smith ostrander pope june 2011 - brown university · 2011-06-03 · ! 4!...
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Senate Parties and Procedural Motions
Steven S. Smith, Ian Ostrander, and Christopher Pope Washington University
Prepared for the Congress and History Conference, Brown University, June 9-‐10, 2011.
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Senate Parties and Procedural Motions
Steven S. Smith, Ian Ostrander, and Christopher Pope Washington University
Affected by the theoretical treatment of parties in the U.S. House of Representatives, legislative scholars appear to be puzzled by the Senate. For the House, there has been ready acceptance of two basic concepts—the metaphor of House parties as cartels and the conditional influence of parties. As cartels, House parties seek to control those features of the institution that affect their collective goals (Cox and McCubbins 2002, 2005, 2007). For the most part, this means the assignment of special parliamentary rights to certain legislators that give the majority party additional influence over what is placed on the agenda. Variation in majority party influence, at least with respect positive influence, has led scholars to observe the importance of the distribution of policy preferences within the parties for the role played by their leaders (Rohde 1991, Sinclair 1983, Smith and Deering 1984).
For the Senate, where the majority party cannot readily manipulate the rules and a large minority can block legislation, the extension of the cartel and conditional party government has not been easy. The application of House-‐based theory to the Senate has been questioned (Gamm and Smith 2001), but several scholars have argued that the Senate majority party has a set of procedural advantages that are functionally similar to the negative agenda control enjoyed by the House party through the speakership, Committee on Rules, and special rules (Carson, Madonna, and Owens 2011, King, Orlando, and Rohde 2010, Marshall, Prins, and Rohde 1999, Monroe and Den Hartog 2008). The focus of this work is the process of amending legislation on the floor, where the Senate majority leader has the right of first recognition and the option to dispose of amendments through a nondebatable motion to table or point of order. With these tools, Senate majority party leaders act like their House counterparts, exercise additional influence over outcomes, and reflect the cartel nature of the parties that elect them to office.
We ask: Does the motion to table yield negative agenda control? Do the
micro-‐foundations of the existing accounts, which emphasize the motion to table is a procedural motion that gives senators greater freedom from constituency pressure, fit what we know about politics in practice? Does the motion to table yield special party influence over senators’ votes? Has the motion to table been a regular component of the procedural toolkit of Senate majority parties? Is there support for an alternative account of the frequency of motions to table amendments?
Our answers to these questions (not much, not often, no, no, and yes) are
considerably different than the arguments of recent work on Senate agenda control.
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In contrast to the studies of party effects in voting that are limited motions to table, the answers are informed by a comparison of voting across types of votes. The perspective allows us to evaluate the distinctiveness of procedural voting in the Senate, an essential feature of recent arguments about the motion to table. More important, in contrast to the somewhat timeless nature of most of the recent analysis, the answers are informed by a longer historical view of Senate practice. This perspective enriches our view of the forces that motivate procedural innovations on the part of majority party leaders.
We conclude that the Senate majority party is a far weaker cartel than its House counterpart. The use of motions to table amendments demonstrates this weakness as reliance on them represents the lack of viable and more effective alternatives. Motions to table are not comparable to House special rules in either strength or utility. We find that senators are not liberated of political pressure by using motions to table. Motions to table yield little special party influence over amendments and have been a staple of floor action only since the 1970s.
Efficiency, not picking up pivotal votes, motivates most use of motions to proceed. Efficiency, of course, is a serious partisan concern for leaders charged with managing a large legislative agenda. Historically, the burden of more intense amending activity and obstructionism since the late 1960s motivated majority leaders with limited parliamentary tools to make a variety of tactical adjustments. Motions to table are among those adjustments.
Theories of Parties, Institutional Context, and the Senate The cartel metaphor for legislative parties draws upon the parallel to a marketplace in which firms that coordinate output and price decisions can maximize their profit. In a smoothly operating cartel, the cartel acts as a monopolist and captures the same profits as a monopolist. Because there is an incentive for a firm to expand production beyond agreed upon limits to reap extra profits and for new firms to arise to exploit high prices, cartels are difficult to maintain in the marketplace.
In a legislative body, parties seek to coordinate the production of legislation by giving leaders and party-‐based units the tools for manipulating the legislative process and limiting defection. This means internalizing important procedural and organizational choices—the election of a presiding officer and setting parliamentary rules—within the party. Factions and individual legislators have an incentive to defect when independent action suits their political interests and so the challenge is to create counter-‐incentives for those tendencies. When in the majority, a “cartelized” party has the option of adjusting both its internal organization and rules and the chamber’s organization and rules to strengthen its control over legislative production and cartel-‐maintaining incentives. These rule-‐based advantages give the majority party additional influence, perhaps only in the form of keeping unfriendly legislation from being considered (negative agenda control).
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House Versus Senate The cartelization of a legislative party evolves with time and is affected by several factors. As Jenkins and Stewart emphasize, the net benefits from collective action must be recognized to be positive (or even strongly positive to overcome transaction costs), as in the internalization of the choice of Speaker in the mid-‐nineteenth century House of Representatives (Jenkins and Stewart, forthcoming). The presence of majority rule in all key features of the legislative process is necessary to empower the majority party to control choices of institutional arrangements, as the rules instituted under Speaker Reed established in the late nineteenth century House (Cox and McCubbins 2005, Sinclair 1989). Thus, in the case of the House, agenda control—the Speaker’s right of recognition without appeal, the control of the Committee on Rules, the privileged status of special rules, the motion on the previous question, and other features—have been created by majority parties to allow their majorities to control the legislative agenda. The Senate is another matter. Two related features of the institution condition the extension of the cartel metaphor to the Senate. First, the Senate majority party has not established the institutional context that guarantees that a simple majority can win legislative battles. We do not have to settle the debate about whether Senate majorities prefer to keep or reform Rule XXII (Binder and Smith 1997, Wawro and Schickler 2006), which governs cloture, to observe that Senate majority parties usually cannot pass legislation without the support of at least some minority party senators if a minority chooses to obstruct action by conducting extended debate. Effective coordination within the party does not guarantee a Senate outcome favorable to the party. Second, the Senate majority party has not internalized the choice of a presiding offer or the provisions of key rules as have House majority parties. The presiding officer is not a senator, is not chosen by the Senate or one of its parties, and is not necessarily of the same party as the Senate majority. From the majority party’s perspective, it makes no sense to empower the presiding officer as the House has done (Binder and Smith 1997, Wawro and Schickler 2006). Key chamber rules—particularly the provisions of Rule XXII—have divided the majority party and seldom were settled through intra-‐party resolution. The ease with which a minority can block rules changes, particularly if there is even minimal dissension with the majority party, limits the incentive for the majority party to devote resources to significant procedural changes. Nevertheless, Senate parties are certainly coordinated teams, to use a related metaphor, and might be characterized as weakly “cartelized.”1 Senators sharing 1 The concept of teams is found in Alchian and Demetz (1972), who contrast two conceptions of the firm—a unitary authority, common to the traditional theory of the firm, and a team. A team is characterized by the presence of a centralized
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party labels have been organized through most of the Senate’s history and exhibit certain shared electoral and policy goals, like House parties. Gradually and belatedly, Senate parties have created organizations or internal rules, chosen leaders to coordinate party activity, and acquired limited procedural advantages, often through the adoption of new precedents rather than new standing rules, that are considered vital to the majority party’s interests. Senate majority parties are as old as their House counterparts and yet they enjoy more limited procedural advantages. With important exceptions for budget and other “fast track measures,” no resolution to provide the terms of debate for a measure is given privileged status in the Senate. Thus, the Senate majority generally cannot limit debate and amendments in the absence of cloture or unanimous consent. There is no Committee of the Whole in which special limits on debate are imposed.
Still, there are noteworthy majority party advantages. Properly, sophisticated observers have noted the importance of the ability of the majority party to organize Senate committees, although that power is subject to potential obstruction by the minority and forced a proportional distribution of committee seats to the two parties, unlike in the House. Also frequently noticed is that the Senate majority leader has a right of first recognition—a precedent recognized in the 1930s, more than a half century after the Speaker’s right of recognition without appeal was established in the House. The right of first recognition creates an opportunity to attempt to set the Senate agenda for the majority leader. It almost goes without saying that the ability to set the agenda is checked by the possibility that cloture will be required to gain votes on the motion to proceed, the measure itself, motions to go to conference, or a conference report. The Motion to Table The motion to table is the emphasis in more recent political science. This is a somewhat misplaced emphasis given the importance of reducing the threshold for cloture and the use of budget reconciliation and other measures (trade agreements, executive reorganization, etc.) for which the Senate has accepted simple majority rule. Nevertheless, the motion to table is a very common tool of the majority and its partisan implications warrant careful consideration.
Under precedents that date to the mid-‐nineteenth century and codified in the 1868 rules, the motion to table is not debatable (Binder, Madonna, and Smith 2007). contractual agent in a collective production process. Such a production process involves a leader (the contractual agent) who coordinates joint use of resources. Individuals are motivated by gaining better results than the sum of individual action and the cost of organizing and disciplining team members. In contrast to the concept of cartels, which are engaged in limiting production, teams are merely a form of collective action in pursuit of common goals.
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A vote on a motion to table an amendment or other motion takes place immediately after it is moved and so cuts off further debate. An amendment sponsor must yield the floor to get a vote on the amendment so the majority leader can always exploit the right of first recognition to offer a motion to table the amendment. Requiring only a simple majority to pass, motions to table seem to be an ideal way to kill unfriendly motions and amendments. Except by unanimous consent (and on budget measures and other types of legislation considered under statutory fast-‐track procedures), opportunities to offer amendments, germane and nongermane, cannot be blocked by a Senate majority. Cloture imposes a germaneness restriction. The majority leader, using the right of first recognition, may offer amendments to block consideration of other amendments (blocking amendments or fully filling the amendment tree), but, in the absence of cloture, cannot get a vote on a measure without disposing of his own amendments and opening the door for unfriendly amendments. This is where recent political science takes a turn. The argument goes like this: The motion to table is a procedural motion that gives senators greater insulation from electoral pressure than they enjoy on direct votes on bills and amendments. That leeway creates an opening for party or leadership influence, which leaders would care most about on close votes. This influence can affect how at least a few votes are cast and give the majority party an advantage on a motion to table beyond whatever influence would have been applied on direct vote on the amendment. This extra ounce of party influence contributes to negative agenda control—blocking votes on substantive proposals—that is parallel to the control exercised by the House majority party through special rules. The extra party influence explains why the Senate majority party uses the technique so frequently. Challenges in Interpreting the Use of the Motion to Table We advocate a broader view of the strategic challenges of the Senate parties and the historical context in which they evolve. Over the course of a Congress, majority and minority party leaders must address a large agenda—pushing or blocking legislation, nominations, and treaties and setting priorities for doing so in a process that involves of mix of policy and electoral considerations. The legislative, policy, and electoral considerations that affect leaders’ strategies evolve. For the majority party, the size of the agenda, the obstacles to accomplishing it within a variety of deadlines, and the political consequences for failing to do so vary from Congress to Congress, but also may exhibit systematic change over time. Several observations about the state of our knowledge of the amending process are in order. First, the direct evidence that the procedural motion to table, with its immediate effect on the associated amendment, reduces the influence of non-‐party influences is weak. There is a coherent theory here that is consistent with evidence about procedural voting in the House (Froman and Ripley 1965, Sinclair 2002), but it is not demonstrated by systematic evidence in the Senate.
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Second, only indirect evidence has been offered to demonstrate the distinctiveness of party influence on motions to table. Existing studies (Den Hartog and Monroe 2008, King, Orlando, and Rohde 2010) show party effects in the likelihood of adopting motions to table amendments. They do so by estimating the effect of the party identity of the senators offering amendments and motions to table. No study demonstrates party influence on individual senators who vote on amendments and motions to table. Moreover, no study compares the party effects on motions to table with party effects on other types of votes. We do not know whether party effects for voting on motions to table amendments are distinctive. Third, existing studies of party effects and the motion to table cover the period back to 1977, but we must consider the historical pattern in the use of the motion to table over a longer period to understand how the Senate majority party has used the motion to table. The early 1970s was a period in which individualism blossomed, minority obstructionism intensified (Binder and Smith 1997), and amending activity doubled in just a few Congresses (Sinclair 1989, Smith 1989). Our expectation is that majority leadership floor tactics reflected these conditions, which were timed with Majority Whip Senator Robert Byrd’s assumption of a leading role in managing the floor under Majority Leader Mike Mansfield. These considerations receive no mention in recent discussions of the majority party’s parliamentary strategies and yet they suggest that the frequency with which the motion to table is used to dispose of amendments is related to floor management challenges beyond defeating unfriendly amendments. Efficiency stands as an alternative, and compatible, account to the view that partisan advantage in killing an amendment is the primary motivation. The motion to table does more than dispose of an amendment by a procedural motion. It prevents amendments to the amendment from being proposed and cuts short debate on the amendment itself, both of which may reduce the time required to dispose of the issue at stake. In a Senate in which time is scarce (Oppenheimer 1985), in which an extended and uncertain schedule is costly to individual senators and the majority party, and which confronts a variety of deadlines for enactment of legislation, these features of the motion to table may more commonly motivate the use of the motion to table than amendment-‐specific partisan advantage.
In addition, conditions that limit time for the consideration of amendments may put a premium of rapid consideration of amendments and increase the use of motions to table. In the presence of obstructive minority tactics, such as extended debate and amending activity, the majority may seek to limit the time devoted to any one amendment and use parliamentary tools (unanimous consent agreements, motions to table) to expedite business and maintain a reasonable schedule. But at least as important may be that the use of the motion to table speeds consideration of amendments and allows the consideration of more amendments when the Senate operates under a times constraint. Post-‐cloture debate, the end of a fiscal year, the end of a session, and other fixed deadlines, and even weekly scheduling
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considerations, may dictate the use of time-‐saving devices like the motion to table. The larger volume of legislation with sunset provisions and the delays in the appropriations and budget processes surely have intensified time pressures and encouraged the use of time-‐saving devices.2
Efficiency considerations yield additional propositions about
the cross-‐sectional and longitudinal variation in the direct amendment and motion to table votes. As King, Orlando, and Rohde (2010) suggest, alternative means for disposing of some amendments expeditiously may substitute for motions to table. Specifically, a motion to waive the Budget Act (enabling consideration of an amendment that violates budget enforcement rules), usually following a successful point of order raised against an amendment on budget grounds, requires a three-‐fifths majority of senators “duly chosen and sworn” to protect the amendment (for most parts of the Budget Act, as amended). The high threshold makes it easier to block a direct vote on the amendment and so may be preferred, when available, as a method for disposing of an unfriendly amendment.3 There is reason to question whether abiding by a budget constraint is nonsubstantive and procedural, but the 60-‐vote threshold may make the exercise of special party influence to kill an amendment unnecessary. Finally, we must account for the evolving procedural context of amending activity to understand the use of the motion to table. In particular, the more central role of cloture in recent Congresses means that time constraints, unanimous consent agreements, and leaders’ tactics have changed (Smith 2010). Majority leaders have more frequently used the amendment tree to control the amendments that are offered before and after cloture is invoked, which gives them leverage with senators who might not otherwise agree to the number of amendments to be offered or the time limits for debate on allowed amendments. Post-‐cloture debate is limited so that amendment sponsors have reason to agree to time limits that enable more amendments to be considered. For these reasons, majority leaders acquire efficiency gains through time agreements and do not need to cut off debate with motions to table as often. We would expect an increase in the use of time agreements to be associated with an increase in the proportion of amendments subject to a direct vote. 2 On July 31, 1969, for example, the Senate faced a midnight deadline for the expiration of a surtax and many senators wanted to offer amendments. Majority Leader Mike Mansfield explained that at least twelve of his party colleagues wanted to offer at least 27 amendments and so moved to table the first to come up that seemed likely to produce lengthy debate (Congressional Record, July 31, 1969, 21561-‐6). It is notable, however, that the infrequency with which the motion to table had been used to dispose of amendments in previous years produced considerable discussion of Mansfield’s move in 1969.
3 Perhaps equally important, the debate on an appeal related to the Budget Act is limited to an hour. Appeals are not considered in the analysis that follows.
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Our findings force us to elaborate on our understanding of the partisan
motivations for the use of various procedural devices. The majority party faces a multitude of competing demands with multiple time horizons. Tactical considerations, such as the disposal of an amendment on hand, must be weighed against the strategic considerations, such as the passage of an entire bill or legislative agenda. Amendment-‐specific partisan advantage is just one of these considerations, and perhaps a relatively modest consideration, in the larger context of legislating a large agenda in an institution that empowers both individual senators and organized minorities to pursue multifaceted strategies of amendments, dilatory motions, and outright obstructionism.
Hypotheses Our exploratory analysis is intended to provide a preliminary evaluation of these research hypotheses and corresponding null hypotheses—
HR1: Votes on motions to table amendments have weaker electoral consequences than votes on amendments.
H01: Votes on motions to table amendments have the same electoral consequences as votes on amendments.
HR2: Votes on motions to table amendments exhibit stronger party influence
than votes on amendments. H02: Votes on motions to table amendments exhibit the same party influence
as votes on amendments. HR3: The frequency of votes on motions to table amendments is positively
correlated with the frequency of contested amendments that concern the majority leader.
H03: The frequency of votes on motions to table amendments are not correlated with the frequency of contested amendments that concern the majority leader.
HR4: The frequency of votes on motions to table amendments and the
frequency of votes on budget points of order vary inversely. H04: The frequency of votes on motions to table amendments and the
frequency of votes on budget points of order are uncorrelated. HR5: The frequency of votes on motions to table amendments is positively
correlated with the severity of time constraints. H05: The frequency of votes on motions to table amendments is not
correlated with the severity of time constraints.
HR6: The frequency of votes on motions to table amendments is negatively correlated with time agreements on a bill.
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H06: The frequency of votes on motions to table amendments in uncorrelated with time agreements on a bill.
For HR1-‐HR4, confirming the research hypothesis supports the party
influence account in recent studies. HR2, concerning the distinctive party influence on motions to table, is fundamental to this account. HR5 and HR6, if confirmed, would provide preliminary support for an alternative account that emphasizes the broader agenda and efficiency considerations of the majority party.
Methods HR1: Motions to Table and Electoral Consequences At this stage in our work, we can offer only circumstantial evidence on the question of whether the electoral consequences of amendment and motion to table votes vary systematically. Ideally, we would evaluate the salience of votes in the general public. From the literature (Clausen 1973, Kingdon 1973, Matthews and Stimson 1975), we would expect most votes, whatever their parliamentary form, to have low salience on average. Thus, even under ideal circumstances—measuring public response to individual votes—finding systematic differences between types of votes is likely to be difficult.
A more tractable empirical question is whether there is a difference between procedural and substantive votes in (a) the probability that a future opponent or opposing will exploit a vote (Arnold 1990) and (b) the positive use of the vote by the incumbent senator. Finding that motions to table are found in campaign ads or in interest group evaluations of senators would be circumstantial evidence the motions to table are not free of electoral consequences.
HR2: Party Effects by Vote Type
The appropriate comparison of party effects on senators’ voting is an amendment and its paired motion to table. This comparison is not possible whenever the motion to table is adopted and the amendment is killed. The comparison is possible only in the very few cases in which there is a roll-‐call vote on the motion to table, that motion is defeated, and a roll-‐call vote occurs on the amendment. These are uncommon because the vast majority of motions to table are adopted and, when motions to table fail, are often followed by a voice vote on the amendment (the outcome on the amendment is obvious to everyone).
Nevertheless, we can conduct an unpaired analysis of voting behavior on roll-‐call
votes.4 Our unit of analysis is the individual vote and the dependent variable is 4 Note that a voice vote is the method of disposition for the vast majority of amendments (Smith 1989).
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support or opposition to the majority leader’s position. We model support for the majority leader’s position as a function of (a) vote type (direct amendment vote, motion to table amendment, etc.) and (b) the ideological location of the senator. We limit the analysis to majority party senators on contested votes (55-‐45 split or closer), the senators and votes on which party influence should be strongest. The expectation is that support for the leader is higher for the procedural motion to table and ideological proximate senators, controlling for the ideological location of the senator.5 H3-‐H6: The Frequency of Motions to Table
The historical pattern in the use of motions to table as the method of disposing of amendments is the subject of the last four hypotheses. For these hypotheses, the ideal method is to estimate an amendment-‐level model in which the dependent variable is the use of a motion to table and the independent variables capture the presence of a contested amendment, a time constraint (bill-‐ and Congress-‐specific constraints), and cloture on the measure. We reserve that estimation for another report. Here, we simply count the number of votes on amendments and on motions to table amendments, classify the parliamentary conditions under which they occur, and observe the simple relationships between the relative number of motions to table amendments and Congress-‐level characteristics. We do this for the period since the late 1960s, when the number of motions to table amendments began to climb (see below).
Findings HR1: Electoral Consequences We cannot confirm HR1. To be sure, senators have expressed an awareness of their colleagues’ sensitivity to direct votes on some amendments. In 1971, for example, Senator Robert Byrd, the bill manager, proposed an amendment to an amendment offered by Jacob Javits. The Javits amendment increased spending for a program funded by the underlying bill by $55 million and the Byrd amendment increased spending by only $10 billion. Javits, of course, preferred the larger increase, but he realized that some of his colleagues might not want to be put in a position, in the isolated case of the Byrd amendment, of going on the record against a $10 million increase. The safe way to dispose of the Byrd amendment was to table it and that is what Javits did, explaining afterwards that he “moved to table the amendment, not out of any disrespect, but only because I did not think it fair to ask
5 For this analysis, we do not distinguish amendments and motions to table amendments by the party of their author. If the motion to table creates an opportunity for greater party influence because it is a procedural vote, the author of the motion or associated amendment should not matter.
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senators to vote against any increased figure for the program” (Congressional Record, June 19, 1971, 16592).
Nevertheless, we find circumstantial evidence that calls into question the claim that motions to table buffer legislators from electoral consequences of floor voting. Senators are forced to defend votes on motions to table and even use motions to table to claim credit for supporting a cause. In her 2010 campaign against Senate Majority Leader Harry Reid (D-‐NV), Sharron Angle used the senator’s vote on a motion to table an amendment denying Social Security credit to someone using an unauthorized Social Security number. Angle’s claims were important enough to warrant journalistic attention.6 In the same election season, a campaign ad of incumbent Patty Murray (D-‐WA) touted her support for women’s right to choose on the issue of abortion. She issued a press release that cited her vote on a motion to table an amendment in support of her ad.7 Moreover, interest groups frequently use motions to table amendments in their ratings of senators. Figure 1 reports the relative frequency of votes on amendments and motions to table amendments used in the annual ratings of Americans for Democratic Action and the American Conservative Union for the 1969-‐2008 period, which stretches to the early Congresses in which use of the motion to table became more common. Each data point shows, relative to the overall voting record, the difference between the proportions of votes on motions to table amendments and votes on amendments included in the tabulation . Plainly, motions to table amendments are about as often overrepresented in comparison to amendments as they are underrepresented with total differences only in the range of 0.1 and -‐0.1. A senator can expect a vote on a motion to table an amendment to appear in these interest group tabulations about as often as a vote on an amendment. HR2: Party Effects and Vote Type We cannot confirm HR2. The model of support for the majority leader’s position is estimated for all majority party senators on contested votes. Over the 1969-‐2010 period, the likelihood of supporting the majority leader is not related to whether the vote is on an amendment or a motion to table (Table 1). With that result, it is not surprising that the sign for a motion to table vote is negative for many Congresses, the opposite of the research hypothesis.8 There are party effects in voting on motions to table, but this evidence indicates that these effects are no greater than those found for amendment votes. 9 6 http://www.politifact.com/truth-‐o-‐meter/statements/2010/sep/17/sharron-‐angle/sharron-‐angle-‐says-‐harry-‐reid-‐wants-‐give-‐illegals-‐/ 7 http://www.pattymurray.com/news/releases?id=0081 8 Congress-‐by-‐Congress results available upon request. 9 Estimates for a model for all senators that includes a variable for party status shows significant party effects, controlling for vote type and policy positions.
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HR3-‐HR6: The Frequency of Motions to Table Amendments Figures 3 and 4 set the context for evaluating the hypotheses about the frequency of motions to table amendments. The figures show two periods of significant change in the use of motions to table—the early 1970s and the late 2000s. The figures force us to call into question the claim that the motion to table is a standard tool for the exercise of negative agenda control in the Senate. We know of no argument grounded in cartel theory that accounts for the wide variance in the number and percentage of amendments subject to a motion to table.
The use of motions to table was uncommon in the mid-‐20th century and became somewhat more common in the 1960s, but the practice did not become routine until the 1970s (Figure 3).10 For the most part, majority parties lived without regular use of the motion to table until the 1970s, when something changed. It appears that the expanded use of motions to table is timed with the rapid increase in the number of floor amendments in the early 1970s (Smith 1989) and so may support the thesis that efficiency concerns drove the majority party leadership to seek to limit debate on amendments. Ironically, the two post-‐cloture filibusters in 1976 and 1977, the first conducted by majority party Senator James Allen (D-‐AL) and the second by majority party Senators James Abourezk (D-‐SD) and Howard Metzenbaum (D-‐OH), spurred the use of motions to table to dispose of openly dilatory amendments—more than for any other measures in the 1970s. Figure 3 also shows that the use of the motion to table has been less common in the most recent Congresses. Figure 4 again demonstrates that motions to table became a common, although not dominant, method of disposing of amendments in the 1970s. In Congresses since the late 1990s the proportion of amendments subject to a motion to table has fallen—and quite sharply between the 108th and 109th Congresses, both with Republican Bill Frist as majority leader. At the same time, the proportion of amendments receiving a direct vote was higher than the average for the previous two decades. In fact, there is an increase in the number of amendments subject to a direct vote and that the there is a nearly one-‐for-‐one tradeoff between the number of amendments defeated by a direct vote and to a motion to table.
These historical patterns help us sort through existing arguments. The expanded use of motions to table in the early 1970s appears to be strongly correlated with what we already know about the early 1970s—intensified individualism, the demise of restrictive norms, increased obstructionism, and rapidly escalating amending activity (Sinclair 1989, Smith 1989). Furthermore, recent trends in the number of votes on amendments and motions to table 10 Also see Carson, Madonna, and Owens (2010).
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amendments do not appear to demand that we find a substitute for motions to table. Direct votes on amendments seem to be the substitute. These aggregate patterns at least call into question the need to explain the use of the motion to table by the need for amendment-‐specific party influence and suggest that larger agenda management concerns were at work. Contested votes: HR3 is not confirmed. The hypothesis posits that motions to table are used disproportionately for close votes, an implication of the theory that procedural votes are used by partisan leaders to exercise influence over outcomes. We cannot test this hypothesis directly because we would need to test amendment vote with the paired votes on motions to table. Instead, we can compare amendment votes with votes on motions to table, which we expect to see more closer votes on motions to table.
On balance, the evidence does not support HR3. Over time, the number of motions to table does not rise or fall in response to the number of contested votes. For the 1969-‐2008 period, using the Congress as the unit of analysis, the simple correlation between the number of motions to table amendments and the number of contested amendments (motions to table and direct votes with outcomes that are 55-‐45 or closer) is -‐0.38 (p = 0.10). That is, the sign is the opposite of what is expected. In the cross-‐section, the relationship between type of vote and contestedness varies over time. Figures 5 and 6 illustrate the difference between voting on motions to table amendments and directly on amendments. In Figure 5, the mean vote margin—the absolute value of the difference between percent voting yea and percent voting nay—is only slightly smaller for motions to table than for amendments in the 1970s. The reference line in the figure is located at ten percent (55-‐45). After the late 1980s, the difference in margins grew, with motions to table becoming more contested. This is related to an increase in “party votes” (data not shown) in this period. Still, even in a more partisan era, the mean motion to table yielded a margin of over 20 percent (60-‐40). Only a few motions to table are close votes in which a few votes, influenced by party, could have made the difference in the outcome. Figure 6 shows that the distribution of margins for the two types of votes varies widely from Congress to Congress.11 The most obvious feature of the distributions is that there are no significant differences between the two types of votes until the 1990s and, even then, the differences are not consistent. Reflecting the mean differences, the differences seem to be highly conditional, with a more skewed distribution for motions to table at the contested end during the last two decades. 11 Margins of greater than 90-‐10 are excluded. This excludes “hurrah votes” that occur with considerable frequency on amendments.
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Budget waivers: HR4 is confirmed. Budget enforcement surely is a contributing cause to the recent decline in the use of motions to table. For the period between 1985 and 2008, the simple correlation between the number of votes on motions to waive the Budget Act and the number of votes on motions to table amendments is -‐0.49, which means that the increase in the use of budget waivers accounts for up to 25 percent of the variance.
Nevertheless, we observe, as did Smith (2010), that there is an increase in
the number of amendments subject to a direct vote (see Figure 4). In fact, there is a nearly one-‐for-‐one tradeoff between the number of amendments killed on a direct vote and the number killed with a motion to table. Thus, while budget waivers are a part of the story, the primary story lies elsewhere.
Votes on motions to waive the Budget Act are more contested than votes on
amendments or motions to table (Figure 7), at least in the period since 1995 when the number of budget waiver votes became significant. The mode is within the 55-‐45 margin even when there must be 60-‐vote majority to waive the Budget Act in most cases. The result is that budget waiver votes are seldom close votes with the outcome in doubt—and seldom a vote on which party influence is likely to be necessary.
Time Constraints: HR5 is (tentatively) confirmed. Time constraints are difficult to measure. Many time constraints are specific to a particular piece of legislation for which there is a deadline for action. Appropriations bills, tax law extensions, debt ceiling increases, and fast-‐track measures are among the common bills with deadlines. Other measures are considered under time limitations. Budget measures, bills subject to cloture, and a few other measures are subject to limited debate that motivates all senators seeking to have amendments considered to agree that expeditious consideration of amendments is desirable. For this report, we have not accounted for these bill-‐specific constraints and so cannot relate them to the frequency of motions to table. We can only observe that measures with deadlines appear to have become a larger part of the Senate agenda and may be an important factor in the expanded use of motions to table.
In practice, the use of motions to table is often concentrated in a few bills. An early case is the post-‐cloture debate on the 1977 natural gas deregulation bill. In this famous filibuster, over 400 amendments were submitted and intended to be offered by bill opponents, two majority party senators, to delay action on the bill indefinitely. The bill, on which cloture was easily invoked, 77-‐17, had broad support, but the opponents exploited Rule XXII, which did not count the time devoted to quorum calls and voting against the 100-‐hour post-‐cloture limit on debate. To abbreviate the debate opponents wanted to give their dilatory amendments, motions to table were offered dozens of times. In fact, 81 motions to table amendments were offered. In the same Congress, nearly 50 motions to table were used post-‐cloture to overcome obstructionist amendments on the Panama Canal Treaty that were offered, mainly by minority party senators. In that context,
15
expediting business, not winning votes that would otherwise be lost, motivated the use of the motion to table. These two filibustered measures account for over a 40 percent of motions to table in the 95th Congress.
The two measures in the 95th Congress are extreme cases, but the general
context—considering amendments under some bill-‐specific obstructionism or time constraints—is common to a large proportion of motions to table. Of the five measures with 20 or more motions to table amendments in the 1970s, three involved motions to table that were nearly all post-‐cloture, one was a tax bill passed at the very end of a Congress, and one was a second-‐session budget resolution debated under a time limit. The motion to table was used most frequently in the 99th Congress (1985-‐1986) on a farm bill just before authorization for most agricultural subsidy and quota programs was about to expire at the end of 1985.
More generally, we know that the use of motions to table increased as the
number of floor amendments expanded in the early 1970s and senators openly complained about scheduling pressures. The number of roll-‐call votes per day more than doubled between the 91st (1969-‐1970) and 94th Congresses (1975-‐1976) as the number of amendments, most subject to a voice vote, doubled, too.12 Leaders continued to struggle with the schedule and completing the Senate’s work through the remainder of the 20th and into the 21st century (Smith 2010).
To be sure, motions to table amendments are spread over a large number of
measures. In the 95th Congress, for example, motions to table were associated with 130 measures. The modal number of amendments per bill that is subject to a motion to table is one. It is possible that a significant part of these motions to table was the product party leaders’ efforts to kill amendments that they might not otherwise kill. We have found little evidence for this and instead find a relationship between time constraints and the use of the efficient motion to table.
Time Agreements: HR6 is confirmed. The increased use of cloture is well-‐
documented and need not be reviewed here. Figure 8 demonstrates that the use of cloture has reached a large majority of the most important measures. This is likely to shape the procedural context under which amending activity occurs. As Figure 9 shows, the proportion of amendments subject to a direct vote has increased in recent Congresses as the number subject to a motion to table has declined. Moreover, in the two most recent Congresses shown in the figure, which exhibit a much lower frequency of motions to table than previous Congresses, a higher percentage of amendments were associated with a bill subject to cloture.
12 Calculated from the Senate’s “Resumé of Activities,” Final Calendar, for each Congress. Data available upon request. On Senate floor amendments, see Smith (1989).
16
In the 111th Congress (2009-‐2010), over three-‐fifths of roll-‐call votes on amendments, motions to table amendments, and budget waivers occurred on a measure on which cloture was invoked on the motion to proceed, a committee or leader substitute amendment, or the measure. This represented a new high, but reflected a continuation of the pattern established in the previous two Congresses. It reflected the majority leader’s efforts to control amending activity, which was essential to countering what was perceived as a minority party effort to slow or block most of the majority’s agenda. By getting time agreements whenever possible, invoking cloture and early if possible, or placing blocking amendments in order to require unanimous consent to bring up other amendments, the majority leader sought to gain leverage over minority partisans. In many cases, this led to a unanimous consent agreement that provided for the disposition of amendments, pre-‐ or post-‐cloture, and a final passage vote. With a time agreement in place on amendments, the majority leader no longer needed to abbreviate debate on amendments and could allow direct votes on them. For at least a few major bills that would have attracted a disproportionate share of amendments, this approach probably both reduced the number of amendments considered and receiving a recorded vote and limited the number of motions to table amendments.
Three measures considered in the 111th Congress illustrate variations on this process. In early 2009, the Senate considered an omnibus appropriations bill that was necessary to fund most domestic agencies for the remainder of the fiscal year.13 Republicans allowed the Senate to proceed to the consideration of the bill, but instantly began an amendment spree. Because at least two Democrats opposed the bill, Majority Leader Reid found that he lacked the votes to invoke cloture and had little choice but to negotiate with the Republicans. In exchange for some Republican support for a cloture motion, Reid agreed to incorporate virtually all Republican amendments in a unanimous consent agreement (Senate Order 26, 111th Congress). The agreement limited debate on the amendments to three days, protected the amendments from second-‐degree amendments, and dispensed with all post-‐cloture debate. With a time agreement in place, although an agreement that met the minority’s demands, Reid allowed direct votes on 17 of 20 amendments. In fact, with senators interested in expediting consideration of the bill, senators agreed to stack the votes on the last few amendments at a specified time on the last day. Two amendments were killed with motions to table and one was killed on a Budget Act point of order.
Late in the process, as the stacked votes were progressing, the two motions to table were offered by a majority bill manager or the majority leader and yielded reasonably close votes—50-‐47 and 52-‐45. For those votes, it may be reasonable to argue that the majority sought to exploit a procedural motion to kill the amendments. The latter amendment concerned the politically delicate issues of cost-‐of-‐living increases in senators’ salaries so the case of political buffering is
13 See Congressional Record (Senate), daily, March 6, 9, and 10, 2009.
17
particular strong for that amendment. Nevertheless, 85 percent of the amendments received direct votes, including an amendment killed on a 47-‐50 vote.
In contrast, the health care reform bill, which was passed on Christmas Eve, 2009, was an instance in which the majority managed to invoke cloture. Armed with the 60 votes required to invoke cloture, the majority leader, filed three cloture motions: on the motion to proceed, a leader substitute (compromise), and the bill.14 He then filled the amendment tree by offering second-‐degree amendments to the leader substitute. This put him in a position to allow time to expire on post-‐cloture debate and eventually get the votes required on the three motions to pass the bill as he wanted. With the holidays approaching, the minority proved willing to accept time agreements for the consideration of a handful of amendments. In a series of time agreements, debate and roll-‐call votes on 19 amendments and four motions to commit the legislation to committee to amend certain provisions were arranged. On the amendments, 16 direct votes were cast, two were subject to motions to table, and one to a budget point of order. One of the motions to table concerned clearing the amendment tree that the majority leader had filled. In order to complete the work on Christmas Eve, the minority agreed to no post-‐cloture debate on the bill.15
Only one regular amendment was subject to a motion to table. An amendment on abortion was tabled, 54-‐45. No one doubted the outcome because head counts had clarified senators’ positions before the vote.16 In fact, Congressional Quarterly’s reporter noted that going on the record on abortion “offered political cover, allowing them to come out against abortion before voting for the final measure.”17 Unfortunately, there is no way to determine from the public record whether the procedural vote was essential to the outcome. It seems unlikely that a motion to table would give a senator political cover on such a highly salient vote.
The third measure was the reconciliation bill used to address House-‐Senate differences on the health care reform legislation. Reconciliation was used to avoid having to seek cloture on a conference report; reconciliation bills are limited to 20 hours of debate. With the time limit and an obstructive minority, gaining unanimous consent to structure debate and limit amendments was unnecessary. Nevertheless, Republicans had many amendments, none of which they expected to
14 The vote of Senator Ben Nelson remained in doubt over the issue of abortion. 15 In addition, the time agreements provided for 60-‐vote majorities for agreeing to several of the amendments and motions to commit. With the amendment tree filled and 60 votes for cloture, the majority leader could insist on the high threshold as a condition for allowing consideration of the amendments. 16 Shailagh Murray and Lori Montgomery, “Private-‐Sector Alternative: Senate May Drop Public Option; Reid Says He is Optimistic about Bill After Deal,” Washington Post, December 9, 2009, p. A01. 17 Alex Wayne and Drew Armstrong, “Despite a Deal, More Roadblocks Ahead for Health Bill,” CQ Weekly, December 14, 2009, p. 2884.
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receive majority support, and so were eager to expedite action. With no complaints from the Republicans, the Democratic leadership moved to table amendment after amendment. The outcome was not in doubt on any vote.
In the first two cases, and many others, the majority leader sought to firmly control time so that the minority could not offer dilatory amendments and motions as part of a large effort to obstruct the agenda of the majority party. The effect of time agreements in both cases was to reduce or eliminate uncertainty about the time required to consider and vote on amendments and the bill and to eliminate efficiency as a motivation for the use of the motion to table. Cloture mattered. In the first case, without cloture, the majority leader had little bargaining leverage with the minority, had to accommodate minority amendments, and yet insisted on proceeding with a structured process that reduced the risk that the minority could start a filibuster that he could not end. In the second case, with the votes for cloture, the majority leader could exhaust all time before key votes by filling the amendment tree, which gave him leverage to negotiate consideration of a limited number of amendments that posed no threat to his bill.
Nearly 40 percent of all amendments subject to a motion to table in the 111th Congress were Republican amendments on the health care reform reconciliation bill. It was the only legislation in the Congress subject to ten or more amendments that was not subject to a unanimous consent agreement that limited the number of and debate on amendments. Nearly all significant amending activity occurred with a time agreement that reduced the need for motions to table. This practice, a majority response to minority obstructionism, is new to recent Congresses.
Conclusion
The evidence that the motion to table is used to gain additional influence over outcomes on amendments is weak. Previous studies that show that outcomes on motions to table amendments are related to the party identity of amendment and motion to table sponsors, but the evidence of a difference in party influence on individual senators for amendment and motion to table votes remains elusive. To be sure, demonstrating electoral consequences and party influence on individual senators is difficult—and has challenged political scientists for decades (Smith 2007)—but we are obligated to question intuitive propositions for which we have alternative accounts.
Moreover, the wide historical variance in the use of the motion to table suggests that majority party leaders have not viewed the procedural motion to table as essential. To the contrary, a simpler account that emphasizes the efficiency gains of expeditiously disposing of amendments appears to fit the historical record better than an account that emphasizes the acquisition of extra party influence on procedural motions. When time constraints became more severe in the 1970s, leaders turned to motions to table with greater frequency.
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Rather than serving as a source of Senate majority party influence that parallels the House majority party’s control of the amending process through special rules, the motion to table may be a symptom of the fundamental disease the Senate majority party’s suffer. The Senate majority party’s leadership lacks control over the issues forced to a vote under the standing rules. For most legislation, the right of first recognition does not allow the majority leader to avoid unfriendly amendments except by unanimous consent or by gaining cloture and filling the amendment tree. Obstructionism and a flood of amendments is a common condition for the Senate majority, which often responds by trying to abbreviate debate on amendments through motions to table.
The historical pattern supports the view that efficiency, not vote acquisition, is the primary motivation for the frequent use of the motion to table as the means of disposing of amendments. Smith (1989) observes that the surge in amending activity in the 1970s yielded an increase in the percentage of amendments subject to a voice vote. We now see that the motion to table became a regular tool of senators at the same time. When minority obstructionism became a more serious problem in recent Congresses, majority leaders turned to new tactics in managing floor time that reduced the need to employ motions to table. This pattern of surge and decline appears to be better explained by the need to manage time than the need to buy votes.
We conclude that the Senate majority party is a far weaker cartel than its House counterpart. The use of motions to table amendments reflects this weakness. Reliance on them represents the lack of viable and more effective alternatives; they are not comparable to House special rules. Senators are not liberated of political pressure on motions to table. Motions to table yield little special party influence over amendments and have been a staple of floor action only since the 1970s.
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-1-.8-.6-.4-.2
0.2.4.6.81
Diffe
renc
e in
Pro
porti
on
1970 1980 1990 2000 2010Year
ADA Ratings ACU RatingsNote: Difference between the proportion of all votes on motions to table amendments and all votes on amendments included in group rating.
Motion to Table Votes in ADA and ACU Ratings, 1970-2008.Figure 1. Difference in the Representation of Amendment and
23
0
100
200
300
400
1949 1959 1969 1979 1989 1999 2009First Year of Congress
Source: Roll-call vote codebooks, Voteview.com.
Figure 3. Number of Motions to Table Amendments, 1949-2010.
0
200
400
600
800
1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007
and First Year of Congress, 1969-2008.Figure 4. Number of Amendments, by Method of Disposition
Amendment, Agreed to Amendment, RejectedMotion to Table, Agreed to Motion to Table, RejectedBudget Waiver, Agreed to Budget Waiver, Rejected
24
standard deviation = distance between shaded lines
dark lines: absolute value of difference of percent yea and percent nay
0
20
40
60
80
100
91 93 95 97 99 101 103 105 107 109Congress
Motions to Table Amendments Amendments
Motions to Table Amendments, 1969-2008.Figure 5. Mean Vote Margin for Amendments and
25
0 50 100 0 50 100 0 50 100 0 50 100 0 50 100
1969-1970 1971-1972 1973-1974 1975-1976 1977-1978
1979-1980 1981-1982 1983-1984 1985-1986 1987-1988
1989-1990 1991-1992 1993-1994 1995-1996 1997-1998
1999-2000 2001-2002 2003-2004 2005-2006 2007-2008
Motions to Table Amendments Amendments
x
Note: Kernel density plots for vote margin (absolute difference between percent yea and percent nay). Reference line at 10 (55-45).
Figure 6. Distribution of Vote Margins, by Type of Vote and Congress.
26
0
.01
.02
.03
.04
.05
dens
ity
0 20 40 60 80 100Margin (Percent Yea - Percent Nay)
motions to waive Budget Act amendmentsmotions to table amendments
Note: Kernel density distribution. Reference line at 10 (55-45).
Figure 7. Distribution of Vote Margins, by Type of Vote, 1995-2008.
0
20
40
60
80
1960 1970 1980 1990 2000 2010First Year of Congress
Note: Measures associated with Congressional Quarterly key votes, excluding nominations and treaties.
Subject to a Cloture Petition, 1961-2010.Figure 8. Percent of Key-Vote Measures
27
Table 1. Estimates of the Effect of Vote Type on Support for the Position of the
Senate Majority Leader, Majority Party Senators,1969-‐2010. intercept 1.636***
(0.013) cloture vote -‐0.102***
(0.027) final passage vote 0.120***
(0.047) motion to table amendment 0.026
(0.016) distance from majority leader -‐3.137***
(0.068) *** p > 0.001; motion to table amendment: p > 0.05. Estimates for majority party senators on contested votes (55-‐45 or closer). Missing vote category: direct vote on amendment. GLM estimates; AIC: 121550. Source: Senate roll-‐call votes. voteview.com.
0
200
400
600
800
91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110
Parliamentary Situation, and Congress, 1969-2008.Figure 9. Number of Amendments, by Method of Disposition,
Am., No Cloture MtT, No ClotureAm., Cloture MtT, Cloture