New report on Senate procedures show increased use, need for strategy
In a new paper, “Could the Modern Senate Manage an Open-Amendment Process?,” Kevin Kosar and Tony Madonna address this debate. Using an extensive new dataset from amendments offered to roughly 500 landmark bills sampled from the 45th to 111th Congresses (1877-2011), they document four empirical patterns in amendment behavior in the Senate. First, in recent years, more amendments have been offered, on average, to these landmark bills. Second, amendments that actually make it to the Senate floor are the subject of more roll call votes now than in the past. Third, more amendments are being offered by minority party senators. And fourth, of the amendments senators file, a smaller percentage is considered on the floor of the Senate. From these trends, they conclude that contemporary amending behavior is driven more by electoral concerns on the part of senators than on a desire “by individuals to improve legislation.”
Kosar and Madonna deserve credit for marshalling impressive new data to bear on an important feature of contemporary life in the Senate, and certainly, the trends they document are consistent with a politicization of the amending process. In answering their titular question, it is also worth thinking about amendments in a broader context. Amendments, after all, are but one of a range of tools available to senators with both political AND policy goals. Evidence suggests that access to other instruments has also become more limited over time; Barbara Sinclair, for example, has documented the increasing frequency with which Senate committees are bypassed in the development of major legislation, which gives senators fewer opportunities to provide input before a measure reaches the floor. As senators lose access to other tools, amendments become more attractive as outlets for both scoring political points and making substantive policy changes. In addition, as my colleague Sarah Binder has documented, there has been a secular increase since the mid-20th century in the share of issues on Congress’s agenda on which gridlock occurs. If fewer topics are being addressed on the Senate floor, senators may seize on those bills that are considered and offer more amendments that address both their policy and electoral goals. Examining not just the number of amendments, then, but also their content, would do much to help us understand whether the amending process has become more politicized. Given the size and scope of Kosar and Madonna’s data, the decision to focus initially on aggregate trends is understandable, but analyzing the substance of even a subset of their amendments would be illustrative on this point.
A focus on the substance of amendments would also allow the authors to answer a question left open by the paper: have there been changes in the amending behavior of majority party members? The 114th Congress has seen a number of high-profile instances of Senate Republicans offering amendments we might characterize as “electorally motivated,” including Senators Tom Cotton (R-AR) and Marco Rubio (R-FL) on Iran, Senator Ted Cruz (R-TX) on immigration, and Senator Mike Lee (R-UT) on Planned Parenthood. If these examples are consistent with a broader trend, that would certainly strengthen Kosar and Madonna’s case.
In proposing reforms that would facilitate a more open amending process in the Senate, Kosar and Madonna are right to emphasize solutions from within the chamber. What will unite any successful reform strategy is its ability to address the Majority Leader’s underlying credibility problem. If members do not believe that the Majority Leader will keep his promise to create amending opportunities consistently, they will jump on early opportunities to offer all the amendments they can. Indeed, one practice in place during the 113th Congress—a standing order limiting debate on the motion to proceed to four hours in exchange for guaranteed consideration of at least four amendments—took this approach, formalizing the commitment to amendment opportunities. That provision was not renewed for the current Congress, and, indeed, Kosar and Madonna are correctly skeptical of the likelihood for broader change. Even if the Senate chooses not to change its practices, however, we now have a much richer descriptive picture of the chamber’s uneasy balance between individual rights and efficient floor management.