By James Wallner
The floor leaders of the Democratic and Republican parties dominate today’s Senate. They play a central role both in crafting major bills and in shepherding them through the legislative process from beginning to end. And they cultivate carefully the expectation that they are responsible for setting the Senate’s agenda and for regulating the ability of their colleagues to participate in the decision-making process by offering amendments.
For example, consider recent claims by Majority Leader Mitch McConnell, R-Ky., that he alone decides what bills get considered on the Senate floor. When asked if the Senate would consider legislation to protect special counsel Robert Mueller, McConnell responded, "I'm the one who decides what we take to the floor, that's my responsibility as the majority leader, and we will not be having this on the floor of the Senate." Or take Harry Reid’s, D-NV., regular habit of deciding what, if any, amendments were permitted to be offered to bills when he was majority leader.
Yet notwithstanding the mounting frustration among rank-and-file members during the tenures of both leaders, neither Reid nor McConnell saw a significant challenge to their leadership. The takeaway from this is that party leaders wield more power today than at any other point in the Senate’s history. And it suggests that rank-and-file members, despite their clear frustration with the status quo, cannot imagine the Senate working without the active involvement of their leaders.
That members have been conditioned to think in this way sheds light on the paradoxical source of leader power in today’s Senate. Put simply, party leaders are powerful because rank-and-file senators defer to them to manage the institution how they see fit. This deference is not mandated by the Senate’s official rules. Rather, it is simply grounded in its past practice. The implication is that frustrated members can easily change how the Senate operates at any point. All that’s needed is a willingness on their part to recast their relationship with the Senate’s leaders.
STANDING RULES VS. PRECEDENTS
Unlike their colleagues in the House, the power of the Senate’s leaders is not derived from the institution’s formal, or written, rules. There are currently forty-four Standing Rules of the Senate that govern everything from non-controversial issues like the oath of office (Rule III) and the committee referral process (Rule XXVII) to controversial issues such as the process to end debate (Rule XXII). For the most part, the Standing Rules are very general and do not address circumstances that may arise in specific parliamentary situations.
The Senate operates daily largely according to informal, or unwritten, rules established pursuant to a collection of precedents. According to the late Senator Robert C. Byrd, D-WV., “Precedents reflect the application of the Constitution, statutes, the Senate rules, and commonsense reasoning to specific past parliamentary situations.” Former Senate Parliamentarian Floyd M. Riddick argued that precedents embody the practices of the Senate pursuant to the Constitution, its Standing Rules, and any relevant rule-making statutes. These practices serve to “fill in the gaps” contained in these procedural authorities when they fail to address specific parliamentary situations. In this sense, the impact of precedents on Senate procedures is like that of judicial decisions in case law. Both have the force of formal rules/laws and are thus binding in the same way on future action.
PRECEDENTS AND LEADER POWER
Party leaders derive their power from the Senate’s precedents, not its Standing Rules. Of the forty-four rules, only ten mention the majority and minority leaders. And those ten rules do not grant the leaders any real power vis-à-vis the rank-and-file.
[A list of the Senate rules that mention specifically the majority and/or minority leader is included at the end of this post, along with a short description of the relevant provisions in each. A full list of the Senate’s Standing Rules can be found here.]
Under the rules, all senators are essentially equal. That is, no senator is more powerful than another. However, the majority leader is clearly considered to be the most powerful senator today. This perception is based on his ability to make motions to proceed to legislation and nominations and to fill the so-called amendment tree (i.e. offer the maximum allowable number of amendments to legislation to block senators from offering their own amendments). Both are based on his ability to be recognized first by the Senate's Presiding Officer. But the leader's preferential recognition and, by extension, his ability to make motions to proceed to bills and nominees and his ability to fill the amendment tree, are grounded only in precedent. And the leader's power in these areas is perpetuated simply by senators’ continued deference to the majority leader to wield them however he chooses.
The majority leader has the right of first recognition pursuant to precedent. The leader was first granted priority of recognition in 1937 because of a ruling made by Vice President John (“Cactus Jack”) Nance Garner while presiding over the Senate. On his own initiative, the Vice President decided that “in the event that several senators seek recognition simultaneously, priority of recognition shall be accorded to the majority leader and minority leader, the majority [bill] manager and the minority [bill] manager, in that order.”
By creating the right of preferential recognition, the Garner precedent serves as the foundation on which leader power is based in the Senate today. Since any member can technically make a motion to proceed to legislation or a nomination under the Senate’s rules, being the first to do so enables the majority leader to set the schedule and control the agenda to a limited degree. Note that the minority leader is the next most powerful senator under this formulation. This is because he has preferential recognition after the majority leader. That technically makes him more powerful than the other 98 members of the Senate, including those in the majority party.
It is the prerogative of the majority leader by long-standing practice to move to proceed to the Senate’s floor business. According to Senate precedent, “motions to proceed to the consideration of bills and resolutions on the calendar are usually made by the majority leader or his designee, who, as spokesman of his party and in consultation with his policy committee, implements and directs the legislative schedule and program.” But there is no explicit provision in the Senate’s rules or precedents stipulating that motions to be proceed can only be made by the leader. In reality, any rank-and-file member, or the minority leader, can make a motion to proceed to a bill or nominee on the Senate floor. They simply choose not to and instead defer to the majority leader to do so.
Priority of recognition also allows the leader to block votes on undesirable amendments. The ability to be recognized first before other members enables the majority leader to fill the amendment tree. Like the leaders’ preferential recognition on the Senate floor, today's amendment process was largely established by precedent and not by the institution’s Standing Rules. That is, the amendment process evolved over the years and is based on a continued interpretation of past parliamentary practice. Those precedents stipulate the nature of amendment that may be offered at a particular point in time (i.e. first or second degree; perfecting or substitute). According to precedent, “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 amendment tree thus follows precedent to block members from offering their own amendments.
LEADER POWER DEPENDS ON MEMBER DEFERENCE
Senate leaders have no formal power under the institution's rules to compel their colleagues to comply with their dictates. Rather, their continued ability to control the Senate rests on nothing more than the continued deference of rank-and-file members. And given the precedential nature of leader power in the Senate at present, the rank-and-file can change overnight how the institution works should they choose to do so.
PARTY LEADERS AND THE STANDING RULES
1. Rule XV: Amendments and Motions
Requires a senator offering an amendment (or making a motion to recommit a measure with instructions) to provide copies “to the desks of the majority leader and the minority leader before being debated.”
Note that it is the desk, and not the leader who sits at the desk, that is empowered here.
2. Rule XXII: Precedence of Motions (i.e. the cloture rule)
Stipulates that post-cloture debate time may be extended beyond the 30-hour limit set by the rule if approved by three-fifths of senators duly chosen and sworn (typically 60). When that happens, the rule specifies that “any such time thus agreed upon shall be equally divided between and controlled by the majority and minority leaders or their designees.”
Stipulates that during post-cloture debate, “a senator may yield all or part of his one hour to the majority or minority floor managers of the measure…or to the majority or minority leader.” Yet the rule goes on to place limits on the total amount of time leaders can have yielded to them, stating, “…but each senator specified shall not have more than two hours so yielded to him.”
Shortens the time required to invoke cloture on a motion to proceed to a measure if it “is signed by 16 senators, including the majority leader, the minority leader, 7 additional senators not affiliated with the majority, and 7 additional senators not affiliated with the minority.” Under normal circumstances, the rule requires only 16 senators to sign a cloture petition for it to be operative.
3. Rule XXIII: Privilege of the Floor
Allows the Committee on Rules and Administration to promulgate regulates permitting currently-banned individuals (i.e. registered lobbyists, etc.) from the Senate floor for ceremonial events and “events designated by the majority leader and the minority leader.”
4. Rule XXV: Standing Committees
Authorizes the majority and minority leaders to jointly increase, albeit only temporarily, committee memberships “by such number or numbers as may be required to accord to the majority party a majority of the memberships of all standing committees.”
5. Rule XXVI: Committee Procedure
Prohibits committees from meeting two hours after the Senate first convenes “and in no case after two o’clock postmeridian unless consent therefore has been obtained from the majority leader and the minority leader (or in the event of the absence of either of such leaders, from his designee).”
Requires the majority leader or his designee to announce to the Senate whenever consent has been granted under the rule and to specify the time and place of such meetings.
6. Rule XXVIII: Conference Committees; Reports; Open Meetings
Stipulates in several places that total debate on motions to waive points of order authorized by the rule is limited to not more than one hour “equally divided between the majority leader and the minority leader or their designees.”
Stipulates in several places that total debate on appeals from the ruling of the Presiding Officer/Chair is limited to one hour “equally divided between the majority leader and the minority leader or their designees.”
Requires conference reports (i.e. bills agreed to by the House and Senate in a conference committee) to be publicly available for at least 48 hours before a vote. But this provision “may be waived by joint agreement of the majority leader and the minority leader of the Senate, upon their certification that such waiver is necessary as a result of a significant disruption to Senate facilities or to the availability of the Internet.”
7. Rule XXXIV: Public Financial Disclosure
Clarifies the relationship between leadership staff and the member of leadership (including the majority and minority leaders) that employs them for purposes of the financial disclosure reporting process.
8. Rule XXXVII: Conflict of Interest
Clarifies the relationship between leadership staff and the member of leadership (including the majority and minority leaders) that employs them for purposes of the rule.
9. Rule XLI: Political Fund Activity; Definitions
Authorizes the majority and minority leaders to designate an employee(s) in their respective leadership offices to perform political functions in accordance with the rule.
10. Rule XLIV: Congressionally Directed Spending and Related Items
Requires in certain circumstances that the majority leader, or his designee, certify that any congressionally directed spending items (i.e. earmarks) included in a bill are done so in accordance with the rule.
Stipulates that total debate on motions to waive points of order authorized by the rule is limited to not more than one hour “equally divided between the majority leader and the minority leader or their designees.”
Stipulates that total debate on appeals from the ruling of the Presiding Officer/Chair is limited to one hour “equally divided between the majority leader and the minority leader or their designees.”
This article originally appeared in the Legislative Procedure blog on July 31, 2018.
James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.