Note 37. What Happened to "Why Don't We Do It on the Floor?"
In the mid-1980s, I wrote a paper and book chapter entitled, “Why Don’t We Do It on the Floor?” I hoped to use that title for a book, which eventually went under the title, Call to Order: Floor Politics in the House and Senate (1989). My boss at the Brookings Institution, Tom Mann, using his typical good judgment, suggested the title change. Maybe Tom’s good taste is violated by the title of this Note.
The theme of that essay was the increasing importance of the House and Senate floors as a stage in the policy-making process and the associated decline in deference to committees. During the 1970s, both houses experienced a surge in floor amending activity. The growing number of amendments during the 1970s is obvious in Figure 37-1. The figure reports, for the 1969-2022 period, the number of roll-call votes cast that were on or related to floor amendments. The tally includes votes on amendments to amendments, adoption of amendments, motions to table amendments, and similar motions, which gives a reasonably good view of the volume of amending activity. It excludes amending activity resolved by voice votes, withdrawal of amendments, and other actions not generating roll-call votes. The measure does not work for the House prior to 1971, when the House began to allow recorded votes in the Committee of the Whole, where most amendments are considered. The amending activity in the 1970s was, for the time, a record level.
These developments reflected an expanding policy agenda, but there was more to it. More entrepreneurial legislators offered more floor amendments to bills considered on the floor than ever before. They were encouraged by a growing army of lobbyists and supported by enlarged staffs. In the case of the House, motivated by being able to put themselves and their political opposition on the record more frequently as a result of the 1971 reform that allowed recorded roll-call votes in the Committee of the Whole, where most amending activity takes place, and the adoption of electronic voting in 1973, which cut the length of votes by at least one-half. The House seemed to become a bit more like the Senate, where the policy recommendations of standing committees were more frequently challenged by legislators offering floor amendments to bills.
At the time I was writing about these developments in the 1980s, it was obvious that the upward trend of the 1970s did not continue, but most close observers of Congress seemed to think that the entrepreneurial individualism and partisan activism on the floor would remain. What has happened?
General Patterns
The answer is not a simple one. The legislative agenda moderated a little, but actions taken by majority party leaders in both houses contributed to the taming of floor amending activity in the 1980s. In the House, the majority party started restricting floor amendments with special rules (Note 20). House Democrats, tired of having to vote on dozens of Republican amendments that had little chance of adoption but would force votes that were politically troublesome to some legislators, moved to use special rules more creatively (Bach and Smith 1988). In the Senate, Senator Robert Byrd (D-WV), first as majority whip and then as majority leader, worked tirelessly to lend order to floor action by negotiating unanimous consent agreements that pared down the number of amendments considered and set times for final action on bills. That much happened by the early 1980s.
It is notable that the House and Senate records of amending activity ran in parallel, at least until the 2000s. That’s not surprising. As Figure 37-2 shows, the number of bills passed by the two houses track together until the 2000s.[1] In broad brush, issues that motivate action in one house do so in the other house, too, and, when bills get floor consideration, they usually pass. The bills, of course, are the targets of amendments so there is likely to be a very rough correspondence between the volume of amending activity in the two houses.
The Senate Goes South
Remarkably, after 2004, the number of bills passed in the Senate fell far below the number passed in the House. Since that time, the number of bills passing in the Senate has declined while the House has continued to show considerable variation around the same long-term average of about 800 bills in every two-year Congress. The Senate, in large part due to the broadening of targets for minority party obstructionism the number of bills passed in the Senate dropped. I have addressed filibustering and obstructionism in Notes 1, 5, 7, and 10 and so will not review the history here.
Beyond a declining number of bills that serve as targets for floor amendments, Senate majority party leaders have more frequently limited the opportunity for amending activity by filling the amendment tree and reducing the number of times a bill is exposed for floor amendments.
Filling the amendment tree involves the majority leader, who enjoys the right be recognized before other senators, offering all amendments that are allowed to be pending at one time, which prevents others’ amendments to be offered until the leader withdraws his amendments. This usually is done to prevent minority amendments that would lead to difficult votes for some majority party members or to freeze action until an agreement is negotiated with the minority party to allow the bill to eventually come to a vote. None of the majority leaders the 1995-2006 period never filled the amendment tree more than 7 times for a two-year Congress, on average. Since that time, Democratic Majority Leader Harry Reid (D-NV) and Republican Majority Leader Mitch McConnell (R-KY) have averaged about 20 measures for which they filled the amendment tree in a two-year Congress (Evans and Schiller 2020).
Senate leaders also have taken the lead in trying to reduce the number of targets for obstruction and floor amendments. Packaging bills—such as appropriations bills—into omnibus measures and using deadlines—such as the need for avoiding a government shutdown because appropriations bills have not been enacted—reduce the number of opportunities for amendments (Note 7). Similarly, packaging legislation that could be considered as separate bills into a reconciliation bill imposes a time limit on floor consideration and requires amendments to be germane. In addition, avoiding conference committees avoids opportunities for offering amendments to conference reports. This is done a variety of ways, most often by negotiating informally with the House to create a bill or an amendment to a bill so that a conference is not required. With intensified minority obstructionism, these approaches that were once considered unorthodox have become commonplace (Sinclair 2016).
Plainly, the Senate has become a very different place. Minority party obstructionism and the majority party response grew somewhat incrementally, but the demise of amending in the new century has given the Senate an almost unrecognizable feel. An institution in which days and days of debate and amending activity accompanied action on most major bills has become quiet most of the time. A membership that took pride in creative policy making and offering timely but often nongermane amendments to address issues of the day is often tied up in partisan gridlock.
The House Holds Its Own Until Recently
While Senate amending activity drooped early in the new century, the House retained a level of amending activity that had wide variation, as it has in the past, and about the same rolling average. Even that isn’t the whole story. The number of House amendments before the 1970s that were represented in the roll-call voting record was limited. In fact, the number of amendments did rise in the 1970s, but in the pre-1971 House floor amendments were primarily considered in the Committee of the Whole, where legislators’ votes were not recorded for the public record. Thus, the data points for 1969 and 1970 in Figure 37-1 represent the very small number of amendments that received a roll-call vote in the House outside of the Committee of the Whole. Nevertheless, the number of amendments in the Committee of the Whole was typically 500 or more in the Congresses of the 1960s, shot upward in the 1970s, and faded a bit as restrictive special rules became the norm (Smith 1989).
Members of the House, particularly among the most conservative Republicans, often resented the use of restrictive special rules. When the Democrats were in the majority, they did not like having their amendments excluded even when Republican leaders had an opportunity to have their amendments considered. When the Republicans were in the majority, they still were excluded from offering amendments that might force embarrassing votes or threaten a narrow majority.
Nevertheless, since Gingrich left office in 1998, leaders of both parties have, at least tentatively and temporarily, promised a more open amendment opportunities, leading to a few spikes in amending activity. In 2007, the new Democratic Speaker Nancy Pelosi promised a more open process, as she did again in 2019. In 2023, Republican Speaker Kevin McCarthy did so. “Tentatively and temporarily” must be emphasized. The percentage of special rules that were fully closed—permitting no floor amendments to a bill or bills addressed in the rule—from the 30s in the 2000s to 50s in the late 2010s and the 60s in the early 2020s. In the 117thCongress (2021-2022), two-thirds of special rules were closed and, as has been the case since 2015, have limited amendments in some way.[2] The result: The House has reached exceptionally low levels of amending activity in the last few Congresses. It has not been much different than the Senate, although for different reasons.
Why Don’t We Do It on the Floor?
The recent paucity of amending activity in both houses, of course, is rooted in deep partisan polarization. Exploitation of floor amendments for partisan purposes and the small party majorities, when combined with deeply polarized parties, motivated majority party leaders in both houses to pursue strategies to limit their parties’ exposure to minority amendments and minimize opportunities for their small coalitions to splinter. I did not anticipate these developments in the 1980s, a decade in which both parties experienced increasing homogeneity but were not yet devoid of conservative Democrats and liberal Republicans willing to offer amendments oppose by most in their parties and occasionally forming cross-party coalitions to win floor votes.
Legislators remain concerned, and some are even upset, about the lack of opportunities to challenge committee and party legislation with floor amendments. Nevertheless, party interests dominate and most legislators, through their everyday behavior, exhibit a tolerance of restrictions on their individual abilities to participate as authors of floor amendments.
“Why don’t we do it on the floor?” remains a question legislators ask, but offering a floor amendment is far, far less frequently a viable option than it was as just a few a couple decades ago.
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[1] The tallies in Figure 37-1 include, for each house, bills and joint resolutions passed, which could have originated in either house. This is identical to Vital Statistics in Congress (https://www.brookings.edu/multi-chapter-report/vital-statistics-on-congress/).
[2] https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2022/01/BPC-House-Rules-Data-117th-Congress-through-Dec.-2021.pdf
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Bach, Stanley, and Steven S. Smith. 1989. Managing Uncertainty in the House of Representatives. Brookings Institution.
Evans, C. Lawrence, and Wendy Schiller. 2020. “The U.S. Senate and the Meaning of Dysfunction,” in L. Dodd, B. Oppenheimer, and C.L. Evans, eds., Congress Reconsidered. 12th ed. CQ Press.
Sinclair, Barbara. 2016. Unorthodox Lawmaking. 5th edition. CQ Press.
Smith, Steven S. 1989. Call to Order: Floor Politics in the House and Senate. Brookings Institution.