Jun 15 2018
This week the Unites States Senate took up the National Defense Authorization Act, a bill which broadly sets our nation’s defense priorities. Congress has passed an NDAA every year since 1961.
In the past, the Senate would have debated and voted on dozens of amendments before final passage of this bill. But not this year. This year there has been a single roll call vote on an amendment that changed the name of a Department of Defense fellowship program. It passed 97-0. This was hardly a consequential issue.
No other amendment has been voted on.
It’s not that senators don’t have amendments to vote on. More than 600 amendments have been filed. But because one senator did not want to allow a vote on one specific amendment, because he feared it would pass, all other amendments have been blocked.
The amendment in question is based on a bipartisan piece of legislation called the Due Process Guarantee Act, which is cosponsored by Sen. Dianne Feinstein (R-CA) and myself.
The purpose of the amendment is simple. It’s to make sure that the U.S. government has no authority and claims no authority to indefinitely detain U.S. citizens apprehended on U.S. soil.
Now most people might ask why on earth would we need legislation stating something so obvious. The fact is we shouldn’t. It is the inexorable command of the fourth, fifth, and sixth amendments. Why then do we need this amendment?
Well, seven years ago, when Congress was passing the 2012 National Defense Authorization Act, it included a provision that purported to give the U.S. government the authority to detain U.S. citizens captured on U.S. soil without trial.
I tried to fix it at the time, but it didn’t happen. The following year, when the Senate took up the 2013 National Defense Authorization Act, I introduced an amendment that is substantially identical to the one that I’m trying to seek a vote on today.
And that amendment passed by a bipartisan supermajority vote of 67. That is more than the 60 votes needed to end debate in the Senate and it is more than the 67 needed to pass a constitutional amendment or override a presidential veto.
Unfortunately the conference committee trying to reconcile competing House and Senate versions of the bill quietly removed the amendment. No explanation was given for its removal.
Over the subsequent six years I’ve tried repeatedly to get another vote on this amendment. Promise after promise has been made to help me get a vote. But it hasn’t panned out.
This week, however, an opportunity became available to file the amendment and at least force a vote on a motion to table it. A successful motion to table would have killed the amendment. But that motion failed 68-30. That means a veto-proof majority of the Senate wants at least a vote on whether this amendment should be added to the bill.
But still one senator is blocking that vote.
It did not used to be this way. The Senate used to vote on dozens of amendments for every bill that became law. And since senators were actually given a real opportunity to shape legislation, senators were also much less likely to try and stop legislation with a filibuster.
But that is not the way today’s Senate operates. Today the leadership of both parties wants as few amendment votes as possible. Not only does this minimize potentially controversial votes, it also centralizes power in the leadership offices. When no one is allowed to amend legislation by vote on the Senate floor, the only way changes to legislation can be made are through “manager’s packages” and “amendments in the form of a substitute.” These all-or-nothing up-or-down packages are completely controlled by party leaders.
If the Senate is going to lay claim to any type of status as the world’s greatest deliberative legislative body, we’ve got to start voting on amendments again. And we can start by voting on the Due Process Guarantee Act.
The laws of the United States and the principles that govern the behavior of decent people everywhere dictate that we should correct this error in the law.