James Wallner's "Unprecedented: Informal Rules and Leader Power in the United States Senate"

Blog post by Adam Chan, R Street Institute

James Wallner’s white paper, “Unprecedented: Informal Rules and Leader Power in the United States Senate,” analyzes how Senate majority leadership uses amendment proposal precedents to control Senate deliberation. Although these precedential rules arose to maximize deliberation, Senate majority leadership has used them to prevent amendments that they oppose from being brought to the floor. 

It is a dispiriting development, one which is symptomatic of the demise of cooperation within the chamber. This news is not coming from a jaundiced-eye outside critic. Dr. Wallner serves as the executive Director of the Senate Steering Committee and has written a book on “the death of deliberation” in the Senate.

Most Senate procedure is governed by precedent. These precedents have force and fill the gaps in the explicit Senate rules. Precedents have established such features of Senate deliberation as the majority leader’s “right of first recognition,” which allows him to be first to propose new amendments.

The first standing rules of the Senate were rooted in House of Commons procedure and rarely sacrificed the benefits of increased deliberation to those of order, except in their prohibition of third degree amendments (an amendment to an amendment to an amendment). At crucial points, such as the 1874 Standing Rule and a 1914 amendment dispute, the “amendment tree” (a term describing the diagram of the type of permissible amendments) expanded, allowing for an increase in the number of amendments offered. Each new addition and development to the complexity of the amendment tree arose from a desire to give rank-and-file senators a greater opportunity to amend legislation.

However, according to Wallner, far from leading to an expansion in the number of amendments offered, this expansion caused the number of amendments offered as a percentage of amendments filed to dramatically decline over the past few decades. The majority leader now uses these precedents, contrary to their original purpose, to suppress amendments he does not approve of. By employing the tactic of “filling up the amendment tree” (whereby he fills all permitted amendment slots with insubstantial “blocker” amendments, thus preventing further amendments from being offered) with increasing frequency over the past 25 years, the majority leader has gained greater control over Senate deliberation.

When a Senator wants to offer an amendment, the majority leader can threaten to use this tactic, unless the Senator agrees to raise the vote threshold on his amendment to 60 votes, effectively dooming his amendment. Wallner shows that the percentage of total amendments that require a 60-vote threshold have increased by an order of magnitude over the past decade. Senators are willing to doom their amendments in the hopes of gaining a boost with constituents from the mere act of voting.

An increase in third degree amendments, if routinely offered, Wallner argues, could alter the balance of power between majority and minority and between individual senators and leadership. Why, then, have individual Senators not resisted the majority leadership’s perversion of the purpose of the amendment tree by appealing to the Chair to allow third degree amendments? Perhaps, the reason is that senators’ incentives to look good for constituents far outweigh their incentives to actually do good. (On the tendency of senators to offer amendments for re-election purposes, see the R Street Institute’s “Could the Modern Senate Manage and Open-Amendment Process?”)

All need not be lost. Wallner observes:

“the Standing Rules and the institution’s precedents contain several tools that can be used to facilitate the orderly consideration of amendments on the Senate floor. These include (but are not limited to) the requirement that committee amendments to reported legislation be considered prior to the consideration of amendments from the floor, precedents prohibiting language previously amended from being amended again, and the filing deadlines associated with Rule XXII.”

This is heartening, but prompts a meta-question: does the Senate really want to change? One hopes so. Our democratic republican needs two healthy chambers.