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Cybersecurity, Christmas Trees, and the Grinch

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Wednesday, November 14, 2012 at 11:37 AM

As I noted yesterday, Senator Reid has announced that the Cybersecurity Act of 2012 will return to the floor for consideration sometime before Thanksgiving (possibly as early as tomorrow).   According to the Senate the procedure is that “a motion to reconsider the failed cloture vote on S. 3414 has been entered. The amendment tree has been filled.”

I thought that this announcement might give me a chance to play guide to the inside baseball of the Senate (somewhat like George Will in his wonderful book on baseball “Men at Work“).  So what does it mean to “fill” the amendment tree?

Well, under general Senate rules, amendments to a bill do NOT need to be germane to the underlying bill.  Hence, as a general rule, it is perfectly in order for someone to file an amendment to, say, a cybersecurity bill, that deals with abortion or gun control.  Naturally, that can be awkward — who wants to tie tax reform to, say, controversial oil and gas leases.  Usually, when the Senate is functioning well, the way around this is for the Majority Leader (today Senator Reid) and the Minority Leader (Senator McConnell) to reach an agreement on a list of amendments that will be considered in connection with the bill.  They then seek (and gain) the unanimous consent of the Senate to make only those amendments that are agreed upon “in order” for a bill. Typically, this means that each side gets to offer a few of the amendments it considers particularly important.  In the context of the cybersecurity bill, the Democrats might offer, say, an amendment to enhance privacy and civil liberties protections, while the Republicans would be allowed to offer an amendment to strike the regulatory provisions of the bill completely.

That’s when the system works well.  Sometimes (more frequently lately) the two Leaders can’t reach agreement. When that happens, the Majority Leader takes the bull by the horns and exercises his prerogative to prevent any amendments to the bill other than the ones that he approves.  He does that by “filling the tree.”

The “tree” of course is a metaphor.  What it refers to is the fact that in any bill there are only a limited number of places and times that an amendment can be proposed.  For a particular bill the number of permissible amendments varies depending on the specifics of the bill, but lets suppose their are 8 such places.  Under Robert’s Rules of Order, the general rule is that only one level of amendments to amendments (called second order amendments) is permitted — so each of these 8 amendments is in turn amendable 1 time each, for another 8 possible amendments, giving us a total of 16.

When the Majority Leader “fills the tree” he uses his privilege as the first to speak to file 16 amendments at the same time.  Usually, those are ministerial amendments (i.e. changing a single date) and are pro-forma.  But what it means is that the other Senators (and most notably the ones in the Minority) are prevented from offering amendments — even germane ones, like say, striking the the regulatory Title from the bill.

In short, what this brief note on procedure tells us is that the Majority Leader and Minority Leader have NOT yet gotten to an agreement on amendments to be considered.  And that means that unless they do (and it doesn’t seem likely) then the cloture vote will be on the exact same  bill that was considered before the August recess.  Whether we reach the same result or not is an open question — as is who is playing the role of the Grinch in this affair.

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