Legislative Procedure is a Washington-based blog that focuses on legislative strategy and parliamentary procedure.

How the Senate Passed the Minibus

How the Senate Passed the Minibus

After a productive week, the Senate appears to have finally found its lawmaking legs. Yesterday, it passed a minibus appropriations bill (HR 6147) that funded the Department of the Interior and Environmental Protection Agency, as well as the departments and agencies funded by the Financial Services and General Government, Transportation, Housing and Urban Development, and Agriculture appropriations bills. The way in which the Senate passed HR 6147 is a great example of how its members control floor action to facilitate a bill’s passage.

Before proceeding to a final vote, the Senate adopted one last amendment and rejected several others. Specifically, the Senate processed the following amendments:

1.     Collins (for Baldwin) Amendment No. 3524: Adopted by a vote of 83 to 15

2.     Collins (for Leahy) Amendment No. 3464: Rejected by a vote of 50 to 47

3.     Collins (for Lee/Booker) Amendment No. 3522: Rejected by a vote of 14 to 84

4.     Collins (for Cruz) Amendment No. 3402: Tabled (rejected) by a vote of 54 to 44

5.     Murkowski Amendment No. 3400: Withdrawn

This list illustrates two procedures that senators use to control floor action on bills. First, four of the amendments were subject to a 60-vote threshold by unanimous consent. Second, the Murkowski amendment did not receive a vote and was instead withdrawn. That signals that it was likely used to prevent other senators from offering amendments to the underlying legislation without unanimous consent. Senators typically use these two procedures together to control floor action.

 

60-Vote Thresholds & Blocker Amendments

Setting 60-vote thresholds on amendments requires channeling all decisions regarding which amendments can be offered to legislation through a single veto point (i.e. the party leaders or bill managers). Once established, such a veto point enables the leadership and/or bill managers to exercise disproportionate control over which amendments will be made pending to legislation on the Senate floor and to set the terms according to which those amendments will be disposed of.

Establishing a veto point is accomplished by putting the Senate in a parliamentary situation in which unanimous consent is needed to get an amendment pending under one of the four amendment trees (see below for the amendment tree used during the Senate’s consideration of HR 6147). The primary tool utilized by the majority leader to accomplish this is the tactic of filling the amendment tree (or offering a blocker amendment in one of the available slots such that further amendments are precluded by the principles of precedence if that blocker amendment is pending). No amendments are in order once all the extant branches on the tree are occupied. At that point, the majority leader and/or bill manager is free to focus on negotiations with interested rank-and-file colleagues to reach a unanimous consent agreement that provides for several amendments and a vote on final passage without having to worry about a senator jeopardizing the legislation’s prospects by offering a controversial or otherwise unwanted amendment without permission.

The majority leader (or bill manager) may also offer a “blocker” amendment to establish the veto point. For example, an amendment offered to branch C in Chart 4 below would serve as a blocker amendment if offered first and in the form of a motion to insert (or strike and insert). 

 

Once pending, any other amendment offered directly to the amendment in the nature of a substitute (ANS) would require consent to get pending (which would presumably be denied if the majority leader/bill manager wanted to block the amendment).

This tactic is less aggressive than completely filling the amendment tree in that it typically leaves a few branches open for possible amendment. However, these branches are rarely connected to the ANS directly. For example, in the hypothetical example, the blocker amendment leaves branches E and F (on the left side of the amendment tree) open. Branch D (second degree to C on the right side) is also left open. These branches do not present the same challenges to proponents of the bill because their impact would be minimal if the amendments pending there prevailed. The majority leader could move to table C to prevent a vote on D on the right side of the tree. Additionally, adoption of E and F on the left side of the tree would be negated once the Senate adopts the ANS.

Once the Senate is in a parliamentary situation in which unanimous consent is needed to get an amendment pending to legislation on the floor, the majority leader can use his increased leverage to secure a higher vote threshold for adoption of an amendment. The majority’s desire to limit the minority’s ability to attach what it considers poison pill amendments to legislation it supports is thus reflected in the dramatic increase in the use of unanimous consent agreements to set sixty-vote thresholds for adopting amendments.  The majority leader uses the threat of not allowing amendments to get pending to compel individual senators to agree to the higher vote threshold on their amendment, even though doing so means that the amendment will most likely be rejected.

 

Minibus Debate

The way in which the Senate processed the minibus appropriations bill (HR 6147) is a perfect illustration of this strategy. The Senate began debate on HR 6147 by unanimous consent on July 23. Once on the bill, the chairman of the Appropriations Committee, Richard Shelby, R-AL, offered Amendment No. 3399 to HR 6147. The Shelby amendment was comprised of the Senate versions of the appropriations bills mentioned above. Because the Shelby amendment was a full-text substitute amendment for the underlying House bill, it set up Chart 4 (see above).

Immediately afterwards, Lisa Murkowski, R-AK, offered Amendment No. 3400 to the Shelby amendment (C in Chart 4). Murkowski’s amendment was explicitly designed to be the blocker amendment. We know this because it was never destined to receive a vote (hence it being withdrawn at the end of the debate). The amendment’s provisions also suggests that it was not a sincere attempt at legislating. It’s text (p. S5122) read simply, “On Page 95, line 6, strike ‘$5,000,000’ and insert ‘$5,250,000’.” As a member of the Appropriations Committee, Murkowski could have easily secured this change without having to offer a floor amendment.

Once offered, the Senate floor was essentially locked down. Unanimous consent was effectively needed to amend the underlying Shelby amendment. While a senator could technically offer an amendment directly to the House-passed bill (i.e. the left side of the tree – slots E or F), those amendments would be wiped out once the Senate adopted the Shelby amendment. Similarly, a senator could offer a second-degree amendment to the Murkowski blocker amendment (D on the right side of the tree). But the bill managers could easily avoid a vote on it by moving to table the underlying Murkowski amendment to which it was offered.

Once floor action was controlled in this way, senators were effectively forced to negotiate with the leadership and bill managers to get a chance to offer their amendments. The result of those negotiations was codified in a unanimous consent agreement propounded by Jerry Moran, R-KS, last Tuesday. The text is below. It can also be found in the Congressional Record (p. S5503).

“Mr. MORAN. Mr. President, I now ask unanimous consent that notwithstanding rule XXII, the cloture motion on H.R. 6147 be withdrawn. I further ask that the only remaining amendments in order be the following: Leahy No. 3464, Lee No. 3522, Baldwin No. 3524, and Cruz No. 3402; further, that at 11 a.m. on Wednesday, August 1, all post-cloture time be yielded back and the Senate vote in relation to the amendments in the order listed; that the Leahy, Lee, and Baldwin amendments be subject to a 60-affirmative vote threshold; and that following the disposition of the Cruz amendment, the Murkowski amendment No. 3400 be withdrawn, the substitute amendment No. 3399, as amended, be agreed to, and the bill be read a third time and the Senate vote on passage of H.R. 6147, as amended. I also ask unanimous consent that there be 2 minutes of debate prior to each vote in this series.”

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