Monday, January 23, 2006

Gold and Gupta: Senate Debate Procedures

Senate procedure is built upon three main pillars. First are the Standing Rules of the Senate. Currently, there are forty-three rules: thirty-three governing procedure and ten governing ethics. In theory, these rules may be adopted or amended by a simple majority of Senators acting through a Senate resolution. In practice, however,
under the current Standing Rules, a change requires the consent of two-thirds of Senators present—the number needed to end a filibuster on a rules change. The second pillar of Senate procedure consists of those procedures written into statutes to govern the consideration of subsequent legislation. The 1974 Budget Act, for example, specifies certain fast-track procedures the Senate must follow when considering budget resolutions and reconciliation bills and for thirty years has set
the terms for floor consideration of such vehicles. The third pillar includes Senate precedents. A precedent is set when (i) the Presiding Officer of the Senate rules on a point of order which the Senate may or may not affirm if an appeal is taken, (ii) a majority of the Senate addresses a point of order submitted to it by the Presiding Officer, or (iii) the Presiding Officer of the Senate issues an advisory response to
a Senator’s parliamentary inquiry. Under Article I, Section 3 of the U.S. Constitution, “the Vice President of the United States shall be President of the Senate” and act as Presiding Officer (or Senate Chair). In the Vice President’s place, the Senate elects a President pro tempore to act as the Presiding Officer.13 In practice, the Chair is occupied by an acting President pro tempore who rotates on an hourly basis.

Senate procedures arising from these sources may be modified by Orders. Such Orders are often situational, limited only to the measure or matter before the Senate at a given moment. For example, the Senate may adopt a unanimous consent Order limiting debate on a pending amendment to two hours per side. Occasionally, the Senate
will establish a Standing Order which, like a Standing Rule or precedent, remains in effect until the Senate revokes it or it expires under its own terms. A Standing Order may be adopted by a unanimous consent agreement or by a majority vote if the Standing Order is adopted by Senate resolution or is added to a pending bill.
Generally, the Senate operates on the principle of unfettered debate. In fact, for 111 years, the Senate rules provided no limit on debate. A Senator could speak for as long as he wished on nearly any topic he chose, and the majority had no recourse to stop him. This led to the “filibuster,” a device to delay Senate business in order to prevent legislation from ever coming to a vote, or to convince unwilling Senators to vote for amendments as a price for ending the filibuster and preserving time for debate on other bills they deem more important. Today, Senate procedure provides four methods for curtailing debate: tabling of motions, unanimous consent agreements, statutory provisions, and cloture. A motion to table operates to halt debate but also kills the underlying proposition. A bill manager will often offer a motion to table in order to defeat a proposal to add a hostile amendment. The motion is non-debatable—the Senate must take an immediate vote on it—and it serves as a final disposition of the underlying question. Accordingly, a tabling motion is an effective tool for ending debate only on propositions the mover opposes.

Under a unanimous consent order, Senators agree to impose new procedures—sometimes including debate limitations—in lieu of customary procedures. In such a case, the agreement typically provides that the time for debate be evenly divided between two
opposing sides and be under the control of specified Senators. Once entered, a unanimous consent agreement can only be changed by a subsequent unanimous consent agreement. However, a single Senator can block the agreement, because unanimous consent orders are often unavailable to restrict debate.

A third method to curtail debate is found in certain rulemaking statutes. The 1974 Budget Act, for example, includes procedures that operate akin to a unanimous consent agreement to limit debate on matters specified by the Budget Act.

When a Senator does not wish to kill the underlying proposition and neither statutory provisions nor unanimous consent are available to constrain debate, Rule XXII provides “cloture” to restrict debate. The first step is for at least sixteen Senators to sign a cloture motion. After a required intervening day of session, the Senate holds a quorum call one hour after convening and then votes on the cloture
motion. Sixty votes (three-fifths of all Senators duly chosen and sworn) are needed to invoke cloture, unless the proposal is to change the Senate rules, in which case the votes of two-thirds of Senators present are needed. If cloture fails, other cloture votes may be taken, as there is no restriction on the number or frequency of cloture motions that may be presented. If the cloture vote succeeds, a new set of procedures takes effect, including a one-hour-per-Senator limit on debate, an overall thirty-hour cap on consideration of the clotured item, and other rules serving to streamline floor consideration.