The Rise of Senate Unanimous Consent Agreements

The Rise of Senate Unanimous
Consent Agreements
Updated March 14, 2008
Walter J. Oleszek
Senior Specialist
Government and Finance Division

The Rise of Senate Unanimous Consent Agreements
Unanimous consent agreements are fundamental to the operation of the Senate.
The institution frequently dispenses with its formal rules and instead follows
negotiated agreements submitted on the floor for lawmakers’ unanimous approval.
Once entered into, unanimous consent agreements can only be changed by
unanimous consent. Their objectives are to waive Senate rules and to expedite floor
action on measures or matters. Typically, these accords (sometimes called time-
limitation agreements) restrict debate and structure chamber consideration of
Given their importance to chamber operations, it is worthwhile to understand
the background, or origin, of unanimous consent agreements. The purpose of this
report is to examine how and why these informal agreements became special orders
of the Senate enforceable by the presiding officer. This report will be updated as
circumstances warrant. Further information on unanimous consent agreements can
be found in CRS Report 98-225, Unanimous Consent Agreements in the Senate, by
Walter J. Oleszek; CRS Report RS20594, How Unanimous Consent Agreements
Regulate Senate Floor Action, by Richard S. Beth; and CRS Report 98-310, Senate
Unanimous Consent Agreements: Potential Effects on the Amendment Process, by
Valerie Heitshusen.

In troduction ......................................................1
Origins ..........................................................2
The 1914 Senate Rule (Rule XII)......................................3
The Ambiguity Factor..........................................4
The “Surprise” Factor..........................................5
Rule XII.....................................................5
Modern Practice...............................................6
Conclusion .......................................................6

The Rise of Senate Unanimous
Consent Agreements
Unanimous consent agreements are special orders of the Senate that are agreed
to without objection by the chamber’s membership. Fundamental to the management
of the contemporary Senate, these devices are typically employed to structure floor
proceedings and to expedite the chamber’s business. Two general types of1
unanimous consent permeate Senate operations: “simple” and “complex.” Both
types set aside the rules, precedents, or orders of the Senate via the unanimous
concurrence of all Senators. A simple unanimous consent request addresses routine
matters, such as dispensing with quorum calls or requesting that certain staff aides
have floor privileges. To be sure, there are occasions when a simple unanimous
consent request can have policy consequences, such as an objection to setting aside
an amendment or dispensing with the reading of an amendment. Simple unanimous
consent requests have been used since the First Congress. For example, a Senate rule
adopted on April 16, 1789, stated:
Every bill shall receive three readings [prior] to its being passed; and the
President [of the Senate] shall give notice at each, whether it be first, second, or
third; which readings shall be on three different days, unless the Senate
unanimously directs otherwise.
The focus of this report is on the complex variety: their historical origin, some
benchmarks in their evolution, and how they came to be reflected in the Senate’s
Complex agreements establish a tailor-made procedure for virtually anything
taken up by the Senate, such as bills, joint resolutions, concurrent resolutions, simple
resolutions, amendments, nominations, treaties, or conference reports. As two Senate
parliamentarians wrote:
There is a fundamental difference between the Senate operating under a
unanimous consent agreement and the Senate operating under the Standing
Rules. Whereas the Senate Rules permit virtually unlimited debate, and very few

1 See Robert Keith, “The Use of Unanimous Consent in the Senate,” in Committees and
Senate Procedure, A Compilation of Papers Prepared for the Commission on the Operations
of the Senate (Washington: GPO, 1977), pp. 142-148.

restrictions on the right to offer amendments, these agreements usually limit time2
for debate and the right of Senators to offer amendments.
Senators generally accept the debate and amendment restrictions common to
most unanimous consent agreements largely for two overlapping reasons: they
facilitate the processing of the Senate’s workload, and they serve the interests of
individual lawmakers. Based on trust, and reached after often protracted
negotiations, unanimous consent agreements are the equivalent of “binding
contracts” that can only be changed or modified by unanimous consent.
It is not clear when the Senate actually began to employ unanimous consent
agreements to limit debate or to fix a time for a vote on a measure. Perhaps the first
instance occurred in the mid-1840s. On March 24, 1846, Senator William Allen, D-
OH, stated that the Senate had been debating a joint resolution concerning the
Oregon Territory for more than two months, and it was now time to proceed to a final
vote on the matter. Noting that the Senate neither allowed for the previous question
(a motion employed in the House to end debate) nor adopted resolutions directing
that a vote should occur at a specific time, Senator Allen pointed out that it was the
Senate’s habit to have “a conversational understanding that an end would be put to3
a protracted debate at a particular time.” A Senate colleague suggested that Allen
delay several days before making such a request.
Two days later Senator Allen again asked that the Senate informally agree to fix4
“a definite day on which the vote might be taken.” The Senate, he said, should
simply refuse to adjourn until there is a final vote. No action occurred on Allen’s
recommendation. On April 13, 1846, however, a consensus developed among
Senators that a final vote on the joint resolution should occur three days later.
Finally, after spending around 65 days debating the matter, the Senate on April 16
enacted the joint resolution. Indeed, if this was the first time that the Senate
employed something like a unanimous consent agreement to end debate and
precipitate a vote on a measure, there is little question that these accords became both
more commonly used and more sophisticated in their procedural features.
By 1870, noted two scholars, unanimous consent agreements “were being used
with some frequency.” These early unanimous consent agreements were, “as they are
today, time-limitation agreements that provided for the disposal of a measure by a
specified time.”5 An April 24, 1879, exchange illustrates the practical use of these

2 Floyd M. Riddick and Alan Frumin, Senate Procedure: Precedents and Practices
(Washington: GPO, 1992), p. 1311.
3 Congressional Globe, vol. 15 (Mar. 24, 1846), p. 540.
4 Ibid., p. 553.
5 Gerald Gamm and Steven S. Smith, “Last Among Equals: The Senate’s Presiding Officer,”
in Esteemed Colleagues: Civility and Deliberation in the U.S. Senate, Burdett A. Loomis,

accords for limiting debate and setting the time for a vote. The exchange is
reminiscent of what occurs in today’s Senate.
The President pro tempore. The Chair will once more state the proposition
and again ask the Senate whether there be any objection to it. The proposition
is, that at three o’clock to-morrow, all debate on this bill shall cease, and the
Senate shall then proceed to vote upon the pending amendment or amendments
that may be offered, and finally on the bill itself without debate.
Mr. Conkling. That is right.
The President pro tempore. Is there objection to that understanding. The6
Chair hears none, and it is agreed to.
Bill managers apparently took the initiative in propounding unanimous consent
agreements. Their increasing use in subsequent decades led one Senator, Roger
Mills, D-TX, to complain that the Senate “reaches its vote on all questions like the
historic Diet of Poland, by the unanimous agreement of the whole, and not by the act
of the majority.”7 Other issues associated with these early accords also sowed
confusion among the membership. Many of the complaints stemmed from the fact
that the early unanimous consent agreements were often viewed “as an arrangement
simply between gentlemen” and could, as a president pro tempore once said, be
“violated with impunity by any member of the Senate.”8 To reduce the confusion,
the Senate adopted a new rule.
The 1914 Senate Rule (Rule XII)
The fundamental objective of Rule XII was to clarify several uncertainties
associated with these senatorial contracts. In the early 1900s, the Senate took modest
steps to reduce some of the confusion associated with unanimous consent
agreements, such as requiring these accords to be submitted in writing to the desk,
read to the chamber, and “printed on the title page of the daily calendar of business
as long as they were operative.”9 More changes were in the offing, however. Two
overlapping factors explain why the Senate agreed to a formal rules change to govern
these accords. First, there were a couple of ambiguities associated with these accords
that continued to arouse contention and confusion. Past precedents simply did not
adequately address these recurring problems. Second, a riveting event — a Senator
was caught by “surprise” when a unanimous consent agreement was entered into —
underscored the need for a formal rule (Rule XII) to clear up issues associated with
these “gentlemen’s agreements.”

5 (...continued)
ed. (Washington: Brookings Institution Press, 2000), p. 124.
6 Congressional Record, vol. 9 (Apr. 24, 1879), p. 815.
7 George Galloway, The Legislative Process (New York: Thomas Crowell, 1953), p. 554.
8 Congressional Record, vol. 21 (Aug. 26, 1890), p. 9144.
9 Gamm and Smith, p. 127.

The Ambiguity Factor
On the matter of ambiguity, there were two principal issues. First, could these
agreements be changed or modified by another unanimous consent agreement?
Second, could the presiding officer enforce these accords? Today, both principles
are accepted as procedural “givens.” Not so several decades ago. For example, on
March 3, 1897, Senator George Hoar, R-MA, stated: “I think it is very serious,
indeed, under any circumstances, to set the precedent of revoking a unanimous-
consent agreement by other unanimous-consent agreements.”10 As another example,
one of the Senate’s institutional leaders, Henry Cabot Lodge, R-MA., argued: “If it
is to be supposed that unanimous-consent agreements are to be modified, we shall
soon find it impossible to get a unanimous-consent agreement. I think nothing is
more important than the rigidity with which the Senate preserves unanimous-consent
agreements.”11 Or as Senator Joseph O’Gorman, D-NY, stated: “Has it not been
established by the precedents of this body that a unanimous-consent agreement could
not be impaired or modified either by another unanimous-consent agreement or by
an order of the Senate?”12 To be sure, other Senators contended that these compacts
could be modified by another unanimous consent agreement.
As to the enforcement of these accords, presiding officers took different
positions. As one presiding officer observed, “it has been the universal ruling of the
Chair that the Chair can not enforce a unanimous-consent agreement, but that it must
rest with the honor of Senators themselves.”13 On another occasion, the president of
the Senate asked: “[W]hat is the pleasure of the Senate, whether he shall enforce the
agreements entered into by unanimous consent or not?” Senator John Sherman, R-
OH, replied that the chair should “enforce the agreement with respect to the bill
under consideration.” The chair then asked, “In similar cases, what is the pleasure
of the Senate?” Senator Eugene Hale, R-ME, provided this answer: “We’ll cross that
bridge when we reach it.”14 Contrarily, “Vice Presidents Charles Fairbanks and James
Sherman were not timid about enforcing [unanimous consent agreements] at times.”15
Sundry other issues were also associated with these compacts. For example,
Senators argued about whether a motion to recommit a bill violated a unanimous
consent agreement to vote on the bill.16 Some Senators said that if they were not
present when a unanimous consent agreement was proposed, colleagues could object
for them. In response, Senator Thomas Martin, VA, the ostensible Democratic floor
leader, stated: “When unanimous consent is asked, unless objection is made from the

10 Congressional Record, vol. 29 (Mar. 3, 1897), p. 2729.
11 Congressional Record, vol. 42 (Jan. 10, 1907), p. 878.
12 Congressional Record, vol. 49 (Dec. 6, 1913), p. 353.
13 Congressional Record, vol. 29 (Mar. 3, 1897), p. 2730.
14 Congressional Record, vol. 21 (June 17, 1890), p. 6167.
15 Gamm and Smith, p. 126.
16 Congressional Record, vol. 23 (July 1, 1892), p. 5707.

floor of the Senate by a Senator who is present, he can not leave his vote here to be
recorded against it. The Senate can not do business by proxy that way.”17
The “Surprise” Factor
Senator Reed Smoot, R-UT, was caught off-guard when a unanimous consent
agreement he opposed was agreed to. The issue involved a 1913 bill (S. 4043) to
prohibit interstate commerce in intoxicating liquors. A unanimous consent agreement
was properly made and announced by the presiding officer. Senator Smoot, who was
present in the chamber, had planned to object but was momentarily distracted and
failed to lodge a timely dissent. For the next two days the Senate debated the
legitimacy of the unanimous consent agreement and whether it could be modified by
another unanimous consent agreement. In the end, the presiding officer submitted
the question of legitimacy to the Senate, which voted 40 to 17 (with 37 Members not
voting) to instruct the chair to resubmit the unanimous consent agreement to the
Senate. When this was done, Senator Smoot objected to the accord. Quickly,
another unanimous consent agreement on the liquor bill was propounded by Senator
Jacob Gallinger, R-NH, and it was accepted by the Senate.18
Rule XII
In short, uncertainties and controversies influenced the Senate on January 16,
1914, to adopt a formal rule to govern unanimous consent agreements. There was
relatively little debate on Rule XII. The major controversy involved whether these
compacts could be modified by another unanimous consent agreement.
Unsurprisingly, Senator Lodge argued against the new rule on the ground that to
permit any subsequent changes to unanimous consent agreements would only lead
to delays in expediting the Senate’s business. Senator Charles Thomas, D-CO,
responded: “It seems to me the most illogical thing in the world to say that the Senate
of the United States can unanimously agree to something and by that act deprive
itself of the power to agree unanimously to undo it.”19

17 Congressional Record, vol. 48 (July 10, 1912), p. 8812. Scholars disagree as to when a
Senator began to serve as his party’s floor leader. See Walter J. Oleszek, “John Worth
Kern: Portrait of a Floor Leader,” in First Among Equals: Outstanding Senate Leaders of
the Twentieth Century, Richard Baker and Roger Davidson, eds. (Washington: CQ Press,
1991), pp. 8-10. It is notable that the adoption of Senate Rule XII in 1914 corresponds to
the general time period when the position of floor leader formally emerged in the Senate.
Rule XII provided the floor leader with an important procedural tool to manage the
chamber’s business.
18 Congressional Record, vol. 49 (Jan. 10 and 11, 1913), pp. 1324-1329, 1354-1357, 1388-


19 Congressional Record, vol. 51 (Jan. 16, 1914), p. 1757.

By a vote of 51 to 8, the Senate adopted Rule XII.20 Two critical portions of the
rule stipulate that (1) unanimous consent agreements are orders of the Senate, which
means that the presiding officer is charged with enforcing their terms; and (2) the
Senate, by unanimous consent, could change a unanimous consent agreement. As
orders of the Senate, unanimous consent agreements are now printed in the Senate
Journal. (They are also printed in the Senate’s daily Calendar of Business, as noted
earlier, and the Congressional Record.)
Modern Practice
In subsequent decades, the Senate witnessed increasing use of unanimous
consent agreements. The contemporary Senate regularly operates via the terms of
unanimous consent agreements. They are used on every type of measure or matter
that comes before the Senate, and at least since the post-World War II period, all
party leaders and floor managers have extensively relied on them to process the
chamber’s business. During the majority leadership of Senator Lyndon Johnson, D-
TX (1955-1960), unanimous consent agreements were often comprehensive in scope
(e.g., identifying when a measure is to be taken up, when it is to be voted upon for
final passage, and what procedures apply in-between these two stages).
Today, in a period of heightened individualism and partisanship, unanimous
consent agreements tend to be piecemeal, such as establishing debate limits on a
number of discrete amendments without limiting the number of amendments or
specifying a time or date for final passage of the legislation. Still, compared with the
compacts promulgated during the early 1900s, today’s accords are often broader in
scope, more complex, and involve more procedural detail. A large body of
precedents has even evolved to govern “how [unanimous consent agreements] are to
be interpreted and applied in various situations.”21 In short, unanimous consent
agreements are essential to the processing of the Senate’s workload and protecting
the procedural prerogatives of individual senators.

20 The relevant part (clause 4) of Senate Rule XII states: “No request by a Senator for
unanimous consent for the taking of a final vote on a specified date upon the passage of a
bill or joint resolution shall be submitted to the Senate for agreement thereto until after a
quorum call ordered for the purpose by the Presiding Officer, it shall be disclosed that a
quorum of the Senate is present; and when a unanimous consent is thus given the same shall
operate as the order of the Senate, but any unanimous consent may be revoked by another
unanimous consent granted in the manner prescribed above on one day’s notice.”
21 Riddick and Frumin, Senate Procedure, p. 1312.