Overview

The package pairs majority concerns (time lost to repeated cloture fights just to get on a bill) with minority concerns (being shut out of amendments once the Senate is on a bill). It aims to make it easier for the Senate to take up bills and for senators to offer amendments during floor debate, while also ensuring that bills eventually receive an up-or-down vote.

Proposed Rules Changes

• Limit debate on most motions to proceed to two hours after the first two hours of a legislative day (Rule VIII).
• Prevent “filling the amendment tree” by giving senators an opportunity to offer at least one amendment to legislation before any senator offers a second amendment (Rule XV).
• Authorize a previous question motion to end debate by majority vote after five days (Rule XIX).
• Require the presiding officer to put the question—call a vote—when no senator is speaking or seeking recognition to speak and limit quorum-call length (Rule XIX).

A Rules Reform Package

If adopted as a package, these reforms can reduce senators’ incentives to continue the present procedural arms race: minority filibusters of the motion to proceed in response to closed amendment processes; majority preemptive cloture filings and amendment tree filling maneuvers in anticipation of continued minority obstruction itself precipitated by the majority’s clampdown on debate and amendments. The package’s logic is straightforward—create a reliable path to begin consideration of legislation by majority vote and provide assurances of up-or-down votes on legislation after debate starts in exchange for giving all senators the right to offer amendments during floor debate that is not dependent on the majority leader—or any other senator.

Debate-Limited Motion to Proceed

Senators decide the bills they debate on the Senate floor by approving a motion to proceed to their consideration. The motion to proceed is a debatable motion. The Senate cannot vote on it if a senator is speaking or seeks recognition to speak. The Senate may end debate on a motion to proceed by invoking cloture on it. Under Rule XXII, three-fifths of senators duly chosen and sworn (typically 60) must vote for cloture before the Senate can move to an up-or-down vote on the motion. Consequently, a Senate minority may block legislation by voting against cloture on the motion to proceed. When the Senate votes to proceed, the majority leader often uses the time it took to begin debate as justification for filing cloture on the underlying legislation preemptively and blocking senators’ amendments.

Proposed Rule Change

• Maintain existing non-debatable motions to proceed authorized by the Senate’s rules, its precedents, and in statute.
• Amend Rule VIII (“Order of Business”) to limit debate on other motions to proceed to two hours (equally divided) when made during the first two hours of a new legislative day.
• Preserve the existing debatable motion to proceed to proposed Senate rules changes and the two-thirds threshold to invoke cloture on it.

The Logic

• Reduces the amount of time it takes to begin debate on legislation.
• Increases the amount of time available for senators to debate legislation on the floor.
• Alleviates time pressures on the majority leader to block amendments and cut floor debate short after the Senate votes to proceed to legislation.

Prohibition on Filling the Amendment Tree

The majority leader routinely prevents senators from offering floor amendments to legislation after the Senate votes to proceed to it. The majority leader blocks’ senators’ amendments by “filling the amendment tree” on a bill—by offering multiple amendments using his priority of recognition before other senators can propose their own amendments. Senate precedents—though not the Senate’s Standing Rules—limit how many floor amendments may be pending to a bill at the same time. Senators may not offer additional amendments once the total number allowed by precedent are pending to the bill. At that point, the Senate must dispose of a pending amendment before senators can offer their own amendment. The majority leader can also block senators’ amendments when the Senate disposes of the pending amendments at the end of the process by filling the tree and filing cloture on the underlying legislation. In doing so, the majority leader creates a parliamentary situation in which senators must obtain unanimous consent to offer amendments.

Proposed Rule Change

• Amend Rule XV (“Amendments and Motions”) to limit the majority leader’s ability to use priority of recognition to fill the amendment tree.
• Add Rule XXII language limiting senators’ ability to offer amendments sequentially during post-cloture debate to Rule XV.
• Amended Rule XV would read: “No Senator shall call up more than one amendment until every other Senator shall have had the opportunity to do likewise.”

The Logic

• Empowers rank-and-file senators to offer at least one amendment during floor debate
• Reduces the Senate’s reliance on unanimous consent agreements to process amendments and, by extension, senators’ ability to shut down floor debate by objecting
• Preserves the majority leader’s priority of recognition to ensure effective management of the Senate’s legislative business more generally.

Previous Question Motion After Five Days of Debate

Senate minorities may presently prevent up-or-down votes on final passage of legislation by voting against cloture. This is because how the Senate uses Rule XXII’s cloture process effectively empowers 41 senators to veto legislation supported by 59 senators simply by refusing to end debate on it. Notwithstanding how Rule XXII operates in practice, however, the cloture process does not allow a minority to decide unilaterally whether the Senate can vote on a bill’s final passage. The rule – as designed – merely guarantees senators an opportunity to speak on the Senate floor. The opportunity to engage in debate is not a veto because an individual senator - or group of senators - cannot speak indefinitely.

Proposed Rule Change

• Amend Rule XIX (“Debate”) to allow any senator to offer a previous question motion on any measure, motion, or other matter pending before the Senate after five days of debate.
• Make the previous question motion non-debatable and non-amendable.
• Require a majority vote to order the previous question, end debate, and proceed to an up-or-down vote on the underlying question.

The Logic

• Creates debate-centered off-ramp that preserves deliberation and ensures up-or-down votes.
• Offers an alternative to lowering the super-majority vote threshold in the majority leader-centric cloture process or the balkanization of Senate business through policy carve-outs.
• Protects the integrity of the Senate’s rules from the destructive nuclear option.

Put the Question When Debate Ends

Senators inadvertently slow the legislative process—and the confirmation process—by routinely preventing the Senate’s presiding officer from calling a vote whenever a senator is not speaking or seeking recognition to speak. Senate precedents require the presiding officer to put the pending question to a vote when a senator finishes speaking on the floor and no other senator seeks recognition. However, senators frequently prevent the presiding officer from calling a vote by suggesting the absence of a quorum when they finish speaking. When they do so, senators effectively suspend the Senate’s business until another senator comes to the floor to speak.

Proposed Rule Change

• Create an actionable point of order by placing precedents requiring the presiding officer to put the question when no senator seeks recognition in the Senate’s Standing Rules.
• Amend the Senate’s rules to limit a quorum call’s length to five minutes when senators suggest the absence of a quorum and no senator raises a point of order.
• Empower the presiding officer to determine if a quorum is present after five minutes and, if no quorum is present, to order the attendance of senators on the floor without debate.

The Logic

• Prevents senators from using “non-debate debate” to delay the pending question.
• Forces the Senate to vote when senators are unwilling to participate in floor debate.
• Facilitates the Senate’s business by limiting quorum call stalling tactics.