Wallner on the Senate: In defense of third degree amendments

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By James Wallner

Senate majorities routinely restrict the ability of senators to participate in the legislative process.

The most common way they do so is when the majority leader fills the amendment tree to block senators from offering amendments. The maneuver prevents the underlying legislation from being changed and protects rank-and-file senators in the majority from having to cast votes that could be used against them in their future efforts to win re-election.

Yet senators do not need the majority leader’s permission to offer amendments to legislation pending on the Senate floor. Indeed, they can offer so-called third degree amendments even though the amendment tree has been filled.

This confronts the majority leader with a unique challenge. If utilized on a regular basis, third degree amendments could eventually undermine his ability to control what measures receive votes on the Senate floor. This would, by extension, weaken significantly his ability to prevent the underlying legislation from being changed and to protect rank-and-file members in the majority from voting on amendments.

Given this, some senators have opposed efforts by their colleagues to offer third degree amendments. Their concerns are illustrated in the debate surrounding Senator Ted Cruz’s (R, TX) effort to offer a third-degree amendment in July 2015. In opposing the maneuver, Lamar Alexander (R, TN) warned his colleagues of the consequences that would result if they joined Cruz in voting to overturn the decision of the chair. Specifically, he made two claims regarding Cruz’s effort, and the tactic of offering third degree amendments more broadly.

First, Alexander equated Cruz’s appeal with the nuclear option employed by Senate Democrats in November 2013. He suggested, “If…a majority of Senators agree with the Senator from Texas, the Senate will be saying that a majority can routinely change Senate rules and procedures anytime it wants on any subject it wants in order to get the result it wants.” Alexander’s goal was to link Cruz’s appeal with the effort of Senate Democrats to circumvent the filibuster for judicial and executive nominations on a simple-majority vote in the previous Congress; a move that had been widely criticized by Senate Republicans ever since. Doing so would make it less likely that Republican senators would vote to overturn the chair, regardless of how they felt about the substance of the underlying amendments.

Second, Alexander asserted that Cruz’s appeal would, if successful, “destroy a crucial part of what we call the rule of regular order in the U.S. Senate.” The consequence would be the creation of “a precedent that destroys the orderly consideration of amendments.” As such, he confidently predicted, “There will be unlimited amendments. There will be chaos.”

Notwithstanding Alexander’s reputation as an expert on the Senate’s rules, a closer examination of his two claims demonstrates that neither has much merit.

First, there are important distinctions between third degree amendments and the nuclear option, even though both utilize the same mechanism (i.e. an appeal). Appealing the ruling of the chair that an amendment is not in order when the amendment tree has been filled is not synonymous with the nuclear option because it does not violate the Standing Rules of the Senate. If successful, it would simply create a new precedent governing the amendment process. It would not violate any specific rule. The appeal would only be functionally equivalent with the nuclear option if the new precedent explicitly violated an existing provision of the Standing Rules. Otherwise, the creation of a new precedent on appeal is entirely consistent with Senate rules and past practices.

Second, a closer consideration of regular order in the context of the amendment process suggests that it would remain relatively unaffected by a successful appeal in this scenario. Alexander contends that the amendment trees make it possible for the Senate to function today. He predicts that floor debate on bills would be chaotic if the current amendment trees were altered by a successful appeal. The implication is that effectively removing the limits on the number of amendments that can be pending to legislation on the Senate floor would make it impossible to consider legislation in an orderly manner.

Yet the historical development of the Senate’s amendment process demonstrates that there is nothing inherently chaotic about expanding the number of amendments that can be pending simultaneously. The principles of precedence would still apply to any new branches created on the trees. As such, the framework for the orderly consideration of the pending amendments would be preserved.

Moreover, the only time the amendment trees are adhered to literally in the contemporary Senate is almost always when the majority leader would like to block other senators from offering amendments. Instead of processing amendments by following the amendment trees the practice most often followed is to process amendments by unanimous consent (e.g. “I ask unanimous consent to set aside the pending amendment and call up amendment #1234). Thus, limiting the majority leader’s ability to fill the amendment tree would simply force the Senate to return to the way in which it routinely processed amendments prior to the dramatic abuse of the amendment tree.

Indeed, the Senate has considered legislation for most of its history without utilizing the contemporary practice of routinely filling the amendment tree for the explicit purpose of blocking individual senators from offering their own amendments. While preventing the majority leader from being able to routinely fill the tree may make it more difficult for the Senate to block votes on amendments altogether, 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.

The arguments advanced by proponents and opponents of using third degree amendments to circumvent the majority leader’s ability to fill the amendment tree suggest two very different directions for the future course of the Senate’s development.

On one hand, equating precedents that fill in the gaps where the rules are silent with the Standing Rules would effectively bind the Senate to how it operated in the past regardless of the development of new circumstances, the way the original precedent was established, or the merits of the original precedent and whether it violated the Standing Rules in the first place. This would further increase the majority leader’s control over Senate decision-making by delegitimizing the efforts of individual members to adjudicate precedent or to protest what they perceived to be unfair or inaccurate rulings of the chair.

On the other hand, third degree amendments could eventually undermine the majority leader’s ability to control the amendment process. Challenging the ability to fill the amendment tree with a third-degree amendment thus has the potential to impose significant costs on the majority leader directly. If used on a routine basis, this tactic could weaken, or even end, the majority’s ability to control outcomes in the Senate. As such, third degree amendments could substantially alter the balance-of-power between the majority and minority parties in the institution, as well as between individual senators and the party leadership.

James Wallner (@jiwallner) is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.