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. Instead, the process will be managed by McConnell to limit the amendments that are offered and to ensure that any amendments that are allowed to be offered face a higher hurdle to being adopted. The consequence of this is to limit the ability of individual senators in the rank-and-file of both parties to participate in the legislative process on their own terms. Structuring the process in this way also serves to protect the underlying bill from being changed on the Senate floor.

As I've written previously, this reflects a shift in how senators view the amendment process. It is now seen as the last hurdle needed to be surmounted before a preferred bill can be sent to the House or to the president’s desk to be signed into law.

To the extent that controversial amendments are permitted on legislation, their consideration is structured in such a way, like requiring 60 votes for adoption, as to guarantee their defeat.

McConnell's admission regarding 60-vote thresholds tells us that the amendment process will not be open because members will not accept voluntarily a higher hurdle to passing their amendment unless it is the price of offering the amendment in the first place.

Setting 60-vote thresholds on amendments requires channeling all decisions regarding which amendments can be offered to legislation through a single veto point (i.e. the party leaders or bill managers). Once established, such a veto point enables the leadership and/or bill managers to exercise disproportionate control over which amendments will be made pending to legislation on the Senate floor and to set the terms according to which those amendments will be disposed of.

Establishing a veto point is accomplished by putting the Senate in a parliamentary situation in which unanimous consent is needed to get an amendment pending under one of the four amendment trees. The primary tool utilized by the majority leader to accomplish this is the tactic of filling the amendment tree (or offering a blocker amendment in one of the available slots such that further amendments are precluded by the principles of precedence if that blocker amendment is pending). No amendments are in order once all the extant branches on the tree are occupied. At that point, the majority leader and/or bill manager is free to focus on negotiations with interested rank-and-file colleagues to reach a unanimous consent agreement that provides for several amendments and a vote on final passage without having to worry about a senator jeopardizing the legislation’s prospects by offering a controversial or otherwise unwanted amendment without permission.

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The majority leader (or bill manager) may also offer a “blocker” amendment to establish the veto point. For example, an amendment offered to branch C in Chart 4 would serve as a blocker amendment if offered first and in the form of a motion to insert (or strike and insert). Once pending, any other amendment offered directly to the amendment in the nature of a substitute (ANS) would require consent to get pending (which would presumably be denied if the majority leader/bill manager wanted to block the amendment).

This tactic is less aggressive than completely filling the amendment tree in that it typically leaves a few branches open for possible amendment. However, these branches are rarely connected to the ANS directly. For example, in the hypothetical example, the blocker amendment leaves branches E and F (on the left side of the amendment tree) open. Branch D (second degree to C on the right side) is also left open. These branches do not present the same challenges to proponents of the bill because their impact would be minimal if the amendments pending there prevailed. The majority leader could move to table C to prevent a vote on D on the right side of the tree. Additionally, adoption of E and F on the left side of the tree would be negated once the Senate adopts the ANS.

Once the Senate is in a parliamentary situation in which unanimous consent is needed to get an amendment pending to legislation on the floor, the majority leader can use his increased leverage to secure a higher vote threshold for adoption of an amendment. The majority’s desire to limit the minority’s ability to attach what it considers poison pill amendments to legislation it supports is thus reflected in the dramatic increase in the use of unanimous consent agreements to set sixty-vote thresholds for adopting amendments.  The majority leader uses the threat of not allowing amendments to get pending to compel individual senators to agree to the higher vote threshold on their amendment, even though doing so means that the amendment will most likely be rejected.

An open amendment process exists when individual senators get to decide when and how they will participate in the process. By requiring 60-vote thresholds for the adoption of pending amendments, McConnell is signaling that he will not permit an open process.