July 18, 2019

Restore the Ability to Amend

Marty Paone

As this article from The Hill notes, some Senate Democrats want to lower the threshold for cloture for legislation from 60 to a majority vote to mirror the existing policy for nominations.

I must admit that when I worked in the Senate and such majority cloture reform ideas were floated they were anathema to me, but the evolution of the Senate over the past 20 years has changed my mind.

Gone are the days under Majority Leaders Byrd, Baker, Mitchell and Dole when a Senator could walk onto the floor and offer an amendment of his or her choosing.  In the late 90’s and continuing to this day Leaders of both parties have been faced with repeated requests from their members for protection from difficult votes- guns, abortion, estate tax, etc. These demands, and the mistaken belief that avoiding such votes allowed your party to attain or keep the majority, made it increasingly difficult to get agreements and enact legislation. Leaders delivering such protection ground the Senate’s production almost to a halt. Control of the floor, via filling the amendment tree, became solidly entrenched in the hands of the Majority Leader and individual Senators lost the ability to amend. Many serving today don’t even realize what they’ve lost.

Now, as the Hill article notes, Senate Democrats are discussing lowering cloture to a majority vote if the election goes their way. But this would not open the floor to more amendments if the Majority Leader continues to fill the amendment tree and block out amendments.

If Democrats want to go this route and use the ‘nuclear option’ tool that Senator McConnell has become so fond of, it would only open the floor again if the Majority Leader would commit to no longer filling the amendment tree to protect Senators from difficult votes. If the minority, as well as the majority, were allowed to participate in the legislative process and get votes on their amendments, that would take some of the sting out of this far-reaching reform.

The Majority Leader could still, as has been done in the past, fill the amendment tree to get the first vote on an issue but then he/she would step back and let the proponent of opposite side of the issue offer their amendment for a vote.

Amendments by both the majority and the minority could be dealt with for a few days and then, if no agreement to finish could be reached, cloture could be invoked by majority vote bringing the bill to an eventual conclusion.

In the past, often late on a Thursday night [when was the last time you saw one of those?] the floor staffs would be able to negotiate an agreement on passage of a bill because Senators would decide to hold off on offering their amendments. They did this because they knew they would have the opportunity to offer them to a later bill. If their ability to offer amendments was restored the floor staffs could again negotiate agreements on bills that would allow for several amendments to be considered.

The Senate’s website used to describe the Senate as follows:

“The legislative process on the Senate floor is a balance between the rights guaranteed to Senators under the standing rules and the need for Senators to forgo some of these rights in order to expedite business.”

Such a change would restore the inclination for members to occasionally “forgo” their right to amend in order to permit a bill to be completed. That inclination does not exist in today’s Senate.

It’s a radical change, I admit, but it would permit all Senators to once again participate in the amendment process. Establishing cloture itself in 1917 was a radical change as was the 1975 threshold reduction from two-third majority to 60 votes and the 1986 reduction from 100 hours to 30 hours. Times change– maybe the Senate needs to change again also.

The obvious downside for the Democrats if they do this is the possible use of majority votes by the Republicans to enact their agenda should they retake all three parts of the government. The requirement to comply with the Reconciliation’s Byrd Rule would no longer be necessary. Republicans could pass their tax bills and entitlement cuts with no restraint. But, as seen by the failure to get the 50 votes on their healthcare package, it may not be so easy to enact radical programs that are extremely unpopular with wide swaths of the population.

The other possible downside is a future Majority Leader who once again fills the amendment tree and tries to control the legislative process. The response to that could be a majority of the Senate refusing to vote for cloture on bills until their rights to amend are restored. If a bipartisan group of Senators won’t insist on their rights to amend then they don’t deserve them in the first place. Once Senators have had a chance to offer amendments of their choosing and get votes on them it would be difficult to take that right away.

Senator McConnell’s action denying Merrick Garland a committee hearing (much less a vote), his repeated use of the nuclear option to lower the vote threshold and the debate time on nominations, and his reversal of the blue slip tradition regarding judicial nominees from Senators’ home states indicates to me that if Republicans control all three branches in 2021 — I wouldn’t put too much money on the Senate Democrats ability to block the Republican agenda.

If you think Senator McConnell will not use the nuclear option to roll over Democratic opposition to the Republican agenda, then I have a blue slip to sell you.