can see the future.

An Overview of the Senate's Amendment Trees

An Overview of the Senate's Amendment Trees

The Senate's amendment process evolved over the years and is based on a continued interpretation of past parliamentary practice. Those precedents stipulate the nature of amendment that may be offered at a particular point in time (i.e. first or second degree; perfecting or substitute).

Which amendment tree the Senate is following at a particular point is determined by the first amendment offered to the legislation under consideration.

60-Vote Thresholds and the Senate Amendment Process

60-Vote Thresholds and the Senate Amendment Process

Senate Majority Leader Mitch McConnell, R-Ky., committed recently to bring an immigration bill to the Senate floor and to allow an open amendment process on it in exchange for Democratic support for a short-term continuing resolution to fund the government.

McConnell subsequently acknowledged that 60 votes will be required to pass amendments offered as part of the immigration debate.

This admission signals that there will not be an open amendment process on the Senate floor.

Orrin Hatch's retirement may set off musical chairs in Senate

Orrin Hatch's retirement may set off musical chairs in Senate

The Senate is a Byzantine institution. Its informal practices and old-boy networks are practically inscrutable to outsiders. Yet there are periodically reoccurring events that offer an opportunity to better understand how senators allocate power among themselves.

Consider Sen. Orrin Hatch's, R-Utah, recent announcement that he will retire at the end of this year. Hatch's decision caps a seven-term career in the Senate and upends the power structure among Republicans heading into 2019. The contest to succeed him as the top Republican on the powerful Finance Committee will shape the GOP's position on healthcare, entitlements, and tax policy, and help determine what the party can accomplish in the time remaining in President Trump’s first term in office.

Hatch's exit also kicks off a game of musical chairs that will affect a number of other panels beyond the Finance Committee.

Federalist 22 and the Senate Filibuster

Federalist 22 and the Senate Filibuster

Opponents of the Senate filibuster often cite Alexander Hamilton’s argument in Federalist 22, first published on this date in 1787, that the “fundamental maxim of republican government…requires that the sense of the majority should prevail.” Indicting the filibuster on republican grounds is based on the implicit assumption that the Constitution created a majority-rule political system.

Why cloture benefits both parties

Why cloture benefits both parties

Senate Rule XXII requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate…except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.”

Consequently, cloture is typically understood today as making minority obstruction possible. A three-fifths vote is effectively required to schedule an up-or-down vote on most questions absent the unanimous agreement of all 100 senators. However, ending debate on presidential nominations only requires a simple-majority vote. (Democrats used the nuclear option to reduce the threshold to invoke cloture on most nominees in 2013 and Republican did the same for Supreme Court nominees earlier this year.)

Notwithstanding the recent use of the nuclear option, cloture remains a time-consuming process when the Senate is considering nominations and legislation. For most debatable measures, the entire process requires four calendar days to complete. This gives individual senators the ability to singlehandedly delay the consideration of the majority’s agenda on the Senate floor simply by withholding their consent to expedite the decision-making process. Given this, the number of cloture votes is frequently cited as evidence of minority obstruction.

But there is more to cloture than minority obstruction.

In defense of third degree amendments

In defense of third degree amendments

Senate majorities routinely restrict the ability of senators to participate in the legislative process.

The most common way they do so is when the majority leader fills the amendment tree to block senators from offering amendments. The maneuver prevents the underlying legislation from being changed and protects rank-and-file senators in the majority from having to cast votes that could be used against them in their future efforts to win re-election.

Yet senators do not need the majority leader’s permission to offer amendments to legislation pending on the Senate floor. Indeed, they can offer so-called third degree amendments even though the amendment tree has been filled.

How senators can offer amendments without the majority leader’s permission

How senators can offer amendments without the majority leader’s permission

The demise of regular order in the Senate makes it harder for its members to participate in the legislative process. And the result of their efforts to do so gives rise to a destructive cycle that perpetuates dysfunction and gridlock.

While regular order is not easily defined, it is generally associated with an orderly process in which senators are able to participate at predictable points. Conversely, its absence is typically associated with a secretive process in which members are barred from offering amendments to legislation pending on the Senate floor. When confronted with legislation in such a process, senators are left with no choice but to “blow up” the bill to force the majority to allow them to offer amendments. This all-or-nothing approach breeds frustration among members and their constituents, thereby making it even harder to negotiate after the majority’s original plan has been thwarted.

Given this dynamic, irregular order is hardly the most productive way to make decisions. Instead of helping senators communicate across their differences, it encourages the kind of extreme position-taking and inflexibility that complicates a more deliberative process.

Structural imbalances in the Senate’s amendment process

Structural imbalances in the Senate’s amendment process

The Senate is a pale imitation of what it once was.

A major reason for its current predicament is that senators are no longer able to freely amend the bills they consider. This is because the majority leader routinely blocks members from offering their own ideas on the Senate floor by filling the amendment tree.

Blocking amendments is a perversion of Senate rules and practices

Blocking amendments is a perversion of Senate rules and practices

The Senate today is an institution in decline. It is paralyzed---unable to legislate, much less deliberate.

The Senate’s plight is reflected in the near-total deterioration of its amendment process.

For example, senators offered a paltry 147 floor amendments between January and September of this year. Compare that to the 568 amendments they offered during the same period in 2015 and the 668 in 2009. At the present rate, Senate amendment activity could increase by as much as 250% over the next 15 months and still fall short of the level observed in the first nine months of 2015 alone.

Text of Senate's NDAA Substitute Amendment

Text of Senate's NDAA Substitute Amendment

Today, the Chairman of the Senate Armed Services Committee, John McCain, R-Az., offered an amendment in the nature of a substitute (S. Amdt. #1003) to the National Defense Authorization Act for Fiscal Year 2018 (NDAA, HR 2810). Put simply, McCain offered the Senate's version of the NDAA to the House-passed NDAA as an amendment.

How the Vice President Limits Majority Power in the Senate

How the Vice President Limits Majority Power in the Senate

On September 7, 1787, delegates to the Federal Convention meeting in Philadelphia voted to make the Vice President the Senate’s Presiding Officer. Their decision has had a major impact on the institution’s development. It limits majority power, protects minority rights, and thus continues to shape the Senate and the way that its members make decisions today. In short, the Vice President’s role effectively precludes the Senate from turning into a majoritarian legislative body like the House of Representatives.