The following piece was co-authored by R Street Governance Project Director Kevin Kosar.
Former House Speaker John Boehner, R-Ohio, was often attacked by fellow Republicans for influencing House processes to get policy outcomes that he wanted. We all know what’s happened since. Boehner resigned, and his heir apparent, Majority Leader Kevin McCarthy, R-Calif., withdrew. In the meantime, the House Freedom Caucus outlined a list of policy and process demands for the next speaker, who we now know is Rep. Paul D. Ryan, R-Wis.
One demand was a return to “regular order.” Republican senators were asking for the same while they were in the minority. “Regular order” is a vague concept, but most consistently, those asking for it don’t want party leaders to restrict them from offering floor amendments to bills.
No one knows yet what will come of these demands. But it hasn’t happened yet in the Senate, if that’s any indication of what might happen under Speaker Ryan. True, since taking over as majority leader, Sen. Mitch McConnell, R-Ky., has led the Senate to consider many more amendments than did his predecessor, Sen. Harry Reid, D-Nev. But members of both parties have still criticized McConnell sharply for shutting off amendments on several important bills.
So why not let House members offer amendments at will?
Here’s the problem with calls for making it easier for members to amend bills. As we show in our recent white paper, members behave much differently than they once did when allowed the freedom to act independently on the floor. These changes make party leaders’ jobs much more difficult, at a time when leaders also need to deal with increased time demands stemming from a heavier overall workload and members’ need to spend more time in their districts campaigning and raising reelection funds.
Here’s where we got our data.
To evaluate how members’ behavior has changed over time, we took advantage of a new dataset on congressional amendments and roll calls from the University of Georgia Amending Project. Since 2010, 53 undergraduate students and two high-school students have worked with two faculty members and eight graduate students to collect data on 29,860 amendments to 497 landmark enactments across 40 Congresses, from the 45th (1877-1878) through the 111th (2009-2010). The data include information on, among other things, how an amendment was dispensed with (roll call vote, division, teller, voice, withdrawn, not voted on); whether it was offered by way of a motion to recommit; whether it was dispensed with by some other procedure (a point of order, motion to table, failed cloture vote, etc.); whether it passed or failed; what it sought to amend (i.e., the bill, another amendment); who the sponsor was; and if it was offered on behalf of a committee.
While the data are preliminary, we found substantial shifts in senators’ approach to amending bills. For one thing, the number of amendments filed for each landmark bill passed has generally increased. For another, the amending process has gotten steadily more partisan. The figure below shows the percentage of non-committee amendments sponsored by minority-party senators.
Most of these minority-party amendments fail on the floor — and senators generally know that even before they’re offered.
Filing amendments to send a message slows Congress down. A lot.
So why bother? Because their real purpose is electoral messaging. Perhaps the most famous recent electoral-messaging amendment was from Sen. Tom Coburn, R-Okla., to bar Affordable Care Act premium subsidies to plans that covered Viagra for child molesters and rapists. Democrats dubbed it a “crass political stunt.” Republicans featured the vote in electoral ads.
But in addition to forcing members to take difficult votes, such amendments also burden party leaders with far more demands on their time. That’s made still worse by the rapid increase in how many amendments are now subjected to roll calls. The default voting mechanism in Congress is the unrecorded voice vote. Those votes usually go quickly, and no records are kept of who voted how.
But there’s a catch. The Constitution’s Article I, Section 5 specifically states:
the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.
In other words, any member can request a roll call vote, if supported by a sufficient second.
The figure below plots the percentage of Senate amendments granted floor consideration that receive roll-call votes.
Of the 17,838 Senate amendments in our dataset, 2,467 (or 13.83 percent), went to roll call votes. But during the four most recent Congresses for which we have data (the 104th, 106th, 109th and 111th), that jumps to 34.8 percent. This surge in “messaging” amendments comes alongside a spike in competitive (as opposed to uncontested) elections and a dip in Congress’s ability to work on policy, both because it has cut its own legislative staffing and because of increased deference to the executive and judicial branches.
As goes the Senate, so goes the House?
Back in May, Sarah Binder warned here that McConnell would have a hard time keeping his promise to operate the Senate according to “regular order.” Her Monkey Cage post pointed out that polarization between the Democrats and Republicans on the one hand, and deep divisions within the GOP on the other, would force McConnell to curb floor amendments in order to bypass filibusters and enact legislation.
Binder was right. Individual senators have strong electoral incentives to introduce floor amendments when they can. McConnell was forced to use his position as Senate majority leader to block amendments on several key bills.
Here’s an educated guess about how many amendments House members would try to introduce. (It’s a lot.)
It’s hard to know how much “demand” there might be waiting in the House for the ability to offer amendments freely. For most of the 20th century, the House Rules Committee has restricted amendments on controversial bills.
But there’s evidence to suggest that the pent-up demand is quite strong. A forthcoming paper from Michael S. Lynch, Anthony Madonna and Jason Roberts analyzes the demand for amendments under structured rules. Structured rules are rules issued by the Rules Committee that allow a limited set of amendments to be considered on the floor. Members must submit their amendments to the Rules Committee for review.
The authors show that, from the 109th to 111th Congress, or between 2005 and 2010, House members proposed 7,250 amendments for consideration under structured rules. Of these, only one-third (or 2,440 amendments) actually reached the floor.
That’s a lot of demand. Allowing House members to introduce amendments freely — and to have lengthy debates and votes, as the Senate does — would likely bring the House to a halt.