Wednesday, July 20, 2011
Senate Procedure: How Filling The Tree Works
Occasionally, members of the minority party in the Senate will complain that the Senate Majority Leader is "filling the tree," thereby denying others the opportunity to offer amendments to pending legislation. But how does it even work?
The amendment process is one of the most complicated procedural elements of the Senate. Of course, the Senate can't consider endless changes upon changes to each part of the bill. It's like adding decorations to each branch of a Christmas tree. You can only hang so many things from each branch and sub-branch of the tree. So there are rules about how many amendments you can hang on the amendment tree based on what amendment is offered first, and what type of amendment it is. Since the Senate Majority Leader is accorded priority of recognition, he can offer the first amendment and "fill the tree" if he chooses. This gives him leverage in preventing amendments that are meant solely to delay Senate action, and it helps him negotiate a favorable unanimous consent agreement with the minority.
How specifically does it work? Well, Senate amendments can be offered in two degrees. A first degree amendment directly affects the bill itself. A second degree amendment to the original first degree amendment amends the original. Secondly, Senate amendments are either perfecting amendments or substitute amendments. Perfecting amendments are what you normally think of. Substitutes propose to substitute the text of the amendment for the entire bill or a section of the bill. Then there are amendments reported by a committee and amendments offered on the floor. Committee amendments and substitutes have priority on the floor. Finally, an amendment differs based on whether its function is to strike text, insert text, or strike and insert. There are different rules and precedents for all of these amendment scenarios.
But don't be confused! We'll just give you one real example to understand the simplest way to fill the tree.
When the Senate proceeded to consider S.1323, a bill expressing the sense of the Senate on shared sacrifice in deficit reduction, during the 112th Congress, the minority party filed several dilatory amendments. The Majority Leader was therefore recognized and called up amendments in this order:
(1) an amendment to insert
(a) a second degree amendment to strike and insert
(2) motion to commit with instructions
(a) committee instructed to report back an amendment
(b) amendment to instructions - strike and insert
(3) cloture motion
An amendment to insert text poses the simplest amendment scenario, and up to two amendments can be added to that first amendment, meaning three amendments can be pending at the same time. If the first degree amendment is an amendment to insert, one second degree amendment is in order. That's why Senator Reid included a second degree strike and insert amendment. But if the second degree amendment happened to be in the form of a substitute amendment, a second degree perfecting amendment would also be in order. Luckily, Senator Reid simply filled the tree with the two amendments. While this "tree" that branched out from the first amendment offered is pending, no other amendments can be debated and voted on.
He did the same thing for the motion to commit with instructions (don't worry about it). And finally, Senator Reid filed cloture - which requires a 60 vote threshold to agree to a timetable ending debate, which includes new limitations on amendments. In fact, Senate precedent holds that the Chair should take the initiative during the cloture timetable to rule non-germane amendments out of order. This isn't part of "filling the tree," but it helps the Majority Leader control the amendments.
If you thought that was confusing, that was the simplest amendment tree with up to three pending amendments. In the most complex tree, up to 11 amendments can be pending at the same time.
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