Do 60-Vote Thresholds Signal Fair and Open Process?

Yesterday, Majority Leader Mitch McConnell (R-Kentucky) opened the long-anticipated immigration debate by underscoring his commitment to “ensure that a fair amendment process gives senators the opportunity to submit proposals for consideration and votes.”

Shortly afterwards, Majority Whip John Cornyn (R-Texas) came to the Senate floor to provide more insight into how the process will work. “Amendments, as usual, will have a 60-vote threshold be-fore they can be adopted. Sixty votes is what we need.”

These comments offer insight into how the immigration debate will unfold in practice. They suggest that it will be far from the fair and open process initially promised by McConnell.

A brief review of how the Senate has used 60-vote thresholds to process amendments in the past illustrates why this is the case.

 

60-Vote Thresholds: The History

The majority’s desire to limit the ability of rank-and-file senators in both parties to participate in the legislative process on the Senate floor is reflected in the dramatic increase in the use of unanimous consent agreements to set 60-vote thresholds for passing amendments since the 109th Congress.

Source: James Wallner, On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate (Ann Arbor: University of Michigan Press, 2017).

The majority leader uses the threat of filling the amendment tree to block amendments altogether in order to compel the minority to agree to higher vote thresholds.

The earliest documented use of such agreements is in the 102nd Congress. However, in that instance, unanimous consent was used to immediately set a cloture vote on the amendment in question. It was not used to set a higher threshold for the amendment’s adoption.

Using unanimous consent agreements to lock in higher vote thresholds for an amendment’s adoption did not become part of the majority leader’s toolkit until the 109th and 110th Congresses, when leaders’ Bill Frist (R-Tennessee) and Harry Reid (D-Nevada) began utilizing them on an increasing scale.

In the 109th Congress, consent agreements were used in this manner in six instances. Their use increased significantly in the 110th Congress, totaling thirty-seven instances. The use of this tactic remained relatively level in the 111th Congress at thirty-eight. In the 112th Congress, 60-vote thresholds were set for amendments on a staggering 111 occasions. The tactic was utilized thirty-five times in the 113th Congress.

The trend in the tactic’s use is more easily discerned when depicted as the percentage of the total number of amendments offered in a particular Congress.

Source: James Wallner, On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate (Ann Arbor: University of Michigan Press, 2017).

The decline in amendments subject to a 60-vote threshold from the 112th to the 113th Congress is not as abrupt when viewed as a percentage of all amendments offered. This is because only 542 amendments were offered to legislation on the Senate floor during the 113th Congress (compared to 974 in the 112th Congress).

 

60-Vote Thresholds: How They Work

Pursuant to such agreements, the amendment is withdrawn if it does not get the requisite number of votes. The logic is that an amendment’s supporters get the opportunity to demonstrate support for cloture without going through the time-consuming process of invoking it. In other words, they avoid having to expend effort in the act of legislating.

As you can imagine, amendments considered in this way are seldom successful.

In the 109th and 110th Congresses, amendments considered pursuant to such an approach failed 100 percent and 78 percent of the time, respectively. In the 111th and 112th Congresses, the percentage of amendments considered in this manner that failed was 61 percent and 87 percent, respectively. Most recently, 77 percent of the amendments considered with this tactic failed in the 113th Congress.

 

60-Vote Thresholds: Not a Fair and Open Process

The use of 60-vote thresholds to process amendments allows the majority leader to create the impression that he is allowing an open amendment process to transpire on the Senate floor without actually doing so. He is betting that such a process will not present a problem for majority party members because they oppose the amendment in question, and a 60-vote threshold means that it is unlikely to pass. The majority leader also expects members opposed to the underlying bill, or those who merely want to change its provisions, will support this process despite the fact that it disadvantages them relative to the bill’s supporters because it provides an opportunity to offer the amendment in question and get a vote on it, all without having to expend the necessary resources to actually filibuster the underlying legislation.