Filling the Amendment Tree

James Wallner at The R Street Institute:

The majority leader blocks senators from offering alternative proposals by filling the amendment tree, i.e., offering the maximum allowable number of amendments to legislation before other senators have had a chance to debate the measure and offer their own amendments.

Once used sparingly in extraordinary circumstances, the tactic is now routine and well-documented. But less appreciated is the extent to which its normalization in recent years represents a radical break from the Senate’s past practice. Also, less understood is how precisely the tactic empowers the majority to pass its agenda, given that the minority can still filibuster the underlying legislation.

Recent research suggests that the amendment process gradually evolved to facilitate the orderly consideration of the Senate’s business. The direction in which it evolved was informed by the Senate’s effort to balance the need for order in its work with the imperative of legislative deliberation.

While the Senate’s first amendment trees only permitted two amendments to be pending at the same time, they were expanded in response to member demands by adding new branches. The result was to increase the number of amendments that could be pending before the Senate simultaneously.

Notwithstanding this increase, members maintained order by adhering to the principles of precedence first compiled for the Senate in Thomas Jefferson’s A Manual of Parliamentary Practice for the Use of the Senate and still followed today. In general, those principles held that senators should have an opportunity to amend legislative text proposed to be stricken and/or inserted before the actual vote to strike and/or insert said text.

Analyzing how the Senate’s current amendment trees came to be underscores the extent to which using them to block amendments is a perversion of the Senate’s rules and practices. That is, the precedents underpinning the trees are now being used for a purpose fundamentally at odds with the one for which they were first created. Instead of facilitating the orderly consideration of amendments on the Senate floor, they are now being used to block the consideration of amendments altogether.

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The routine practice of filling the amendment tree in the Senate today, coupled with the cloture process to end debate, effectively prevents members from being able to perfect legislation before it receives an up-or-down vote on final passage. Instead of a deliberative process designed to discern the true sense of the institution’s membership on an issue, senators are confronted with a fait accompli. This practice is inconsistent with the longstanding rules and practices on which the amendment process is based.