It Should Be Easier to Amend Bills in The Senate

Senate majority leaders have utilized a complex assortment of rules and practices in recent years to exert greater control over the institution’s decision-making process than at any other point in its history. The principal means by which they establish such control is their ability to block amendments on the Senate floor.

Filling the Amendment Tree

The majority leader is entitled to recognition by the Senate’s presiding officer before any other member pursuant to a 1937 precedent. This precedent serves as the foundation on which the power of centralized party leadership is based in the Senate today. Since any member can technically make a motion to consider legislation or a nomination under the Senate’s rules, being the first to do so enables the majority leader to set the schedule and control the agenda to a limited degree. Priority of recognition also allows the leader to block votes on undesirable amendments. The ability to be recognized first before other members enables the majority leader to fill the amendment tree, or offer the maximum allowable number of amendments to legislation before other senators have a chance to debate the measure and offer amendments.

General Parliamentary Law

The amendment process is governed mostly by general principles reflected in Senate precedents, not the institution’s Standing Rules. Those principles are derived from general parliamentary law and were first compiled for the Senate in A Manual of Parliamentary Practice for the use of the Senate, which was written by Thomas Jefferson during his tenure as Vice President and President of the Senate (1797-1801).

Jefferson’s intention was to give members of the Senate additional procedural guidance in situations for which the institution’s first twenty-four Standing Rules did not provide explicit direction. In the absence of such guidance, Jefferson feared that the Senate’s deliberations would fluctuate between chaos and heavy-handed majority rule.

Then, as now, precedents were needed to fill in the gaps created by the ambiguities inherent in the Senate’s Standing Rules. In the absence of additional authorities, senators were left to turn to general parliamentary law as documented in the Manual for procedural guidance when establishing those precedents.

Jefferson discerned “general parliamentary law” by consulting the Constitution, the Senate’s rules, “and where those are silent…the rules of Parliament.” According to the Manual, committee amendments are considered before floor amendments. Legislative text cannot be amended more than once. Consequently, senators should have an opportunity to amend text proposed to be stricken and/or inserted before the actual vote to strike/insert said text. Additionally, motions to commit have precedence over motions to amend. Finally, amendments may be amended in the second degree but third degree amendments are not in order.

These principles were invoked to facilitate the orderly consideration of the Senate’s business without compromising legislative deliberation. Reducing confusion in the amendment process was particularly important in the early Senate because it chose not to adopt the practice followed at the time in the House of Commons, and adhered to in the new House of Representatives, of amending bills by paragraph (not to mention the lack of staff and computers).

The Senate’s Amendment Process Evolved Over Time

The early amendment trees to which the principles of general parliamentary law gave rise could be rather limiting, particularly when measured against the contemporary practice. For example, the requirement that legislators have an opportunity to amend text proposed to be stricken and/or inserted before the actual vote to strike and/or insert said text, coupled with the stipulation that a main question could only be amended in the second degree suggests that no more than two amendments could be pending before the Senate at the same time. And the prohibition on third degree amendments precluded members from perfecting second degree amendments before they received a final vote.

Because of this, the four amendment trees used today (see below) are more complex than those used in the eighteenth-century House of Commons and early Senate. Yet despite their new complexity, each branch of the updated amendment trees remains based, in part, on the general principles of parliamentary law identified above. The modern trees simply reflect the Senate’s conscious resolution of the instances in which these principles conflict in specific situations. That the Senate modified its practice over time to expand the number of amendments that could be pending at the same time is consistent with the nature of precedent and helped senators maintain balance between the twin imperatives of preserving order and facilitating deliberation in the amendment process.

Despite the gradual increase in the number of amendments that can be pending to legislation at the same time, overall amendment activity in the Senate has exhibited a general decline over the past three decades. While the number of amendments that are filed to legislation has remained relatively consistent, the number of amendments that are offered (i.e. made pending) to legislation has declined considerably.

This trend is inconsistent with the evolution of the amendment process in that the latter was characterized by a gradual expansion in the number of amendments that could be pending before the Senate at the same time. The purpose of the expansion of the amendment trees was to provide senators with more opportunities to amend legislation, not less. Significantly, the precedents underpinning this expansion have not changed. Rather, they are now being utilized for a different purpose. That is, they are no longer utilized to facilitate the orderly consideration of amendments on the Senate floor. Instead, they are used to prevent amendments from being made pending, thereby blocking votes on them altogether. Consequently, the continued use of the Senate’s amendment trees in this capacity no longer reflects the principles of general parliamentary law according to which they were originally established.