By James Wallner
The demise of regular order in the Senate makes it harder for its members to participate in the legislative process. And the result of their efforts to do so gives rise to a destructive cycle that perpetuates dysfunction and gridlock.
While regular order is not easily defined, it is generally associated with an orderly process in which senators are able to participate at predictable points. Conversely, its absence is typically associated with a secretive process in which members are barred from offering amendments to legislation pending on the Senate floor. When confronted with legislation in such a process, senators are left with no choice but to “blow up” the bill to force the majority to allow them to offer amendments. This all-or-nothing approach breeds frustration among members and their constituents, thereby making it even harder to negotiate after the majority’s original plan has been thwarted.
Given this dynamic, irregular order is hardly the most productive way to make decisions. Instead of helping senators communicate across their differences, it encourages the kind of extreme position-taking and inflexibility that complicates a more deliberative process.
It should thus be no surprise that the Senate at present has difficulty passing legislation of any consequence and that its amendment process is in shambles. This is because the majority leader routinely blocks amendments and files cloture on important bills as soon as they are placed on the Senate floor. The only leverage senators have in such a scenario is their ability to block cloture on the underlying legislation.
Fortunately, there is another way for senators to amend bills on the floor without the majority leader’s permission to offer amendments. They can offer third degree amendments even when the tree has been filled and then appeal the subsequent ruling of the Senate’s Presiding Officer (i.e. chair) that the amendment is not in order. Doing so can force a recorded vote in relation to the amendment. The majority can prevent a vote on the appeal by filibustering it. Yet the majority’s filibuster would also prevent its bill from passing.
Offering a third-degree amendment in this scenario is consistent with the Senate’s rules and precedents as reflected in the historical development of its amendment process. It also reinforces a common minority critique of how the majority party runs the Senate. Most importantly, the tactic makes it easier for senators to participate in the legislative process, thereby avoiding the destructive cycle created by forcing them to block cloture on a bill just to get the opportunity to offer an amendment to it.
The Senate’s Standing Rules do not regulate the number of amendments that members are currently allowed to offer to legislation at the same time. Instead, that is governed by the four amendment trees followed in the Senate today. Those trees were created by precedent and evolved over time, only recently reaching their current shape.
Yet their evolution was not haphazard. The precedents that created the modern trees are based on general parliamentary law and serve to facilitate the orderly consideration of amendments on the Senate floor. For example, one precedent precludes so-called third-degree amendments. Specifically, the early Senate prohibited vertical third degree amendments (i.e. an amendment to an amendment to an amendment to the underlying legislation) and horizontal third degree amendments (i.e. a competing first- or second-degree amendment to the underlying legislation) because their use would make the floor debate on a bill too confusing.
In other words, the original prohibition on third degree amendments was not intended to block senators from offering amendments altogether. Rather, the expectation was that while a third-degree amendment would be out of order, an identical first- or second-degree amendment would be allowed once that branch on the tree opened.
Even so, senators soon realized that the amendment process was too cumbersome when the prohibition was applied strictly. As a result, the Senate facilitated more member participation and deliberation by expanding the amendment trees over time to permit vertical and horizontal third degree amendments where they had been previously prohibited. The primary motivation behind each expansion was the desire to make the amendment process more responsive to the needs of individual senators.
While the majority leader uses the same amendment trees today to block all amendments, senators retain the option to expand them again to make it easier to participate in the process and to increase deliberation. That is, they can offer their amendments even though the amendment tree has been filled.
The Senate’s precedents stipulate that “Any senator recognized is entitled to offer an amendment when such amendment is otherwise in order, but he cannot offer an amendment unless he has been recognized or has the floor.” The process of filling the tree follows precedent to block members from offering their own amendments. However, a senator may attempt to offer an amendment even though the tree has been filled. In such a situation, the chair would rule that the amendment is not in order pursuant to the Senate’s precedents. At that point, the member could appeal the ruling of the chair and request a recorded vote. The appeal represents an adjudication of the italicized portion of the precedent quoted above; namely, that an amendment is in order even though the amendment tree has been filled.
Offering amendments despite the filled tree and appealing the ruling of the chair that they are not in order forces the majority to cast votes on procedural questions directly related to the amendment being offered. Procedural votes have been viewed as substantive votes when the question is directly related to the underlying policy and the tactic is utilized on a regular basis. For example, the perception of cloture has evolved from being simply a procedural vote to the point that it is viewed by many as a substantive vote today. Votes on third degree amendments could thus be characterized as substantive votes.
As such, the threat to offer a third-degree amendment may encourage the majority to return to regular order. This is because the tactic gives the minority more leverage with which to gain the right to offer amendments without having to block cloture.