Easier Ways to Get a Vote

Jeff Flake, R-Ariz., wants a vote on tariffs. And he’s threatening to slow down the judicial confirmation process in the Senate if he doesn’t get his way. 

At issue are tariffs imposed by President Donald Trump on a number of imports from Canada, Mexico, the European Union, and a number of other trading partners. Flake, a long-time champion of free trade, wants to restrict Trump’s power to do so. 

There’s only one problem. Flake’s colleagues in the Senate are not as eager to vote on legislation limiting Trump’s ability to impose tariffs unilaterally.

For example, James Inhofe, R-Okla., recently blocked Bob Corker, R-Tenn., from amending the defense authorization bill to require congressional approval of certain tariffs. Inhofe objected to Corker’s request to offer the tariff amendment on the grounds that its inclusion would jeopardize the underlying legislation.

While the defense bill ultimately passed, Flake’s threat signals that the Senate’s free traders still want a vote. And he hopes that delaying the confirmation process will give him leverage to force his colleagues to give it to them.

Leverage is important. The Senate’s present dysfunction stems, in part, from the fact that its members have forgotten how to use it. But there are easier ways for Flake to force a vote in this situation than slowing the confirmation process. In reality, Flake and Corker already have the power to get what they want. They certainly don’t need anyone’s permission. 

Consider the defense bill. Corker asked unanimous consent to offer his amendment and Inhofe objected. Corker then criticized his colleagues for their unwillingness to allow his amendment. Yet lost in the ensuing controversy was the fact that Corker could have offered his amendment anyway. Understanding why this is the case requires acknowledging how the amendment process works in practice.

All decisions regarding which amendments are allowed to be offered to legislation on the Senate floor are channeled through a single veto point (i.e. the party leaders or bill managers). Inhofe’s decision to object to Corker’s amendment illustrates that, once established, a veto point makes it easier for the leadership and/or bill managers to exercise disproportionate control over which amendments will be made pending to legislation and to set the terms according to which those amendments will be disposed of.

Establishing a veto point is accomplished by putting the Senate in a parliamentary situation in which unanimous consent is needed in order to get an amendment pending under one of the four amendment trees. (Hence Corker’s request and Inhofe’s objection.) This is done by filling the amendment tree (or offering a blocker amendment in one of the available slots such that further amendments are precluded by the principles of precedence as long as that blocker amendment is pending). No amendments are in order once all the extant branches on the tree are occupied. At that point, the majority leader and/or bill manager is free to focus on negotiations with interested rank-and-file colleagues to reach a unanimous consent agreement that provides for several amendments and a vote on final passage without having to worry about a member jeopardizing the legislation’s prospects by offering a controversial or otherwise unwanted amendment without permission.

But this approach only works if senators like Corker and Flake cooperate. That is, Inhofe, or anyone else for that matter, didn’t technically have the power to prevent Corker from offering his amendment. Instead of asking for permission, Corker could have simply ignored the blocker amendments already pending to the defense bill and offered his own. The Senate’s precedents stipulate, “Any senator recognized is entitled to offer an amendment when such amendment is otherwise in order, but he cannot offer an amendment unless he has been recognized or has the floor.”

Had Corker done so, the Presiding Officer would have ruled that Corker’s amendment was not in order pursuant to the Senate’s past practice- though not its Standing Rules. At that point, Corker could have appealed the ruling and requesting a vote. Doing so would have forced senators to eventually cast a vote on a procedural question directly related to the tariff amendment (i.e. should the amendment be made pending). The appeal represents an adjudication of the italicized portion of the precedent quoted above; namely, that an amendment is in order despite the fact that the amendment tree has been filled. If successful, the tactic simply creates another branch on the tree where the amendment is pending.

Threatening to force a tariff vote in this manner is a better source of leverage for Corker and Flake than delaying the confirmation process because it is directly related to their underlying concern. That is, it keeps the debate focused on tariffs instead of judges.