With so much talk about Democrats changing the Senate rules, we thought it would wise to present this proposal from two Capitol Hill veterans who are experts in Senate procedure, protocol and rules. Lula Davis is the former United States Senate Secretary for the Majority for Democrats and Elizabeth Letchworth is the former United States Senate Secretary for the Minority for Republicans. They are co-owners of Congressional Global Strategy, LLC and make the case that the Senate can be the "greatest deliberative body" again.
"Mr./Madam President, I send an amendment to the desk and ask for its immediate consideration.
The ability for any United States senator to utter this short and simple request has become a rarity in recent years. As two formerly elected officers of the Senate, we thought it might be helpful to provide a short history lesson as to how this request has become rare and then offer a bipartisan way to bring this request back to a more routine status in the Senate.
In the mid 1980's, after the landslide election of President Ronald Reagan, Republicans controlled the Senate. This GOP majority status occurred for the first time in over two-dozen years, but more importantly it was also the largest freshman class in Senate history except for one elected in the 1940's. After a couple of years of Senate service, many of these freshman senators began to worry about their reelection, without the benefit of President Reagan’s coattails. With this in mind, several of these senators began to approach the majority leader and request that he schedule the Senate in such a way as to avoid votes on certain subjects that might make their reelection more difficult. Thus was born the Senate tradition of avoiding tough votes. As the years turned into decades, this "vote protection" has become a prerequisite for those seeking the office of Senate majority leader.
By the 1990s, the minority party began to find clever ways to force votes on issues that they believed might be hard to defend on the campaign trail. But instead of avoiding the votes altogether, Senate leaders developed a process that was dubbed "side-by-sides". These "side-by-sides" were born from the minority trying to force votes on a particular issue that was causing the political pain of the day, and were included in unanimous consent agreements governing the debate on the legislation. However, in the crafting of the consent agreements, the majority party was given the opportunity to offer an alternative amendment on the issue and the majority was granted the first vote in the sequence of votes on the issue. The minority party received the second vote in the sequence. This process worked well for many years. Both the majority and minority members understood in order to preserve the Senate's image of being the "greatest deliberative body" they would have to allow votes on controversial issues. The idea of "side-by-sides" was designed to offer first a "cover" vote, crafted by the majority, to offset the potential political pain that might result when voting only on the minority amendment. These "side-by-sides" can be found in many unanimous consent agreements crafted by the majority and minority leaders in 1990s and into the 2000s.
By the 2000s, majority leaders of both parties advanced this "vote protection" a step further so as to block any consideration of the minority party's issues. Instead of creating a "side-by-side" scenario where the minority party can eventually have the Senate vote on their issue, the majority leader used his right of priority recognition to fill the amendment tree and thus block the consideration of any minority amendments. Minority amendments are not debated or voted on by the Senate. Many times under this scenario, these undisclosed minority amendments are dubbed "poison pills" or "killer amendments." These killer amendments are the justification used by the majority party to block all consideration of amendments by the minority party. In recent years, even after cloture had been invoked on a particular matter, the minority party used a "motion to suspend the rules" scenario in order to facilitate a vote on their amendment. Using this tactic requires 67 affirmative votes since they are asking for Senate rules to be suspended.
As a result of these blocking maneuvers used by the majority leader, the minority party invokes their right to object to the simple consent agreement asking for the Senate to consider a bill. The minority party objects to the agreement until or unless they are guaranteed the right to offer amendments. Once the majority party determines that the minority wants to offer amendment(s) and that they might be deemed to be "killer" amendments, thus begins the filing of a cloture motion - so often mistakenly referred to as a cloture petition - and the filling of the amendment tree. All of this is in an effort to avoid casting tough or uncomfortable political votes. Numerous years of this scenario playing out multiple times in the Senate, has created the current endless loop of gridlock. Newer members of the Senate have seen this gridlock and endless loop of objections as routine in the Senate. After years of witnessing this gridlock, many in the Senate have come to the conclusion that the Senate is broken ... hence the calls for wholesale changes to the filibuster rule - Rule 22.
What if the Senate agreed, on a temporary basis, to return to the days where the minority had a voice? This scenario could be orchestrated at the beginning of this Congress and last for only the first session of the new Congress. The Senate could grant unanimous consent to agree to a "standing order" which would allow the minority party the opportunity to offer no less than one amendment, but not more than three relevant amendments to each piece of legislation. During this test period, a study could be requested to determine the rate of success of such a temporary agreement. This right would be controlled by the minority leader or his designee, with the subject matter of these amendments having to be disclosed, in writing, as soon as the bill becomes the pending business. "Side-by-side" alternatives could be crafted by the majority and if a super majority of senators didn't want to ultimately vote on the subject of the amendment(s), all the rights under the provisions of Rule 22 would still be in order and used to invoke cloture and render the minority amendment(s) out of order. The Congressional Research Service seems the appropriate entity to conduct the study and could be tasked by a date certain, to report to the Senate leadership, the effect of the temporary agreement. It is our opinion that under this type of scenario, the Senate could once again be entitled to be called "the greatest deliberative body."