The Legislative Process on the Senate Floor: An Introduction
The Legislative Process on the Senate Floor:
An Introduction
Updated November 26, 2008
Valerie Heitshusen
Analyst on the Congress and Legislative Process
Government and Finance Division
The Legislative Process on the Senate Floor:
An Introduction
Summary
The standing rules of the Senate promote deliberation by permitting Senators
to debate at length and by precluding a simple majority from ending debate when
they are prepared to vote to approve a bill or other matter. This right of extended
debate permits filibusters that can be brought to an end if the Senate invokes cloture,
usually by a vote of three-fifths of all Senators. Even then, consideration can
continue under cloture for an additional thirty hours. The possibility of filibusters
encourages the Senate to seek consensus whenever possible and to conduct business
under the terms of unanimous consent agreements that limit the time available for
debate and amending.
Except when the Senate is considering appropriations, budget, and certain other
measures, Senators also may propose floor amendments that are not germane to the
subject or purpose of the bill being debated. This permits individual Senators to raise
issues and have the Senate vote on them, even if they have not been studied and
evaluated by the appropriate standing committees. Similarly, Senators can bypass the
committee system by introducing measures and having them placed directly on the
Calendar of Business without having been referred to committee at all.
These characteristics of Senate rules make the Senate’s daily floor schedule
potentially unpredictable unless all Senators agree by unanimous consent to accept
limits on their right to debate and offer non-germane amendments to a bill. Also to
promote predictability and order, Senators traditionally have agreed to give certain
procedural privileges to the Majority Leader. The Majority Leader enjoys priority in
being recognized to speak, and the Majority Leader (or a Senator acting at his behest)
alone proposes what bills and resolutions the Senate should consider.
Thus, the legislative process on the Senate floor reflects a balance between the
rights guaranteed to Senators under the standing rules and the willingness of Senators
to forego exercising some of these rights in order to expedite the conduct of business.
Contents
In troduction ......................................................1
The Right to Debate................................................2
Filibusters and Cloture..............................................3
Restraint and Delay................................................4
Scheduling Legislative Business......................................5
Routine Agenda Setting.........................................5
Committee Referral and Rule XIV................................7
Non-Germane Amendments.....................................7
Time Agreements..................................................8
The Nature of Time Agreements..................................8
Negotiating Time Agreements...................................10
Other Unanimous Consent Agreements............................10
The Daily Order of Business........................................11
The Amending Process............................................12
Quorum Calls and Rollcall Votes....................................14
Sources of Additional Information...................................15
The Legislative Process on the Senate
Floor: An Introduction
1
Introduction
The legislative process on the Senate floor is governed by a set of standing rules,
a body of precedents created by rulings of Presiding Officers or by votes of the
Senate, a variety of established and customary practices, and ad hoc arrangements the
Senate makes to meet specific parliamentary and political circumstances. A
knowledge of the Senate’s formal rules is not sufficient to understand Senate
procedures, and Senate practices cannot be understood without knowing the rules to
which the practices relate.
The essential characteristic of the Senate’s rules, and the characteristic that most
clearly distinguishes its procedures from those of the House of Representatives, is
their emphasis on the rights and prerogatives of individual Senators. Like any
legislative institution, the Senate is both a deliberative and a decision-making body;
its procedures must embody some balance between the opportunity to deliberate or
debate and the need to decide. Characteristically, the Senate’s rules give greater
weight to the value of full and free deliberation than they give to the value of
expeditious decisions. Put differently, legislative rules also must strike a balance
between minority rights and majority prerogatives. The Senate’s standing rules
place greater emphasis on the rights of individual Senators — and, therefore, of
minorities within the Senate — than on the powers of the majority. The Senate’s
legislative agenda and its policy decisions are influenced not merely by the
preferences of its members but also by the intensity of their preferences.
Precisely because of the nature of its standing rules, the Senate cannot rely on
them exclusively. If all Senators took full advantage of their rights under the rules
whenever it might be in their immediate interests, the Senate would have great
difficulty reaching timely decisions. Therefore, the Senate has developed a variety
of practices by which Senators set aside some of their prerogatives under the rules to
expedite the conduct of its business or to accommodate the needs and interests of its
members. Some of these practices have become well-established by precedent;
others are arranged to suit the particular circumstances the Senate confronts from day
to day and from issue to issue. In most cases, these alternative arrangements require
the unanimous consent of the Senate — the explicit or implicit concurrence of each
of the one hundred Senators. The Senate relies on unanimous consent agreements
every day for many purposes — purposes great and small, important and routine.
1 This report was originally written by Stanley Bach, former senior specialist in the
Legislative Process at CRS. The report has been updated by the listed author, who is
available to respond to inquiries on the subject.
However, Senators can protect their rights under Senate rules simply by objecting to
a unanimous consent request to waive one or more of the rules.
Generally, the Senate can act more efficiently and expeditiously when its
members agree by unanimous consent to operate outside of its standing rules.
Generally also, Senators insist that the rules be enforced strictly only when the
questions before it are divisive and controversial. Compromise and accommodation
normally prevail. Senators exercise great self-restraint by not taking full advantage
of their rights and opportunities under the standing rules, and often by agreeing to
unanimous consent requests for arrangements that may not promote their individual
legislative interests. The standing rules remain available, however, for Senators to
invoke when, in their judgment, the costs of compromise and accommodation
become too great.
Thus, the legislative procedures on the Senate floor reflect a balance — and
sometimes an uneasy balance — between the operation of its rules and the principles
they embody, on the one hand, and pragmatic arrangements to expedite the conduct
of business, on the other. The interplay between the principles of the Senate’s
standing rules and the pragmatism of its daily practices will be a theme running
throughout the following sections of this report.
The Right to Debate
The standing rule that is probably most pivotal for shaping what does and does
not occur on the Senate floor is paragraph 1(a) of Rule XIX, which governs debate:
When a Senator desires to speak, he shall rise and address the Presiding Officer,
and shall not proceed until he is recognized, and the Presiding Officer shall
recognize the Senator who shall first address him. No Senator shall interrupt
another Senator in debate without his consent, and to obtain such consent he
shall first address the Presiding Officer, and no Senator shall speak more than
twice upon any one question in debate on the same legislative day without leave
of the Senate, which shall be determined without debate. (Emphasis added.)
The Presiding Officer of the Senate (unlike the Speaker of the House) may not
use the power to recognize only certain Senators in order to control the flow of
business. If no Senator holds the floor, any Senator seeking recognition has a right
to be recognized. Moreover, once a Senator has been recognized, he or she may
make any motion that Senate rules permit, including motions affecting what bills the
Senate will consider (though a Senator loses the floor when he or she makes a
motion, offers an amendment, or takes one of many other actions). In practice,
however, the Senate has modified the effect of this rule by precedent and custom. By
precedent, the Majority and Minority Leaders are recognized first if either leader and
another Senator are seeking recognition at the same time. In addition, by custom,
only the Majority Leader (or another Senator acting at his behest) makes motions or
requests affecting when the Senate will meet and what legislation it will consider.
In these respects, Senators relinquish their equal right to recognition and their
right to make certain motions, and they do so in order to lend some order and
predictability to the Senate’s proceedings. Otherwise, it would be nearly impossible
for any Senator to predict with assurance when the Senate will be in session and what
legislation it will consider. For example, during debate on one bill, any Senator
could move that the Senate turn to another bill instead. This would make it very
difficult for the Senate to conduct its business in an orderly fashion, and it would be
equally difficult for Senators to plan their own schedules with any confidence. Thus,
Senate precedents and practices modify the operation of this rule, as it affects
recognition, in the interests of the Senate as an institution and in the interests of its
members individually.
Even more important is what paragraph 1(a) of Rule XIX says and does not say
about the length of debate. The rule imposes a limit of two speeches per Senator per
question per day, but it imposes no limit at all on the number of Senators who may
make those two speeches, nor on the length of the speeches. In fact, there are few
Senate rules that limit the right to debate, and no rules that permit a simple majority
of the Senate to end a debate whenever it is ready to vote for a bill, amendment, or
other question that is being considered. When Senators are recognized by the
Presiding Officer, the rules normally permit them to speak for as long as they wish,
and questions generally cannot be put to a vote so long as there are Senators who still
wish to make the speeches they are permitted to make under Rule XIX.
The House of Representatives may bring a question to a vote if a simple
majority agrees to a motion to order the previous question. When meeting in
Committee of the Whole, a majority of Representatives also can move to close debate
on a pending amendment or sometimes on a bill and all amendments to it. No such
motions are possible in the Senate. As a result, a majority of Senators does not have
nearly the same control over the pace and timing of their deliberations as does a
majority of the House.
There is one partial exception to this generalization. The Senate often disposes
of an amendment by agreeing to a motion to lay the amendment on the table. When
a Senator who has been recognized makes this motion, it cannot be debated (except
by unanimous consent, of course). If the Senate agrees to this motion to table, the
amendment is rejected; to table is to kill. On the other hand, if the Senate defeats
the motion, debate on the amendment may resume; the Senate only has determined
that it is not prepared at that time to reject the amendment. Thus, a tabling motion
can be used to stop debate even if there still are Senators wishing to speak, but only
by defeating the amendment at issue. Although the effect of the motion is essentially
negative, it frequently is a test vote on Senate support for an amendment. If the
motion fails, the Senate may agree to the amendment shortly thereafter. But this is
a reflection of political reality, not a requirement of Senate rules or precedents.
Filibusters and Cloture
The dearth of debate limitations in Senate rules creates the possibility of
filibusters. Individual Senators or minority groups of Senators who adamantly
oppose a bill or amendment may speak against it at great length, in the hope of
changing their colleagues’ minds, winning support for amendments that address their
objections, or convincing the Senate to withdraw the bill or amendment from further
consideration on the floor. Opposing Senators also can delay final floor action by
offering numerous amendments and motions, insisting that amendments be read in
full, demanding roll call votes on amendments and motions, and by using a variety
of other devices.
The only formal procedure that Senate rules provide for breaking filibusters is
to invoke cloture under the provisions of paragraph 2 of Rule XXII. Under the rules
however, cloture cannot be voted until two days after it is proposed, and a simple
majority of the Senate is insufficient to invoke cloture.
Cloture requires the support of three-fifths of the Senators duly chosen and
sworn, or a minimum of 60 votes if there are no vacancies (unless the matter being
considered changes the standing rules, in which case cloture requires a vote of
two-thirds of the Senators present and voting). For this reason alone, cloture can be
difficult to invoke and almost always requires some bipartisan support. In addition,
some Senators are reluctant to vote for cloture, even if they support the legislation
being jeopardized by the filibuster, precisely because the right of extended debate is
such an integral element of Senate history and procedure.
Even if the Senate does invoke cloture on a bill (or anything else), the result is
not an immediate vote on passing the bill. The cloture rule permits a maximum of
thirty additional hours for considering the bill, during which each Senator may speak
for one hour. The time consumed by rollcall votes and quorum calls is deducted
from the thirty hour total; as a result, each Senator does not have an opportunity to
speak for a full hour, although he or she is guaranteed at least ten minutes for debate.
Thus, cloture does not stop debate immediately; it only ensures that debate cannot
continue indefinitely. Even the thirty hours allowed under cloture is quite a long time
for the Senate to devote to any one bill, especially since Senators may not be willing
to invoke cloture until the bill already has been debated at considerable length.
Restraint and Delay
Any Senator can filibuster almost any legislative proposal the Senate is
considering. The only bills that cannot be filibustered are the relatively few which
are considered under provisions of law that limit the time available for debating
them. For example, Section 305(b)(1) of the Budget Act of 1974 restricts debate on
a budget resolution, “and all amendments thereto and debatable motions and appeals
in connection therewith,” to not more than fifty hours. If no such provision applies,
Senators can prolong the debate indefinitely on any bill or amendment, as well as on
many motions, subject only to tabling motions or cloture.
Although there may be many bills to which some Senators may be adamantly
opposed, filibusters are not daily events. One reason is that conducting a filibuster
is physically demanding, but there are more compelling reasons for self-restraint. If
Senators filibustered every bill they opposed, the Senate as an institution would
suffer. It could not meet its constitutional responsibilities in a timely fashion and it
could not respond effectively to pressing national needs. Public support for the
Senate as an institution, and for its members as individuals, would be undermined.
Furthermore, all Senators have legislation they want to promote. They appreciate
that if they used the filibuster regularly against bills they oppose, other Senators
would be likely to do the same, and every Senator’s legislative objectives would be
jeopardized. In short, Senators resort to filibusters only on matters of the greatest
importance to them because this practice serves the long-term interests of the Senate
and all Senators alike.
Nonetheless, the right to debate at length remains, and the possibility of
filibusters affects much of what happens on the Senate floor. Many of the ways in
which the Senate agrees to set aside its standing rules are designed in response to the
possibility of filibusters. Simply threatening to filibuster can give Senators great
influence over whether the Senate considers a bill, when it considers it, and how it
may be amended.
If a majority of Senators support a bill that is being filibustered, they may be
able to pass it eventually if they are committed and patient enough — and especially
if they are able to invoke cloture. Even if cloture is not invoked, devices such as
late-night sessions can strain the endurance and determination of the filibustering
Senators. The potency of filibusters does not depend, however, solely on Senators’
ability to prolong the debate indefinitely. From the right to debate flows the ability
to delay, and the prospect of delay alone can often be sufficient to influence the
Senate’s agenda and decisions.
The legislative process is laborious and time-consuming, and the time available
for Senate floor action each year is limited. Every day devoted to one bill is a day
denied for consideration of other legislation, and there are not enough days to act on
all the bills that Senators and Senate committees wish to see enacted. Naturally, the
time pressures become even greater with the approach of deadlines such as the date
for adjournment and the end of the fiscal year. So, for all but the most important
bills, even the threat of a filibuster can be a potent weapon. Before a bill reaches the
floor or while it is being debated, its supporters often seek ways to accommodate the
concerns of opponents, preferring an amended bill that can be passed without
protracted debate to the time, effort, and risks involved in confronting a filibuster.
Scheduling Legislative Business
Routine Agenda Setting
One way in which the possibility of extended debate affects the Senate’s
procedures is in how the Senate determines its legislative agenda — the order in
which it decides to consider bills and other business on the floor. When one or more
of the Senate’s standing committees reports a bill back to the Senate for floor debate
and passage, the bill is placed on the Senate’s Calendar of Business (under the
heading of “General Orders”).
The Senate gives its Majority Leader the primary responsibility for deciding the
order in which bills on the Calendar should come to the floor for action. The
Majority Leader’s right to preferential recognition already has been mentioned, as has
Senators’ willingness to relinquish to him the right to make the motion (provided for
in the standing rules) for deciding the order of legislative business — namely, the
motion that the Senate proceed to the consideration of a particular bill.
Whenever possible, however, bills reach the Senate floor not by motion but by
unanimous consent. The motion to proceed to a bill usually is debatable and,
therefore, subject to a filibuster. Even before the bill can reach the floor (and perhaps
face a filibuster), there may be extended debate on the question of whether or not the
Senate should even consider the bill at all.
It is to avoid this possibility that the Majority Leader attempts to get all Senators
to agree by unanimous consent to take up the bill he wishes to have debated. If
Senators withhold their consent, they are implicitly threatening extended debate on
the question of considering the bill. Senators may do so because they oppose that bill
or because they wish to delay consideration of one measure in the hope of influencing
the fate of some other, possibly unrelated, measure. Senators can even place a “hold”
on a bill, by which they ask their party’s floor leader to object on their behalf to any
unanimous consent request to consider the bill, at least until they have been
consulted. The practice of holds is not recognized in Senate rules or precedents
(though a recent change in public law has established guidelines for their use); more
often than not, however, the Majority Leader will not even make such a unanimous
consent request if there is a hold on a bill.
In attempting to devise a schedule for the Senate floor, the Majority Leader
seeks to promote the legislative program of his party (and perhaps the President) as
he also tries to ensure that the Senate considers necessary legislation in a timely
fashion.
When the Majority Leader is confronted with two bills, one of which can be
brought up by unanimous consent and the other of which cannot, he is naturally
inclined to ask the Senate to take up the bill that can be considered without objection.
Time is limited, and the Majority Leader is concerned to use that time with
reasonable efficiency. Some bills, of course, are too important to be delayed only
because some Senators object to considering them. Most are not, however, especially
if the objections can be met through negotiation and compromise. Thus, the
possibility of extended debate affects decisions for scheduling legislation in two
ways: by discouraging the Majority Leader and the Senate from attempting to take
up bills to which some Senators object, and by encouraging negotiations over
substantive changes in the bills in order to meet these objections.
The right of Senators to debate at length is not the only way in which they can
influence the Senate’s legislative agenda. The standing rules of the Senate give its
members at least two other opportunities to influence the matters that reach the
Senate floor for debate and decision. One opportunity affects the prerogatives of
Senate committees; the other affects the amendments that Senators may propose on
the floor.
Committee Referral and Rule XIV
The Senate’s standing committees play an essential part in the legislative
process, as they select the small percentage of the bills introduced each Congress
which, in their judgment, deserve the attention of the Senate as a whole, and as they
recommend amendments to these bills based on their expert knowledge and
experience. Most bills are routinely referred to the committee with appropriate
jurisdiction as soon as they are introduced. However, if a Senator plans to introduce
a bill and believes that the committee to which it would be referred will be
unsympathetic, Rule XIV, paragraph 4, permits the Senator to bypass the standing
committee system altogether and have the bill placed directly on the Calendar of
Business, with exactly the same formal status the bill would have if it had been the
subject of extensive hearings and exhaustive mark-up meetings in committee.
By the same token, if a committee fails to act on a bill that was referred to it,
while this may mean the bill will die for lack of action, the proposal it embodies may
not. The Senator sponsoring the bill may introduce a new bill with exactly the same
provisions as the first, and have the second bill placed directly on the Calendar. In
either event, the committee that has been circumvented may oppose bringing the bill
from the Calendar to the floor by unanimous consent or by motion, but now the fate
of the bill can be decided by the Senate as a whole, not only by one of its committees.
Senators generally view this use of Rule XIV as a last resort, both because it
undermines the committee system as a whole and because they do not wish to
encourage a practice that can be used against their own committees. In recent
practice, the Majority Leader sometimes also uses this method to put a measure
directly on the Calendar — often to expedite consideration of a complicated or high-
profile bill that has been drafted outside of the committee process.
Non-Germane Amendments
An even more important opportunity for individual Senators is a result of the
absence in the standing rules of any general requirement that the amendments offered
by Senators on the floor must be germane or relevant to the bill being considered.
The rules impose a germaneness requirement only on amendments to general
appropriations and budget measures and to matters being considered under cloture,
and various statutes impose such a requirement on a limited number of other bills.
(The Senate generally interprets germaneness strictly, to preclude amendments that
expand the scope of a bill or introduce a specific additional topic.) In all other cases,
Senators are free to propose whatever amendments they choose on whatever subjects
to whatever bill the Senate happens to be considering.
The right to offer non-germane amendments is extraordinarily important
because it permits Senators to present issues to the Senate for debate and decision,
without regard to the judgments of the Senate’s committees or the scheduling
decisions and preferences of its Majority Leader. Again consider the position of a
Senator whose bill is not being acted on by the committee to which it was referred.
Instead of introducing an identical bill and having it placed directly on the Calendar,
he or she has a second and usually more attractive option: to offer the text of the bill
as a floor amendment to another bill that has reached the floor and that can serve as
a useful legislative “vehicle.”
The existence of this opportunity can make it extremely difficult to anticipate
what will happen to a bill when it reaches the floor and how much of the Senate’s
time it will consume. The party leaders and the floor managers of the bill may know
what amendments on the subject of the bill will be offered, but they cannot be certain
that there will be no other, perhaps far more controversial, non-germane
amendments. In fact, it is not unusual for one or more non-germane amendments to
occupy far more of the Senate’s attention than the subject the bill itself addresses.
Time Agreements
The Nature of Time Agreements
Just as the right of extended debate encourages Senate committee and party
leaders to bring up bills for consideration by unanimous consent, the right to debate
combined with the right to offer non-germane amendments encourages the same
leaders to seek unanimous consent agreements limiting or foreclosing the exercise
of these rights while a bill is being considered. Without such an agreement, the bill
could be debated for as long as Senators wish — as could each amendment, whether
germane or not — unless the Senate votes to table it. These are the essential
conditions under which the Senate considers a bill if it adheres to its standing rules.
It is precisely to avoid these conditions that the Senate often debates, amends,
and passes bills under very different sets of parliamentary ground rules — ground
rules that are far more restrictive but that require unanimous consent to be imposed.
One of the frequent purposes of these unanimous consent agreements is to limit the
time available for debate, and thereby ensure that there will be no filibuster.
Complex unanimous consent agreements of this special kind are frequently called
“time agreements.”
In addition, before taking up a bill, or after the Senate has begun debating it,
Senators often reach unanimous consent agreements to govern consideration of
individual amendments that have been or will be offered. Less often today, the
Senate reaches an encompassing agreement, limiting debate on a bill and all
amendments to it, before or at the time the bill is called up for floor action.
The following example illustrates such a comprehensive time agreement “in the
usual form”:
Ordered, That when the Senate proceeds to the consideration of S. 1651 (Order
No. 636), the Veterans’ Dioxin and Radiation Exposure Compensation Standards
Act, debate on any amendment in the first degree shall be limited to 1 hour, to
be equally divided and controlled by the mover of such and the manager of the
bill, and debate on any amendment in the second degree, debatable motion,
appeal, or point of order which is submitted or on which the Chair entertains
debate shall be limited to 30 minutes, to be equally divided and controlled by the
mover of such and the manager of the bill: Provided, That in the event the
manager of the bill is in favor of any such amendment or motion, the time in
opposition thereto shall be controlled by the Minority Leader or his designee;
Provided Further, That no amendment that is not germane to the provisions of
the said bill shall be received.
Ordered Further, That on the question of final passage of the said bill, debate
shall be limited to 4 hours, to be equally divided and controlled by the Majority
Leader and the Minority Leader, or their designees: Provided, That the said
Senators, or either of them, may, from the time under their control on the passage
of the said bill, allot additional time to any Senator during the consideration of
any amendment, debatable motion, appeal, or point of order.
Before discussing the effect of this agreement, some of its terms require
definition. A first degree amendment is an amendment that proposes to change or
add to the text of the bill, while a second degree amendment proposes to change or
replace the text of a first degree amendment that has been proposed but not yet voted
on. The manager of the bill usually is the chair of the standing committee that had
considered and reported it (although it may be the chair of one of the committee’s
subcommittees instead). Finally, debate on the question of final passage is debate on
the bill as a whole, not on any amendment or motion affecting the bill; this debate
may occur throughout the time the Senate considers the bill.
The two essential features of this and comparable time agreements are (1) a
prohibition against non-germane amendments, and (2) strict limitations on the time
available for debating the bill and every question that may arise during its
consideration. Under the terms of this agreement, for example, the Senate as a whole
may debate each first degree amendment for no more than one hour. Moreover, only
a very few Senators have a right to speak during that hour; other Senators may speak
only if one of their colleagues agrees to yield them part of the time that he or she
controls. Senators still may offer as many amendments as they wish, but they have
lost their valued right of unlimited debate. There are also even more stringent time
limits for debate on second degree amendments and other questions, as well as a limit
on time for debating the bill itself.
The differences between considering a bill under the terms of the Senate’s
standing rules and considering it under this kind of time agreement are so great and
so fundamental that they bear repeating. Under the standing rules, Senators may
offer whatever non-germane amendments they want; under the time agreement, no
non-germane amendments at all are permitted. Under the standing rules, Senators
may debate the bill, each amendment, and a variety of other questions for as long as
they want; under the time agreement, on each question, only two Senators may speak
as a matter of right, and all time for debate is severely limited. The differences could
hardly be more dramatic. It must be emphasized, however, that time agreements are
unanimous consent agreements. They cannot be imposed on the Senate by any vote
of the Senate; they require the concurrence or acquiescence of each and every
Senator.
Negotiating Time Agreements
Negotiating these complex unanimous consent agreements can be a difficult and
time-consuming process, the responsibility for which falls primarily on the Majority
and Minority Leaders and the leaders of the committee that reported the bill at issue.
They consult interested Senators, but it would be impractical to consult every Senator
about every bill scheduled for floor action. For this reason, individual Senators and
their staffs take the initiative to protect their own interests by advising the leaders of
their preferences and intentions. Negotiations sometimes take place on the floor and
on the public record, but at least the preliminary discussions and consultations
usually occur in meetings during quorum calls or off the floor.
Senators prefer to expedite the conduct of legislative business whenever
possible, and so normally cooperate in reaching time agreements. However, when
Senators have special concerns — for instance, when they are intent on offering
particular amendments or guaranteeing themselves ample time for debate — their
interests must be accommodated. Any Senator who is dissatisfied with the terms of
a proposed time agreement has only to object when it is propounded on the floor; so
long as any one Senator objects, the standing rules remain in force with all the rights
and opportunities they provide. As a result, time agreements may include exceptions
to their general provisions in order to satisfy individual Senators. For example, a
comprehensive agreement that generally limits debate on each first degree
amendment to an hour and prohibits non-germane amendments may identify one or
more specific amendments that are exempted from the germaneness requirement, and
also may provide different amounts of time for debating them.
In these ways, time agreements can be less restrictive than the one quoted
earlier. There may be no agreement at all if one or more Senators decide to fully
preserve their rights to debate and offer amendments. On other occasions, however,
agreements have been even more restrictive — for example, by prohibiting all
amendments to a bill except for a few that are identified specifically in the agreement
itself (and perhaps also prohibiting amendments to those amendments). If the Senate
does accept a unanimous consent agreement, whatever its terms, it may be changed
at a later time only by unanimous consent.
Other Unanimous Consent Agreements
In current practice, the Senate usually begins consideration of most bills without
first having reached a time limitation agreement. In some cases, the floor managers
expect few amendments and relatively little debate, making an elaborate agreement
unnecessary. In other cases, the Majority Leader and committee chairman seek an
agreement unsuccessfully, but proceed with the bill anyway because of its timeliness
and importance. After the Senate has debated such a bill and controversial
amendments for many hours or even days, the leaders often renew their attempts to
reach an overall agreement limiting debate on each remaining amendment or setting
a time for the Senate to vote on passage of the bill.
In the absence of a time agreement covering all amendments and other
questions, the Majority Leader and the majority floor manager often try to arrange
unanimous consent agreements for more limited purposes while the Senate is
debating a bill. During consideration of a controversial amendment, either Senator
may propose to limit — by unanimous consent — further debate on it. Senators also
may agree to time limits on individual amendments before offering them. By
unanimous consent, the Senate may set aside one amendment temporarily in order
to consider another one. Other agreements may define the order in which Senators
will offer their amendments, postpone roll call votes until a later time that is more
convenient for Senators, or even set a super-majority threshold for the adoption of
a particular amendment.
These examples only begin to illustrate the many ways in which the Senate
relies every day on unanimous consent arrangements. From routine requests to end
a quorum call or waive the reading of an amendment to extremely elaborate and
complicated procedural “treaties,” the Senate depends on unanimous consent requests
and the willingness of Senators to agree to them.
The Daily Order of Business
The extent to which the Senate uses unanimous consent arrangements to
supplement or supplant operation of its standing rules makes it difficult to predict
with confidence what will actually take place on the Senate floor each day. This
report already has mentioned some of the problems that can arise in scheduling
legislation and in anticipating the time that will be consumed (and the amendments
that Senators will offer) during consideration of each bill. In addition, the other
proceedings that occur each day also depend on whether the Senate decides to operate
under or outside of its rules.
The time at which the Senate convenes each day is set by a resolution the Senate
adopts at the beginning of each Congress, but that time is often changed from day to
day by unanimous consent — at the request of the Majority Leader — to suit
changing circumstances. When the Senate does convene, and after the opening
prayer and the Pledge of Allegiance, a brief period of “leader time” is set aside for
the Majority Leader and for the Minority Leader, under a standing order also
established at the beginning of the Congress. During this time, the two party leaders
may discuss the legislative schedule as well as their views on policy issues, and they
also may conduct non-controversial business by unanimous consent.
What happens thereafter depends on whether the Senate is beginning a new
legislative day. A legislative day begins when the Senate convenes after an
adjournment, and it continues until the next adjournment. When the Senate recesses
at the end of a day, as it often does, a legislative day continues for two or more
calendar days. Standing Rules VII and VIII prescribe what the Senate should do at
the beginning of each new legislative day, and one of the reasons the Senate
frequently recesses from day to day is to set aside the requirements imposed by these
rules.
Under the two standing rules, the first two hours of session on each new
legislative day are called the Morning Hour. They are a period for conducting routine
business at a predictable time each day that does not interfere with the consideration
of major legislation. The Morning Hour begins with the transaction of “morning
business,” which includes the introduction of bills and joint resolutions and the
submission of Senate and concurrent resolutions and committee reports. During the
remainder of the Morning Hour, the Senate can act on bills on the Calendar of
Business, and may even vote to consider them by non-debatable motions to proceed.
At the end of the Morning Hour, the Senate resumes consideration of the unfinished
business — whatever bill, if any, was the pending business when the Senate
adjourned.
In practice, the Senate very often recesses at the end of the day, so there is no
Morning Hour on the following day of session. Instead, the Majority Leader usually
arranges by unanimous consent that “a period for transacting routine morning
business” follow “leader time.” Senators make brief statements on whatever subjects
they like during this period, the length of which can change from day to day,
depending on the legislative schedule. Also by unanimous consent, there may be
other periods for transacting morning business during the course of the day when
time is available and Senators wish to speak on subjects unrelated to the pending bill.
After the Morning Hour or the period for transacting routine morning business,
the Senate normally resumes consideration of the bill that is either the unfinished
business (if the Senate had adjourned on the preceding day) or the pending business
(if the Senate had recessed instead). However, this bill may be set aside —
temporarily or indefinitely — in favor of other legislative or executive business if the
Senate agrees to motions or unanimous consent requests made for that purpose by the
Majority Leader. Before the end of the day, the Majority Leader also makes
arrangements for the following day — establishing a meeting time by unanimous
consent and commenting on the expected legislative program.
The Amending Process
The amending process is at the heart of the Senate’s floor deliberations. If the
Senate reaches a final vote on passing or defeating a bill, the bill is very likely to
pass. It is through the amending process that Senators have an opportunity to
influence the content of the bill before the vote on final passage occurs; this is an
especially important opportunity for Senators who do not serve on the committee that
marked up the bill and reported it.
When a bill is called up for floor consideration, opening statements usually are
made by the two floor managers — the chairman and ranking minority member of
the committee (or sometimes the subcommittee) that reported the bill — and often
by other Senators as well. These statements lay the groundwork for the debate that
follows, describing the purposes and provisions of the bill, the state of current law
and the developments that make new legislation desirable or necessary, and the major
points of controversy. These opening statements are a matter of custom and practice,
however; the bill is open to amendment as soon as it is before the Senate.
The first amendments to be considered are those recommended by the
committee reporting the bill, and so designated in the printed version of the bill “as
reported.” As each committee amendment is being debated, Senators may propose
amendments to it and to the part of the bill the committee amendment would change.
The Senate votes on any such amendments before it votes on the committee
amendment itself. Thereafter, Senators may offer amendments in any order to any
part of the bill that has not already been amended. The order in which amendments
are offered depends largely on the convenience of the Senators proposing them, not
on requirements imposed by standing rules or precedents. As a general rule, a
Senator cannot propose an amendment to a bill while first degree (and possibly
second degree) amendments to the bill are pending. It is not unusual, however, for
the Senate to agree by unanimous consent to lay aside pending amendments
temporarily in order to consider another amendment that a Senator wishes to offer at
that time.
After a Senator offers an amendment, it must be read unless the Senate
dispenses with the reading by unanimous consent. The Senate then debates the
amendment and may dispose of it either by voting “up or down” on the amendment
itself or by voting to table it. However, the amending process can become far more
complicated. Bills are amendable in two degrees, so before the Senate votes on a
first degree amendment, it is subject to second degree amendments that propose to
change its text. After voting on any second degree amendments, the Senate votes on
the first degree amendment as it may have been amended. Third degree amendments
— amendments to second degree amendments — are not in order.
Additional complications are possible, depending on whether the first degree
amendment proposes: (1) to insert additional language in the bill without altering
anything already in the bill; (2) to strike out language from the bill without inserting
anything in its place; (3) to strike out language from the bill and insert different
language instead; or (4) to strike out the entire text of the bill (everything after the
enacting or resolving clause at the very beginning of the measure) and replace it with
a different text. In the case of a motion to insert, for example, Senators can offer as
many as three first and second degree amendments before the Senate votes on any of
them; in the case of an amendment that is a complete substitute for the text of the
bill, Senators can propose six or more first and second degree amendments to the
substitute and to the original text of the bill before any votes must occur.
These possibilities depend on several principles of precedence among
amendments — principles governing the amendments that may be offered while
other amendments are pending and also governing the order in which the Senate
votes on the amendments that have been offered. Complicated amendment situations
do not arise very often, but they are most likely to occur when the policy and political
stakes are high.
Once a Senator has offered an amendment, the conditions for debating it depend
on whether or not there is a time limitation for considering that particular amendment
or all amendments to the bill. If there is no such limitation, each Senator may debate
the amendment for as long as he or she pleases, subject only to the rule limiting each
Senator to two speeches on a question during each legislative day. However, any
Senator who has been recognized may move to table the amendment, and that motion
is not debatable. If there is a time limitation, the time provided is both a minimum
and a maximum. Senators may not make motions or points of order, propose other
amendments, or move to table, until all the time for debating the amendment has
been used or until all remaining time has been yielded back. After the time has
expired, on the other hand, the amendment can be debated further only by unanimous
consent or if the Senators controlling time for debating the bill as a whole choose to
yield part of that time.
A number of general principles govern the amending process. For example, an
amendment that has been defeated may not be offered again without substantive
change. An amendment should not make changes in two or more different places in
the bill, nor may it propose only to amend a part of the bill that already has been
amended. If an amendment consists of two or more parts that could each stand as
separate and independent propositions, any Senator may demand that the amendment
be divided and each division treated as if it were a separate amendment (except that
a motion to strike out and insert is not divisible). Generally speaking, Senators may
not propose amendments to their own amendments, but they can modify or withdraw
their amendments instead. If the Senate takes some “action” on an amendment (such
as ordering the yeas and nays on it), the Senator who offered the amendment loses
his right to modify it, but now gains the right to offer an amendment to his or her own
amendment.
As mentioned before, floor amendments to most bills need not be germane
unless a germaneness requirement is part of the unanimous consent agreement under
which a particular bill is being considered. Alternatively, the Senate may, by
unanimous consent, require that amendments to a bill be relevant to it; relevancy is
a somewhat less restrictive standard that seeks to ensure that unrelated issues will not
be raised in the form of amendments.
The amending process continues until Senators have no other amendments they
wish to offer or until the entire bill has been changed by amendments. At either
point, the Senate orders the bill engrossed and read a third time — a formal stage that
precludes further amendments — and then votes on final passage.
Quorum Calls and Rollcall Votes
The Constitution requires that a quorum — that is, a majority of all Senators —
be present to conduct business on the floor. Even though Senators have many
responsibilities that frequently keep them from the floor, the Senate presumes that
a quorum is present unless a quorum call demonstrates that it is not.
A Senator who has been recognized may suggest the absence of a quorum at
almost any time; a clerk then begins to call the roll of Senators. Senators may not
debate or conduct business while a quorum call is in progress. If a majority of
Senators do not appear and respond to their names, the Senate can only adjourn or
recess, or attempt to secure the attendance of additional Senators. However, quorum
calls usually are ended by unanimous consent before the clerk completes the call of
the roll and the absence of a quorum is demonstrated. The reason is that most
quorum calls are not really intended to determine if a quorum is present.
The purpose of a quorum call usually is to suspend floor activity temporarily.
If a Senator is coming to the floor to speak, a colleague may suggest the absence of
a quorum until the expected Senator arrives. If the Senate finds itself confronted
with unexpected procedural complications, if the Majority Leader needs to meet with
several Senators on the floor about a possible unanimous consent agreement, or if the
floor manager of a bill wants to discuss a compromise alternative to an amendment
another Senator has offered — for any of these or many other reasons — a Senator
may suggest the absence of a quorum to permit time for informal consultations. The
time consumed by many quorum calls permits intensive and productive discussions
that would be far more difficult to hold under the rules of formal Senate debate.
The Constitution also provides that one-fifth of the Senators on the floor
(assuming that a quorum is present) can demand a rollcall vote. Since the smallest
possible quorum is 51 Senators, the support of at least 11 Senators is required to
order a rollcall vote. A Senator who has been recognized can ask for “the yeas and
nays” at any time that the Senate is considering a motion, amendment, bill, or other
question. Agreement to this request does not terminate debate. Instead, if a rollcall
is ordered, that is how the Senate will vote on the question whenever the time for the
vote arrives. Thus, the Senate may order a rollcall vote on an amendment as soon as
it is offered, but the vote itself may not take place for several hours or more, when
Senators no longer wish to debate the amendment.
The alternative to a rollcall vote usually is a voice vote in which the Senators
favoring the bill or amendment (or whatever question is to be decided) vote “aye” in
unison, followed by those voting “no.” Although a voice vote does not create a
public record of how each Senator voted, it is an equally valid and conclusive way
for the Senate to reach a decision.
Sources of Additional Information
The standing rules of the Senate are published periodically in a separate Senate
document and in the Senate Manual, which contains other related documents as well.
The most recent compilation of the Senate’s precedents is the Riddick’s Senate
Procedure, named in honor of Floyd M. Riddick, Parliamentarian Emeritus of the
Senate (Senate Document No. 101-28; 101st Congress, second session).
The parliamentarian and his assistants welcome inquiries about Senate
procedures, and offer expert assistance compatible with their other responsibilities.
The Congressional Research Service has prepared a variety of other reports on
the Senate and its procedures, including CRS Report RL30788, Parliamentary
Reference Sources: Senate, by Megan Suzanne Lynch and Richard S. Beth; CRS
Report 98-311, Senate Rules Affecting Committees, by Betsy Palmer; CRS Report
RL30360, Filibusters and Cloture in the Senate, by Richard S. Beth and Stanley
Bach; CRS Report 98-853, The Amending Process in the Senate, by Betsy Palmer;
CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate, by Valerie
Heitshusen; and CRS Report 96-708, Conference Committee and Related
Procedures: An Introduction, and CRS Report 98-696, Resolving Legislative
Differences in Congress: Conference Committees and Amendments Between the
Houses, both by Elizabeth Rybicki.
The staff of CRS are available to consult with individual Senators and staff; they
also present periodic staff seminars and institutes on legislative procedures