COULD THE MODERN SENATE MANAGE AN OPEN-AMENDMENT PROCESS? Anthony J. Madonna and Kevin Kosar INTRODUCTION A t the start of the 114 th Congress, newly minted Senate Majority Leader Mitch McConnell, R-Ky., announced he was returning the chamber to “regular order.” While the phrase “regular order” is ambiguous, 1 McConnell made clear his new approach would end the con- tentious practice of “illing the tree,” wherein the majority leader blocks meddlesome amendments from the loor by stacking the available slots with his own amendments. 2 The strategy of illing the tree had been attacked both within and outside the chamber as an undemocratic restriction on the rights and duties of individual senators. McConnell and his 1. See e.g., See Sarah Binder, “Why Can’t Mitch McConnell Keep his Promises?” Washington Post, May 26, 2015; Walter J. Oleszek, “The Evolving Congress: Overview and Analysis of the Modern Era,” in The Evolving Congress, Congressional Research Service, 2014; and James Wallner, The Death of Deliberation: Partisanship and Polar- ization in the United States Senate, Lexington, Ky.: Lexington Books, 2013. 2. For more on illing the amendment tree see, e.g., Richard S. Beth, Valerie Heitshu- sen, Bill Henif, Jr. and Elizabeth Rybicki, “Leadership Tools for Managing the U.S. Sen- ate,” Paper prepared for the 2009 Annual Meeting of the American Political Science Association, Toronto, Canada; and Steven S. Smith, The Senate Syndrome. Norman, Okla.: University of Oklahoma Press, 2014. fellow Republicans, then in the minority, highlighted former Majority Leader Harry Reid’s use of the technique in their 2014 campaign, 3 suggesting it was the primary cause of the legislative ineiciency that plagued the chamber. 4 For their part, Reid, D-Nev., and his Democratic colleagues had argued that individual senators were abusing their rights, ofering divisive, irrelevant amendments purely for electoral purposes. In their view, illing the tree was a necessary tactic 3. Republican candidates featured Reid’s control of the chamber in attack ads in virtually all competitive races, including North Carolina, Alaska, Kansas, Kentucky, Louisiana and Georgia. See Tarini Parti, “Tillis: Doomsday if GOP Falls Short.” Politico, Nov. 1, 2014; Seth McLaughlin, “Harry Reid is the Democrat EVERY Republican is Run- ning Against this Fall,” The Washington Times, Sept. 8, 2014; and Bruce Alpert, “To Watch Louisiana Senate Race, You’d Think Harry Reid and Mitch McConnell are on the Ballot,” NOLA.com, Sept. 3, 2014. Criticism did not come solely from Republicans. For example, Sen. Christopher Murphy, D-Conn., noted that he “got more substance on the loor of the House in the minority than I have as a member of the Senate major- ity.” Quoted in Manu Raju and Burgess Everett, “Harry Reid’s New Challenge: His Fel- low Democrats,” Politico, June 23, 2014. 4. See, e.g.; Burgess Everett, “Harry Reid Releases Iron Grip on Senate Floor,” Politico, Nov. 17, 2014; Carl Hulse, “McConnell Votes a Senate in Working Order, if He Is Given Control,” The New York Times, March 3, 2014; Niels Lesniewski, “McConnell Plots a Functional, Bipartisan Senate,” Roll Call, Dec. 8, 2014; Stephen Dinan and S.A. Miller, “Harry Reid Lords over Crippled Congress,” The Washington Times, July 7, 2014; Tamar Hallerman, “Cochran’s Top Appropriations Goal: Regular Order,” Roll Call, Jan. 27, 2014; and Brian Darling, “Tyranny in the United States Senate,” The Heritage Foun- dation, June 4, 2014. R STREET POLICY STUDY NO. 42 October 2015 CONTENTS Introduction 1 Senate amendment process 2 Roll call records 4 Congressional amendment data 5 Conclusion 9 About the authors 11 Figure 1: Amendments per landmark enactment 1877-2010, House and Senate 6 Figure 2: Percent of Senate amendments granted floor consideration receiving roll call votes, 1877-2010 7 Figure 3: Percent of non-committee amendments offered by minority party senators, 1877-2010 7 Figure 4: Senate amendments filed and granted floor consideration, 1973-2010 8 R STREET POLICY STUDY: 2015 COULD THE MODERN SENATE MANAGE AN OPEN-AMENDMENT PROCESS? 1