New report on Senate procedures show increased use, need for strategy

Between the Iran Deal, legislation eliminating Planned Parenthood’s federal funding, and a short-term spending bill to avoid a government shutdown, the Senate floor has seen its fair share of excitement in recent weeks. During debate over each of these measures, careful C-SPAN watchers might have noticed seemingly peculiar behavior by Majority Leader Mitch McConnell (R-KY). In each case, McConnell came to the floor and offered a series of amendments to the underlying bill—amendments that didn’t make substantive changes, but rather small alterations, like changing the effective date of the legislation by a single day.

What was McConnell up to? By offering these seemingly small amendments, McConnell was “filling the amendment tree”—a power afforded to the Senate Majority Leader that allows him to limit the amending opportunities available to other senators. The Senate has rules about how many, and what kind, of amendments can be pending to a bill at any given time. Depending on the form of the first amendment offered, as few as two or as many as ten additional changes can also be proposed before any of them are addressed. Because the Majority Leader will always be recognized to speak before other senators, he can prevent his colleagues from offering amendments by proposing all of these allowable changes, one after another.

Unsurprisingly, rank-and file members of both the minority party and, occasionally, the majority party speak out against this process as limiting their efforts to influence the legislative process. Majority leaders of both parties, on the other hand, have argued that filling the tree is necessary to keep the process moving. Former Majority Leader Harry Reid’s (D-NV) spokesperson described the process as “a procedural necessity when the majority is faced with a minority dead set on blind obstruction.” McConnell’s spokesman, for his part, defended his boss’s use of the tactic on a Department of Homeland Security funding bill in March 2015 as “the only option.”

In a new paper, “Could the Modern Senate Manage an Open-Amendment Process?,” Kevin Kosar and Tony Madonna address this debate. Using an extensive new dataset from amendments offered to roughly 500 landmark bills sampled from the 45^th to 111^th Congresses (1877-2011), they document four empirical patterns in amendment behavior in the Senate. First, in recent years, more amendments have been offered, on average, to these landmark bills. Second, amendments that actually make it to the Senate floor are the subject of more roll call votes now than in the past. Third, more amendments are being offered by minority party senators. And fourth, of the amendments senators file, a smaller percentage is considered on the floor of the Senate. From these trends, they conclude that contemporary amending behavior is driven more by electoral concerns on the part of senators than on a desire “by individuals to improve legislation.”

Kosar and Madonna deserve credit for marshalling impressive new data to bear on an important feature of contemporary life in the Senate, and certainly, the trends they document are consistent with a politicization of the amending process. In answering their titular question, it is also worth thinking about amendments in a broader context. Amendments, after all, are but one of a range of tools available to senators with both political AND policy goals. Evidence suggests that access to other instruments has also become more limited over time; Barbara Sinclair, for example, has documented the increasing frequency with which Senate committees are bypassed in the development of major legislation, which gives senators fewer opportunities to provide input before a measure reaches the floor. As senators lose access to other tools, amendments become more attractive as outlets for both scoring political points and making substantive policy changes. In addition, as my colleague Sarah Binder has documented, there has been a secular increase since the mid-20^th century in the share of issues on Congress’s agenda on which gridlock occurs. If fewer topics are being addressed on the Senate floor, senators may seize on those bills that are considered and offer more amendments that address both their policy and electoral goals. Examining not just the number of amendments, then, but also their content, would do much to help us understand whether the amending process has become more politicized. Given the size and scope of Kosar and Madonna’s data, the decision to focus initially on aggregate trends is understandable, but analyzing the substance of even a subset of their amendments would be illustrative on this point.

A focus on the substance of amendments would also allow the authors to answer a question left open by the paper: have there been changes in the amending behavior of majority party members? The 114^th Congress has seen a number of high-profile instances of Senate Republicans offering amendments we might characterize as “electorally motivated,” including Senators Tom Cotton (R-AR) and Marco Rubio (R-FL) on Iran, Senator Ted Cruz (R-TX) on immigration, and Senator Mike Lee (R-UT) on Planned Parenthood. If these examples are consistent with a broader trend, that would certainly strengthen Kosar and Madonna’s case.

In proposing reforms that would facilitate a more open amending process in the Senate, Kosar and Madonna are right to emphasize solutions from within the chamber. What will unite any successful reform strategy is its ability to address the Majority Leader’s underlying credibility problem. If members do not believe that the Majority Leader will keep his promise to create amending opportunities consistently, they will jump on early opportunities to offer all the amendments they can. Indeed, one practice in place during the 113^th Congress—a standing order limiting debate on the motion to proceed to four hours in exchange for guaranteed consideration of at least four amendments—took this approach, formalizing the commitment to amendment opportunities. That provision was not renewed for the current Congress, and, indeed, Kosar and Madonna are correctly skeptical of the likelihood for broader change. Even if the Senate chooses not to change its practices, however, we now have a much richer descriptive picture of the chamber’s uneasy balance between individual rights and efficient floor management.