When Failure Is the Only Senate Option

WASHINGTON — Sen. Eric Schmitt, a freshman Republican from Missouri, is new to the Senate but has already figured out that the so-called upper chamber is not always on the up and up.

“The only time you to get to offer an amendment in this place,” he declared in a recent mini-rant on the Senate floor, “is if it is sure to fail.”

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Schmitt might have exaggerated slightly. But it is true that on some of the most significant recent pieces of legislation, the only proposed changes that were allowed to be considered by what is sometimes called the world’s greatest deliberative body were ones that had absolutely no chance of being approved.

Making even the most minor modification could have doomed what were essentially must-pass measures or sent them back to the House for reconsideration, jeopardizing their chances in the current dicey legislative climate in which even basic measures are exceedingly heavy lifts.

As a result, senators have regularly been lining up to vote on amendments in an exercise that resembles legislative activity but is really a performative set of steps toward a foregone conclusion — or what Schmitt described as “Kabuki theater.”

Sen. Chuck Schumer, D-N.Y., the majority leader who controls the floor, acknowledged that his colleagues would welcome the opportunity to engage in real back-and-forth, but that current circumstances make it difficult.

“I think members long for the day when there were real debates,” Schumer, who has been more open to amendments than his recent predecessors, said in a recent interview.

The catch is that in the current, highly dysfunctional Congress, most of the big-ticket items have been worked out through negotiations among Republican and Democratic leaders and put on the floor at the last minute, leaving no room for tinkering. It is a side effect of the de facto coalition legislating that has emerged over the past 16 months that has allowed leaders in both parties to circumvent far-right rebels and keep crucial government functions on track.

As a result, according to Senate records, just one amendment out of 14 has been adopted this year — and it was drafted by party leaders — while only 16 have been approved out of 76 allowed in this Congress, beginning in January 2023. It is hardly the free-for-all of legislative give and take that once defined the institution.

The Senate has always been a popular venue for so-called show votes, in which one party tries to trap the other in a politically uncomfortable position. For instance, the Senate is famous for all-night “vote-a-ramas” in which members of both parties push forward scores of messaging votes on the annual budget proposal. But congressional budget resolutions don’t become law, so the debates around them have always been something of a political playground.

The recent round of sure-loser amendment votes — and the occasional blockade against any amendments at all — is a newer and different phenomenon, attributable to some factors unique to the current, barely functional environment on Capitol Hill.

Getting identical legislative vehicles through both the chaotic and fractious Republican-controlled House and the Democratic-majority Senate requires threading the very small eye of a legislative needle. And securing agreement is so difficult that most significant legislation has typically been reaching the Senate with no time to spare, leading its backers to resist any changes at all in the interest of avoiding a disruptive lapse in a federal program or in funding.

The recent handling of a warrantless surveillance measure was a case in point. The always contentious renewal of a law known as Section 702 of the Foreign Intelligence Surveillance Act stalled for weeks amid opposition from a coalition of progressive and conservative lawmakers who feared it would give the government unbridled authority to rifle through Americans’ communications.

But with an extension set to run out April 19, time was of the essence. After the House pushed it through, the Senate took it up only hours before the surveillance authorities were set to lapse. Critics wanted some changes, including requiring federal officials to obtain a warrant to access some of the material collected, but adding any would have required the bill to go back to the House, where a warrant requirement had just barely failed on a tie vote. Backers warned the legislation could not wait, or risk being stymied altogether by the change.

“The threats to America’s security are flashing red,” said Sen. Mitch McConnell, R-Ky., the minority leader. “Our adversaries are as intent as ever on sowing chaos and violence. And a vote to send this critical legislation back to the House today is a vote to make their job easier.”

Despite the time crunch, both Democrats and Republicans insisted on the chance to at least offer amendments. And because the Senate typically needs the agreement of all 100 members to move quickly, critics of the bill had leverage with the clock ticking on the surveillance powers. They urged their colleagues to ignore claims that the Senate was out of time.

“The only reason we wouldn’t have time is because the supporters of this bill delayed to the last hour,” said Sen. Rand Paul, R-Ky. “We have had five years to renew this. We delayed it until we have four hours left, and then we are told we can’t amend it because we don’t have enough time.”

After hours of tense private negotiations, Senate leaders announced votes would be allowed on six amendments. All had to fail in order to keep the legislation on track, even though senators privately conceded that some might have fared differently under other circumstances, including one by Sen. Dick Durbin of Illinois, the No. 2 Senate Democrat, that would have required a court order for searches of surveillance data that caught up Americans.

A few doomed amendments were also allowed on the multiple spending bills that barely avoided government shutdowns since last fall. They included more traditional “gotcha” amendments on government funding offered by Republicans designed to make a point rather than a law. Eager to move the bills along, Senate leaders agreed to hold votes on the proposals only after they were certain the amendments would all fail, setting the threshold for some at a supermajority of 60 votes just to make doubly certain that they did.

The recently approved $95 billion foreign aid package with military assistance to Ukraine was considered so sensitive — and so difficult to maneuver through the House — that no amendments at all were allowed in the Senate, where leaders chose to run out the procedural clock and close off any opportunity to propose changes.

That is what set Schmitt into a tizzy of frustration as he found himself and his colleagues blocked from putting forth even an amendment sure to fail.

“One of the things that all of us have to look in the mirror about,” he said, “is whether or not that’s what we want this place to be.”

Given the current legislative divide, the approach of the November elections and the Senate’s short workweeks, Schmitt and his colleagues shouldn’t expect a return to old-school floor fights anytime soon.

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