How Laws are Made in the U.S.A. [1 ed.] 9781621003175, 9781608761425

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Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

LAWS AND LEGISLATION SERIES

HOW LAWS ARE MADE IN THE U.S.A.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.

How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

LAWS AND LEGISLATION SERIES State Secrets Protection Act Lara H. Nellington (Editor) 2009 ISBN: 978-1-60692-711-3 Revisiting and Evaluating the Congressional Review Act Katherine R. Williamson (Editor) 2009 ISBN: 978-1-60692-687-1 Clean Diamond Trade Act James T. Williams (Editor) 2009. ISBN: 978-1-60741-111-6 Federal Torts Reform, Claims and Liability Ben V. Colligan (Editor) 2009. ISBN: 978-1-60692-989-6

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Restoring the Rule of Law Patricia V. Barkley (Editor) 2009. ISBN: 978-1-60692-970-4 Statutory Interpretation: General Principles and Recent Trends Y. J Kim (Author) 2009. ISBN: 978-1-60692-997-1 Contemporary Perspectives on Legal Regulation of Sexual Behavior: Psycho-legal Research and Analysis Monica K. Miller (Editor) 2009. ISBN: 978-1-60741-161-1 Contemporary Perspectives on Legal Regulation of Sexual Behavior: Psycho-legal Research and Analysis Monica K. Miller (Editor) 2009. ISBN: 978-1-60876-779-3 (Online Book) How Laws are Made in the USA Helen Maes (Editor) 2010. ISBN: 978-1-60876-142-5

How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

LAWS AND LEGISLATION SERIES

HOW LAWS ARE MADE IN THE U.S.A

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Helen Maes Editor

Nova Science Publishers, Inc. New York How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Copyright © 2010 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers‘ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works.

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Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA How laws are made in the U.S.A. / editor, Helen Maes. p. cm. Includes index. ISBN 978-1-62100-317-5 (eBook) 1. Legislation--United States. 2. United States. Congress. I. Maes, Helen. II. Title: How laws are made in the United States of America. KF4945.A2H69 2010 328.73'077--dc22 2009034035

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How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

CONTENTS

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Preface

vii

Chapter 1

How Our Laws Are Made John V. Sullivan

Chapter 2

The Congressional Research Service and the American Legislative Process Ida A. Brudnick

1

51

Chapter 3

Engrossment, Enrollment and Presentation of Legislation R. Eric Petersen

61

Chapter 4

Enrollment of Legislation: Relevant Congressional Procedures Valerie Heitshusen

65

Chapter 5

Legislative Process: How a Senate Bill Becomes a Law

71

Chapter 6

Introducing a House Bill or Resolution Betsy Palmer

79

Chapter 7

Introducing a Senate Bill or Resolution Betsy Palmer

81

Chapter 8

Office of Legislative Counsel: House Matthew E. Glassman

85

Chapter 9

Office of Legislative Counsel: Senate Matthew E. Glassman

89

Chapter 10

Resolving Legislative Differences in Congress: Conference Committees and Amendments between the Houses Elizabeth Rybicki

91

Chapter 11

Sources of Legislative Proposals: A Descriptive Introduction Judy Schneider

125

Chapter 12

Sponsorship and Cosponsorship of House Bills Betsy Palmer

129

How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Contents

vi Chapter 13

Sponsorship and Cosponsorship of Senate Bills Betsy Palmer

133

Chapter 14

The Amending Process in the House of Representatives Christopher M. Davis

137

Chapter 15

The Amending Process in the Senate Betsy Palmer

181 211

Index

213

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Chapter Sources

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PREFACE This book is intended to provide a basic outline of the numerous steps of our federal lawmaking process from the source of an idea for a legislative proposal through its publication as a statute. It is hoped that this book will enable readers to gain a greater understanding of the federal legislative process and its role as one of the foundations of our representative system. One of the most practical safeguards of the American democratic way of life is this legislative process with its emphasis on the protection of the minority, allowing ample opportunity to all sides to be heard and make their views known. The fact that a proposal cannot become a law without consideration and approval by both Houses of Congress is an outstanding virtue of our bicameral legislative system. The open and full discussion provided under the Constitution often results in the notable improvement of a bill by amendment before it becomes law or in the eventual defeat of an inadvisable proposal. As the majority of laws originate in the House of Representatives, this discussion will focus principally on the procedure in that body. Chapter 1 - This brochure is intended to provide a basic outline of the numerous steps of our federal lawmaking process from the source of an idea for a legislative proposal through its publication as a statute. The legislative process is a matter about which every person should be well informed in order to understand and appreciate the work of Congress. It is hoped that this guide will enable readers to gain a greater understanding of the federal legislative process and its role as one of the foundations of our representative system. One of the most practical safeguards of the American democratic way of life is this legislative process with its emphasis on the protection of the minority, allowing ample opportunity to all sides to be heard and make their views known. The fact that a proposal cannot become a law without consideration and approval by both Houses of Congress is an outstanding virtue of our bicameral legislative system. The open and full discussion provided under the Constitution often results in the notable improvement of a bill by amendment before it becomes law or in the eventual defeat of an inadvisable proposal. As the majority of laws originate in the House of Representatives, this discussion will focus principally on the procedure in that body. Chapter 2 - The Library of Congress, as its name suggests, is a library dedicated to serving the United States Congress and its Members. It serves additionally as an unexcelled national library. The Library was located in the Capitol Building with the House of Representatives and the Senate until 1897, and its collections always have been available for use by Congress. Building upon a concept developed by the New York State Library and then the Wisconsin legislative reference department, Wisconsin‘s Senator Robert LaFollette and Representative John M. Nelson led an effort to direct the establishment of a special reference

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viii

Helen Maes

unit within the Library in 1914. Later known as the Legislative Reference Service, it was charged with responding to congressional requests for information. For more than 50 years, this department assisted Congress primarily by providing facts and publications and by transmitting research and analysis done largely by other government agencies, private organizations, and individual scholars. In 1970, Congress enacted a law transforming the Legislative Reference Service into the Congressional Research Service (CRS) and directing CRS to devote more of its efforts and increased resources to performing research and analysis that assists Congress in direct support of the legislative process. Chapter 3 - Engrossment, enrollment, and presentation of legislation are components of the legislative process that attest to the accuracy of bill texts, confirm House and Senate action, and confirm delivery of the bills to the President for review. Chapter 4 - An enrolled bill or resolution is the form of a measure finally agreed to by both chambers of Congress. Enrollment occurs in the chamber where the measure originated and is carried out by enrolling clerks under the supervision of the Clerk of the House of Representatives and Secretary of the Senate. Enrolled bills and joint resolutions are signed by the presiding officers of each chamber (or their designees) and are presented to the President by the House Clerk or Secretary of the Senate, depending on the chamber of origination. In instances in which Congress determines that the enrolled measure does not reflect congressional intent, it can require that changes be made by adopting a concurrent resolution directing the House Clerk or Secretary of the Senate to do so. If the enrolled measure has already been presented to the President — but not yet enacted — the concurrent resolution can request its return to allow specified corrections to be made. If Congress wishes to alter an enacted measure, new legislation must be enacted to do so. In rare instances, the constitutionality of certain measures has been challenged based on allegations that the enrolled (and therefore, enacted) text did not accurately reflect congressional action. In considering these cases, the federal courts have typically relied on precedent to refuse review of the enrollment process (or other pre-enactment congressional procedures). Chapter 5 - Regardless of the type of hearing, or whether a hearing is held in Washington or elsewhere, hearings share common aspects of planning and preparation. Senate standing committees and subcommittees are authorized to meet and to hold hearings when the Senate is in session, and when it has recessed or adjourned. To minimize conflicts with floor activities, a committee may not meet, without unanimous consent, on any day after the Senate has been in session for two hours, or after 2:00 p.m. when the Senate is in session. Senate Rule XXVI requires each committee (except Appropriations and Budget) to give at least one week‘s notice of the date, place, and subject of a hearing; however, a committee may hold a hearing with less than one week‘s notice if it determines that there is ―good cause.‖ These notices appear in the Daily Digest section of the Congressional Record. While the Senate rule requires a one week public notice, a separate standing order of the Senate requires each Senate committee to notify the Daily Digest Office as soon as a hearing is scheduled [S.Res. 4, 95th Congress]. Hearings are generally open to the public, but can be closed by a committee roll-call vote in open session if the subject matter falls within specific categories enumerated in Senate rules. Although a committee chair determines the agenda and selects witnesses, the minority typically works informally with the majority to invite witnesses representing its views. Senate rules allow the minority-party members of a committee (except Appropriations) to call witnesses of their choice on at least one day of a hearing. Witnesses before Senate committees

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Preface

ix

generally must provide the committee with a copy of their written testimony at least one day before their oral testimony, with specifics set out in individual committee rules. It is common practice to request witnesses to limit their oral remarks to a brief summary of the written testimony. Chapter 6 - Ideas and recommendations for legislation come from a wide variety of sources, such as individual Representatives, committees and other House working groups, party and chamber leaders, executive branch agencies and the White House, states and localities, and citizens or interest groups. Any or all of these individuals or entities may participate in drafting legislation, although only a Member may formally introduce legislation. Chapter 7 - Ideas and recommendations for legislation come from a wide variety of sources, from individual Senators, committees and other Senate work groups, and party and chamber leaders; executive branch agencies and the White House; states and localities; and ordinary citizens or interest groups. Any or all of these entities may also participate in drafting measures.1 Chapter 8 - The Office of the Legislative Counsel of the House of Representatives provides confidential, nonpartisan legislative drafting services to committees and Members of the House. The office‘s legislative mandate is ―the achievement of a clear, faithful, and coherent expression of legislative policies.‖ The Legislative Counsel, appointed by the Speaker of the House of Representatives, is responsible for the management and administration of the office. The professional staff of the office currently includes a deputy legislative counsel, approximately 40 attorneys and an administrative support staff. Services are provided to Members and committees ―upon request,‖ giving priority to legislation with imminent conference, markup, or floor action. Chapter 9 - The Office of the Legislative Counsel of the Senate provides confidential, nonpartisan legislative drafting services to committees and Members of the Senate. The office‘s legislative mandate is to ―aid in drafting public bills and resolutions or amendments thereto.‖ The Legislative Counsel, appointed by the President pro tempore of the Senate, is responsible for the management and administration of the office. The professional staff of the office currently also includes a deputy legislative counsel, approximately 30 attorneys, and an administrative support staff. Services are provided on request, to Senators and committees, giving priority to legislation with impending conference, floor, or committee action. Chapter 10 - The Constitution requires that the House and Senate approve the same bill or joint resolution in precisely the same form before it is presented to the President for his approval or veto. To this end, both houses must pass the same measure and then attempt to reach agreement about its provisions. The House and Senate may be able to reach agreement by an exchange of amendments between the houses. Each house has one opportunity to amend the amendments from the other house, so there can be Senate amendments to House amendments to Senate amendments to a House bill. House amendments to Senate bills or amendments are privileged for consideration on the Senate floor; Senate amendments to House bills or amendments generally are not privileged for consideration on the House floor. In practice, the House often disposes of amendments between the houses under the terms of a special rule reported by the Rules Committee. The Senate sometimes disposes of House amendments by unanimous consent, but the procedures associated with the exchange of amendments can become complicated.

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Alternatively, the House and Senate can disagree to each other‘s positions on a bill and then agree to create a conference committee to propose a package settlement of all their disagreements. Most conferees are drawn from the standing committees that had considered the bill initially. The House or Senate may vote to instruct its conferees before they are appointed, but such instructions are not binding. Conferees generally are free to negotiate in whatever ways they choose, but eventually their agreement must be approved by a majority of the House conferees and a majority of the Senate conferees. The conferees are expected to address only the matters on which the House and Senate have disagreed. They also are expected to resolve each disagreement within the scope of the differences between the House and Senate positions. If the conferees cannot reach agreement on an amendment, or if their agreement exceeds their authority, they may report that amendment as an amendment in true or technical disagreement. On the House and Senate floors, conference reports are privileged and debatable, but they are not amendable. The Senate has a procedure to strike out portions of the conference agreement that are considered, under Senate rules, to be ―out of scope material‖ or ―new directed spending provisions.‖ The House also has a special procedure for voting to reject conference report provisions that would not have been germane to the bill in the House. After agreeing to a conference report, the House or Senate can dispose of any remaining amendments in disagreement. Only when the House and Senate have reached agreement on all provisions of the bill can it be enrolled for presentation to the President. Chapter 11 - Ideas for legislation come from individual Members of Congress, congressional committees and subcommittees, informal groups of Members, the executive and judicial branches, state and local governments, foreign governments, constituents, advocacy and lobby groups, and the press. Chapter 12 - A Representative who introduces a bill or other measure in the House is called its sponsor. Under House Rule XII, clause 7, several Members together may submit a bill, but the first-named Member is the chief or primary sponsor; the others are cosponsors. A bill can have only one primary sponsor. Chapter 13 - A Senator who introduces a bill or other measure in the Senate is called its sponsor. Several Senators may submit a bill, but the first-named Senator is the chief sponsor, the others are considered cosponsors. Chapter 14 - Most amendments that Representatives propose to legislation on the House floor are offered in Committee of the Whole. Measures considered under suspension of the rules are not amendable on the floor, and few amendments are proposed to bills and resolutions considered in the House, or in the House as in Committee of the Whole. The House‘s procedures recognize distinctions between first and second-degree amendments, between perfecting and substitute amendments, and among amendments in the forms of motions to strike, to insert, and to strike out and insert. An amendment in the nature of a substitute proposes to replace the entire text of a bill or resolution. All amendments must be germane to the text they would amend, and they are subject to other general prohibitions such as that against proposing only to re-amend language that already has been fully amended. Additional restrictions apply to appropriations and tax amendments, and the budget process creates various other points of order that Members may make against certain amendments. In general, a Member must make a point of order against an amendment before debate on it begins, unless that point of order is waived by a special rule.

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Preface

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In Committee of the Whole, measures usually are considered for amendment one section or title at a time. Members must offer their amendments to appropriate parts of a bill when it has been read or designated. Each amendment is debated under the five-minute rule, providing five minutes for the Member offering the amendment and five minutes for a Members in opposition. After this first 10 minutes of debate, Members may obtain additional time for debate by offering pro forma amendments in the form of motions to strike the last word or the requisite number of words. Unless barred by the terms of a special rule reported by the House Committee on Rules, each amendment in Committee of the Whole may be amended by a perfecting amendment or a substitute amendment or both. A substitute for an amendment also is amendable. After the Committee of the Whole disposes of the last amendment to be offered to the bill, it rises and the House then votes again on all the amendments the Committee has approved. A recommittal motion usually offers a final opportunity to amend a bill or joint resolution before the House votes on passing it. Chapter 15 - A bill is subject to amendment as soon as the Senate begins to consider it. Committee amendments are considered first; then Senators can offer amendments to any part of the bill in any order. Senators may debate each amendment without limit unless the Senate (1) agrees to a motion to table (kill) the amendment, (2) agrees to a unanimous consent request to limit debate on the amendment, or (3) invokes cloture, limiting debate on the amendment or on the bill and all amendments to it. There are several different types of amendments. A first degree amendment proposes to change the text of the bill; a second degree amendment proposes to change the text of a first degree amendment that the Senate is considering. Third degree amendments are not allowed. An amendment may propose to strike out language from a bill (or a first degree amendment), to insert new language, or to replace language by striking out and inserting. In general, an amendment that proposes to replace the entire text of a bill is known as an amendment in the nature of a substitute; an amendment to replace the entire text of a first degree amendment is known as a substitute amendment. An amendment, especially in the second degree, that makes some lesser change is known as a perfecting amendment. Depending on the kinds of amendments that Senators offer and the order in which they are recognized to offer their amendments, Senators can offer anywhere from three to 11 amendments before the Senate has to vote on any of them. ―Amendment trees‖ are the graphic ways of depicting these possible situations. The Senate only requires that amendments be germane when amendments are offered (1) to general appropriations bills and budget measures, (2) under cloture, or (3) under certain unanimous consent agreements and certain statutes. Otherwise, Senators can offer amendments on any subject to any bill. There are several general restrictions on the amending process. For example, it is not in order to propose an amendment that proposes only to amend language in a bill that already has been amended. However, it is possible to re-amend that language in the process of amending a larger portion of the bill. There also are special provisions in Senate rules to limit amendments to appropriations bills if those amendments propose unauthorized appropriations or changes in existing law. The Senate can, and sometimes does, choose not to enforce these restrictions.

How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

In: How Laws Are Made in the U.S.A. Editor: Helen Maes

ISBN: 978-1-60876-142-5 © 2010 Nova Science Publishers, Inc.

Chapter 1

HOW OUR LAWS ARE MADE John V. Sullivan

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

I. INTRODUCTION This book is intended to provide a basic outline of the numerous steps of our federal lawmaking process from the source of an idea for a legislative proposal through its publication as a statute. The legislative process is a matter about which every person should be well informed in order to understand and appreciate the work of Congress. It is hoped that this guide will enable readers to gain a greater understanding of the federal legislative process and its role as one of the foundations of our representative system. One of the most practical safeguards of the American democratic way of life is this legislative process with its emphasis on the protection of the minority, allowing ample opportunity to all sides to be heard and make their views known. The fact that a proposal cannot become a law without consideration and approval by both Houses of Congress is an outstanding virtue of our bicameral legislative system. The open and full discussion provided under the Constitution often results in the notable improvement of a bill by amendment before it becomes law or in the eventual defeat of an inadvisable proposal. As the majority of laws originate in the House of Representatives, this discussion will focus principally on the procedure in that body.

II. THE CONGRESS Article I, Section 1, of the United States Constitution, provides that: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The Senate is composed of 100 Members—two from each state, regardless of population or area—elected by the people in accordance with the 17th Amendment to the Constitution. The 17th Amendment changed the former constitutional method under which Senators were

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John V. Sullivan

chosen by the respective state legislatures. A Senator must be at least 30 years of age, have been a citizen of the United States for nine years, and, when elected, be an inhabitant of the state for which the Senator is chosen. The term of office is six years and one-third of the total membership of the Senate is elected every second year. The terms of both Senators from a particular state are arranged so that they do not terminate at the same time. Of the two Senators from a state serving at the same time the one who was elected first—or if both were elected at the same time, the one elected for a full term—is referred to as the ―senior‖ Senator from that state. The other is referred to as the ―junior‖ Senator. If a Senator dies or resigns during the term, the governor of the state must call a special election unless the state legislature has authorized the governor to appoint a successor until the next election, at which time a successor is elected for the balance of the term. Most of the state legislatures have granted their governors the power of appointment. Each Senator has one vote. As constituted in the 110th Congress, the House of Representatives is composed of 435 Members elected every two years from among the 50 states, apportioned to their total populations. The permanent number of 435 was established by federal law following the Thirteenth Decennial Census in 1910, in accordance with Article I, Section 2, of the Constitution. This number was increased temporarily to 437 for the 87th Congress to provide for one Representative each for Alaska and Hawaii. The Constitution limits the number of Representatives to not more than one for every 30,000 of population. Under a former apportionment in one state, a particular Representative represented more than 900,000 constituents, while another in the same state was elected from a district having a population of only 175,000. The Supreme Court has since held unconstitutional a Missouri statute permitting a maximum population variance of 3.1 percent from mathematical equality. The Court ruled in Kirkpatrick v. Preisler, 394 U.S. 526 (1969), that the variances among the districts were not unavoidable and, therefore, were invalid. That decision was an interpretation of the Court‘s earlier ruling in Wesberry v. Sanders, 376 U.S. 1 (1964), that the Constitution requires that ―as nearly as is practicable one man‘s vote in a congressional election is to be worth as much as another‘s.‖ A law enacted in 1967 abolished all ―at-large‖ elections except in those less populous states entitled to only one Representative. An ―at-large‖ election is one in which a Representative is elected by the voters of the entire state rather than by the voters in a congressional district within the state. A Representative must be at least 25 years of age, have been a citizen of the United States for seven years, and, when elected, be an inhabitant of the state in which the Representative is chosen. Unlike the Senate where a successor may be appointed by a governor when a vacancy occurs during a term, if a Representative dies or resigns during the term, the executive authority of the state must call a special election pursuant to state law for the choosing of a successor to serve for the unexpired portion of the term. Each Representative has one vote. In addition to the Representatives from each of the States, a Resident Commissioner from the Commonwealth of Puerto Rico and Delegates from the District of Columbia, American Samoa, Guam, and the Virgin Islands are elected pursuant to federal law. The Resident Commissioner, elected for a four-year term, and the Delegates, elected for two-year terms, have most of the prerogatives of Representatives including the right to vote in committees to which they are elected, the right to vote in the Committee of the Whole (subject to an

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How Our Laws Are Made

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automatic revote in the House whenever a recorded vote has been decided by a margin within which the votes cast by the Delegates and the Resident Commissioner have been decisive), and the right to preside over the Committee of the Whole. However, the Resident Commissioner and the Delegates do not have the right to vote on matters before the House. Under the provisions of Section 2 of the 20th Amendment to the Constitution, Congress must assemble at least once every year, at noon on the third day of January, unless by law they appoint a different day. A Congress lasts for two years, commencing in January of the year following the biennial election of Members. A Congress is divided into two regular sessions. The Constitution authorizes each House to determine the rules of its proceedings. Pursuant to that authority, the House of Representatives adopts its rules anew each Congress, ordinarily on the opening day of the first session. The Senate considers itself a continuing body and operates under continuous standing rules that it amends from time to time. Unlike some other parliamentary bodies, both the Senate and the House of Representatives have equal legislative functions and powers with certain exceptions. For example, the Constitution provides that only the House of Representatives may originate revenue bills. By tradition, the House also originates appropriation bills. As both bodies have equal legislative powers, the designation of one as the ―upper‖ House and the other as the ―lower‖ House is not applicable. The chief function of Congress is the making of laws. In addition, the Senate has the function of advising and consenting to treaties and to certain nominations by the President. Under the 25th Amendment to the Constitution, a vote in each House is required to confirm the President‘s nomination for Vice-President when there is a vacancy in that office. In the matter of impeachments, the House of Representatives presents the charges—a function similar to that of a grand jury—and the Senate sits as a court to try the impeachment. No impeached person may be removed without a two-thirds vote of those Senators voting, a quorum being present. The Congress under the Constitution and by statute also plays a role in presidential elections. Both Houses meet in joint session on the sixth day of January following a presidential election, unless by law they appoint a different day, to count the electoral votes. If no candidate receives a majority of the total electoral votes, the House of Representatives, each state delegation having one vote, chooses the President from among the three candidates having the largest number of electoral votes. The Senate, each Senator having one vote, chooses the Vice President from the two candidates having the largest number of votes for that office.

III. SOURCES OF LEGISLATION Sources of ideas for legislation are unlimited and proposed drafts of bills originate in many diverse quarters. Primary among these is the idea and draft conceived by a Member. This may emanate from the election campaign during which the Member had promised, if elected, to introduce legislation on a particular subject. The Member may have also become aware after taking office of the need for amendment to or repeal of an existing law or the enactment of a statute in an entirely new field.

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In addition, the Member‘s constituents, either as individuals or through citizen groups, may avail themselves of the right to petition and transmit their proposals to the Member. The right to petition is guaranteed by the First Amendment to the Constitution. Similarly, state legislatures may ―memorialize‖ Congress to enact specified federal laws by passing resolutions to be transmitted to the House and Senate as memorials. If favorably impressed by the idea, a Member may introduce the proposal in the form in which it has been submitted or may redraft it. In any event, a Member may consult with the Legislative Counsel of the House or the Senate to frame the ideas in suitable legislative language and form. In modern times, the ―executive communication‖ has become a prolific source of legislative proposals. The communication is usually in the form of a message or letter from a member of the President‘s Cabinet, the head of an independent agency, or the President himself, transmitting a draft of a proposed bill to the Speaker of the House of Representatives and the President of the Senate. Despite the structure of separation of powers, Article II, Section 3, of the Constitution imposes an obligation on the President to report to Congress from time to time on the ―State of the Union‖ and to recommend for consideration such measures as the President considers necessary and expedient. Many of these executive communications follow on the President‘s message to Congress on the state of the Union. The communication is then referred to the standing committee or committees having jurisdiction of the subject matter of the proposal. The chairman or the ranking minority member of the relevant committee often introduces the bill, either in the form in which it was received or with desired changes. This practice is usually followed even when the majority of the House and the President are not of the same political party, although there is no constitutional or statutory requirement that a bill be introduced to effectuate the recommendations. The most important of the regular executive communications is the annual message from the President transmitting the proposed budget to Congress. The President‘s budget proposal, together with testimony by officials of the various branches of the government before the Appropriations Committees of the House and Senate, is the basis of the several appropriation bills that are drafted by the Committees on Appropriations of the House and Senate. The drafting of statutes is an art that requires great skill, knowledge, and experience. In some instances, a draft is the result of a study covering a period of a year or more by a commission or committee designated by the President or a member of the Cabinet. The Administrative Procedure Act and the Uniform Code of Military Justice are two examples of enactments resulting from such studies. In addition, congressional committees sometimes draft bills after studies and hearings covering periods of a year or more.

IV. FORMS OF CONGRESSIONAL ACTION The work of Congress is initiated by the introduction of a proposal in one of four forms: the bill, the joint resolution, the concurrent resolution, and the simple resolution. The most customary form used in both Houses is the bill. During the 109th Congress (2005–2006), 10,558 bills and 143 joint resolutions were introduced in both Houses. Of the total number introduced, 6,436 bills and 102 joint resolutions originated in the House of Representatives. For the purpose of simplicity, this discussion will be confined generally to the procedure on a measure of the House of Representatives, with brief comment on each of the forms.

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Bills A bill is the form used for most legislation, whether permanent or temporary, general or special, public or private. The form of a House bill is as follows:

A Bill: For the establishment, etc. [as the title may be].

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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, etc. The enacting clause was prescribed by law in 1871 and is identical in all bills, whether they originate in the House of Representatives or in the Senate. Bills may originate in either the House of Representatives or the Senate with one notable exception. Article I, Section 7, of the Constitution provides that all bills for raising revenue shall originate in the House of Representatives but that the Senate may propose, or concur with, amendments. By tradition, general appropriation bills also originate in the House of Representatives. There are two types of bills—public and private. A public bill is one that affects the public generally. A bill that affects a specified individual or a private entity rather than the population at large is called a private bill. A typical private bill is used for relief in matters such as immigration and naturalization and claims against the United States. A bill originating in the House of Representatives is designated by ―H.R.‖ followed by a number that it retains throughout all its parliamentary stages. The letters signify ―House of Representatives‖ and not, as is sometimes incorrectly assumed, ―House resolution.‖ A Senate bill is designated by ―S.‖ followed by its number. The term ―companion bill‖ is used to describe a bill introduced in one House of Congress that is similar or identical to a bill introduced in the other House of Congress. A bill that has been agreed to in identical form by both bodies becomes the law of the land only after— (1) Presidential approval; or (2) failure by the President to return it with objections to the House in which it originated within 10 days (Sundays excepted) while Congress is in session; or (3) the overriding of a presidential veto by a two-thirds vote in each House. Such a bill does not become law without the President‘s signature if Congress by their final adjournment prevent its return with objections. This is known as a ―pocket veto.‖ For a discussion of presidential action on legislation, see Part XVIII.

Joint Resolutions Joint resolutions may originate either in the House of Representatives or in the Senate— not, as is sometimes incorrectly assumed, jointly in both Houses. There is little practical How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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difference between a bill and a joint resolution and the two forms are sometimes used interchangeably. One difference in form is that a joint resolution may include a preamble preceding the resolving clause. Statutes that have been initiated as bills may be amended by a joint resolution and vice versa. Both are subject to the same procedure except for a joint resolution proposing an amendment to the Constitution. When a joint resolution amending the Constitution is approved by two-thirds of both Houses, it is not presented to the President for approval. Rather, such a joint resolution is sent directly to the Archivist of the United States for submission to the several states where ratification by the legislatures of three-fourths of the states within the period of time prescribed in the joint resolution is necessary for the amendment to become part of the Constitution. The form of a House joint resolution is as follows:

Joint Resolution: Authorizing, etc. [as the title may be]. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, etc.

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The resolving clause is identical in both House and Senate joint resolutions as has been prescribed by statute since 1871. It is frequently preceded by a preamble consisting of one or more ―whereas‖ clauses indicating the necessity for or the desirability of the joint resolution. A joint resolution originating in the House of Representatives is designated ―H.J. Res.‖ followed by its individual number which it retains throughout all its parliamentary stages. One originating in the Senate is designated ―S.J. Res.‖ followed by its number. Joint resolutions, with the exception of proposed amendments to the Constitution, become law in the same manner as bills.

Concurrent Resolutions A matter affecting the operations of both Houses is usually initiated by a concurrent resolution. In modern practice, and as determined by the Supreme Court in INS v. Chadha, 462 U.S. 919 (1983), concurrent and simple resolutions normally are not legislative in character since not ―presented‖ to the President for approval, but are used merely for expressing facts, principles, opinions, and purposes of the two Houses. A concurrent resolution is not equivalent to a bill and its use is narrowly limited within these bounds. The term ―concurrent‖, like ―joint‖, does not signify simultaneous introduction and consideration in both Houses. A concurrent resolution originating in the House of Representatives is designated ―H. Con. Res.‖ followed by its individual number, while a Senate concurrent resolution is designated ―S. Con. Res.‖ together with its number. On approval by both Houses, they are signed by the Clerk of the House and the Secretary of the Senate and transmitted to the Archivist of the United States for publication in a special part of the Statutes at Large volume covering that session of Congress.

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Simple Resolutions A matter concerning the rules, the operation, or the opinion of either House alone is initiated by a simple resolution. A resolution affecting the House of Representatives is designated ―H. Res.‖ followed by its number, while a Senate resolution is designated ―S. Res.‖ together with its number. Simple resolutions are considered only by the body in which they were introduced. Upon adoption, simple resolutions are attested to by the Clerk of the House of Representatives or the Secretary of the Senate and are published in the Congressional Record.

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V. INTRODUCTION AND REFERRAL TO COMMITTEE Any Member, Delegate or the Resident Commissioner from Puerto Rico in the House of Representatives may introduce a bill at any time while the House is in session by simply placing it in the ―hopper,‖ a wooden box provided for that purpose located on the side of the rostrum in the House Chamber. Permission is not required to introduce the measure. The Member introducing the bill is known as the primary sponsor. Except in the case of private bills, an unlimited number of Members may cosponsor a bill. To prevent the possibility that a bill might be introduced in the House on behalf of a Member without that Member‘s prior approval, the primary sponsor‘s signature must appear on the bill before it is accepted for introduction. Members who cosponsor a bill upon its date of introduction are original cosponsors. Members who cosponsor a bill after its introduction are additional cosponsors. Cosponsors are not required to sign the bill. A Member may not be added or deleted as a cosponsor after the bill has been reported by, or discharged from, the last committee authorized to consider it, and the Speaker may not entertain a request to delete the name of the primary sponsor at any time. Cosponsors‘ names may be deleted by their own unanimousconsent request or that of the primary sponsor. In the Senate, unlimited multiple sponsorship of a bill is permitted. A Member may insert the words ―by request‖ after the Member‘s name to indicate that the introduction of the measure is at the suggestion of some other person or group—usually the President or a member of his Cabinet. In the Senate, a Senator usually introduces a bill or resolution by presenting it to one of the clerks at the Presiding Officer‘s desk, without commenting on it from the floor of the Senate. However, a Senator may use a more formal procedure by rising and introducing the bill or resolution from the floor, usually accompanied by a statement about the measure. Frequently, Senators obtain consent to have the bill or resolution printed in the Congressional Record following their formal statement. In the House of Representatives, it is no longer the custom to read bills—even by title— at the time of introduction. The title is entered in the Journal and printed in the Congressional Record, thus preserving the purpose of the custom. The bill is assigned its legislative number by the Clerk. The bill is then referred as required by the rules of the House to the appropriate committee or committees by the Speaker, with the assistance of the Parliamentarian. The bill number and committee referral appear in the next issue of the Congressional Record. It is then sent to the Government Printing Office where it is printed and copies are made available in the document rooms of both Houses. Printed and electronic versions of the bill are also made available to the public.

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Copies of the bill are sent to the office of the chairman of each committee to which it has been referred. The clerk of the committee enters it on the committee‘s Legislative Calendar. Perhaps the most important phase of the legislative process is the action by committees. The committees provide the most intensive consideration to a proposed measure as well as the forum where the public is given their opportunity to be heard. A tremendous volume of work, often overlooked by the public, is done by the Members in this phase. There are, at present, 20 standing committees in the House and 16 in the Senate as well as several select committees. In addition, there are four standing joint committees of the two Houses, with oversight responsibilities but no legislative jurisdiction. The House may also create select committees or task forces to study specific issues and report on them to the House. A task force may be established formally through a resolution passed by the House or informally through organization of interested Members by the House leadership. Each committee‘s jurisdiction is defined by certain subject matter under the rules of each House and all measures are referred accordingly. For example, the Committee on the Judiciary in the House has jurisdiction over measures relating to judicial proceedings and 18 other categories, including constitutional amendments, immigration policy, bankruptcy, patents, copyrights, and trademarks. In total, the rules of the House and of the Senate each provide for over 200 different classifications of measures to be referred to committees. Until 1975, the Speaker of the House could refer a bill to only one committee. In modern practice, the Speaker may refer an introduced bill to multiple committees for consideration of those provisions of the bill within the jurisdiction of each committee concerned. Except in extraordinary circumstances, the Speaker must designate a primary committee of jurisdiction on bills referred to multiple committees. The Speaker may place time limits on the consideration of bills by all committees, but usually time limits are placed only on additional committees to which a bill has been referred following the report of the primary committee. In the Senate, introduced measures and House-passed measures are referred to the one committee of preponderant jurisdiction by the Parliamentarian on behalf of the Presiding Officer. By special or standing order, a measure may be referred to more than one committee in the Senate. Membership on the various committees is divided between the two major political parties. The proportion of the Members of the minority party to the Members of the majority party is determined by the majority party, except that half of the members on the Committee on Standards of Official Conduct are from the majority party and half from the minority party. The respective party caucuses nominate Members of the caucus to be elected to each standing committee at the beginning of each Congress. Membership on a standing committee during the course of a Congress is contingent on continuing membership in the party caucus that nominated a Member for election to the committee. If a Member ceases to be a Member of the party caucus, a Member automatically ceases to be a member of the standing committee. Members of the House may serve on only two committees and four subcommittees with certain exceptions. However, the rules of the caucus of the majority party in the House provide that a Member may be chairman of only one subcommittee of a committee or select committee with legislative jurisdiction, except for certain committees performing housekeeping functions and joint committees.

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A Member usually seeks election to the committee that has jurisdiction over a field in which the Member is most qualified and interested. For example, the Committee on the Judiciary traditionally is populated with numerous lawyers. Members rank in seniority in accordance with the order of their appointment to the full committee and the ranking majority member with the most continuous service is often elected chairman. The rules of the House require that committee chairmen be elected from nominations submitted by the majority party caucus at the commencement of each Congress. No Member of the House may serve as chairman of the same standing committee or of the same subcommittee thereof for more than three consecutive Congresses, except in the case of the Committee on Rules. The rules of the House provide that a committee may maintain no more than five committees, but may have an oversight committee as a sixth. The standing rules allow a greater number of subcommittees for the Committees on Appropriations and Oversight and Government Reform. In addition, the House may grant leave to certain committeess to establish additional subcommittees during a given Congress. Each committee is provided with a professional staff to assist it in the innumerable administrative details involved in the consideration of bills and its oversight responsibilities. For standing committees, the professional staff is limited to 30 persons appointed by a vote of the committee. Two-thirds of the committee staff are selected by a majority vote of the majority committee members and one-third of the committee staff are selected by a majority vote of minority committee members. All staff appointments are made without regard to race, creed, sex, or age. Minority staff requirements do not apply to the Committee on Standards of Official Conduct because of its bipartisan nature. The Committee on Appropriations has special authority under the rules of the House for appointment of staff for the minority.

VI. CONSIDERATION BY COMMITTEE One of the first actions taken by a committee is to seek the input of the relevant departments and agencies about a bill. Frequently, the bill is also submitted to the Government Accountability Office with a request for an official report of views on the necessity or desirability of enacting the bill into law. Normally, ample time is given for the submission of the reports and they are accorded serious consideration. However, these reports are not binding on the committee in determining whether or not to act favorably on the bill. Reports of the departments and agencies in the executive branch are submitted first to the Office of Management and Budget to determine whether they are consistent with the program of the President. Many committees adopt rules requiring referral of measures to the appropriate subcommittee unless the full committee votes to retain the measure at the full committee.

Committee Meetings Standing committees are required to have regular meeting days at least once a month. The chairman of the committee may also call and convene additional meetings. Three or more members of a standing committee may file with the committee a written request that the

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chairman call a special meeting. The request must specify the measure or matter to be considered. If the chairman does not schedule the requested special meeting within three calendar days after the filing of the request, to be held within seven calendar days after the filing of the request, a majority of the members of the committee may call the special meeting by filing with the committee written notice specifying the date, hour, and the measure or matter to be considered at the meeting. In the Senate, the Chair may still control the agenda of the special meeting through the power of recognition. Committee meetings may be held for various purposes including the ―markup‖ of legislation, authorizing subpoenas, or internal budget and personnel matters. A subpoena may be authorized and issued at a meeting by a vote of a committee or subcommittee with a majority of members present. The power to authorize and issue subpoenas also may be delegated to the chairman of the committee. A subpoena may require both testimonial and documentary evidence to be furnished to the committee. A subpoena is signed by the chairman of the committee or by a member designated by the committee. All meetings for the transaction of business of standing committees or subcommittees, except the Committee on Standards of Official Conduct, must be open to the public, except when the committee or subcommittee, in open session with a majority present, determines by record vote that all or part of the remainder of the meeting on that day shall be closed to the public. Members of the committee may authorize congressional staff and departmental representatives to be present at any meeting that has been closed to the public. Open committee meetings may be covered by the media. Permission to cover hearings and meetings is granted under detailed conditions as provided in the rules of the House. The rules of the House provide that House committees may not meet during a joint session of the House and Senate or during a recess when a joint meeting of the House and Senate is in progress. Committees may meet at other times during an adjournment or recess up to the expiration of the constitutional term. The rules of the Senate provide that Senate committees may not meet after two hours after the meeting of the Senate commenced, and in no case after 2 p.m. when the Senate is in session. Special leave for this purpose may be granted by the Majority and Minority leaders.

Public Hearings If the bill is of sufficient importance, the committee may set a date for public hearings. The chairman of each committee, except for the Committee on Rules, is required to make public announcement of the date, place, and subject matter of any hearing at least one week before the commencement of that hearing, unless the committee chairman with the concurrence of the ranking minority member or the committee by majority vote determines that there is good cause to begin the hearing at an earlier date. If that determination is made, the chairman must make a public announcement to that effect at the earliest possible date. Public announcements are published in the Daily Digest portion of the Congressional Record as soon as possible after an announcement is made and are often noted by the media. Personal notice of the hearing, usually in the form of a letter, is sometimes sent to relevant individuals, organizations, and government departments and agencies. Each hearing by a committee or subcommittee, except the Committee on Standards of Official Conduct, is required to be open to the public except when the committee or

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subcommittee, in open session and with a majority present, determines by record vote that all or part of the remainder of the hearing on that day shall be closed to the public because disclosure of testimony, evidence, or other matters to be considered would endanger national security, would compromise sensitive law enforcement information, or would violate a law or a rule of the House. The committee or subcommittee may by the same procedure vote to close one subsequent day of hearing, except that the Committees on Appropriations, Armed Services, and the Permanent Select Committee on Intelligence, and subcommittees thereof, may vote to close up to five additional, consecutive days of hearings. When a quorum for taking testimony is present, a majority of the members present may close a hearing to discuss whether the evidence or testimony to be received would endanger national security or would tend to defame, degrade, or incriminate any person. A committee or subcommittee may vote to release or make public matters originally received in a closed hearing or meeting. Open committee hearings may be covered by the media. Permission to cover hearings and meetings is granted under detailed conditions as provided in the rules of the House. Hearings on the President‘s Budget are required to be held by the Committee on Appropriations in open session within 30 days after its transmittal to Congress, except when the committee, in open session and with a quorum present, determines by record vote that the testimony to be taken at that hearing on that day may be related to a matter of national security. The committee may by the same procedure close one subsequent day of hearing. On the day set for a public hearing in a committee or subcommittee, an official reporter is present to record the testimony. After a brief introductory statement by the chairman and often by the ranking minority member or other committee member, the first witness is called. Cabinet officers and high-ranking government officials, as well as interested private individuals, testify either voluntarily or by subpoena. So far as practicable, committees require that witnesses who appear before it file a written statement of their proposed testimony in advance of their appearance and limit their oral presentations to a brief summary thereof. In the case of a witness appearing in a nongovernmental capacity, a written statement of proposed testimony shall include a curriculum vitae and a disclosure of certain federal grants and contracts. Upon request by a majority of them, minority party members of the committee are entitled to call witnesses of their own to testify on a measure during at least one additional day of a hearing. Each member of the committee is provided five minutes in the interrogation of each witness until each member of the committee who desires to question a witness has had an opportunity to do so. In addition, a committee may adopt a rule or motion to permit committee members to question a witness for a specified period not longer than one hour. Committee staff may also be permitted to question a witness for a specified period not longer than one hour. A transcript of the testimony taken at a public hearing is made available for inspection in the office of the clerk of the committee. Frequently, the complete transcript is printed and distributed widely by the committee.

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Markup After hearings are completed, the subcommittee usually will consider the bill in a session that is popularly known as the ―markup‖ session. The views of both sides are studied in detail and at the conclusion of deliberation a vote is taken to determine the action of the subcommittee. It may decide to report the bill favorably to the full committee, with or without amendment, or unfavorably, or without recommendation. The subcommittee may also suggest that the committee ―table‖ it or postpone action indefinitely. Each member of the subcommittee, regardless of party affiliation, has one vote. Proxy voting is no longer permitted in House committees.

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Final Committee Action At full committee meetings, reports on bills may be made by subcommittees. Bills are read for amendment in committees by section and members may offer germane amendments. Committee amendments are only proposals to change the bill as introduced and are subject to acceptance or rejection by the House itself. A vote of committee members is taken to determine whether the full committee will report the bill favorably, adversely, or without recommendation. If the committee votes to report the bill favorably to the House, it may report the bill with or without amendments. If the committee has approved extensive amendments, the committee may decide to report the original bill with one ―amendment in the nature of a substitute‖ consisting of all the amendments previously adopted, or may introduce and report a new bill incorporating those amendments, commonly known as a ―clean‖ bill. The new bill is introduced (usually by the chairman of the committee), and, after referral back to the committee, is reported favorably to the House by the committee. A committee may table a bill or fail to take action on it, thereby preventing its report to the House. This makes adverse reports or reports without recommendation to the House by a committee unusual. The House also has the ability to discharge a bill from committee. For a discussion of the motion to discharge, see Part X. Generally, a majority of the committee or subcommittee constitutes a quorum. A quorum is the number of members who must be present in order for the committee to report. However, a committee may vary the number of members necessary for a quorum for certain actions. For example, a committee may fix the number of its members, but not less than two, necessary for a quorum for taking testimony and receiving evidence. Except for the Committees on Appropriations, the Budget, and Ways and Means, a committee may fix the number of its members, but not less than one-third, necessary for a quorum for taking certain other actions. The absence of a quorum is subject to a point of order, an objection that the proceedings are in violation of a rule of the committee or of the House. Committees may authorize the chairman to postpone votes in certain circumstances.

Points of Order with Respect to Committee Hearing Procedure A point of order in the House does not lie with respect to a measure reported by a committee on the ground that hearings on the measure were not conducted in accordance with How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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required committee procedure. However, certain points of order may be made by a member of the committee that reported the measure if, in the committee hearing on that measure, that point of order was (1) timely made and (2) improperly disposed of.

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VII. REPORTED BILLS If the committee votes to report the bill to the House, the committee staff writes a committee report. The report describes the purpose and scope of the bill and the reasons for its recommended approval. Generally, a section-by-section analysis sets forth precisely what each section is intended to accomplish. All changes in existing law must be indicated in the report and the text of laws being repealed must be set out. This requirement is known as the ―Ramseyer‖ rule. A similar rule in the Senate is known as the ―Cordon‖ rule. Committee amendments also must be set out at the beginning of the report and explanations of them are included. Executive communications regarding the bill may be referenced in the report. If at the time of approval of a bill by a committee other than the Committee on Rules a member of the committee gives notice of an intention to file supplemental, minority, or additional views, all members are entitled to not less than two additional calendar days after the day of such notice (excluding Saturdays, Sundays, and legal holidays unless the House is in session on those days) in which to file those views with the clerk of the committee. Those views that are timely filed must be included in the report on the bill. Committee reports must be filed while the House is in session unless unanimous consent is obtained from the House to file at a later time or the committee is entitled to an automatic filing window by virtue of a request for views. The report is assigned a report number upon its filing and is sent to the Government Printing Office for printing. House reports are given a prefix-designator that indicates the number of the Congress. For example, the first House report filed during the 110th Congress was numbered 110–1. In the printed report, committee amendments are indicated by showing new matter in italics and deleted matter in line-through type. The report number is printed on the bill and the calendar number is shown on both the first and back pages of the bill. However, in the case of a bill that was referred to two or more committees for consideration in sequence, the calendar number is printed only on the bill as reported by the last committee to consider it. For a discussion of House calendars, see Part IX. Committee reports are perhaps the most valuable single element of the legislative history of a law. They are used by the courts, executive departments, and the public as a source of information regarding the purpose and meaning of the law.

Contents of Reports The report of a committee on a measure must include: (1) the committee‘s oversight findings and recommendations; (2) a statement required by the Congressional Budget Act of 1974, if the measure is a bill or joint resolution providing new budget authority (other than continuing appropriations) or an increase or decrease in revenues or tax expenditures; (3) a

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cost estimate and comparison prepared by the Director of the Congressional Budget Office; and (4) a statement of general performance goals and objectives, including outcome-related goals and objectives, for which the measure authorizes funding. Each report accompanying a bill or joint resolution relating to employment or access to public services or accommodations must describe the manner in which the provisions apply to the legislative branch. Each of these items is set out separately and clearly identified in the report. With respect to each record vote by a committee, the total number of votes cast for, and the total number of votes cast against any public measure or matter or amendment thereto and the names of those voting for and against, must be included in the committee report. This requirement does not apply to certain votes taken in the Committees on Rules and Standards of Official Conduct. In addition, each report of a committee on a public bill or public joint resolution must contain a statement citing the specific powers granted to Congress in the Constitution to enact the law proposed by the bill or joint resolution. Committee reports that accompany bills or resolutions that contain federal unfunded mandates are also required to include an estimate prepared by the Congressional Budget Office on the cost of the mandates on state, local, and tribal governments. If an estimate is not available at the time a report is filed, committees are required to publish the estimate in the Congressional Record. Each report also must contain an estimate, made by the committee, of the costs which would be incurred in carrying out that bill or joint resolution in the fiscal year reported and in each of the five fiscal years thereafter or for the duration of the program authorized if less than five years. The report must include a comparison of the estimates of those costs with any estimate made by any Government agency and submitted to that committee. The Committees on Appropriations, House Administration, Rules, and Standards of Official Conduct are not required to include cost estimates in their reports. In addition, the committee‘s own cost estimates are not required to be included in reports when a cost estimate and comparison prepared by the Director of the Congressional Budget Office has been submitted prior to the filing of the report and included in the report. It is not in order to consider bills and joint resolutions reported from committee unless the report includes a list of congressional earmarks, limited tax benefits and limited tariff benefits in the bill or in the report (including the name of any Member, Delegate or Resident Commissioner who submitted a request to the committee for each respective item included in such list) or a statement that the proposition contains no such congressional earmarks, limited tax benefits, or limited tariff benefits.

Filing of Reports Measures approved by a committee are to be reported by the chairman promptly after approval. If not, a majority of the members of the committee may file a written request with the clerk of the committee for the reporting of the measure. When the request is filed, the clerk must immediately notify the chairman of the committee of the filing of the request, and the report on the measure must be filed within seven calendar days (excluding days on which the House is not in session) after the day on which the request is filed. This does not apply to a report of the Committee on Rules with respect to a rule, joint rule, or order of business of

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the House or to the reporting of a resolution of inquiry addressed to the head of an executive department.

Availability of Reports and Hearings

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A measure or matter reported by a committee (except the Committee on Rules in the case of a resolution providing a rule, joint rule, or order of business) may not be considered in the House until the third calendar day (excluding Saturdays, Sundays, and legal holidays unless the House is in session on those days) on which the report of that committee on that measure has been available to the Members of the House. This rule is subject to certain exceptions including resolutions providing for certain privileged matters and measures declaring war or other national emergency. A report of the Committee on Rules on a rule, joint rule, or order of business must lay over for one legislative day prior to consideration. However, it is in order to consider a report from the Committee on Rules on the same day it is reported that proposes only to waive the availability requirement. If hearings were held on a measure or matter so reported, the committee is required to make every reasonable effort to have those hearings printed and available for distribution to the Members of the House prior to the consideration of the measure in the House. Committees are also required, to the maximum extent feasible, to make their publications available in electronic form. A general appropriation bill reported by the Committee on Appropriations may not be considered until printed transcripts of committee hearings and a committee report thereon have been available to the Members of the House for at least three calendar days (excluding Saturdays, Sundays, and legal holidays unless the House is in session on those days).

VIII. LEGISLATIVE OVERSIGHT BY STANDING COMMITTEES Each standing committee, other than the Committee on Appropriations, is required to review and study, on a continuing basis, the application, administration, execution, and effectiveness of the laws dealing with the subject matter over which the committee has jurisdiction and the organization and operation of federal agencies and entities having responsibility for the administration and evaluation of those laws. The purpose of the review and study is to determine whether laws and the programs created by Congress are being implemented and carried out in accordance with the intent of Congress and whether those programs should be continued, curtailed, or eliminated. In addition, each committee having oversight responsibility is required to review and study any conditions or circumstances that may indicate the necessity or desirability of enacting new or additional legislation within the jurisdiction of that committee, and must undertake, on a continuing basis, future research and forecasting on matters within the jurisdiction of that committee. Each standing committee also has the function of reviewing and studying, on a continuing basis, the impact or probable impact of tax policies on subjects within its jurisdiction. The rules of the House provide for special treatment of an investigative or oversight report of a committee. Committees are allowed to file joint investigative reports and to file

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investigative and activities reports after the House has completed its final session of a Congress. In addition, several of the standing committees have special oversight responsibilities. The details of those responsibilities are set forth in the rules of the House.

IX. CALENDARS The House of Representatives has four calendars of business: the Union Calendar, the House Calendar, the Private Calendar, and the Calendar of Motions to Discharge Committees. The calendars are compiled in one publication printed each day the House is in session. This publication also contains a history of Senate-passed bills, House bills reported out of committee, bills on which the House has acted, and other useful information. When a public bill is favorably reported by all committees to which referred, it is assigned a calendar number on either the Union Calendar or the House Calendar, the two principal calendars of business. The calendar number is printed on the first page of the bill and, in certain instances, is printed also on the back page. In the case of a bill that was referred to multiple committees, the calendar number is printed only on the bill as reported by the last committee to consider it.

Union Calendar

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The rules of the House provide that there shall be: A Calendar of the Committee of the Whole House on the state of the Union, to which shall be referred public bills and public resolutions raising revenue, involving a tax or charge on the people, directly or indirectly making appropriations of money or property or requiring such appropriations to be made, authorizing payments out of appropriations already made, releasing any liability to the United States for money or property, or referring a claim to the Court of Claims. The large majority of public bills and resolutions reported to the House are placed on the Union Calendar. For a discussion of the Committee of the Whole House, see Part XI.

House Calendar The rules further provide that there shall be: A House Calendar, to which shall be referred all public bills and public resolutions not requiring referral to the Calendar of the Committee of the Whole House on the state of the Union. Bills not involving a cost to the government and resolutions providing special orders of business are examples of bills and resolutions placed on the House Calendar.

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Private Calendar The rules also provide that there shall be: A Private Calendar, . . . to which shall be referred all private bills and private resolutions. All private bills reported to the House are placed on the Private Calendar. The Private Calendar is called on the first and third Tuesdays of each month. If two or more Members object to the consideration of any measure called, it is recommitted to the committee that reported it. By tradition, there are six official objectors, three on the majority side and three on the minority side, who make a careful study of each bill or resolution on the Private Calendar. The official objectors‘ role is to object to a measure that does not conform to the requirements for that calendar and prevent the passage without debate of nonmeritorious bills and resolutions. Alternative procedures reserved for public bills are not applicable to reported private bills.

Calendar of Motions to Discharge Committees When a majority of the Members of the House sign a motion to discharge a committee from consideration of a public bill or resolution, that motion is referred to the Calendar of Motions to Discharge Committees. For a discussion of the motion to discharge, see Part X.

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X. OBTAINING CONSIDERATION OF MEASURES Certain measures, either pending on the House and Union Calendars or unreported and pending in committee, are more important and urgent than others and a system permitting their consideration ahead of those that do not require immediate action is necessary. If the calendar numbers alone were the determining factor, the bill reported most recently would be the last to be taken up as all measures are placed on the House and Union Calendars in the order reported.

Unanimous Consent The House occasionally employs the practice of allowing reported or unreported measures to be considered by the unanimous agreement of all Members in the House Chamber. The power to recognize Members for a unanimous-consent request is ultimately in the discretion of the Chair, and recent Speakers have issued strict guidelines on when such a request is to be entertained. Most unanimous-consent requests for consideration of measures may only be entertained by the Chair when assured that the majority and minority floor and committee leaderships have no objection.

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Special Resolution or “Rule” To avoid delays and to allow selectivity in the consideration of public measures, it is possible to have them taken up out of their order on their respective calendar or to have them discharged from the committee or committees to which referred by obtaining from the Committee on Rules a special resolution or ―rule‖ for their consideration. The Committee on Rules, which is composed of majority and minority members but with a larger proportion of majority members than other committees, is specifically granted jurisdiction over resolutions relating to the order of business of the House. Typically, the chairman of the committee that has favorably reported the bill requests the Committee on Rules to originate a resolution that will provide for its immediate or subsequent consideration. If the Committee on Rules has determined that the measure should be taken up, it may report a resolution reading substantially as follows with respect to a bill on the Union Calendar or an unreported bill:

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Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to rule XVIII, declare the House resolved into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. ______) entitled, etc. The first reading of the bill shall be dispensed with. After general debate, which shall be confined to the bill and shall not to exceed ______hours, to be equally divided and controlled by the chairman and ranking minority member of the Committee on ______, the bill shall be read for amendment under the five-minute rule. At the conclusion of the consideration of the bill for amendment, the Committee shall rise and report the bill to the House with such amendments as may have been adopted, and the previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. If the measure is on the House Calendar or the recommendation is to avoid consideration in the Committee of the Whole, the resolution might read as follows: Resolved, That upon the adoption of this resolution it shall be in order to consider the bill (H.R. ______) entitled, etc., in the House, etc. The resolution may waive points of order against the bill. A point of order is an objection that a pending matter or proceeding is in violation of a rule of the House. The bill may be susceptible to various points of order that may be made against its consideration, including an assertion that the bill carries a retroactive federal income tax increase, contains a federal unfunded mandate, or has not been reported from committee properly. At times, the rule may ―self-execute‖ changes to the bill, that is, incorporate the changes in the bill upon adoption of the rule. The rule may also make a specified ―manager‘s amendment‖ in order prior to any other amendment or may make a ―compromise substitute‖ amendment in order as original text to replace the version reported from committee. When a rule limits or prevents floor amendments, it is popularly known as a ―closed rule‖ or ―modified closed rule.‖ However, a rule may not deny the minority party the right to offer a motion to recommit the bill with proper amendatory or general instructions. For a discussion of the motion to recommit, see Part XI.

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Consideration of Measures Made in Order by Rule Reported from the Committee on Rules When a rule has been reported to the House, it is referred to the House Calendar and if it is to be considered on the same legislative day reported, it requires a two-thirds vote for its consideration. Normally, however, the rule is on the calendar for at least one legislative day, and if not called up for consideration by the Member who filed the report within seven legislative days thereafter, any member of the Committee on Rules may call it up as a privileged matter, after having given one calendar day notice of the Member‘s intention to do so. The Speaker will recognize any member of the committee seeking recognition for that purpose. If the House has adopted a resolution making in order a motion to consider a bill, and such a motion has not been offered within seven calendar days thereafter, such a motion shall be privileged if offered by direction of all reporting committees having initial jurisdiction of the bill.

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Motion to Discharge Committee A Member may present to the Clerk a motion in writing to discharge a committee from the consideration of a public bill or resolution that has been referred to it 30 legislative days prior thereto. A Member also may file a motion to discharge the Committee on Rules from further consideration of a resolution providing a special rule for the consideration of a public bill or resolution reported by a standing committee, or a special rule for the consideration of a public bill or resolution that has been referred to a standing committee for 30 legislative days. This motion to discharge the Committee on Rules may be made only when the resolution has been referred to that committee at least seven legislative days prior to the filing of the motion to discharge. The motion may not permit consideration of nongermane amendments. The motion is placed in the custody of the Journal Clerk, where Members may sign it at the House rostrum when the House is in session. The names of Members who have signed a discharge motion are made available electronically and published in the Congressional Record on a weekly basis. When 218 Members have signed the motion, it is entered in the Journal, printed with all the signatures thereto in the Congressional Record, and referred to the Calendar of Motions to Discharge Committees. On the second and fourth Mondays of each month, except during the last six days of a session, a Member who has signed a motion to discharge that has been on the calendar at least seven legislative days may call up the motion. The motion to discharge is debated for 20 minutes, one-half in favor of the proposition and one-half in opposition. If the motion to discharge a standing committee of the House from a public bill or resolution pending before the committee prevails, a Member who signed the motion may move that the House proceed to the immediate consideration of the bill or resolution. If the motion is agreed to, the bill or resolution is considered immediately under the general rules of the House. If the House votes against the motion for immediate consideration, the bill or resolution is referred to its proper calendar with the same status as if reported by a standing committee.

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If the motion to discharge the Committee on Rules from a resolution prevails, the House shall immediately consider such resolution. If the resolution is adopted, the House proceeds to its execution. This is the modern practice for utilization of the discharge rule.

Motion to Suspend the Rules On Monday, Tuesday and Wednesday of each week and during the last six days of a session, the Speaker may entertain a motion to suspend the rules of the House and pass a public bill or resolution. Sometimes the motion is allowed on other days by unanimous consent or a rule from the Committee on Rules. For example, the House by rule from the Committee on Rules provided for the motion on a Sunday when the House was in session. Members need to arrange in advance with the Speaker to be recognized to offer such a motion. The Speaker usually recognizes only a majority member of the committee that has reported or has primary jurisdiction over the bill. The motion to suspend the rules and pass the bill is debatable for 40 minutes, half of the time in favor of the proposition and half in opposition. The motion may not be separately amended but may be amended in the form of a manager‘s amendment included in the motion when it is offered. Because the rules may be suspended and the bill passed only by affirmative vote of two-thirds of the Members voting, a quorum being present, this procedure is usually used only for expedited consideration of relatively noncontroversial measures.

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Calendar Wednesday On Wednesday of each week, unless dispensed with by unanimous consent or by affirmative vote of two-thirds of the Members voting, a quorum being present, the standing committees are called in alphabetical order. A committee when named may call up for consideration any bill reported by it and pending on either the House or Union Calendar. The report on the bill must have been available for three days and must not be privileged under the rules of the House. General debate is limited to two hours and must be confined to the subject matter of the measure, the time being equally divided between those for and those against. An affirmative vote of a simple majority of the Members present is sufficient to pass the measure. The purpose of this rarely utilized procedure is to provide an alternative method of consideration when the Committee on Rules has not reported a rule for a specific bill.

District of Columbia Business On the second and fourth Mondays of each month, after the disposition of motions to discharge committees and after the disposal of business on the Speaker‘s table requiring only referral to committee, the Committee on Oversight and Government Reform may call up for consideration any District of Columbia business reported from that committee. This procedure is rarely utilized in the modern House.

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Questions of Privilege House rules provide special treatment for questions of privilege. Questions of privilege are classified as those questions: (1) affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings; or (2) affecting the rights, reputations, and conduct of Members, individually, in their representative capacity. A question of privilege has been held to take precedence over all questions except the motion to adjourn. Questions of the privileges of the House, those concerning the rights of the House collectively, take the form of a resolution which may be called up by any Member after proper notice. A question of personal privilege, affecting the rights, reputation, and conduct of individual Members, may be raised from the floor without formal notice and does not result in a vote. Debate on a question of privilege proceeds under the hour rule, with debate on a question of the privileges of the House divided between the proponent and the leader of the opposing party or a designee.

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Privileged Matters Under the rules of the House, certain matters are regarded as privileged matters and may interrupt the order of business. Conference reports, veto messages from the President, and certain amendments to measures by the Senate after the stage of disagreement between the two Houses are examples of privileged matters. Certain reports from House committees are also privileged, including reports from the Committee on Rules, reports from the Committee on Appropriations on general appropriation bills, printing and committee funding resolutions reported from the Committee on House Administration, and reports on Member‘s conduct from the Committee on Standards of Official Conduct. Bills, joint resolutions, and motions may also take on privileged status as a result of special procedures written into statute. The Member in charge of such a matter may call it up at practically any time for immediate consideration when no other business is pending. Usually, this is done after consultation with both the majority and minority floor leaders so that the Members of both parties will have advance notice. At any time after the reading of the Journal, a Member, by direction of the Committee on Appropriations, may move that the House resolve itself into the Committee of the Whole House on the state of the Union for the purpose of considering a general appropriation bill. A general appropriation bill may not be considered in the House until three calendar days (excluding Saturdays, Sundays, and legal holidays unless the House is in session on those days) after printed committee reports and hearing transcripts on the bill have been available to the Members.

XI. CONSIDERATION AND DEBATE Consideration of measures may involve several stages, the most pertinent of which are discussed below. Also discussed are various restrictions on House consideration, as well as voting methods and mechanisms.

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Committee of the Whole In order to expedite the consideration of bills and resolutions, the rules of the House provide for a parliamentary mechanism, known as the Committee of the Whole House on the state of the Union, that enables the House to act with a quorum of less than the requisite majority of the entire House. A quorum in the Committee of the Whole is 100 members. All measures on the Union Calendar— those involving a tax, making appropriations, authorizing payments out of appropriations already made, or disposing of property—must be first considered in the Committee of the Whole. The Committee on Rules reports a rule allowing for immediate consideration of a measure by the Committee of the Whole. After adoption of the rule by the House, the Speaker may declare the House resolved into the Committee of the Whole. When the House resolves into the Committee of the Whole, the Speaker leaves the chair after appointing a Chairman to preside. The rule referred to in the preceding paragraph also fixes the length of the debate in the Committee of the Whole. This may vary according to the importance of the measure. As provided in the rule, the control of the time is usually divided equally between the chairman and the ranking minority member of the relevant committee. Members seeking to speak for or against the measure may arrange in advance with the Member in control of the time on their respective side to be allowed a certain amount of time in the debate. Members may also ask the Member speaking at the time to yield to them for a question or a brief statement. A transcript of the proceedings in the House and the Senate is printed daily in the Congressional Record. Frequently, permission is granted a Member by unanimous consent to revise and extend his remarks in the Congressional Record if sufficient time to make a lengthy oral statement is not available during actual debate. These revisions and extensions are printed in a distinctive type and cannot substantively alter the verbatim transcript. The conduct of the debate is governed principally by the rules of the House that are adopted at the opening of each Congress. In the 106th Congress, the rules were recodified for simplification and clarity. Jefferson‟s Manual, prepared by Thomas Jefferson for his own guidance as President of the Senate from 1797 to 1801, is another recognized authority. The House has a long-standing rule that the provisions of Jefferson‟s Manual should govern the House in all applicable cases and where they are not inconsistent with the rules of the House. Most parliamentary questions arising during the course of debate are responded to by a ruling based on a precedent in a similar situation. The Parliamentarian of the House is present in the House Chamber in order to assist the Speaker or the Chairman in making a correct ruling on parliamentary questions.

Second Reading During general debate on a bill, an accurate account of the time used on both sides is kept and the Chairman terminates the debate when all the time allowed under the rule has been consumed. After general debate, the second reading of the bill begins. The second reading is a section-by-section reading during which amendments may be offered to a section when it is read. Under many special ―modified closed‖ rules adopted by the House, certain bills are considered as read and open only to prescribed amendments under limited time allocations.

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Under an ―open‖ amendment process, a Member is permitted five minutes to explain the proposed amendment, after which the Member who is first recognized by the Chair is allowed to speak for five minutes in opposition to it. There is technically no further debate on that amendment, thereby effectively preventing filibuster-like tactics. This is known as the ―fiveminute rule.‖ However, Members may offer an amendment to the amendment, for separate five-minute debate, or may offer a pro forma amendment—―to strike the last word‖—which does not change the language of the amendment but allows the Member five minutes for debate. Each substantive amendment and amendment thereto is put to the Committee of the Whole for adoption unless the House has adopted a special rule ―self-executing‖ the adoption of certain amendments in the Committee of the Whole. The House may, after initially adopting an open rule, later alter that rule by unanimous consent to establish a ―universe‖ or list of amendments to a bill. This procedure is most commonly used on general appropriation bills because of the volume of amendments. At any time after debate has begun on proposed amendments to a section or paragraph of a bill under the five-minute rule, the Committee of the Whole may by majority vote of the Members present close debate on the amendment or the pending section or paragraph. However, if debate is closed on a section or paragraph before there has been debate on an amendment that a Member has caused to be printed in the Congressional Record at least one day prior to floor consideration of the amendment, the Member who caused the amendment to be printed in the Record is given five minutes in which to explain the amendment. Five minutes is also given to speak in opposition to the amendment but no further debate on the amendment is allowed. Amendments placed in the Congressional Record must indicate the full text of the proposed amendment, the name of the Member proposing it, the number of the bill or amendment to which it will be offered, and the point in the bill or amendment thereto where the amendment is intended to be offered. These amendments appear in the portion of the Record designated for that purpose.

Amendments and the Germaneness Rule The rules of the House prohibit amendments of a subject matter different from the text under consideration. This rule, commonly known as the germaneness rule, is one of the most important rules of the House of Representatives because of the obvious need to keep the focus of a body the size of the House on a predictable subject matter. The germaneness rule applies to the proceedings in the House, the Committee of the Whole, and the standing committees. There are hundreds of prior rulings or ―precedents‖ on germane-ness available to guide the Chair.

Congressional Earmarks A House rule provides that it is not in order to consider bills and joint resolutions reported from a committee unless the committee report includes a list of congressional earmarks, limited tax benefits and limited tariff benefits in the bill or in the report, or a statement that the measure contains none of these items. The report must include the name of any Member, Delegate or Resident Commissioner who submitted a request to the committee for

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each respective item included in the list. This rule also applies to conference reports, unreported bills and joint resolutions, and to a so-called ―manager‘s amendment‖ offered at the outset of the amendment process by a member of the committee of initial referral under the terms of a special rule. With respect to unreported bills, unreported joint resolutions and managers‘ amendments, the rule requires the list or statement to be printed in the Congressional Record prior to consideration. In the case of a conference report, the list or statement must be included in the joint explanatory statement prepared by the managers of the House and the managers of the Senate. A special rule from the Committee on Rules that waives the requirements of this rule is subject to a special point of order and vote.

The Committee “Rises” At the conclusion of the consideration of a bill for amendment, the Committee of the Whole ―rises‖ and reports the bill to the House with any amendments that have been adopted. In rising, the Committee of the Whole reverts back to the House and the Chairman of the Committee is replaced by the Speaker of the House. The House then acts on the bill and any amendments adopted by the Committee of the Whole. If the Committee of the Whole rises on motion prior to the conclusion of consideration of amendments, the bill must return to the Committee of the Whole for subsequent consideration. Thus, the simple motion to rise may be used to immediately halt consideration of a bill similar to a motion to adjourn in the House.

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House Action Debate on a bill in the House is cut off by moving and ordering ―the previous question.‖ All debate is cut off on the bill if this motion is carried by a majority of the Members voting, a quorum being present, or by a special rule ordering the previous question upon the rising of the Committee of the Whole. The Speaker then puts the question: ―Shall the bill be engrossed and read a third time?‖ If this question is decided in the affirmative, the bill is read a third time by title only and voted on for passage. If the previous question has been ordered by the terms of the rule on a bill reported by the Committee of the Whole, the House immediately votes on whatever amendments have been reported by the Committee in the order in which they appear in the bill unless voted on en bloc. After completion of voting on the amendments, the House immediately votes on the passage of the bill with the amendments it has adopted. However, a motion to recommit, as described in the next section, may be offered and voted on prior to the vote on passage. The Speaker may postpone a recorded vote on final passage of a bill or resolution, as well as other matters, for up to two legislative days. Measures that do not have to be considered in the Committee of the Whole are considered in the House in accordance with the terms of the rule limiting debate on the measure or under the ―hour rule.‖ The hour rule limits the amount of time that a Member may occupy in debate on a pending question to 60 minutes. Generally, the opportunity for debate may also be curtailed if the Speaker makes the rare determination that a motion is dilatory.

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After passage or rejection of the bill by the House, a motion to reconsider it is automatically laid on the table by unanimous consent. The motion to reconsider is tabled to prohibit this motion from being made at a later date because the vote of the House on a proposition is not final and conclusive until there has been an opportunity to reconsider it.

Motion to Recommit After the previous question has been ordered on a bill or joint resolution, it is in order to offer one motion to recommit the bill or joint resolution to a committee, and the Speaker gives preference in recognition for that purpose to a minority party Member who is opposed to the bill or joint resolution. This motion is not subject to debate. However, a motion to recommit with instructions offered after the previous question has been ordered is debatable for 10 minutes, except that the majority floor manager may demand that the debate be extended to one hour. Whatever time is allotted for debate is divided equally between the proponent and an opponent of the motion. Instructions in the motion to recommit normally take the form of germane amendments proposed by the minority to immediately change the final form of the bill prior to passage. Instructions may also be ―general,‖ consisting of nonbinding instructions to the committee to take specified actions such as to ―promptly‖ review the bill with a particular political viewpoint or to hold further hearings. Such general instructions may not contain argument.

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Quorum Calls and Rollcalls Article I, Section 5, of the Constitution provides that a majority of each House constitutes a quorum to do business and authorizes a smaller number than a quorum to compel the attendance of absent Members. In order to fulfill this constitutional responsibility, the rules of the House provide alternative procedures for quorum calls in the House and the Committee of the Whole. In the absence of a quorum, 15 Members may initiate a call of the House to compel the attendance of absent Members. Such a call of the House must be ordered by a majority vote. A call of the House is then ordered and the call is taken by electronic device or by response to the alphabetical call of the roll of Members. Absent Members have a minimum of 15 minutes from the ordering of the call of the House by electronic device to have their presence recorded. If sufficient excuse is not offered for their absence, they may be sent for by the Sergeant-at-Arms and their attendance secured and retained. The House then determines the conditions on which they may be discharged. Members who voluntarily appear are, unless the House otherwise directs, immediately admitted to the Hall of the House and must report their names to the Clerk to be entered on the Journal as present. Compulsory attendance or arrest of Members has been rare in modern practice. The rules of the House provide special authority for the Speaker to recognize a Member of the Speaker‘s choice to move a call of the House at any time. When a question is put to a vote by the Speaker and a quorum fails to vote on such question, if a quorum is not present and objection is made for that reason, there is a call of the House unless the House adjourns. The call is taken by electronic device and the Sergeant-at-

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Arms may bring in absent Members. The yeas and nays on the pending question are at the same time considered as ordered and an ―automatic‖ recorded vote is taken. The Clerk utilizes the electronic system or calls the roll and each Member who is present may vote on the pending question. If those voting on the question and those who are present and decline to vote together make a majority of the House, the Speaker declares that a quorum is constituted and the pending question is decided as the majority of those voting have determined. The rules of the House prohibit points of order of no quorum unless the Speaker has put a question to a vote. If the House should be without a quorum due to catastrophic circumstances, the rules of the House establish procedures by which a provisional number of the House may operate until a sufficient number of Members to constitute a quorum appears. The rules for quorum calls are different in some respects in the Committee of the Whole. The first time the Committee of the Whole finds itself without a quorum during a day the Chairman is required to order the roll to be called by electronic device, unless the Chairman orders a call of the Committee. However, the Chairman may refuse to entertain a point of order of no quorum during general debate. If on a call, a quorum (100 Members) appears, the Committee continues its business. If a quorum does not appear, the Committee rises and the Chairman reports the names of the absentees to the House. The rules provide for the expeditious conduct of quorum calls in the Committee of the Whole. The Chairman may suspend a quorum call after 100 Members have recorded their presence. Under such a short quorum call, the Committee will not rise and proceedings under the quorum call are vacated. In that case, a recorded vote, if ordered immediately following the termination of the short quorum call, is a minimum of 15 minutes. In the alternative, the Chair may choose to permit a full 15-minute quorum call, wherein all Members are recorded as present or absent, to be followed by a five-minute record vote on the pending question. Once a quorum of the Committee of the Whole has been established for a day, a quorum call in the Committee is only in order when the Committee is operating under the five-minute rule and the Chairman has put the pending question to a vote. The rules prohibit a point of order of no quorum against a vote in which the Committee of the Whole agrees to rise. However, an appropriate point of no quorum would be permitted against a vote defeating a motion to rise.

Voting There are three methods of voting in the Committee of the Whole that are also employed in the House. These are the voice vote, the division, and the recorded vote. The yea-and-nay vote is a method used only in the House, and it may be automatic if a Member objects to the vote on the ground that a quorum is not present. To conduct a voice vote the Chair puts the question: ―As many as are in favor say ‗Aye‘. As many as are opposed, say ‗No‘. ― The Chair determines the result on a comparison of the volume of ayes and noes. This is the form in which the vote is ordinarily taken in the first instance. If it is difficult to determine the result of a voice vote, a division may be demanded by a Member or initiated by the Chair. The Chair then states: ―As many as are in favor will rise and stand until counted.‖ After counting those in favor he calls on those op posed

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to stand and be counted, thereby determining the number in favor of and those opposed to the question. If any Member requests a recorded vote and that request is supported by at least onefifth of a quorum of the House (44 Members), or 25 Members in the Committee of the Whole, the vote is taken by electronic device. After the recorded vote is concluded, the names of those voting and those not voting are entered in the Journal. Members have a minimum of 15 minutes to be counted from the time the record vote is ordered. The Speaker may reduce the period for voting to five minutes on subsequent votes in certain situations where there has been no intervening debate or business. The Speaker is not required to vote unless the Speaker‘s vote would be decisive. The modern practice in the Committee of the Whole postpones and clusters votes on amendments to maximize efficient scheduling of voting. The Chairman of the Committee of the Whole has discretionary authority to postpone votes on amendments and to reduce the time for voting on amendments to five minutes following a 15-minute vote on the first amendment in a series. The Chairman is not allowed to postpone votes on matters other than amendments and is mindful not to postpone votes where the outcome could be prejudicial to the offering of another amendment. In the House, the support of one-fifth of the Members present is necessary under the Constitution for ordering the yeas and nays. When the yeas and nays are ordered, a recorded vote is ordered, or a point of order is made that a quorum is not present, the Clerk activates the electronic system or calls the roll and reports the result to the Speaker, who announces it to the House. Many legislative questions may be postponed to a time selected by the Speaker within two legislative days. The rules of the House require a three-fifths vote to pass a bill, joint resolution, amendment, or conference report that contains a specified type of federal income tax rate increase. The rules of the House also provide for automatic yeas and nays on votes on passage of certain fiscal measures including a concurrent resolution on the budget or a general appropriation bill. The Constitution requires the yeas and nays on a vote overriding a Presidential veto. The rules prohibit a Member from: (1) casting another Member‘s vote or recording another Member‘s presence in the House or the Committee of the Whole; or (2) authorizing another individual to cast a vote or record the Member‘s presence in the House or the Committee of the Whole.

Electronic Voting Recorded votes are usually taken by electronic device, except when the Speaker orders the vote to be recorded by other methods prescribed by the rules of the House. In addition, quorum calls are generally taken by electronic device. The electronic system works as follows: A number of vote stations are attached to selected chairs in the Chamber. Each station is equipped with a vote card slot and four indicators, marked ―yea‖, ―nay‖, ―present‖, and ―open‖ that are lit when a vote is in progress and the system is ready to accept votes. Each Member is provided with an encyrpted Vote-ID Card. A Member votes by inserting the voting card into any one of the vote stations and pressing the appropriate button to indicate the Member‘s choice. If a Member is without a Vote-ID Card or wishes to change his vote

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during the last five minutes of a vote, the Member may be recorded by handing a paper ballot to the Tally Clerk, who then records the vote electronically according to the indicated preference of the Member. The paper ballots are green for ―yea,‖ red for ―nay,‖ and orange for ―present.‖

Pairing of Members The former system of pairing of Members, where a Member could arrange in advance to be recorded as being either in favor of or opposed to the question by being ―paired‖ with another absent Member who holds contrary views on the question, has largely been eliminated. The rules still allow for ―live pairs.‖ A live pair is where a Member votes as if not paired, subsequently withdraws that vote, and then asks to be marked ―present‖ to protect the other Member. The most common practice is for absent Members to submit statements for the Record stating how they would have voted if present on specific votes.

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System of Lights and Bells Due to the diverse nature of daily tasks that they have to perform, it is not practicable for Members to be present in the House or Senate Chamber at every minute that the body is in session. Furthermore, many of the routine matters do not require the personal attendance of all the Members. A system consisting of electric lights and bells or buzzers located in various parts of the Capitol Building and House and Senate Office Buildings alerts Members to certain occurrences in the House and Senate Chambers. In the House, the Speaker has ordered that the bells and lights comprising the system be utilized as follows: 1

1 2

2

2

long bell followed by a pause and then 3 bells and 3 lights on the left— Start or continuation of a notice or short quorum call in the Committee of the Whole that will be vacated if and when 100 Members appear on the floor. Bells are repeated every five minutes unless the call is vacated or the call is converted into a regular quorum call. long bell and extinguishing of 3 lights on the left—Short or notice quorum call vacated. bells and 2 lights on the left—15 minute recorded vote, yea-and-nay vote or automatic rollcall vote by electronic device. The bells are repeated five minutes after the first bell. bells and 2 lights on the left followed by a pause and then 2 more bells— 15 minute vote taken by a call of the roll. The bells are repeated when the Clerk reaches the R‘s in the first call of the roll. bells followed by a pause and then 5 bells—First vote on clustered votes. Two bells are repeated five minutes after the first bell. The first vote will be not less than 15 minutes with successive votes being not less than five minutes. Each successive vote is signaled by five bells.

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3

bells and 3 lights on the left—15 minute quorum call in either the House or in the Committee of the Whole by electronic device. The bells are repeated five minutes after the first bell. 3 bells followed by a pause and then 3 more bells—15 minute quorum call by a call of the roll. The bells are repeated when the Clerk reaches the R‘s in the first call of the roll. 3 bells followed by a pause and then 5 more bells—Quorum call in the Committee of the Whole that may be followed immediately by a five-minute recorded vote. 4 bells and 4 lights on the left—Adjournment of the House. 5 bells and 5 lights on the left—Any five-minute vote. 6 bells and 6 lights on the left—Recess of the House. 12 bells at 2-second intervals with 6 lights on the left—Civil Defense Warning. The 7th light indicates that the House is in session.

Recess Authority The House may by vote authorize the Speaker to declare a recess under the rules of the House. The Speaker also has the authority to declare the House in recess for a short time when no question is pending before the House or in the case of an emergency.

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Live Coverage of Floor Proceedings The rules of the House provide for unedited radio and television broadcasting and recording of proceedings on the floor of the House. However, the rules prohibit the use of these broadcasts and recordings for any political purpose or in any commercial advertisement. The rules of the Senate also provide for broadcasting and recording of proceedings in the Senate Chamber with similar restrictions.

XII. CONGRESSIONAL BUDGET PROCESS The Congressional Budget and Impoundment Control Act of 1974, as amended, provides Congress with a procedure to establish appropriate spending and revenue levels for each year. The congressional budget process, as set out in that Act, is designed to coordinate decisions on sources and levels of revenues and on objects and levels of expenditures. Its basic method is to prescribe the overall size of the fiscal pie and the particular sizes of its various pieces. Each year the Congress adopts a concurrent resolution imposing overall constraints on revenues and spending and distributing the overall constraint on spending among groups of programs and activities. Congress aims to complete action on a concurrent resolution on the budget for the next fiscal year by April 15. Congress may adopt a later budget resolution that revises the most recently adopted budget resolution. One of the mechanisms Congress uses to implement the constraints on revenue and spending is called the reconciliation process. Reconciliation is a

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multiple-step process designed to bring existing law in conformity with the most recently adopted concurrent resolution on the budget. The first step in the reconciliation process is the language found in a concurrent resolution on the budget instructing House and Senate committees to determine and recommend changes in laws that will achieve the constraints established in the concurrent resolution on the budget. The instructions to a committee specify the amount of spending reductions or revenue changes a committee must attain and leave to the discretion of the committee the specific changes to laws or bills that must be made. The subsequent steps involve the combination of the various instructed committees‘ recommendations into an omnibus reconciliation bill or bills which are reported by the Committee on the Budget or by the one committee instructed, if only one committee has been instructed, and considered by the House. In the Senate, reconciliation bills reported from committee are entitled to expedited consideration, permitting a majority of Senators, rather than sixty, to ensure consideration of the bill with limited time for amendments. Congress aims to complete action on reconciliation measures by a specified date each year. The Budget Act maintains that reconciliation provisions must be related to reconciling the budget. This principle is codified in section 313 of the Budget Act, the so-called Byrd Rule, named after Senator Robert C. Byrd of West Virginia. Section 313 provides a point of order in the Senate against extraneous matter in reconciliation bills. Determining what is extraneous is a difficult task for the Senate‘s Presiding Officer. The Byrd Rule may only be waived in the Senate by a three-fifths vote and sixty votes are required to overturn the presiding officer‘s ruling. After Congress has completed action on a concurrent resolution on the budget for a fiscal year, the Budget Act provides a point of order against legislation that does not conform to the constraints on spending and revenue set out in the resolution. Both the House and Senate have in place a budget enforcement mechanism informally known as ―pay-as-you-go,‖ or ―Paygo.‖ Under this system, it is not in order to consider legislation that increases the deficit or reduces the surplus over a given period of fiscal years. It is also not in order to consider a concurrent resolution on the budget, or an amendment thereto, or a conference report thereon, that contains reconciliation directives if the effect of such measures would be to increase the deficit or reduce the surplus over a given period of fiscal years. The Unfunded Mandates Reform Act of 1995, through an amendment to the Congressional Budget Act, established requirements on committees with respect to measures containing unfunded intergovernmental mandates. An unfunded intergovernmental mandate is the imposition of a substantial financial requirement or obligation on a state, local, or tribal government. The Act also established a unique point of order to enforce the requirements of the Act with respect to intergovernmental mandates in excess of a given threshold. In the House, an unfunded mandate point of order is not disposed of by a ruling of the Chair but by the Chair putting the question of consideration to the body. The House or the Committee of the Whole then decides by vote whether or not to proceed with the measure with the alleged mandate contained therein.

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XIII. ENGROSSMENT AND MESSAGE TO SENATE The preparation of a copy of the bill in the form in which it has passed the House can be a detailed and complicated process because of the large number and complexity of amendments to some bills adopted by the House. These amendments may be offered during a spirited debate with little or no prior formal preparation. The amendment may be for the purpose of inserting new language, substituting different words for those set out in the bill, or deleting portions of the bill. In some cases, amendments offered from the floor are written in longhand. Each amendment must be inserted in precisely the proper place in the bill, with the spelling and punctuation exactly as it was adopted by the House. It is extremely important that the Senate receive a copy of the bill in the precise form in which it has passed the House. The preparation of such a copy is the function of the Enrolling Clerk. In the House, the Enrolling Clerk is under the Clerk of the House. In the Senate, the Enrolling Clerk is under the Secretary of the Senate. The Enrolling Clerk receives all the papers relating to the bill, including the official Clerk‘s copy of the bill as reported by the standing committee and each amendment adopted by the House. From this material, the Enrolling Clerk prepares the engrossed copy of the bill as passed, containing all the amendments agreed to by the House. At this point, the measure ceases technically to be called a bill and is termed ―An Act‖ signifying that it is the act of one body of the Congress, although it is still popularly referred to as a bill. The engrossed bill is printed on blue paper and is signed by the Clerk of the House. Bills may also originate in the Senate with certain exceptions. For a discussion of bills originating in the Senate, see Part XVI.

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XIV. SENATE ACTION The Parliamentarian, in the name of the Vice President, as the President of the Senate, refers the engrossed bill to the appropriate standing committee of the Senate in conformity with the rules of the Senate. The bill is reprinted immediately and copies are made available in the document rooms of both Houses. This printing is known as the ―Act print‖ or the ―Senate referred print.‖

Committee Consideration Senate committees give the bill the same detailed consideration as it received in the House and may report it with or without amendment. A committee member who wishes to express an individual view or a group of Members who wish to file a minority report may do so by giving notice, at the time of the approval of a report on the measure, of an intention to file supplemental, minority, or additional views. These views may be filed within three days with the clerk of the committee and become a part of the report. When a committee reports a bill, it is reprinted with the committee amendments indicated by showing new matter in italics and deleted matter in line-through type. The calendar number and report number are indicated on the first and back pages, together with the name of the Senator making the report. If the

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committee chooses to file a report to accompany the bill, it is printed at this time, along with any minority or individual views. All committee meetings, including those to conduct hearings, must be open to the public. However, a majority of the members of a committee or subcommittee may, after discussion in closed session, vote in open session to close a meeting or series of meetings on the same subject for no longer than 14 days if it is determined that the matters to be discussed or testimony to be taken will disclose matters necessary to be kept secret in the interests of national defense or the confidential conduct of the foreign relations of the United States; will relate solely to internal committee staff management or procedure; will tend to charge an individual with a crime or misconduct, to disgrace or injure the professional standing of an individual, or otherwise to expose an individual to public contempt, or will represent a clearly unwarranted invasion of the privacy of an individual; will disclose law enforcement information that is required to be kept secret; will disclose certain information regarding certain trade secrets; or may disclose matters required to be kept confidential under other provisions of law or government regulation.

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Chamber Procedure The rules of procedure in the Senate differ to a large extent from those in the House. The Senate relies heavily on the practice of obtaining unanimous consent for actions to be taken. For example, at the time that a bill is reported, the Majority Leader may ask unanimous consent for the immediate consideration of the bill. If the bill is of a noncontroversial nature and there is no objection, the Senate may pass the bill with little or no debate and with only a brief explanation of its purpose and effect. If there is any objection, the report must lie over one legislative day and the bill is placed on the calendar. Measures reported by standing committees of the Senate may not be considered unless the report of that committee has been available to Senate Members for at least two days (excluding Sundays and legal holidays) prior to consideration of the measure in the Senate. This requirement may be waived by agreement of the Majority and Minority leaders and does not apply in certain emergency situations or where no report has been submitted on the measure. In the Senate, measures are brought up for consideration by a simple unanimous consent request, by a complex unanimous consent agreement, or by a motion to proceed to the consideration of a measure on the calendar. A unanimous consent agreement, sometimes referred to as a ―time agreement‖, makes the consideration of a measure in order and often limits the amount of debate that will take place on the measure and lists the amendments that will be considered. The offering of a unanimous consent request to consider a measure or the offering of a motion to proceed to the consideration of a measure is reserved, by tradition, to the Majority Leader. Usually, a motion to consider a measure on the calendar is made only when unanimous consent to consider the measure cannot be obtained. There are two calendars in the Senate, the Calendar of Business and the Executive Calendar. All legislation is placed on the Calendar of Business and treaties and nominations are placed on the Executive Calendar. Unlike the House, there is no differentiation on the Calendar of Business between the treatment of: (1) bills raising revenue, general

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appropriation bills, and bills of a public character appropriating money or property; and (2) other bills of a public character not appropriating money or property. The rules of the Senate provide that at the conclusion of the morning business for each ―legislative day‖ the Senate proceeds to the consideration of the calendar. In the Senate, the term ―legislative day‖ means the period of time from when the Senate adjourns until the next time the Senate adjourns. Because the Senate often ―recesses‖ rather than ―adjourns‖ at the end of a daily session, the legislative day usually does not correspond to the 24-hour period comprising a calendar day. Thus, a legislative day may cover a long period of time—from days to weeks, or even months. Because of this and the modern practice of waiving the call of the calendar by unanimous consent at the start of a new legislative day, it is rare to have a call of the calendar. When the calendar is called, bills that are not objected to are taken up in their order, and each Senator is entitled to speak once and for five minutes only on any question. Objection may be interposed at any stage of the proceedings, but on motion the Senate may continue consideration after the call of the calendar is completed, and the limitations on debate then do not apply. On any day (other than a Monday that begins a new legislative day), following the announcement of the close of morning business, any Senator, usually the Majority Leader, obtaining recognition may move to take up any bill out of its regular order on the calendar. The five-minute limitation on debate does not apply to the consideration of a bill taken up in this manner, and debate may continue until the hour when the Presiding Officer of the Senate ―lays down‖ the unfinished business of the day. At that point consideration of the bill is discontinued and the measure reverts back to the Calendar of Business and may again be called up at another time under the same conditions. When a bill has been objected to and passed over on the call of the calendar it is not necessarily lost. The Majority Leader, after consulting the Minority Leader, determines the time at which the bill will be considered. At that time, a motion is made to consider the bill. The motion is debatable if made after the morning hour. When a Senator is recognized by the Presiding Officer, the Senator may speak for as long as the Senator wishes and loses the floor only when the Senator yields it or takes certain parliamentary actions that forfeit the Senator‘s right to the floor. However, a Senator may not speak more than twice on any one question in debate on the same legislative day without leave of the Senate. Debate ends when a Senator yields the floor and no other Senator seeks recognition, or when a unanimous consent agreement limiting the time of debate dictates that debate is concluded. On occasion, Senators opposed to a measure may extend debate by making lengthy speeches or a number of speeches at various stages of consideration intended to prevent or defeat action on the measure. This is the tactic known as ―filibustering.‖ Debate may be closed, however, if 16 Senators sign a motion to that effect and the motion is carried by threefifths of the Senators duly chosen and sworn. Such a motion is voted on one hour after the Senate convenes, following a quorum call on the next day after a day of session has intervened. This procedure is called ―invoking cloture.‖ In 1986, the Senate amended its rules to limit ―post-cloture‖ consideration to 30 hours. ―Post-cloture,‖ a Senator may speak for not more than one hour and may yield all or a part of that time to the majority or minority floor managers of the bill under consideration or to the Majority or Minority leader. The Senate may increase the time for ―post-cloture‖ debate by a vote of three-fifths of the Senators duly

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chosen and sworn. After the time for debate has expired, the Senate may consider only amendments actually pending before voting on the bill. While a measure is being considered it is subject to amendment and each amendment, including those proposed by the committee that reported the bill, is considered separately. Generally, there is no requirement that proposed amendments be germane to the subject matter of the bill except in the case of general appropriation bills or where ―cloture‖ has been invoked. Under the rules, a ―rider‖, an amendment proposing substantive legislation to an appropriation bill, is prohibited. However, this prohibition may be suspended by two-thirds vote on a motion to permit consideration of such an amendment on one day‘s notice in writing. Debate must be germane during the first three hours after business is laid down unless determined to the contrary by unanimous consent or on motion without debate. After final action on the amendments the bill is ready for engrossment and the third reading, which is by title only. The Presiding Officer then puts the question on the passage and a voice vote is usually taken although a yea-and-nay vote is in order if demanded by onefifth of the Senators present. A simple majority is necessary for passage. Before an amended measure is cleared for its return to the House of Representatives, or an unamended measure is cleared for enrollment, a Senator who voted with the prevailing side, or who abstained from voting, may make a motion within the next two days to reconsider the action. If the measure was passed without a recorded vote, any Senator may make the motion to reconsider. That motion is usually tabled and its tabling constitutes a final determination. If, however, the motion is granted, the Senate by majority vote may either affirm its action, which then becomes final, or reverse it. The original engrossed House bill, together with the engrossed Senate amendments, if any, or the original engrossed Senate bill, as the case may be, is then returned to the House with a message stating the action taken by the Senate. Where the Senate has adopted amendments, the message requests that the House concur in them. For a more detailed discussion of Senate procedure, see Enactment of a Law, by Robert B. Dove, former Parliamentarian of the Senate.

XV. FINAL ACTION ON AMENDED BILL On their return to the House, the official papers relating to the amended measure are placed on the Speaker‘s table to await House action on the Senate amendments. Although rarely exercised, the Speaker has the authority to refer Senate amendments to the appropriate committee or committees with or without time limits on their consideration. If the amendments are of a minor or noncontroversial nature, any Member, usually the chairman of a committee that reported the bill, may, at the direction of the committee, ask unanimous consent to take the bill with the amendments from the Speaker‘s table and agree to the Senate amendments. At this point, the Clerk reads the title of the bill and the Senate amendments. If there is no objection, the amendments are then declared to be agreed to, and the bill is ready to be enrolled for presentation to the President. If unanimous consent is not obtainable, the few bills that do not require consideration in the Committee of the Whole are privileged and may be called up from the Speaker‘s table by motion for immediate consideration of the amendments. A simple majority is necessary to carry the motion and thereby complete floor

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action on the measure. A Senate amendment to a House bill is subject to a point of order that it must first be considered in the Committee of the Whole, if, originating in the House, it would be subject to that point of order. Most Senate amendments require consideration in the Committee of the Whole and this procedure by privileged motion is seldom utilized.

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Request for a Conference The mere fact that each House may have separately passed its own bill on a subject is not sufficient to make either bill eligible for conference. One House must first take the additional step of amending and then passing the bill of the other House to form the basis for a conference. A Member, usually the chairman of the committee of jurisdiction, may request unanimous consent to take the House bill with the Senate amendments from the Speaker‘s table, disagree to the amendments and request or agree to a conference with the Senate to resolve the disagreeing votes of the two Houses. In the case of a Senate bill with House amendments, the House may insist on the House amendments and request a conference. For a discussion of bills originating in the Senate, see Part XVI. If there is objection, the Speaker may recognize a Member for a motion, if offered by the direction of the primary committee and of all reporting committees that had initial referral of the bill, to: (1) disagree to the Senate amendments and ask for or agree to a conference; or (2) insist on the House amendments to a Senate bill and request or agree to a conference. This may also be accomplished by a motion to suspend the rules with a two-thirds vote or by a rule from the Committee on Rules. If there is no objection to the request, or if the motion is carried, a motion to instruct the managers of the conference would be in order. This initial motion to instruct is the prerogative of the minority party. The instructions to conferees usually urge the managers to accept or reject a particular Senate or House provision or to take a more generally described political position to the extent possible within the scope of the conference. However, such instructions may not contain argument and are not binding on House or Senate conferees. After the motion to instruct is disposed of, the Speaker then appoints the managers, informally known as conferees, on the part of the House and a message is sent to the Senate advising it of the House action. A majority of the Members appointed to be conferees must have been supporters of the House position, as determined by the Speaker. The Speaker must appoint Members primarily responsible for the legislation and must include, to the fullest extent feasible, the principal proponents of the major provisions of the bill as it passed the House. The Speaker may appoint conferees from more than one committee and may specify the portions of the House and Senate versions to which they are assigned. The number is fixed by the Speaker and majority party representation generally reflects the ratio for the full House committee, but may be greater on important bills. The Speaker also has the authority to name substitute conferees on specific provisions and add or remove conferees after the original appointment. If the Senate agrees to the request for a conference, a similar committee is appointed by the Presiding Officer of the Senate. Both political parties may be represented on the Senate conference committee. The Senate and House committees need not be the same size but each House has one vote in conference as determined by a majority within each set or subset of conferees. The request for a conference may only be made by the body in possession of the official papers. Occasionally, the Senate, anticipating that the House will not concur in its amendments,

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votes to insist on its amendments and requests a conference on passage of the bill prior to returning the bill to the House. This practice serves to expedite the matter because time may be saved by the designation of the Senate conferees before returning the bill to the House. The body asking for the conference normally acts last on the report to be submitted by the conferees and a motion to recommit the conference report is not available to the body that acts last.

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Authority of Conferees Although the managers on the part of each House meet together as one committee they are in effect two separate committees, each of which votes separately and acts by a majority vote. For this reason, variances in the number of managers from each House are largely immaterial. The House conferees are strictly limited in their consideration to matters in disagreement between the two Houses. Consequently, they may not strike or amend any portion of the bill that was not amended by the other House. Furthermore, they may not insert new matter that is not germane to or that is beyond the scope of the differences between the two Houses. Where the Senate amendment revises a figure or an amount contained in the bill, the conferees are limited to the difference between the two numbers and may neither increase the greater nor decrease the smaller figure. Neither House may alone, by instructions, empower its managers to make a change in the text to which both Houses have agreed. When a disagreement to an amendment in the nature of a substitute is committed to a conference committee, managers on the part of the House may propose a substitute that is a germane modification of the matter in disagreement, but the introduction of any language in that substitute presenting specific additional matter not committed to the conference committee by either House is not in order. Moreover, their report may not include matter not committed to the conference committee by either House. The report may not include a modification of any specific matter committed to the conference committee by either or both Houses if that modification is beyond the scope of that specific matter as committed to the conference committee. The managers on the part of the House are under specific guidelines when in conference on general appropriation bills. An amendment by the Senate to a general appropriation bill which would be in violation of the rules of the House, if such amendment had originated in the House, including an amendment changing existing law, providing appropriations not authorized by law, or providing reappropriations of unexpended balances, or an amendment by the Senate providing for an appropriation on a bill other than a general appropriation bill, may not be agreed to by the managers on the part of the House. However, the House may grant specific authority to agree to such an amendment by a separate vote on a motion to instruct on each specific amendment.

Meetings and Action of Conferees The rules of the House require that one conference meeting be open to the public, unless the House, in open session, authorizes the managers to close the meeting. When the report of the conference committee is read in the House, a point of order may be made that the

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conferees failed to comply with the House rule requiring an open conference meeting. If the point of order is sustained, the conference report is considered rejected by the House and a new conference is deemed to have been requested. The rules of the House provide that, in conducting conferences with the Senate, the managers on the part of the House should endeavor to ensure that meetings for the resolution of differences between the two Houses occur only under circumstances in which every manager on the part of the House has notice of the meeting and a reasonable opportunity to attend, that all provisions on which the two Houses disagree are considered as open to discussion at any meeting of a conference committee, and that papers reflecting a conference agreement are held inviolate to change without renewal of the opportunity of all managers on the part of the House to reconsider their decisions to sign or not to sign the agreement. The rules of the House also require that managers on the part of the House be provided a unitary time and place at which to sign or not sign the conference report and joint explanatory statement, and that they have access to at least one complete copy of the final conference agreement for the purpose of recording or not recording their approval of the agreement. There are generally three forms of recommendations available to the conferees when reporting back to their bodies:

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(1) That one House recede from all (or certain of) its amendments. (2) That one House recede from its disagreement to all (or certain of) the other House‘s amendments and agree thereto. (3) That one House recede from its disagreement to all (or certain of) the other House‘s amendments and agree thereto with amendments. In most instances, the result of the conference is a compromise growing out of the third type of recommendation available to the conferees because one House has originally substituted its own bill to be considered as a single amendment. The complete report may be composed of any one or more of these recommendations with respect to the various amendments where there are numbered amendments. In earlier practice, on general appropriation bills with numbered Senate amendments, because of the special rules preventing House conferees from agreeing to Senate amendments changing existing law or appropriations not authorized by law, the conferees often found themselves, under the rules or in fact, unable to reach an agreement with respect to one or more amendments and reported back a statement of their inability to agree on those particular amendments. These amendments were acted upon separately. This partial disagreement is not practicable where, as in current practice, the Senate strikes out all after the enacting clause and substitutes its own bill that must be considered as a single amendment. If they are unable to reach any agreement whatsoever, the conferees report that fact to their respective bodies and the amendments may be disposed of by motion. New conferees may be appointed in either or both Houses. In addition, the Houses may provide a new nonbinding instruction to the conferees as to the position they are to take. After House conferees on any bill or resolution in conference between the two bodies have been appointed for 20 calendar days and 10 legislative days and have failed to make a report, a motion to instruct the House conferees, or discharge them and appoint new conferees, is privileged. The motion can be made only after the Member announces his intention to offer the motion and only at a time designated by the Speaker in the legislative schedule of the following

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day. Like the initial motion to instruct, the 20-day motion may not contain argument and must remain within the scope of conference. In addition, during the last six days of a session, it is a privileged motion to move to discharge, appoint, or instruct House conferees after House conferees have been appointed 36 hours without having made a report.

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Conference Reports When the conferees, by majority vote of each group, have reached complete agreement or find that they are able to agree with respect to some but not all separately numbered amendments, they make their recommendations in a report made in duplicate that must be signed by a majority of the conferees appointed by each body on each provision to which they are appointed. The minority of the managers have no authority to file a statement of minority views in connection with the conference report. The report is required to be printed in both Houses and must be accompanied by an explanatory statement prepared jointly by the conferees on the part of the House and the conferees on the part of the Senate. The statement must be sufficiently detailed and explicit to inform Congress of the effects of the report on the matters committed to conference. In the Senate, the presentation of a conference report always is in order except when the Journal is being read, a point of order or motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum. When the report is received, the question of proceeding to the consideration of the report, if raised, is immediately voted on without debate. The report is not subject to amendment in either body and must be accepted or rejected as an entirety. If the time for debate on the adoption of the report is limited, the time allotted must be equally divided between the majority and minority party. The Senate, acting first, prior to voting on agreeing to the report may by majority vote order it recommitted to the conferees. When the Senate agrees to the report, its managers are thereby discharged and it then delivers the original papers to the House with a message advising that body of its action. A report that contains any recommendations which extend beyond the scope of differences between the two Houses is subject to a point of order in its entirety unless that point of order is waived in the House by unanimous consent, adoption of a rule reported from the Committee on Rules, or the suspension of the rules by a two-thirds vote. In the Senate, a report exceeding the scope of conference is likewise subject to a point of order. It is not in order in the House to consider a conference report that differs in any way (other than clerical) from the text agreed to by the conferees, as recorded by their placement of their signatures (or not) on the sheets prepared to accompany the conference report and joint explanatory statement. Furthermore, as described earlier, it is not in order to consider a conference report unless the joint explanatory statement includes a list of congressional earmarks, limited tax benefits and limited tariff benefits in the conference report and joint explanatory statement, or a statement that the measure contains none of these items. The presentation of a conference report in the House is in order at any time, except during a reading of the Journal or the conduct of a record vote, a vote by division, or a quorum call. The report is considered in the House and may not be sent to the Committee of the Whole on the suggestion that it contains matters ordinarily requiring consideration in that Committee. The report may not be received by the House if the required joint statement does not accompany it.

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However, it is not in order to consider either: (1) a conference report; or (2) a motion to dispose of a Senate amendment reported in disagreement by a conference committee, until the third calendar day (excluding Saturdays, Sundays, and legal holidays unless the House is in session on those days) after the report and accompanying statement have been filed in the House and made available to the Members in the Congressional Record. However, these provisions do not apply during the last six days of the session. It is also not in order to consider a conference report or a motion to dispose of a Senate amendment reported in disagreement unless copies of the report and accompanying statement, together with the text of the amendment, have been available to Members for at least two hours before their consideration. By contrast, it is always in order to call up for consideration a report from the Committee on Rules on the same day reported that proposes only to waive the availability requirements for a conference report or a Senate amendment reported in disagreement. The time allotted for debate on a conference report or motion is one hour, equally divided between the majority party and the minority party. However, if the majority and minority floor managers both support the conference report or motion, one-third of the debate time must be allotted to a Member who is opposed, if claimed. If the House does not agree to a conference report that the Senate has already agreed to, the report may not be recommitted to conference. In that situation, the Senate conferees are discharged when the Senate agrees to the report. The House may then request a new conference with the Senate and conferees must be reappointed. If a conference report is called up in the House containing matter which would be in violation of the rules of the House with respect to germaneness if the matter had been offered as an amendment in the House, and which is contained either: (1) in the Senate bill or Senate amendment to the House measure and accepted by the House conferees or agreed to by the conference committee with modification; or (2) in a substitute amendment agreed to by the conference committee, a point of order may be made at the beginning of consideration that nongermane matter is contained in the report. The point of order may be waived by a special rule. If the point of order is sustained, a motion to reject the nongermane matter identified by the point of order is privileged. The motion is debatable for 40 minutes, half of the time in favor of, and half in opposition to, the motion. Notwithstanding the final disposition of a point of order made with respect to the report, or of a motion to reject nongermane matter, further points of order may be made with respect to the report, and further motions may be made to reject other nongermane matter in the conference report not covered by any previous point of order which has been sustained. If a motion to reject has been adopted, after final disposition of all points of order and motions to reject, the conference report is considered rejected and the question then pending before the House is whether: (1) to recede and concur with an amendment that consists of that portion of the conference report not rejected; or (2) to insist on the House amendment. If all motions to reject are defeated and the House thereby decides to permit the inclusion of the non-germane Senate matter in the conference report, then, after the allocation of time for debate on the conference report, it is in order to move the previous question on the adoption of the conference report. Similar procedures are available in the House when the Senate proposes an amendment to a measure that would be in violation of the rule against nongermane amendments, and thereafter it is (1) reported in disagreement by a committee of conference or (2) before the House and the stage of disagreement is reached. The numbered amendments of the Senate reported in disagreement may be voted on separately and may be adopted by a majority vote after the adoption of the conference report

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itself as though no conference had been had with respect to those amendments. The Senate may recede from all amendments, or from certain of its amendments, insisting on the others with or without a request for a further conference with respect to them. If the House does not accept the amendments insisted on by the Senate, the entire conference process may begin again with respect to them. One House may also further amend an amendment of the other House until the third degree of amendment within that House is reached.

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Custody of Papers The custody of the official papers is important in conference procedure because either body may act on a conference report only when in possession of the papers. Traditionally, the papers are transmitted to the body agreeing to the conference and from that body to the managers of the House that asked for the conference. The latter in turn carry the papers with them to the conference and at its conclusion turn them over to the managers of the House that agreed to the conference. The managers of the House that agreed to the conference deliver them to their own House, which acts first on the report, and then delivers the papers to the other House for final action on the report. However, if the managers on the part of the House agreeing to the conference surrender the papers to the House asking for the conference, the report may be acted on first by the House asking for the conference. At the conclusion of the conference, each group of conferees retains one copy of the report that has been made in duplicate and signed by a majority of the managers of each body. The House copy is signed first by the House managers and the Senate copy is signed first by its managers. A bill cannot become law until it has been approved in identical form by both Houses of Congress. When the bill has finally been approved by both Houses, all the original papers are transmitted to the Enrolling Clerk of the body in which the bill originated.

XVI. BILL ORIGINATING IN SENATE The preceding discussion has described the legislative process for bills originating in the House. When a bill originates in the Senate, this process is reversed. When the Senate passes a bill that originated in the Senate, it is sent to the House for consideration unless it is held to become a vehicle for a similar House bill if and when passed by the House. The Senate bill is referred to the appropriate House committee for consideration or held at the Speaker‘s table at the Speaker‘s discretion. If the committee reports the bill to the full House and if the bill is passed by the House without amendment, it is enrolled. If the House passes an amended version of the Senate bill, the bill is returned to the Senate for action on the House amendments. The Senate may agree to the amendments or request a conference to resolve the disagreement over the House amendments or may further amend the House amendments. In accordance with the Constitution, the Senate cannot originate evenue measures. By tradition, the House also originates general appropriation bills. If the Senate does originate a revenue measure either as a Senate bill or an amendment to a non-revenue House bill, it can be

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returned to the Senate by a vote of the House as an infringement of the constitutional prerogative of the House.

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XVII. ENROLLMENT When a bill has been agreed to in identical form by both bodies— either: (1) without amendment by the second House to consider it; (2) by the first House‘s concurrence in the second House‘s amendments; or (3) by agreement in both bodies to the conference report—a copy of the bill is enrolled for presentation to the President. The preparation of the enrolled bill is a painstaking and important task because it must reflect precisely the effect of all amendments, either by way of deletion, substitution, or addition, agreed to by both bodies. The Enrolling Clerk of the House, with respect to bills originating in the House, receives the original engrossed bill, the engrossed Senate amendments, the signed conference report, all messages from the Senate, and a notation of the final action by the House, for the purpose of preparing the enrolled copy. From these documents, the Enrolling Clerk must meticulously prepare for presentation to the President the final form of the bill as it was agreed to by both Houses. On occasion, as many as 500 amendments have been adopted, each of which must be set out in the enrollment exactly as agreed to, and all punctuation must be in accord with the action taken. The enrolled bill is printed on parchment paper and certified by the Clerk of the House stating that the bill originated in the House of Representatives. A bill originating in the Senate is examined and certified by the Secretary of the Senate. A House bill is then examined for accuracy by the Clerk. When satisfied with the accuracy of the bill, the Clerk attaches a slip stating that the bill is truly enrolled and sends it to the Speaker of the House for signature. By tradition, all bills, regardless of the body in which they originated, are signed first by the Speaker and then by the Vice President of the United States, who, under the Constitution, serves as the President of the Senate, or by the elected President pro tempore of the Senate. The Speaker of the House may sign enrolled bills whether or not the House is in session. The President of the Senate may sign bills only while the Senate is actually sitting but advance permission is normally granted to sign during a recess or after adjournment. If the Speaker or the President of the Senate is unable to sign the bill, it may be signed by an authorized Member of the respective House. After both signatures are affixed, a House bill is returned to the Clerk for presentation to the President for action under the Constitution. A Senate bill is presented to the President by the Secretary of the Senate.

XVIII. PRESIDENTIAL ACTION Article I, Section 7, of the Constitution provides in part that— Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States.

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In actual practice, the Clerk, or the Secretary of the Senate when the bill originated in that body, delivers the original enrolled bill to a clerk at the White House and obtains a receipt. The fact of the delivery is then reported to the House by the Clerk. Delivery to a White House clerk has customarily been regarded as presentation to the President and as commencing the constitutional period for presidential action. Copies of the enrolled bill usually are transmitted by the White House to the various departments interested in the subject matter so that they may advise the President on the issues surrounding the bill. If the President approves the bill, he signs it and usually writes the word ―approved‖ and the date. However, the Constitution requires only that the President sign it. The bill may become law without the President‘s signature by virtue of the constitutional provision that if the President does not return a bill with objections within 10 days (excluding Sundays) after it has been presented to the President, it becomes law as if the President had signed it. However, if Congress by their adjournment prevent its return, it does not become law. This is known as a ―pocket veto;‖ that is, the bill does not become law even though the President has not sent his objections to the Congress. The Congress has interpreted the President‘s ability to pocket veto a bill to be limited to adjournment ―sine die‖ of a Congress and not to interim adjournments or first session adjournments where the originating House of Congress through its agents is able to receive a veto message for subsequent reconsideration by that same Congress when it reconvenes. The extent of pocket veto authority has not been definitively decided by the courts. Notice of the signing of a bill by the President is sent by message to the House in which it originated and that House informs the other, although this action is not necessary for the act to be valid. The action is also noted in the Congressional Record. A bill becomes law on the date of approval or passage over the President‘s veto, unless it expressly provides a different effective date.

Veto Message By the terms of the Constitution, if the President does not approve the bill ―he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.‖ A bill returned with the President‘s objections need not be voted on at once when laid before the House since the vetoed bill can be postponed, referred to committee, or tabled before the question on passage is pending. A vetoed bill is always privileged until directly voted upon, and a motion to take it from the table or from committee is in order at any time. The question of override is put by the Speaker as follows: ―Will the House, on reconsideration, pass the bill, the objections of the President to the contrary notwithstanding?‖ Under the Constitution, a vote by the yeas and nays is required to pass a bill over the President‘s veto. The Clerk activates the electronic system or calls the roll with those in favor of passing the bill answering ―Aye,‖ and those opposed ―No.‖ If fewer than two-thirds of the Members present vote in the affirmative, a quorum being present, the bill is rejected, and a message is sent to the Senate advising that body of the House action. However, if two-thirds vote in the affirmative, the bill is sent with the President‘s objections to the Senate, unless that body has acted first, together with a message advising it of the action in the House.

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If the Senate joins the House and votes two-thirds in the affirmative to pass the bill, the measure becomes the law of the land notwithstanding the objections of the President, and it is ready for publication as a binding statute.

Line Item Veto From 1997 until it was declared unconstitutional in 1998, the Line Item Veto Act provided the President authority to cancel certain individual items contained in a bill or joint resolution that he had signed into law. The law allowed the President to cancel only three types of fiscal items: a dollar amount of discretionary budget authority, an item of new direct spending, or a tax change benefiting a class of 100 or fewer. While the Act has not been repealed, the Supreme Court in Clinton v. City of New York, 24 U.S. 417 (1998), struck down the Line Item Veto Act as unconstitutional.

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XIX. PUBLICATION One of the important steps in the enactment of a valid law is the requirement that it shall be made known to the people who are to be bound by it. There would be no justice if the state were to hold its people responsible for their conduct before it made known to them the unlawfulness of such behavior. In practice, our laws are published immediately upon their enactment so that the public will be aware of them. If the President approves a bill, or allows it to become law without signing it, the original enrolled bill is sent from the White House to the Archivist of the United States for publication. If a bill is passed by both Houses over the objections of the President, the body that last overrides the veto transmits it. It is then assigned a public law number, and paginated for the Statutes at Large volume covering that session of Congress. The public and private law numbers run in sequence starting anew at the beginning of each Congress and are prefixed for ready identification by the number of the Congress. For example, the first public law of the 110th Congress is designated Public Law 110–1 and the first private law of the 110th Congress is designated Private Law 110–1.

Slip Laws The first official publication of the statute is in the form generally known as the ―slip law.‖ In this form, each law is published separately as an unbound pamphlet. The heading indicates the public or private law number, the date of approval, and the bill number. The heading of a slip law for a public law also indicates the United States Statutes at Large citation. If the statute has been passed over the veto of the President, or has become law without the President‘s signature because he did not return it with objections, an appropriate statement is inserted instead of the usual notation of approval. The Office of the Federal Register, National Archives and Records Administration, prepares the slip laws and provides marginal editorial notes giving the citations to laws

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mentioned in the text and other explanatory details. The marginal notes also give the United States Code classifications, enabling the reader immediately to determine where the statute will appear in the Code. Each slip law also includes an informative guide to the legislative history of the law consisting of the committee report number, the name of the committee in each House, as well as the date of consideration and passage in each House, with a reference to the Congressional Record by volume, year, and date. A reference to presidential statements relating to the approval of a bill or the veto of a bill when the veto was overridden and the bill becomes law is included in the legislative history as a citation to the Weekly Compilation of Presidential Documents. Copies of the slip laws are delivered to the document rooms of both Houses where they are available to officials and the public. They may also be obtained by annual subscription or individual purchase from the Government Printing Office and are available in electronic form. Section 113 of title 1 of the United States Code provides that slip laws are competent evidence in all the federal and state courts, tribunals, and public offices.

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Statutes at Large The United States Statutes at Large, prepared by the Office of the Federal Register, National Archives and Records Administration, provide a permanent collection of the laws of each session of Congress in bound volumes. The latest volume containing the laws of the first session of the 109th Congress is number 119 in the series. Each volume contains a complete index and a table of contents. A legislative history appears at the end of each law. There are also marginal notes referring to laws in earlier volumes and to earlier and later matters in the same volume. Under the provisions of a statute enacted in 1895, these volumes are legal evidence of the laws contained in them and will be accepted as proof of those laws in any court in the United States. The Statutes at Large are a chronological arrangement of the laws exactly as they have been enacted. The laws are not arranged according to subject matter and do not reflect the present status of an earlier law that has been amended.

United States Code The United States Code contains a consolidation and codification of the general and permanent laws of the United States arranged according to subject matter under 50 title headings, largely in alphabetical order. It sets out the current status of the laws, as amended, without repeating all the language of the amendatory acts except where necessary. The Code is declared to be prima facie evidence of those laws. Its purpose is to present the laws in a concise and usable form without requiring recourse to the many volumes of the Statutes at Large containing the individual amendments. The Code is prepared by the Law Revision Counsel of the House of Representatives. New editions are published every six years and cumulative supplements are published after the conclusion of each regular session of the Congress. The Code is also available in electronic format.

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Twenty-four of the 50 titles have been revised and enacted into positive law, and one title has been eliminated by consolidation with another title. Titles that have been revised and enacted into positive law are legal evidence of the law and may be updated by direct amendment. Eventually all the titles will be revised and enacted into positive law.

APPENDIX SELECT LIST OF GOVERNMENT PUBLICATIONS Constitution of the United States of America Analysis and Interpretation, with annotations of cases decided by the Supreme Court of the United States to June 28, 2002; prepared by Congressional Research Service, Library of Congress, Johnny H. Killian, George A. Costello, Kenneth R. Thomas, co-editors: Senate Document 103–6 (1996); updated Senate Document 107– 27 (2002).

House Rules and Manual Constitution, Jefferson‘s Manual, and Rules of the House of Representatives of the United States, prepared by John V. Sullivan, Parliamentarian of the House, House Document 109–157 (2007). New editions are published each Congress.

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Senate Manual Containing the rules, orders, laws, and resolutions affecting the business of the United States Senate; Jefferson‘s Manual, Declaration of Independence, Articles of Confederation, Constitution of the United States, etc., prepared under the direction of Senate Committee on Rules and Administration. New editions are published each Congress.

Hinds’ and Cannon’s Precedents of the House of Representatives Including references to provisions of the Constitution, laws, and decisions of the Senate, by Asher C. Hinds. Vols. 1–5 (1907). Vols. 6–8 (1935), as compiled by Clarence Cannon, are supplementary to vols. 1– 5 and cover the 28-year period from 1907 to 1935, revised up to and including the 73d Congress. Vols. 9–11 (1941) are index-digest to vols. 1–8.

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Deschler-Brown Precedents of the United States House of Representatives Including references to provisions of the Constitution and laws, and to decisions of the courts, covering the period from 1928 to date, by Lewis Deschler, J.D., D.J., M.P.L., LL.D., Parliamentarian of the House (1928–1974), Wm. Holmes Brown, Parliamentarian of the House (1974–1994). Vols. 1–16 have been published, additional volumes in preparation.

Cannon’s Procedure in the House of Representatives By Clarence Cannon, A.M., LL.B., LL.D., Member of Congress, sometime Parliamentarian of the House, Speaker pro tempore, Chairman of the Committee of the Whole, Chairman of the Committee on Appropriations, etc.

House Practice, A Guide to the Rules, Precedents and Procedures of the House By Wm. Holmes Brown, Parliamentarian of the House (1974–1994); updated 2003 by Charles W. Johnson, Parliamentarian of the House (1994-2004).

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Procedure in the U.S. House of Representatives, Fourth Edition (1982) (1987 Supp.) By Lewis Deschler, J.D., D.J., M.P.L., LL.D., Parliamentarian of the House (1928– 1974), and Wm. Holmes Brown, Parliamentarian of the House (1974–1994).

Senate Procedure By Floyd M. Riddick, Parliamentarian Emeritus of the Senate, Alan S. Frumin, Parliamentarian of the Senate: Senate Document No. 101–28 (1992).

Calendars of the House of Representatives and History of Legislation Published each day the House is in session; prepared under the direction of the Clerk of the House of Representatives.

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Committee Calendars Published periodically by most of the standing committees of the House of Representatives and Senate, containing the history of bills and resolutions referred to the particular committee.

Digest of Public General Bills and Resolutions A brief synopsis of public bills and resolutions, and changes made therein during the legislative process; prepared by American Law Division, Congressional Research Service, Library of Congress.

Congressional Record Proceedings and debates of the House and Senate, published daily, and bound with an index and history of bills and resolutions at the conclusion of each session of the Congress. The record of debates prior to 1874 was published in the Annals of Congress (1789–1824), The Register of Debates (1824–1837), and the Congressional Globe (1833–1873). Debates from 1774–1873 are available electronically from a website maintained by the Library of Congress.

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Journal of the House of Representatives Official record of the proceedings of the House, published at the conclusion of each session under the direction of the Clerk of the House.

Journal of the United States Senate Official record of the proceedings of the Senate, published at the conclusion of each session under the direction of the Secretary of the Senate.

United States Statutes at Large Containing the laws and concurrent resolutions enacted, and reorganization plans and proclamations promulgated during each session of the Congress, published annually under the direction of the Archivist of the United States by the Office of the Federal Register, National Archives and Records Administration, Washington, D.C. 20408. Supplemental volumes: Tables of Laws Affected, Volumes 70–84 (1956–1970), Volumes 85–89 (1971–1975), containing tables of prior laws amended, repealed, or patently affected by provisions of public laws enacted during that period.

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Additional parts, containing treaties and international agreements other than treaties, published annually under the direction of the Secretary of State until 1950.

United States Code The general and permanent laws of the United States in force on the day preceding the commencement of the session following the last session the legislation of which is included: arranged in 50 titles; prepared under the direction and supervision of the Law Revision Counsel of the House of Representatives. New editions are published every six years and cumulative supplements are published annually.

Federal Register Presidential Proclamations, Executive Orders, and federal agency orders, regulations, and notices, and general documents of public applicability and legal effect, published daily. The regulations therein amend the Code of Federal Regulations. Published by the Office of the Federal Register, National Archives and Records Administration, Washington, D.C. 20408.

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Code of Federal Regulations Cumulates in bound volumes the general and permanent rules and regulations of Federal agencies published in the Federal Register, including Presidential documents. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis. Published by the Office of the Federal Register, National Archives and Records Administration, Washington, D.C. 20408.

Weekly Compilation of Presidential Documents Containing statements, messages, and other presidential materials released by the White House during the preceding week, published every Monday by the Office of the Federal Register, National Archives and Records Administration, Washington, D.C. 20408.

History of the United States House of Representatives Prepared by Congressional Research Service, Library of Congress, House Document 103–324.

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The Senate, 1789–1989, Addresses on the History of the United States Senate, Vol. 1 By Senator Robert C. Byrd, Senate Document No. 100–20 (1988).

Historical Almanac of the United States Senate

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By Senator Bob Dole, Senate Document No. 100–35 (1989).

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In: How Laws Are Made in the U.S.A. Editor: Helen Maes

ISBN: 978-1-60876-142-5 © 2010 Nova Science Publishers, Inc.

Chapter 2

THE CONGRESSIONAL RESEARCH SERVICE AND THE AMERICAN LEGISLATIVE PROCESS Ida A. Brudnick

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SUMMARY The Library of Congress, as its name suggests, is a library dedicated to serving the United States Congress and its Members. It serves additionally as an unexcelled national library. The Library was located in the Capitol Building with the House of Representatives and the Senate until 1897, and its collections always have been available for use by Congress. Building upon a concept developed by the New York State Library and then the Wisconsin legislative reference department, Wisconsin‘s Senator Robert LaFollette and Representative John M. Nelson led an effort to direct the establishment of a special reference unit within the Library in 1914. Later known as the Legislative Reference Service, it was charged with responding to congressional requests for information. For more than 50 years, this department assisted Congress primarily by providing facts and publications and by transmitting research and analysis done largely by other government agencies, private organizations, and individual scholars. In 1970, Congress enacted a law transforming the Legislative Reference Service into the Congressional Research Service (CRS) and directing CRS to devote more of its efforts and increased resources to performing research and analysis that assists Congress in direct support of the legislative process. Joined today by two other congressional support agencies, including the Congressional Budget Office and the Government Accountability Office, the Congressional Research Service offers research and analysis to Congress on all current and emerging issues of national policy. CRS analysts work exclusively for Congress, providing assistance in the form of reports, memoranda, customized briefings, seminars, videotaped presentations, information obtained from automated data bases, and consultations in person and by telephone. This work is governed by requirements for confidentiality, timeliness, accuracy, objectivity, balance, and nonpartisanship. This report will be updated as circumstances warrant.

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Ida A. Brudnick

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INTRODUCTION The Library of Congress, as its name suggests, is a library dedicated to serving the United States Congress and its Members.1 It serves additionally as an unexcelled national library. The Library was located in the Capitol Building with the House of Representatives and the Senate until 1897, and its collections always have been available for use by Congress. In 1914, Senator Robert LaFollette and Representative John M. Nelson, both of Wisconsin, promoted the inclusion in the legislative, executive, and judicial appropriations act of a provision directing the establishment of a special reference unit within the Library.2 Building upon a concept developed by the New York State Library in 1890, and the Wisconsin legislative reference department in 1901, they were motivated by progressive era ideas about the importance of the acquisition of knowledge for an informed and independent legislature. The move also reflected the expanding role of the librarian and the professionalization of the profession. The new department was charged with responding to congressional requests for information. Renamed as the Legislative Reference Service and given a permanent authorization with the Legislative Reorganization Act of 1946, it assisted Congress primarily by providing facts and publications and by transmitting research and analysis done largely by other government agencies, private organizations, and individual scholars.3 In 1970, Congress passed legislation transforming the Legislative Reference Service into the Congressional Research Service (CRS) and directing CRS to devote more of its efforts and increased resources to doing research and analysis that assists Congress in direct support of the legislative process.4 Today, CRS is joined by two other congressional support agencies. The Congressional Budget Office provides Congress with budget-related information, reports on fiscal, budgetary, and programmatic issues, and analyses of budget policy options, costs, and effects. The Government Accountability Office assists Congress in reviewing and monitoring the activities of government by conducting independent audits, investigations, and evaluations of federal programs.5 Collectively, the three support agencies employ more than 4,000 people, giving the Congress access to information and analysis unequaled by any other national legislature. CRS offers research and analysis to Congress on all current and emerging issues of national policy. Its staff of approximately 700 employees includes lawyers, economists, reference librarians, and social, natural, and physical scientists. Funded through the annual Legislative Branch Appropriations Acts, in FY2008 CRS was provided with approximately $102 million in budget authority.6 Congressional responses take the form of reports, memoranda, customized briefings, seminars, videotaped presentations, information obtained from automated databases, and consultations in person and by telephone. In all its work, CRS analysts are governed by requirements for confidentiality, timeliness, accuracy, objectivity, balance, and nonpartisanship. CRS makes no legislative or other policy recommendations to Congress; its responsibility is to ensure that Members of the House and Senate have available the best possible information and analysis on which to base the policy decisions the American people have elected them to make. CRS is unique because its time and efforts are devoted to working exclusively for Congress. Only Members and their staffs can place requests and attend most seminars. While

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some CRS research and reports may reach the American public, dissemination is at the discretion of congressional clients. CRS is part of a much larger congressional staff community numbering approximately 30,000 people. In addition to the staff of the other research support agencies and other support offices like the Library of Congress, the Government Printing Office, and the Architect of the Capitol, almost 6,700 people are employed by the U.S. Senate, while approximately 10,700 are employed by the U.S. House of Representatives.7 Each Representative has as many as 18 full-time employees; Senators‘ staffs are larger and vary in size according to the populations of the states they represent. In addition, professional and clerical employees serve the committees and subcommittees in each house, while other staff members are employed by the congressional party leaders of the House and Senate, joint committees of the two houses, and the administrative officers of each house of Congress.

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SUPPORTING A SYSTEM OF SHARED POWERS The staff of the U.S. Congress is much larger than in any other national legislature and is a consequence of the underlying nature of the American political system. In parliamentary systems, the ―government,‖ in the form of the Prime Minister and the Cabinet, and the legislature (or at least its ―lower house‖) typically are controlled by the same party or coalition of parties. The lower house, such as the House of Commons in Canada or Great Britain, selects the Prime Minister who also is a member of the parliament and the leader of the dominant party. The Prime Minister‘s legislative program dominates the parliament‘s agenda, and new legislative elections may be necessary if it rejects a major government proposal for legislation. Normally, therefore, there is a collaborative relationship between the majority party or coalition in the parliament and the political leaders of the government ministries. When there is conflict between them, it is generally not because of the organization of government, but despite it. Under the Constitution of the United States, by contrast, the powers of the federal government are distributed in a way that is intended and almost guaranteed to create competition and conflict between the legislative and executive branches. It has been said that the U.S. system of government is characterized by a separation of powers; in fact, however, it is a system of separate institutions sharing powers. This arrangement has led to a shifting balance of power between the two branches, as well as occasional conflicts with the Supreme Court, during more than 200 years of experience under the Constitution. During some periods, Congress exerted more influence over national policy than the President; at other times, the situation has been reversed. The executive and legislative branches are distinctly separate institutions. In contrast to parliamentary systems, for example, Members of Congress may not hold positions of authority in the executive branch. Congress normally plays no part in selecting the President or Vice President, nor may it remove either of them from office only because of disagreements about policy. The Vice President does serve as President of the Senate, but the formal power of that position is very limited. Further, the President may not remove Members of Congress nor is there any provision for early dissolution of a Congress by the executive.

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Representatives, Senators, and the President all serve for fixed terms and for different periods of time. Even when a President wins an overwhelming election victory, therefore, he still finds that two-thirds of the Senators had been elected two or four years earlier, and that all Representatives will run for re-election two years later when the President is not a candidate. One possible result is that a President of one political party may confront one or both houses of Congress controlled by the other party. In fact this situation has prevailed in most years since the end of World War II. In this circumstance, the competition between separated institutions is made even more intense by the added dimension of competition between the different political parties controlling them. Yet these separated institutions are linked by their shared powers. For example, Congress has the primary legislative power under the Constitution. The President may recommend any legislation he thinks desirable, but Congress is under no obligation to act on, much less approve, his proposals, though they usually do receive respectful and careful study. On the other hand, the President does have the constitutional power to disapprove (or veto) any bill approved by Congress, in which case it can become law only if approved again by two-thirds votes in both houses. So the legislative power is shared, and the threat of a presidential veto usually gives him great influence over Congress‘s legislative decisions. Presidential powers also are shared. For instance, the President has the constitutional authority to nominate senior officers of the executive branch and all federal judges and justices and to negotiate treaties with other nations. The Senate must agree, however, by majority vote to each of his nominations, and no treaty can take effect unless the Senate approves it by a two-thirds vote. The President also is Commander-in-Chief of the armed forces, but Congress passes legislation controlling the size, composition, and budget of the military. In short, if either branch of government is to fulfill its constitutional responsibilities effectively, it needs the cooperation, or at least the acquiescence, of the other. The reason for this system of shared powers lies in both an historic mistrust of government power and a concern over the efficient administration of the law. The authors of the Constitution had experience with excessive power in the hands of executive officials (the British king and his ministers), but they also feared that an uncontrolled legislative majority also might be liable to abuse its power. The best way to protect against abuses of power, they concluded, was to divide it among officials of different institutions, giving these officials an incentive to restrain each other in their own self-interest. The authors‘ experience with the ineffective Articles of Confederation also convinced them of the need for a strong apparatus to administer the law, a responsibility they saw better vested in an executive body than the legislature. In this way, a system of ―checks and balances‖ prevents any single institution of government from becoming too powerful. Although sharing powers between different institutions can create obstacles and cause delays for the government in making decisions, having a government that its citizens can control and hold accountable was preferred in 1787, when the Constitution was written, to having one effectively controlled by either the executive or the legislative branch. And although circumstances have changed dramatically since then, the fundamental framework of government under the Constitution remains unchanged today. In order for the sharing of power to protect against the abuse of power, more is required than the words of the Constitution. Each branch of government must be able to protect its independence and assert its power effectively. In its continuing effort to preserve its

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constitutional authority and independence, Congress can suffer from an important competitive disadvantage: it often possesses less information and knowledge than the executive branch, which has more than 2.6 million employees.8 If the executive branch could control what Congress knows, it might largely nullify Congress‘s independent exercise of its powers and its ability to oversee the exercise of executive powers. While Congress would remain independent of the executive branch in theory, it could become its captive in practice. This is an important reason why Congress has created permanent committees of the House and Senate with responsibility for studying issues, recommending legislation, and conducting oversight on the subjects assigned to them. In this way, Congress develops policy expertise among its own members and the staffs of its committees. For the same reason, Congress created its three support agencies, including CRS, which are not subject to executive branch direction and which assure Congress of its own expert and independent assessments of national and international events and condition, its own studies of existing laws and programs, and its own analyses of the options for change.

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NONPARTISAN SUPPORT FOR A PARTISAN INSTITUTION There is another respect in which the mandate of CRS reflects the nature of U.S. political institutions and the party system: although the House and Senate are organized by the Democratic and Republican parties and nearly all Members of Congress are affiliated with one party or the other, CRS is a nonpartisan institution. Its purpose is to inform, not to persuade. Members‘ party affiliations remain the single best basis for predicting how they will vote, and congressional party leaders have a profound effect on how the House and Senate conduct their legislative business. Although Congress historically has not experienced highly cohesive party voting, particularly in comparison with voting in the parliaments in which members are elected from party lists under a system of proportional representation, ―partisan differentiation is still substantial ... [and] strict party votes always organize the House, and party unity votes are increasingly common (and often increasingly sharply dividing the two parties) on a wide range of substantive and procedural votes.‖9 Despite these recent trends in partisanship, the Democratic and Republican parties continue to encompass diverse interests, a fact for which observers have credited both the national history and the rules of the U.S. electoral system for the operation of the current party system. This diversity has expanded the role of CRS as a nonpartisan source of research. There cannot be a governing coalition of parties in the United States. The existence of a single, powerful, elective presidency encourages disparate factions and interests to coalesce into two parties at the national level. Historically, third parties have had great difficulty attracting and then maintaining widespread support in federal elections because they usually have had a narrow ideological focus and geographical base, and so have had no real hope of winning the single most visible and valuable prize of American political competition, the presidency. The result has been two parties with different centers of political gravity but with overlapping national constituencies in presidential elections.

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In congressional elections, candidates run for the House of Representatives in 435 separate single member districts and for the Senate in 50 different states.10 The constituencies are geographically, economically, and socially diverse. This electoral system, in which each House constituency elects only one legislator, and in which only one candidate can win each election, also encourages two-party competition at the state and local level, in contrast to systems in which legislators are elected by proportional representation from party lists. It is in this environment that CRS exists to serve as a source of nonpartisan analysis and information.

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SERVING ALL THE MEMBERS OF CONGRESS In addition to serving the committees and party leaders of the House and Senate, CRS responds to requests for assistance from all Members of both houses, regardless of their party, length of service, or political philosophy. Each Member, as a consequence of the American system of political parties and elections noted above, is an independent political decisionmaker who makes his or her own judgments about what legislation to sponsor or support. Individual members of their staffs request help from CRS, for example, in learning about issues, developing ideas for legislation, and evaluating legislative proposals made by the President, their colleagues, or private organizations. The system of making congressional nominations through primary elections also severely limits the influence of party organizations on the selection of House and Senate candidates. Each party‘s candidates for election to Congress usually are chosen in a preliminary or ―primary‖ election. In most states, any person can be listed on his party‘s primary election ballot if he or she can demonstrate some support from its members. The person who wins the primary election then becomes the party‘s candidate even if the state or local party leaders would have preferred someone else. Thus, candidates for election to the House and Senate are political entrepreneurs. They usually decide at their own initiative that they want to seek election and they obtain the nomination of their party by winning a primary election, not by winning the support of a formal party organization. They then associate themselves with their party and its other candidates as it serves their own interests. As a result, there is a direct and personal tie between each Representative and Senator and the voters in his or her district or state. The support Members enjoy in their constituencies rests partly on their party affiliations. Yet their election and reelection do not necessarily depend on their party support or the efforts of formal party organizations. When Members of either house are elected for the first time and arrive in Congress, they almost certainly feel an allegiance to their party and they wish to support its leaders whenever possible. But most new Members also understand that they were not elected merely because of their party; they owe their success largely to their own efforts. In this situation, Representatives and Senators can be independent political decisionmakers. They develop their own bills and amendments to promote the policies that are important to them and their constituencies. As they prepare for each legislative decision, Members may consider many influences, though they ultimately reach their own decisions based on their personal public policy preferences, the advice of their personal staff, and their assessment of what is in the best interests of their state or district. Each Member then needs

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direct access to a source of information and analysis to help him or her make these judgments — a source of accurate information and expert analysis that is independent and dependable and that has no interest in affecting the Member‘s decisions. To serve this need, the resources of CRS are available equally to each Representative and Senator without regard to party, position, or philosophy.

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SUPPORT THROUGHOUT THE LEGISLATIVE PROCESS CRS supports the Members, committees, and leaders of the House and Senate at all stages of the legislative process, from helping them as they evaluate the need for new legislation before it is introduced, to giving them technical assistance as they reach final agreement on bills before they are presented to the President for his approval or disapproval. The ideas for legislation come from many sources, but every bill must be introduced by a Representative or Senator before Congress can formally consider it. The President and other executive branch officials frequently submit drafts of proposed bills to Congress which Representatives and Senators introduce on their behalf. Legislative proposals also come from interest groups and other private organizations, and even from individual citizens who have become particularly interested in an issue. And of course, Members and their staffs frequently develop their own legislative ideas. CRS can contribute at this preliminary stage in several ways. Members may ask CRS to provide background information and analysis on issues and events so they can better understand the existing situation and then assess whether there is a problem requiring a legislative remedy. This assistance may be a summary and explanation of the scientific evidence on a technically complex matter, for example, or it may be a collection of newspaper and journal articles discussing an issue from different perspectives, or a comparative analysis of several explanations that have been offered to account for a generally recognized problem. CRS also identifies national and international experts with whom Members and staff may consult about whatever issues concern them and sponsors programs at which Members meet with experts to discuss issues of broad interest to Congress. If a Member decides to introduce a bill, CRS analysts can assist the legislator (or his or her staff) in clarifying the purposes of the bill, identifying issues it may address, defining alternative ways for dealing with them, evaluating the possible advantages and disadvantages of each alternative, developing information and arguments to support the bill, and anticipating possible criticisms of the bill and responses to them. Although CRS does not draft bills, resolutions, and amendments, its analysts may join staff consulting with the professional draftsman within each chamber‘s Office of the Legislative Counsel as they translate the Member‘s policy decisions into formal legislative language. Members and committees also can request CRS to help them assess and compare legislative proposals, including competing bills introduced by Members and proposals presented by executive branch officials, private citizens and organizations. CRS can assess the intent, scope, and limits, of the various proposals. When a bill is introduced in the House or Senate, it is assigned to a permanent legislative committee with responsibility for that subject, and then usually to a subcommittee of the committee. If the bill is broad in scope, it may be referred to two or more committees. There

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is no requirement for any subcommittee or committee to act on any bill, and the overwhelming majority of bills die because the committees choose not to act on them. When a subcommittee selects a bill (or several bills on the same subject) for serious attention, it usually begins by conducting public hearings on one or more days at which executive branch officials, other Members of Congress, representatives of private organizations, and even individual citizens present their views on the bill‘s merits. CRS analysts can assist in this process by providing background information and reports, presenting a preliminary briefing to Members or staff, identifying potential witnesses, and suggesting questions that Members may consider asking the witnesses. After the hearings on a bill, the subcommittee or committee meets to debate and vote on amendments to it. If requested, CRS staff may attend these meetings to serve as a nonpartisan source of expert information available to all Members. If the subcommittee and then the full committee conclude that new legislation is needed, they report a bill to the House or Senate for all its Members to consider. The committee also submits a written report that explains the background for its decision, analyzes the purposes and effects of each major provision of the bill, and includes other information, such as predictions about the cost of implementing it, that help other Members decide whether they should support the bill. CRS specialists may assist the committee‘s staff in preparing some sections of this report, although cost estimates are developed by the Congressional Budget Office. During the committee and floor consideration stage of the legislative process, CRS can assist Representatives and Senators in several different ways, in addition to providing background information to assist Members in understanding the issues a bill addresses. CRS attorneys can help clarify legal effects the bill may have. CRS policy analysts can work with Members in deciding whether to propose amendments and then in making certain that their amendments are designed and phrased to achieve the desired results. CRS also can help Members prepare for the debate by providing data and other information that they can use to support the positions they have decided to take. The House and Senate each has a complex set of rules for determining if, when, and how all its members will act on the bills its committees have approved. These procedures control, among other things, how long Members can debate the bill and if Members are free to offer amendments on the House or Senate floor to change its provisions. The legislative procedures of the House generally impose limits on deliberation, while the Senate, in part because it always has been much smaller than the House, has placed more importance on engaging in extended debate and less emphasis on reaching prompt decisions. CRS staff can clarify the legislative procedures of the House and Senate, assisting Members and staff in understanding the effects of these procedures and how Members can use the procedures to promote their own legislative goals. When the House and Senate first pass a bill, they usually have some disagreement over precisely what it should say and do. All these disagreements must be resolved before the legislative process is completed and the bill can be presented to the President. For the most important bills, the two houses usually agree to create a temporary conference committee composed of both Representatives and Senators, most of whom had been involved in developing the bill initially in the committees of the House and Senate. There is a different conference committee for each major bill; the purpose of the committee is to reach compromises that settle all the disagreements between the houses concerning that bill.

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The discussions of a conference committee sometimes are very informal; in other cases, they are as formal as bilateral treaty negotiations. CRS analysts can contribute to this last stage of the legislative process by helping identify the issues to be resolved, by clarifying and comparing the positions of the two houses on each issue, and by identifying different ways in which the legislative disagreements could be resolved. Once the conferees reach agreement, as they usually do, they present their report to the House and Senate. If the two houses accept the report, the bill is ready to be sent to the President for his approval or veto. Throughout this process, CRS offers timely and confidential assistance to all Members and committees that request it, limited only by CRS‘ s resources and the requirements for balance, nonpartisanship and accuracy. CRS does not conduct research on sitting Members or living former Members of Congress, unless granted specific permission by that Member or that if Member is nominated by the President for another office. Further, CRS services are not limited to those that relate directly to enacting new laws. For example, CRS attempts to assess emerging issues and developing problems so that it will be prepared to assist the Congress if and when it becomes necessary. Although it rarely conducts field research, CRS assists committees in other aspects of their study and oversight responsibilities. In addition, it offers numerous courses, including legal research seminars and institutes on the legislative process, the budget processes, and the work of district and state staff. At the beginning of each Congress, CRS also provides an orientation seminar for new Members.

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CONCLUSION The Congressional Research Service serves the American people and their constitutional system by serving Congress in a way that reflects underlying characteristics of the national political process. Although sometimes compared with research arms of other national legislatures, CRS is well-adapted to its own constitutional and political context and might not prosper if reproduced without change in a wholly different socioeconomic, historical, and constitutional setting. Yet there are requisites for accountability and effectiveness that every democratic government must meet in one way or another. One such requisite is public participation in the lawmaking process through representative bodies such as the United States Congress and other national parliaments. Another is the need for the legislature and its members to be informed sufficiently well so that they can make reasoned choices in responding to social needs, and thereby also reinforce popular support for democratic institutions. By helping to satisfy the information requirements of Congress and its Members, CRS makes its unique contributions to preserving and strengthening democratic government in the United States.

End Notes 1

This report was originally written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS, who has since retired. The listed author has updated the report and is available to answer questions concerning its contents. 2 ch. 141, July 16, 1914. 3 ch. 753, title II, sec. 203, August 2, 1946, 60 Stat. 836 How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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4

P.L. 91-510, title III, sec. 321(a), October 26, 1970, 84 Stat. 1181; 2 U.S.C. 166. For more information on this agency, see CRS Report RL30349, GAO: Government Accountability Office and General Accounting Office, by Frederick M. Kaiser. 6 For additional information on the funding of the legislative branch, see CRS Report RL34031, Legislative Branch: FY2008 Appropriations, by Ida A. Brudnick. 7 Figures obtained from: U.S. Office of Personnel Management, Federal Employment Statistics Report, September 2007, Table 9, Federal Civilian Employment and Payroll (in thousands of dollars) by Branch, Selected Agency, and Area, available online at [https://www.opm.gov/feddata/htm1/2007/september/table9 .asp]. 8 Figure obtained from U.S. Office of Personnel Management, Federal Employment Statistics Report, September 2007, Table 9, Federal Civilian Employment and Payroll (in thousands of dollars) by Branch, Selected Agency, and Area, available at [https://www.opm.gov/feddata/htm1/2007/september/table9.asp]. 9 John H. Aldrich and David W. Rohde, ―The Transition to Republican Rule in the House: Implications for Theories of Congressional Politics,” Political Science Quarterly, vol. 112, no. 4 (Winter 1997), pp. 541-567, at pp. 545546. 10 These 435 Members are joined in the House of Representatives by the Delegates from American Samoa, Guam, the Virgin Islands, and the District of Columbia, and the Resident Commissioner from Puerto Rico.

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5

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In: How Laws Are Made in the U.S.A. Editor: Helen Maes

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Chapter 3

ENGROSSMENT, ENROLLMENT AND PRESENTATION OF LEGISLATION R. Eric Petersen Engrossment, enrollment, and presentation of legislation are components of the legislative process1 that attest to the accuracy of bill texts, confirm House and Senate action, and confirm delivery of the bills to the President for review.2

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ENGROSSMENT When either house orders the third reading of a bill, it simultaneously orders the engrossment of the bill. Engrossment is the formal reprinting of the bill in the form upon which the chamber will vote final passage.3 House and Senate Rules require that all bills, amendments, and joint resolutions passed in each chamber must be examined by the Clerk of the House or Secretary of the Senate, as appropriate.4 Official engrossed copies are prepared by staff in the Office of the Clerk of the House and the Office of the Secretary of the Senate. The clerk or secretary are required to attest to the accuracy of the engrossed text by signing the measures.5 The House-engrossed measures, including amendments to bills passed by the Senate, are printed on blue paper; the Senate prints its engrossed measures on white paper. If either chamber later discovers errors in one of its engrossed measures, it may adopt a resolution formally requesting the other chamber to return the engrossed bill or resolution to it for correction. An engrossed bill is ―messaged‖ by the originating house to the other; the second chamber to act attaches the text of whatever amendments it adopts to the original measure it has received from the first.

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R. Eric Petersen

ENROLLMENT

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An enrolled bill is the fmal version of a measure agreed to by both chambers, printed on parchment or paper.6 Enrolled measures in the Senate are ―examined under the supervision of the Secretary of the Senate, to see that the same are correctly enrolled.‖7 In the House, the clerk, in cooperation with the Senate, examines ―all bills and joint resolutions that have passed both Houses to see that they are correctly enrolled.‖8 House-enrolled bills are also certified by the clerk as having originated in the House.9 Enrolled bills are then signed by the presiding officers of both chambers,10 with the Speaker typically signing the measure first.11 In the House, the Speaker may sign enrolled measures at any time.12 A formally designated Speaker pro tempore, appointed with the approval of the House, may sign enrolled bills in the Speaker‘s absence. The presiding officer of the Senate is authorized to sign enrolled measures when the Senate is in session. When a new Congress convenes, the Senate typically adopts by unanimous consent an order authorizing the President of the Senate, the President pro tempore, or any Senator13 appointed by the President pro tempore to sign duly enrolled bills and joint resolutions during recesses and adjournments for the duration of that Congress.14 Both houses must adopt a concurrent resolution to recall an incorrectly enrolled bill already sent to the President, or to make changes in the text of an enrolled bill still in the possession of the Congress.15 When the officials from both chambers have signed an enrolled bill, the measure is sent by the clerk or secretary, as determined by the chamber from which the bill originated, to the President for his consideration. With the general exception of an expiration of a Congress, there is no specific deadline within which Congress must submit an enrolled bill to the President. Preparing and signing enrolled bills may take significant time, especially at the end of a Congress when many such bills must be prepared.

PRESENTATION The Constitution provides that ―Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.‖16 Enrolled bills are delivered to the White House by the Clerk of the House or Secretary of the Senate, as determined by the chamber in which the measure originated, and stamped to certify the date and time of their arrival. The clerk and secretary are also required to report the fact and date of presentation to the President to their respective chambers.17 When the President has been away from Washington, DC for long periods of time, Congress has sometimes agreed to present enrolled measures to him on his return; at other times, bills have been sent to him. If the President signs a bill during the 10-day period, excluding Sundays, provided in the Constitution for his review, it becomes law. If the President disapproves, or vetoes, a bill, he must return it to the originating chamber with a message indicating his reasons for disapproval. If the President does not sign or return a bill during the 10 days, the bill becomes law,18 unless the Congress has adjourned during the 10 days, thereby making impossible the return of the bill (pocket veto).19 Some doubt exists about the President‘s power to pocket veto a bill during intra-session and inter-session adjournments. In 1974, the Circuit Court of

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Appeals ruled that a pocket veto was improper during an intra-session adjournment in which House and Senate administrative officers had been authorized to receive presidential messages.20 Many claim that Congress may also authorize its officers to receive messages, including vetoes, during any intra-session adjournment or after any inter-session adjournment. The courts have not ruled directly on this pocket veto-related issue. Any attempt by Congress to deprive the President of his right to be presented with measures before they become law may be constitutionally suspect. The Supreme Court in 1983 ruled the legislative veto to be unconstitutional for this reason.21 Subsequently, in 1998, the Court declared that procedures set up in the Line Item Veto Act (P.L. 104-30) also violated the presentment clause of the Constitution.22

End Notes 1

For more information on legislative process, see [http://www.crs.gov/products/guides/ guidehome.shtml]. This report was written by Paul S. Rundquist, formerly a Specialist in American National Government at CRS, who has retired. The listed author updated the report and is available to answer questions concerning its contents. 3 In earlier times, such bills were handwritten in very large script, hence the term ―engrossment.‖ 4 House Rule II, cl. (2)(d)(2); and Senate Rule XIV, cl. 5 U.S.C. 106. 6 1 U.S.C. 107. 7 Senate Rule XIV, cl. 5. 8 House Rule II, cl. (2)(d)(2). 9 Lewis Deschler,Deschler‟s Precedents of the United States House of Representatives, vol. VII, H.Doc. 94-661, 94th Cong., 2nd sess. (Washington: GPO, 1977), p. 453. The clerk signs the back of an enrolled measure to certify that it originated in the House. 10 1 U.S.C. 106. H See Floyd M. Riddick and Alan S. Frumin, “Riddick‟s Senate Procedure: Precedent and Practices,” S. Doc. 10128, 101st Cong., 2nd sess. (Washington: GPO, 1992), p. 830; and Deschler, Deschler‟s Precedents, p. 453. 12 House Rule I, cl. 4. 13 The Senate President pro tempore may designate in writing another Senator to sign enrolled bills in his or her absence, but under Senate Rule I, cl. 3, this authority may not extend beyond an adjournment, except by unanimous consent. 14 See ―Unanimous Consent Agreement,‖ Congressional Record, daily edition, Jan. 4, 2007, p. S8; and ―Unanimous Consent Agreement,‖ Congressional Record, daily edition, Jan. 4, 2005, p. S7. 15 See H.Con.Res. 270, 110th Congress, making corrections in the enrollment of H.R. 1593 (Second Chance Act of 2007), adopted Mar. 11, 2008; and S.Con.Res. 112, 109th Congress, a concurrent resolution relating to correcting a clerical error in the enrollment of S. 3693 (A bill to make technical corrections to the Violence Against Women and Department of Justice Reauthorization Act of 2005), adopted July 20, 2006. 16 U.S. Constitution, Article I, sec. 7. 17 House Rule II, cl. (2)(d)(2); and Senate Rule XIV, cl. 5. 18 U.S. Constitution, Article I, sec. 7. 19 See also, CRS Report RS22188, Regular Vetoes and Pocket Vetoes: An Overview, by Kevin R. Kosar. 20 Kennedy v. Sampson, 511 F.2d. 430 (D.C. Cir., 1974). 21 INS v. Chadha, 462 U.S. 919, (1983). 22 Clinton v. City of New York, (118 S. Ct. 2091 (1998).

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Chapter 4

ENROLLMENT OF LEGISLATION: RELEVANT CONGRESSIONAL PROCEDURES Valerie Heitshusen

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SUMMARY An enrolled bill or resolution is the form of a measure finally agreed to by both chambers of Congress. Enrollment occurs in the chamber where the measure originated and is carried out by enrolling clerks under the supervision of the Clerk of the House of Representatives and Secretary of the Senate. Enrolled bills and joint resolutions are signed by the presiding officers of each chamber (or their designees) and are presented to the President by the House Clerk or Secretary of the Senate, depending on the chamber of origination. In instances in which Congress determines that the enrolled measure does not reflect congressional intent, it can require that changes be made by adopting a concurrent resolution directing the House Clerk or Secretary of the Senate to do so. If the enrolled measure has already been presented to the President — but not yet enacted — the concurrent resolution can request its return to allow specified corrections to be made. If Congress wishes to alter an enacted measure, new legislation must be enacted to do so. In rare instances, the constitutionality of certain measures has been challenged based on allegations that the enrolled (and therefore, enacted) text did not accurately reflect congressional action. In considering these cases, the federal courts have typically relied on precedent to refuse review of the enrollment process (or other pre-enactment congressional procedures).

INTRODUCTION An enrolled bill or resolution is the form of a measure finally agreed to by both chambers of Congress. Enrollment occurs in the chamber where the measure originated and is carried out by enrolling clerks under the supervision of the Clerk of the House of Representatives and Secretary of the Senate. Enrolled bills and joint resolutions are signed by the presiding

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officers of each chamber (or their designees) and are presented to the President by the House Clerk or Secretary of the Senate, depending on the chamber of origination. In instances in which Congress determines that the enrolled measure does not reflect congressional intent, it can require that changes be made by adopting a concurrent resolution directing the House Clerk or Secretary of the Senate to do so. If the enrolled measure has already been presented to the President — but not yet enacted — the concurrent resolution can request its return to allow specified corrections to be made. If Congress wishes to alter an enacted measure, new legislation must be enacted to do so. In rare instances, the constitutionality of certain measures has been challenged based on allegations that the enrolled (and therefore, enacted) text did not accurately reflect congressional action. In considering these cases, the federal courts have typically relied on precedent to refuse review of the enrollment process (or other pre-enactment congressional procedures).

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DEFINITIONS AND PERSONNEL An enrolled bill or resolution is the form of a measure finally agreed to by both chambers, which is printed on parchment or paper.1 Enrollment occurs in the chamber in which the measure originated. First, the Speaker of the House, and then the Senate‘s presiding officer,2 must sign each enrolled bill to confirm that the text reflects that which was passed by the House and Senate, respectively.3 Enrollment is carried out by House and Senate enrolling clerks, who are, respectively, overseen by the Clerk of the House and the Secretary of the Senate.4 These offices are responsible for enrolling the bill in accordance with congressional action. The signature of either the House Clerk or Secretary of the Senate is required on the reverse of the back page, to indicate in which chamber the measure originated.5 Once it is signed by the Speaker of the House and then the President of the Senate — or their designees — an enrolled bill or joint resolution is presented to the President by the House Clerk or Secretary of the Senate, depending on the chamber in which the measure originated.6 While the U.S. Constitution provides the President 10 days (excluding Sundays) to act on a measure once it has been presented to him, there is no explicit limit (in the Constitution or either chamber‘s rules) on the time taken for the enrollment process.7

HISTORY OF THE ENROLLMENT PROCESS The enrollment process dates to the first years of Congress, with procedures to ensure its integrity initially laid out in Jefferson‟s Manual: When a bill has passed both Houses of Congress, the House last acting on it notifies its passage to the other, and delivers the bill to the Joint Committee on Enrollment, who sees that it is truly enrolled in parchment. When the bill is enrolled it is not to be written in paragraphs, but solidly, and all of a piece, that the blanks between the paragraphs may not give room to forgery (9 Grey, 143). It is then put into the hands of the Clerk of the House of Representatives to have it signed by the Speaker. The

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Clerk then brings it by way of message to the Senate to be signed by their President. The Secretary of the Senate returns it to the Committee of Enrollment, who presents it to the President of the United States.8 From 1789 to 1876, the House and Senate had joint rules with similar requirements in relation to enrollment. In particular, these rules directed the House Clerk and Secretary of the Senate to enroll bills and mandated a review (and any corrections, if necessary) by a joint committee, which would then report to the respective chambers.9 The joint rules lapsed in 1876, but these practices were largely continued until the passage of the Legislative Reorganization Act of 1946.10 The 1946 Reorganization Act provided that responsibilities pertaining to enrollment were now to be delegated to the newly-established Committee on House Administration, which retained these authorities until the beginning of the 107th Congress, when they were transferred to the House Clerk and laid out in House Rule II, clause 2(d)(2).11 The Senate transferred authority over the enrollment process to the Secretary of the Senate in 1945 upon adoption of S.Res. 64 (79th Congress);12 this responsibility is now incorporated in Senate Rule XIV, paragraph 5.

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CHANGES IN ENROLLMENT Enrollment of a measure must accurately reflect congressional action; virtually no changes may be made by the offices of the House Clerk or Secretary of the Senate without an order of the Congress to do so.13 If, in enrollment of a measure, it becomes apparent that congressional action did not accurately reflect congressional intent on the measure — or if there was a clerical error that resulted in the two chambers agreeing to different text (or, if after printing, an error is discovered14) both chambers must agree to a concurrent resolution that directs the appropriate official to re-enroll the bill with specified changes.15 If the enrolled bill has been signed by the presiding officers, the resolution rescinds their signatures and the measure must be signed anew after the enrollment has been connected.16 If the measure has already been presented to the President, the concurrent resolution must also request the President to return the bill to the chamber of origin.17 The correction is made by the officer (House Clerk or Secretary of the Senate) of the chamber in which the measure originated, but the concurrent resolution directing that officer to make the specified changes can originate in either chamber.18 In addition, a concurrent resolution for this purpose can be agreed to by one chamber even before the measure in question has passed either chamber.19 In the House, a concurrent resolution directing changes in enrollment is not privileged and, while typically considered by unanimous consent, may also be taken up according to the provisions of a special rule or under suspension of the rules.20 In the Senate, a House concurrent resolution to make changes is privileged, though if the change is substantive, it has been held that unanimous consent is required for its consideration; a Senate concurrent resolution to make changes is privileged in the Senate only if the changes are technical in nature.21 A Senate concurrent resolution making substantive changes would not be privileged and, if any Senator objected to its consideration, would need to be referred to committee or go over under the rule.22 Senate precedents specify that concurrent resolutions used for

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correcting enrollment are subject to amendment, but not of a legislative or general nature, except by unanimous consent.23 A concurrent resolution directing changes in enrollment is often agreed to by unanimous consent in the House, but the House may agree to it by voice or recorded vote when it is considered under suspension of the rules or under the provisions of a special rule reported by the Rules Committee.24 In the Senate, the concurrent resolution is typically agreed to by unanimous consent, and Senate practice dictates that if the changes are substantive, they may only be agreed to by unanimous consent.25

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ISSUES ARISING AFTER ENACTMENT Once an enrolled bill becomes law, any changes — to correct either an error in enrollment or other alteration of the measure between congressional passage and enactment — must be made in a new enactment. In this case, Congress could pass new legislation for the purposes of making ―technical corrections‖ to a law that did not accurately reflect congressional action or intent due to clerical errors or other changes made during the enrollment process. In some instances, it has been alleged that irregularities in enrollment resulted in the enactment of a measure not in the form agreed to by both chambers. If Congress does not address the problem with a subsequent new enactment, the constitutionality of the measure may be challenged in federal court. The disposition of these cases may hinge on a variety of factors (including, for example, whether or not the party challenging the law has standing to do so). When the courts have addressed such issues in the past, they have frequently relied on a 1892 Supreme Court ruling, announced in Marshall Field & Co. v. Clark, 143 U.S. 649, called the enrolled bill rule. This rule provides that the courts do not ―look behind‖ the enrollment process (i.e., examine other legislative documents and records) to determine if Congress properly enrolled the text of a measure as passed, so long as each chamber‘s presiding officer signed the enrolled bill, thereby attesting that it accurately reflected final congressional action. If a court were to rely on the enrolled bill rule in its refusal to review the pre-enactment process, it would presumably permit the law to stand. If, however, a court agreed that the constitutional requirements for enactment were not fulfilled, the court could invalidate the entire text or alternatively, strike down only the portion of the law that is alleged to have been incorrectly or improperly enrolled. One recent instance was S. 1932 in the 109th Congress, the Deficit Reduction Act of 2005 (P.L. 109-171), for which the enacted text did not reflect the text agreed to by both chambers. In the final stages of consideration of S. 1932, the engrossment of a Senate amendment to the House amendment contained an inadvertent error that did not accurately reflect Senate action because the Senate had taken no action to alter the House amendment in this way. The House subsequently agreed to the Senate-engrossed text without correcting the error; thus, both chambers had agreed to identical text that did not reflect either chamber‘s intent. Before sending the measure to the President, the text that was agreed to (in error) was changed to reflect what each chamber apparently intended, although neither chamber adopted a concurrent resolution to authorize this change to the text in question.26 Several parties have challenged the constitutionality of the law on these grounds in federal court; to date, no court

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has invalidated the law or any portion of it, and those decisions issued thus far have relied, at least in part, on the enrolled bill rule to reject the claims of unconstitutionality. In one case in which appeals were filed, the United States Supreme Court denied the petition to review the circuit court‘s dismissal of the case.27

End Notes

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1

An enrolled measure should be distinguished from an engrossed measure; the latter is the version of a bill (or resolution) in the form passed by the chamber of origin or of the amendments adopted to it in the chamber acting second. Once prepared and authenticated (as evidenced by the signature of either the Clerk of the House or the Secretary of the Senate, as appropriate), the engrossed measure is messaged to the other chamber to await action there. 2 In the absence of the President of the Senate (the Vice President of the United States), the President pro tempore is the presiding officer and executes the duties of that office (Senate Rule I, paragraph 1). 3 Section 106 of Title 1 of the United States Code requires the signature of each chamber‘s presiding officer on each enrolled bill. Since 1981, the Speaker of the House is authorized to sign enrolled bills at any time, whether the House be in session or not (House Rule I, clause 4). A Speaker pro tempore elected by the House may also signed enrolled bills (Asher C. Hinds, Hinds‟ Precedents of the House of Representatives of the United States, (Washington: GPO, 1907-1908), II § 1401), and the Speaker may designate a Member to act in only this capacity for a limited time, subject to House approval (House Rule I, clause 8(b)(2)). Senate Rule 1, paragraph 3, permits the signing of enrolled bills for a limited time by another Senator appointed (by the President pro tempore in open session or in writing) to act as Acting President pro tempore; the Senate may also by unanimous consent authorize a Senator other than the President pro tempore (or his designee) to sign enrolled bills during a specific time period. In addition, the rules allow the Senate to authorize, by unanimous consent, the presiding officer (or his or her designee) to perform these duties during recesses or adjournments. For example, see Congressional Record (daily edition), vol. 153, (January 4, 2007), p. S8, when the Senate grants, by unanimous consent, a request that the President of the Senate, the President pro tempore, and the Acting President pro tempore be authorized to sign enrolled measures when the Senate is in recess or adjournment during the 110th Congress. 4 House Rule II, clause 2(d)(2), provides the House Clerk responsibility for overseeing the enrollment process in that chamber, and Senate Rule XIV, paragraph 5, gives the Secretary of the Senate express authority over the Senate‘s enrollment process. 5 House Practice: A Guide to the Rules, Precedents and Procedures of the House, by Wm. Holmes Brown and Charles W. Johnson (Washington: GPO, 2003), p. 762; How Our Laws are Made, H.Doc. 108-93, revised and updated by Charles W. Johnson, (Washington: GPO, 2003), p. 50. 6 Floyd M. Riddick and Alan S Frumin, Riddick‟s Senate Procedure, 101St Cong., 2nd sess., S. Doc. 101-28 (Washington: GPO, 1992), p. 830; House Practice, pp. 762, 765. 7 House Rule II, clause 2 (d)(2), requires the House Clerk, after the presiding officers have signed a House-originated enrolled measure, to ―forthwith present‖ it to the President. Similarly, Senate Rule XVI, paragraph 5, requires the Secretary of the Senate to ―forthwith present‖ to the President any Senateoriginated enrolled measure once it is signed by each chamber‘s presiding officer. In some instances, enrolled measures pending at the end of a congressional session have been sent to and approved by the President in the next session of the same Congress. In addition, at the beginning of the 98th Congress, measures enrolled in the 97th Congress were presented to and signed by the President (U.S. Congress, House, Constitution, Jefferson „s Manual, and Rules of the House of Representatives of the States, One Hundred Tenth Congress, H.Doc. 109157, 109th Cong., 2nd sess., [compiled by] John V. Sullivan, Parliamentarian (Washington: GPO, 2007), § 577). 8 House Manual, § 573, 575. 9 IV Hinds‟ Precedents, § 3430. 10 60 Stat. 826 (August 2, 1946). After the joint rules lapsed in 1876, House rules still referred to a Joint Committee on Enrolled Bills, and the Senate adopted ―resolutions empowering the committees on Enrolled Bills, Printing, and Library to act in conjunction with the similar committees of the House‖ (IV Hinds‟ Precedents, § 4416). In addition, Cannon notes that ―while the rule provides for a joint committee, in practice each branch acts separately in the comparison of bills of its own House for enrollment and merely cooperates in the interchange of bills for signature‖ (U.S. Library of Congress, Congressional Research Service. Engrossed and Enrolled Bills in the House of Representatives, Archived CRS typed report, November 1, 1977, by Stanley I. Bach, pp. 8-9; Clarence Cannon, Cannon‟s Precedents of the House of Representatives of the United States. (Washington: GPO, 1935) VII § 2099).

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House Manual, § 727, p. 452. Lewis Deschler, Deschler‟s Precedents of the United States House of Representatives. (Washington: GPO, 1977) ch. 24 § 14.4. 13 House precedent states that ―(t)he enrolling clerks should make no change, however unimportant, in the text of a bill to which the House has agreed‖ (III Hinds‟ Precedents, § 2598). 14 The House Clerk or Secretary of the Senate can order the printing of a ―star print‖ to correct Government Printing Office (GPO) printing errors in engrossment, but after both chambers have acted on a measure, a concurrent resolution is necessary to correct printing errors (House Practice, p. 761; V Hinds‟ Precedents § 7319). 15 Concurrent resolutions have been used to correct enrollments even when they involve only errors in spelling or the title. For example, in the 109th Congress, the adoption of H.Con.Res. 502 directed that the word ―point‖ be changed to ―pound‖ in the enrollment of H.R. 5682, and in the 108th Congress, the spelling of a House sponsor‘s name was corrected in the enrollment of S. 2238, pursuant to H.Con.Res. 458. Concurrent resolutions directing changes in enrollment may, however, also involve substantive changes (see House Practice, p. 763). In addition, on at least one occasion, Congress used a concurrent resolution to direct the House Clerk to ―correct chapter, title, and section numbers‖ in the enrollment of any general appropriations bills enacted during the remainder of the 82nd Congress (Deschler‟s Precedents, Ch. 24 § 14.5). In the mostrecently completed Congress — the 109th — Congress agreed to 14 such concurrent resolutions directing changes in enrollment (according to a search of the Legislative Information System for all adopted concurrent resolutions with the word ―enrollment‖ in the title). 16 Riddick‟s Senate Procedure, pp. 824, 828-829. House Practice, p. 764. 17 House Practice, p. 764; Riddick‟s Senate Procedure, pp. 824, 446-447. While the measure is typically resubmitted to the President, further action could instead be postponed indefinitely. (See Deschler‟s Precedents Ch. 24 § 16.5.) 18 House Practice, p. 763. In the 109th Congress, for example, a Senate measure (S.Con.Res. 123) directed the House Clerk to correct a House measure (H.R. 5946). Similarly, a House measure (H.Con.Res. 324) directed the Secretary of the Senate to correct a Senate measure (S. 1281). 19 House Practice, p. 763. For an example in which the resolution was agreed to before the measure it corrected was, see S.Con.Res. 74 in the 109th Congress, which corrected the enrollment of H.R. 2863 (an emergency supplemental appropriations bill) before either chamber agreed to the conference report. 20 House Practice, p. 764. In the case of a concurrent resolution requesting return from the President of a measure not yet enacted or vetoed, the House has typically considered the resolution by unanimous consent (ibid). 21 Riddick‟s Senate Procedure, p. 826. 22 Ibid. 23 Riddick‟s Senate Procedure, p. 825. 24 House Practice, p. 764. In recent examples of the House agreeing to such a resolution by a recorded vote, the vote occurred on a so-called ―self-executing‖ special rule, in which the recorded vote agreeing to the rule itself also had the effect of granting House approval to the concurrent resolution referenced therein. 25 Riddick‟s Senate Procedure, p. 825. For an example of one such concurrent resolution agreed to in the Senate by a recorded vote, see S.Con.Res. 74 in the 109th Congress, which directed changes in enrollment to H.R. 2863. 26 After the President signed the legislation, the Senate by unanimous consent took up and agreed to S.Con.Res. 80 (109th), which specified that the enacted measure be ―deemed the true enrollment of the bill reflecting the intent of the Congress,‖ but the House did not consider the resolution. 27 CRS Report RS22507, Constitutionality of the Deficit Reduction Act of 2005: Litigation, by Thomas J. Nicola, discusses the current status of the pending court cases in more detail. Additional detail on the legislative history of the Deficit Reduction Act of 2005 is provided in archived CRS Report RL33132, Budget Reconciliation Legislation in 2005-2006 Under the FY2006 Budget Resolution, August 17, 2007, by Robert Keith.

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Chapter 5

LEGISLATIVE PROCESS: HOW A SENATE BILL BECOMES A LAW Bill Status Bill is drafted

Bill is introduced by Senator If no objection heard, bill is considered read twice, and referred to the appropriate committee. Bill is entered on the Senate Journal

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Bill is given a number Bill is entered into ledgers and the Legislative Information System and marked up for printing Bill is delivered to Government Printing Office Printed Bill is made available in Senate and House document rooms, and electronically on the Legislative Information System and on www.senate.gov Printed Bill is delivered to appropriate committee Committee Action (see attachment #1) Bill is placed on the Legislative Calendar Unanimous consent requested to lay bill before the Senate If consent is granted, the Presiding Officer instructs the Legislative Clerk to report the title Bill is debated and Amendment(s ) are submitted or proposed The Amending Process (see attachment #2) The Presiding Officer instructs the Legislative Clerk to read the title a third and final time

People Involved Senator, Representative, White House, State Legislatures, Organizations, Scholars, Constituents. Senator by way of the Parliamentarian Parliamentarian on behalf of Presiding Officer Journal Clerk Bill Clerk

Where Office, library, home Senate Chamber Senate Chamber Senate Chamber Bill Clerk‘s Office

Bill Clerk

Bill Clerk‘s Office

Bill Clerk

Messenger picks up

Government Printing Office

Government Printing Office

Government Printing Office Legislative Clerk

Senate Chamber

Majority Leader

Senate Chamber

Legislative Clerk on behalf of the Presiding Officer

SenateChamber

Senator

Senate Chamber

Legislative Clerk on behalf of Presiding Officer

Senate Chamber

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Table 1. (Continued) Bill Status Call for a vote (See attachment #3) Bill voted on by roll call vote, voice vote, unanimous consent, or division

People Involved Senator

Where Senate Chamber

Senators

Senate Chamber

If bill is passed the final copy is prepared

Enrolling Clerk

Engrossed bill signed

Secretary of the Senate

Delivered to the House of Representatives

Enrolling Clerk

House Action

House of Representatives

Bill is passed by the House of Representatives and delivered back to the Senate If not amended by House, bill is enrolled in the Senate Enrolled bill is signed (see attachment #5) Bill is delivered to White House The bill is signed into law or vetoed (see attachment #6) OR bill is amended by House of Representatives Amended bill is delivered to the Senate Senate may disagree to House Amendment and requests a conference Conference Committee Action (see attachment #4) If the bill is agreed to, it is enrolled (see attachment #5) Enrolled bill is signed Bill is delivered to White House Bill is signed into law or vetoed (see attachment #6)

Enrolling Clerk‘s office Secretary of the Senate‘s office House of Representatives Chamber House Chamber and House Committees

House Reading Clerk

House Chamber

Enrolling Clerk

Senate Chamber

President Pro Tempore of the Senate and the Speaker of the House Overseen by Secretary of the Senate

U.S. Capitol

President of the United States

White House

Representative

House Chamber

House Reading Clerk

Senate Chamber

Senators

Senate Chamber

Enrolling Clerk President Pro Tempore of the Senate and Speaker of the House Secretary of the Senate oversees delivery President of the United States

U.S. Capitol

White House

ATTACHMENT #1: COMMITTEE ACTION Legislation is referred to a committee after introduction, according to its subject matter. Most commonly, a committee will further refer the legislation to one of its subcommittees. The subcommittee may request reports from government agencies or departments, hold hearings, mark up the bill (adopt revisions), and report the legislation to the full committee. The full committee may take similar action, with or without prior subcommittee consideration, and report the legislation to its full chamber.

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Committee Hearings Regardless of the type of hearing, or whether a hearing is held in Washington or elsewhere, hearings share common aspects of planning and preparation. Senate standing committees and subcommittees are authorized to meet and to hold hearings when the Senate is in session, and when it has recessed or adjourned. To minimize conflicts with floor activities, a committee may not meet, without unanimous consent, on any day after the Senate has been in session for two hours, or after 2:00 p.m. when the Senate is in session. Senate Rule XXVI requires each committee (except Appropriations and Budget) to give at least one week‘s notice of the date, place, and subject of a hearing; however, a committee may hold a hearing with less than one week‘s notice if it determines that there is ―good cause.‖ These notices appear in the Daily Digest section of the Congressional Record. While the Senate rule requires a one week public notice, a separate standing order of the Senate requires each Senate committee to notify the Daily Digest Office as soon as a hearing is scheduled [S.Res. 4, 95th Congress]. Hearings are generally open to the public, but can be closed by a committee roll-call vote in open session if the subject matter falls within specific categories enumerated in Senate rules. Although a committee chair determines the agenda and selects witnesses, the minority typically works informally with the majority to invite witnesses representing its views. Senate rules allow the minority-party members of a committee (except Appropriations) to call witnesses of their choice on at least one day of a hearing. Witnesses before Senate committees generally must provide the committee with a copy of their written testimony at least one day before their oral testimony, with specifics set out in individual committee rules. It is common practice to request witnesses to limit their oral remarks to a brief summary of the written testimony. A question-and-answer period generally follows a witness‘s testimony. Each committee determines the order in which Senators question witnesses. Although Senate rules do not restrict the length of time each Senator may question a witness, several committees have adopted such rules. Some committees also authorize committee staff to question witnesses.

Committee Markup A markup is a meeting of the committee to debate and consider amendments to a measure under consideration. The markup determines whether the measure pending before a committee will be recommended to the full Senate, and whether it should be amended in any substantive way. Procedures in markup for the most part reflect procedures used on the Senate floor, possibly modified by an individual committee‘s rules. The process begins when the chair of the committee schedules and sets the agenda for the markup. In leading a markup, the chair has broad discretion choosing the legislative vehicle and presenting it for consideration and amendment. The measure that is marked up may be one that was introduced in the Senate, or received from the House and referred to the committee. Alternatively the chair may choose to consider the text of a draft measure that has not been introduced, such as a subcommitteereported version or a chairman‘s mark. In still other cases, the markup vehicle may be placed

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before the committee as an ―amendment in the nature of a substitute‖ for the measure or text initially referred to it.

Reporting Legislation

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When a committee concludes its markup, any committee member may move to order the measure reported to the Senate. A committee has several options for the form in which the a measure is ordered reported. It may be reported with no changes, with amendments to various sections adopted in markup, or with one amendment in the nature of a substitute. In addition, a Senate committee is authorized to report an original bill that embodies a text decided upon in markup. Senate rules require the physical presence of a majority of the committee in order to report a measure. Absent Senators may vote by proxy on reporting a measure unless a committee has adopted a rule to the contrary, but such proxy votes may not effect the outcome of a vote to report a measure, and proxies may not be counted to determine a quorum. Following a committee‘s vote to order a measure reported, it is the duty of the committee‘s chairman to report the measure promptly to the Senate. When a committee reports a measure, it generally prepares an accompanying written report that describes the purposes and provisions of the measure. If a report is submitted, Senate rules and statutes require the inclusion of such components as records of roll-call votes cast in committee, cost estimates, a statement of regulatory impact, and the specific changes the legislation would make to existing law. Committee members are also entitled to at least three days to prepare supplementary, minority, or additional views for inclusion in the report.

ATTACHMENT #2: THE AMENDING PROCESS The Amending Process Floor consideration of a measure usually begins with opening statements by the floor managers, and often by other Senators. The managers usually are the chair and ranking minority member of the reporting committee or pertinent subcommittee. The first amendments usually to be considered are those recommended by the reporting committee. If the committee has proposed many amendments, the manager often obtains unanimous consent that these amendments be adopted, but that all provisions of the measure as amended remain open to further amendment. After committee amendments are disposed of, amendments may be offered to any part of the measure in any order. If the committee recommends a substitute for the full text of the measure, the substitute normally remains open to amendment throughout its consideration. The Senate may dispose of each amendment either by voting on it directly or by voting to table it. The motion to table cannot be debated; and, if the Senate agrees to it, the effect is the

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same as a vote to defeat the amendment. If the Senate defeats the motion, however, debate on the amendment may resume. While an amendment is pending, Senators may propose amendments to it (called seconddegree amendments) and to the part of the measure the amendment would change. The Senate votes on each of these amendments before it votes on the first-degree amendment (the amendment to the measure). Many additional complications exist. When a complete substitute for a measure is pending, for example, Senators can propose six or more first- and second-degree amendments to the substitute and the measure before any votes must occur. If an amendment is considered under a time limitation, Senators may make no motions or points of order, or propose other amendments, until all the time for debating the amendment has been used or yielded back. Sometimes, however, the Senate unanimously consents to lay aside pending amendments temporarily in order to consider another amendment to the measure. The amending process continues until the Senate orders the bill engrossed and read a third time, which precludes further amendment. Then the Senate votes on final passage.

ATTACHMENT #3: VOTING

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Voting Article. I, sec. 5, paragraph 3 of the Constitution provides that one-fifth of those present (11 Senators, if no more than a quorum is present) can order the yeas and nays - also known as a rollcall vote or a recorded vote. If a Senator asks for the yeas and nays on a pending question, and the Senate orders them, it does not mean that a vote will occur immediately, Instead ordering the yeas and nays means that whenever the vote does occur, it will be by roll call and will be recorded in the Journal. Otherwise, votes can be taken by voice vote, unanimous consent, or division.

ATTACHMENT #4 : CONFERENCE COMMITTEES A bill cannot become a law of the land until it has been approved in identical form by both houses of Congress. Once the Senate amends and agrees to a bill that the House already has passed — or the House amends and passes a Senate bill — the two houses may begin to resolve their legislative differences by way of a conference committee or through an exchange of amendments between the houses.

Conference Committees If the Senate does not accept the House‘s position, one of the chambers may propose creation of a conference committee to negotiate and resolve the matters in disagreement between the two chambers. Typically, the Senate gets to conference with the House by

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adopting this standard motion: ―Mr. President, I move that the Senate insist on its amendment(s) (or ―disagree to the House amendment(s)‖ to the Senate-passed measure), request a conference with the House on the disagreeing votes thereon, and that the Chair be authorized to appoint conferees.‖ This triple motion rolled into one — to insist (or disagree), request, and appoint — is commonly agreed to by unanimous consent. The presiding officer formally appoints the Senate‘s conferees. (The Speaker names the House conferees.) Conferees are traditionally drawn from the committee of jurisdiction, but conferees representing other Senate interests may also be appointed. There are no formal rules that outline how conference meetings are to be organized. Routinely, the principals from each chamber or their respective staffs conduct pre-conference meetings so as to expedite the bargaining process when the conference formally convenes. Informal practice also determines who will be the overall conference chair (each chamber has its own leader in conference). Rotation of the chairmanship between the chambers is usually the practice when matched pairs of panels (the tax or appropriations panels, for example) convene in conference regularly. For standing committees that seldom meet in conference, the choice of who will chair the conference is generally resolved by the conference leaders from each chamber. The decision on when and where to meet and for how long are a few prerogatives of the chair, who consults on these matters with his or her counterpart from the other body. Once the two chambers go to conference, the respective House and Senate conferees bargain and negotiate to resolve the matters in bicameral disagreement. Resolution is embodied in a conference report, signed by a majority of Senate conferees and House conferees. The conference report must be agreed to by both chambers before it is cleared for presidential consideration. In the Senate, conference reports are usually brought up by unanimous consent at a time agreed to by the party leaders and floor managers. Because conference reports are privileged, if any Senator objects to the unanimous consent request, a nondebatable motion can be made to take up the conference report. Approval of the conference report itself is subject to extended debate, but conference reports are not open to amendment. Almost all of the most important measures are sent to conference, but these are only a minority of the bills that the two houses pass each year.

ATTACHMENT #5: ENROLLMENT Enrollment After the Senate and House resolve all their disagreements concerning a bill or joint resolution, all the original papers are transmitted to the enrolling clerk of the originating chamber, who has the measure printed on parchment, certified by the chief officer of the originating chamber, and signed by the Speaker of the House and by either the Vice President (who is the President of the Senate) or the authorized presiding officer of the Senate. The enrolled bill then goes to the President for his approval or veto.

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ATTACHMENT #6: PRESIDENTIAL ACTION Presidential Action

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Pursuant to Article 1, section 7 of the Constitution, ―Every Bill, which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; . . . ‖ If the President approves and signs the measure within 10 days, it becomes law. The 10day period begins on midnight of the day the President receives the measure, and Sundays are not counted. Thus, if the President were to receive an enrolled measure on Thursday, February 14th, the first day of the 10-day period would be Friday, February 15th; the last day would be Tuesday, February 26th. If the President objects to a measure, he may veto it by returning it to its chamber of origin together with a statement of his objections, again within the same 10-day period. Unless both chambers subsequently vote by a 2/3 majority to override the veto, the measure does not become law. If the President does not act on a measure-approving or vetoing it-within 10 days, the fate of the measure depends on whether Congress is in session. If Congress is in session, the bill becomes law without the President‘s approval. If Congress is not in session, the measure does not become law. Presidential inaction when Congress is not in session is known as a pocket veto. Congress has interpreted the use of the pocket veto to be limited to the final, so-called sine die adjournment of the originating chamber. The President‘s pocket veto authority is not definitively decided.

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Chapter 6

INTRODUCING A HOUSE BILL OR RESOLUTION Betsy Palmer

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DEVELOPING IDEAS FOR LEGISLATION Ideas and recommendations for legislation come from a wide variety of sources, such as individual Representatives, committees and other House working groups, party and chamber leaders, executive branch agencies and the White House, states and localities, and citizens or interest groups. Any or all of these individuals or entities may participate in drafting legislation, although only a Member may formally introduce legislation. For more information on legislative process, see [http://www.crs.gov/products/guides/guide home. shtml].1 Some of the most common considerations that might be taken into account when drafting a bill are To what committee or committees is the measure likely to be referred? Will the bill attract cosponsors? Does the measure have bipartisan appeal? Is the measure best introduced at the beginning or toward the end of a Congress? What are the budgetary or appropriations implications? Should there be a companion measure introduced in the Senate?

DRAFTING LEGISLATION Although there is no requirement that bills and other measures introduced in the House be prepared by the House Office of Legislative Counsel, the office plays an important role in drafting legislation. Its staff attorneys are both subject-matter specialists and experts in legislative drafting. Legislative counsel staff are often assigned to serve a specific committee or committees and focus almost exclusively on related policy areas in which they are expert. They act as nonpartisan, shared staff, working closely with committee members and staff. Numerous drafts of a bill or resolution may be required before a measure is formally introduced.

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Staff drafting legislation may seek assistance from legislative counsel at any stage. All communications with the office are considered confidential. The office is located at 136 Cannon House Office Building (5-6060). After introduction, a bill will normally be referred to the committee (or committees) having jurisdiction, under House Rule X, over the subject the bill addresses. (For detail, see CRS Report 98-175, House Committee Jurisdiction and Referral: Rules and Practice, by Judy Schneider.) The referral will be made by the Office of the Parliamentarian, acting as agent of the Speaker (Rule XII, clause 2). Members and staff drafting legislation may consult the Office of the Parliamentarian on the referral that a draft bill would be likely to receive, and on the possibility of securing a different referral by making adjustments in its text before introduction.

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INTRODUCING A BILL The formal procedures that govern the practical activity of introducing legislation are few and are found in House Rule XII. Former House Parliamentarian Wm. Holmes Brown in House Practice: A Guide to the Rules, Precedents and Procedures of the House (Washington: GPO, 2003) has stated: ―The system for introducing measures in the House is a relatively free and open one.‖ House rules do not limit the number of bills a Representative may introduce. When a Representative who is the primary sponsor has determined that a bill or resolution is ready for introduction, the measure is printed in a form that leaves room for the parliamentarian‘s office to note the committee or committees of referral and for a clerk to insert a number. The Member must sign the measure and attach the names of any cosponsors on the form provided by the Clerk‘s office; cosponsors do not affix their signatures to the bill. The Member then deposits the measure in the box, or ―hopper,‖ at the bill clerk‘s desk in the House chamber when the House is in session. A Member need not seek recognition in order to introduce a measure. If a Member has second thoughts after introducing a measure, he or she may reclaim it from the clerk so long as the measure has not been assigned a number and referred to committee (a process that normally takes one day). Once a measure has been numbered and referred, it becomes the property of the House and cannot be reclaimed. The House has the authority to consider an introduced bill or resolution even if the primary sponsor resigns from the House or dies. In the first days of a new Congress, hundreds of bills and resolutions are introduced. Measures are numbered sequentially and Representatives may seek to reserve numbers, as these are sometimes seen as providing a shorthand meaning to the legislation, or having some other symbolic meaning. In recent years, the House has ordered that bill numbers one through 10 be reserved for majority party leaders.

End Note 1

This report was originally prepared by former CRS Specialist Richard C. Sachs.

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Chapter 7

INTRODUCING A SENATE BILL OR RESOLUTION Betsy Palmer DEVELOPING IDEAS FOR LEGISLATION

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Ideas and recommendations for legislation come from a wide variety of sources, from individual Senators, committees and other Senate work groups, and party and chamber leaders; executive branch agencies and the White House; states and localities; and ordinary citizens or interest groups. Any or all of these entities may also participate in drafting measures.1 Some of the most common considerations that may be taken into account when preparing the initial draft of a bill are To which committee is the measure likely to be referred? How can the measure attract cosponsors? Does the measure have bipartisan appeal? Is the measure best introduced early or late in a session of Congress? What are the budgetary or appropriations implications?

SENATE OFFICE OF LEGISLATIVE COUNSEL The Senate Office of Legislative Counsel usually plays a critical role in drafting legislation, although there is no requirement that they draft bills or resolutions. Its staff attorneys are both subject-matter specialists and experts in legislative drafting. The office is at 668 Dirksen Senate Office Building (4-6461). Legislative counsel staff are often assigned to a committee or committees, and focus almost exclusively on related policy areas in which they are expert. They act as nonpartisan, shared staff, working closely with committee members and staff. Personal office staff assigned responsibility for drafting legislation may seek assistance from legislative counsel at any stage. Numerous drafts of a bill or resolution may be required before the measure is formally introduced.

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The Senate Committee on Rules and Administration has set the drafting priorities of the Office of the Legislative Counsel as follows: (1) measures in conference; (2) measures pending on the floor; (3) measures pending before a committee; and (4) measures to be prepared for individual Senators. Within each of these categories, priority is given to requests in the order they are received. Guidelines for expediting requests for assistance from the Office of the Legislative Counsel are to be found on the Senate Webster website. Only Senate offices have access to Webster. See [http://webster.senate.gov/other/solc/Requests/requests.htm].

SEEKING COSPONSORS

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When a Senator introduces a measure, he or she commonly attaches a form bearing the names of cosponsors. Before the bill is introduced, Senators may become cosponsors by contacting the office of the chief sponsor and requesting that their names be added to the bill or resolution. Initial cosponsors can be added until the measure is presented to the clerk in the Senate chamber. There is no limit on the number of cosponsors. One of the most common techniques for informing Senators of the pending introduction of a bill or resolution, and for soliciting support, is the ―Dear Colleague‖ letter, sent to most or all Senators. Typically, these letters briefly state the issue the measure addresses, the measure‘s significant features and an appeal to become a cosponsor. Almost always, they carry the name and phone number of a staff aide to contact about cosponsoring the bill. (See CRS Report 98-279, Sponsorship and Cosponsorship of Senate Bills, by Betsy Palmer and CRS Report RL34636, „Dear Colleague‟ Letters: Current Practices, by Jacob R. Straus.)

INTRODUCING A BILL OR RESOLUTION Senate Rule VII requires measures to be introduced from the floor as part of ―morning business.‖ In practice, however, morning business seldom occurs as provided in Rule VII. Instead, on most days, the Senate provides by unanimous consent that a period for transacting routine morning business occur at some point. Senators may introduce measures from the floor during this period. Also, at the beginning of each new Congress, the Senate adopts a standing order allowing Senators to introduce measures at any time the chamber is in session by presenting them to a clerk at the desk. Most measures are introduced in this fashion. However, no bill may be introduced on a day in which there has been no period for morning business. To be introduced for Senate consideration, a measure must be signed by the sponsoring Senator. If Senators wish to accompany the measure with a statement, they may either deliver the statement during morning business, or at any other time, or they may ask unanimous consent to insert the statement in the Congressional Record. By unanimous consent, the text of the measure also is typically included.

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REFERRAL Senate Rule XIV requires that all bills and resolutions be read twice before they are referred to committees. Committee jurisdictions are set forth in Rule XXV. Referral decisions are made by the Senate parliamentarian‘s office acting on behalf of the presiding officer. Under the provisions of Rule XVII, a measure is referred to the committee with ―jurisdiction over the subject matter which predominates.‖ Multiple referrals occur only occasionally. A procedure in Rule XIV allows an introduced measure to be placed directly on the calendar of business without being first referred to a standing committee (see CRS Report RS22309, Senate Rule XIV Procedures for Placing Measures Directly on the Senate Calendar, by Michael L. Koempel).

End Notes This report was originally prepared by former CRS Specialist Richard C. Sachs.

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1

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Chapter 8

OFFICE OF LEGISLATIVE COUNSEL: HOUSE Matthew E. Glassman

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SUMMARY The Office of the Legislative Counsel of the House of Representatives provides confidential, nonpartisan legislative drafting services to committees and Members of the House. The office‘s legislative mandate is ―the achievement of a clear, faithful, and coherent expression of legislative policies.‖ The Legislative Counsel, appointed by the Speaker of the House of Representatives, is responsible for the management and administration of the office. The professional staff of the office currently includes a deputy legislative counsel, approximately 40 attorneys and an administrative support staff. Services are provided to Members and committees ―upon request,‖ giving priority to legislation with imminent conference, markup, or floor action.

BACKGROUND AND HISTORY1 The original Legislative Drafting Service 2, established by Section 1303 of the Revenue Act of 1918,3 was a single agency composed of two independent branches, one under the direction of the Senate and the other under the direction of the House. The House Office of Legislative Counsel was given its own separate legislative charter by Title V of the Legislative Reorganization Act of 1970 (2 U.S.C. 281-282e), effectively separating the Office of Legislative Counsel into autonomous House and Senate components.

STRUCTURE AND FUNCTIONS The management, supervision, and administration of the Office is vested in the House Legislative Counsel, appointed by the Speaker of the House. The Legislative Counsel is

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empowered to ―appoint such attorneys and other employees as may be necessary for the prompt and efficient performance of the functions of the Office.‖ These attorneys are both subject-matter specialists and experts in legislative drafting. The Legislative Counsel also designates a deputy legislative counsel to serve during his absence or disability or when the position of Legislative Counsel is vacant. The statutory charter requires the office to be impartial as to issues of legislative policy and to maintain the attorney-client relationship with respect to any communications with Members or committees of the House. The work of the office typically includes:

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Drafting of bills and resolutions for introduction, and drafting of amendments for use by Members during subcommittee, committee, and floor consideration of bills and resolutions. Drafting advice (including advice on form and procedure) on drafts of bills, resolutions, and amendments prepared by others. Assisting committees in the preparation of reports, including changes to existing law in compliance with the Ramseyer rule, and explanatory statements accompanying conference reports. Requests for drafting assistance are at Members‘ initiative. There is no requirement in the rules of the House of Representatives that bills and resolutions must be drafted by the Office of Legislative Counsel. One notable exception to this general rule relates to amendments made in order under special rules from the Rules Committee. Guidelines promulgated by the committee stipulate that the assistance of the Legislative Counsel‘s Office should be sought in drafting such amendments, to ensure they are drafted to the most up-to-date version of a base bill, and to facilitate posting the text to the Rules Committee website. The ability of the Office of Legislative Counsel to respond to requests for assistance can be affected by the volume of requests for drafting assistance, as well as the complexity of the issues presented. The statute governing operations of the office gives priority for drafting services first to conference managers, second to committees, third to Members controlling floor time, and last to individual Members. However, the office endeavors to meet all requests in a timely manner At the direction of the Speaker, the office may perform other legal services for the House of Representatives not inconsistent with statutory mandates. However, matters relating to legal advocacy and litigation relating to Members performance of official duties are the province of the Office of the General Counsel.

CONTACT INFORMATION The Office of Legislative Counsel is located in Room 136, Cannon House Office Building. Requests for assistance may be made in person, in writing, by telephone (56060), by fax (5-3437), or via email ([email protected]). Additional information on the office‘s policies, procedures, and services is available from the Legislative Counsel‘s website at [http://legcoun.house.gov/].

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End Notes 1

This report was originally written by Thomas P. Carr, formerly an analyst in American National Government at CRS. The listed author updated the report and is available to answer questions concerning its contents. The Legislative Drafting Service was renamed the Office of Legislative Counsel by Section 1101 of the Revenue Act of 1924, 43 Stat. 353 (1924), to avoid confusion with the Legislative Reference Service of the Library of Congress (now the Congressional Research Service). 3 Revenue Act of 1918, 40 Stat. 1141 (1919), 2 U.S.C. 271 et seq.

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2

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Chapter 9

OFFICE OF LEGISLATIVE COUNSEL: SENATE Matthew E. Glassman

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SUMMARY The Office of the Legislative Counsel of the Senate provides confidential, nonpartisan legislative drafting services to committees and Members of the Senate. The office‘s legislative mandate is to ―aid in drafting public bills and resolutions or amendments thereto.‖ The Legislative Counsel, appointed by the President pro tempore of the Senate, is responsible for the management and administration of the office. The professional staff of the office currently also includes a deputy legislative counsel, approximately 30 attorneys, and an administrative support staff. Services are provided on request, to Senators and committees, giving priority to legislation with impending conference, floor, or committee action.

BACKGROUND AND HISTORY1 The original Legislative Drafting Service,2 established by Section 1303 of the Revenue Act of 1918,3 was a single agency composed of two independent branches, one under the direction of the Senate and the other under the direction of the House. In 1970, the House Office of Legislative Counsel was given its own separate legislative charter,4 but the Senate Office of Legislative Counsel continues to operate under the authority of the original statutory mandate.

STRUCTURE AND FUNCTIONS The office is under the direction of the Legislative Counsel of the Senate who is appointed by the President pro tempore of the Senate, ―without reference to political affiliations and solely on the ground of fitness to perform the duties of the office.‖ The Legislative Counsel is empowered to appoint senior and assistant counsels, clerks and other employees ―necessary for the proper performance of the duties of the Office.‖ In 1999, the

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Legislative Counsel was given the authority to designate a deputy legislative counsel to serve during his absence or disability or when the position of Legislative Counsel is vacant.5 The statutory mandate of the office is to provide aid in drafting public bills and resolutions and amendments thereto. This requires the office to be impartial as to the issues of legislative policy and to maintain the attorney-client relationship with respect to any communications with Senators or staff. The work of the office typically includes:

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Drafting bills and resolutions for introduction, and drafting of amendments for use by Senators during subcommittee, committee, and floor consideration of bills and resolutions. Drafting bills reported by Senate committees and conference reports for House and Senate conference committees. Providing advice (including advice on form and procedure) on drafts of bills, resolutions, and amendments. Providing advice on constitutional, legal, and technical problems in statutes, proposed legislation, and reports and explanatory statements accompanying proposed legislation. Drafting assistance is provided only upon request as there is no requirement in the rules of the Senate that bills, resolutions, or amendments be drafted by the office. The ability of the office to respond to requests for assistance can be affected by the volume of requests for drafting assistance, as well as the complexity of the issues presented. The Senate Committee on Rules and Administration has determined the order of preference to be given to legislative drafting requests: (1) measures in conference; (2) amendments to measures pending on the floor; (3) amendments to measures pending before a committee; and (4) measures to be prepared for individual Senators. Within each of these categories, priority is given to requests based upon the time of receipt. The office may perform other legal services for the Senate not inconsistent with statutory mandates. Matters involving legal advocacy and litigation relating to Senators‘ performance of official duties, however, are the province of the Senate Legal Counsel and the Senate Chief Counsel for Employment.

End Notes 1

This report was originally written by Thomas P. Carr, formerly an analyst in American National Government at CRS. The listed author updated the report and is available to answer questions concerning its contents. 2 The Legislative Drafting Service was renamed the Office of Legislative Counsel by Section 1101 of the Revenue Act of 1924, 43 Stat. 353 (1924), to avoid confusion with the Legislative Reference Service of the Library of Congress (now the Congressional Research Service). 3 Revenue Act of 1918, 40 Stat. 1141 (1919), 2 U.S.C. 271-276b 4 Title V of the Legislative Reorganization Act of 1970, (2 U.S.C. 281-282e). 5 See P.L. 106-57, Title I, Section 6, 113 Stat. 412.

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Chapter 10

RESOLVING LEGISLATIVE DIFFERENCES IN CONGRESS: CONFERENCE COMMITTEES AND AMENDMENTS BETWEEN THE HOUSES Elizabeth Rybicki

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SUMMARY The Constitution requires that the House and Senate approve the same bill or joint resolution in precisely the same form before it is presented to the President for his approval or veto. To this end, both houses must pass the same measure and then attempt to reach agreement about its provisions. The House and Senate may be able to reach agreement by an exchange of amendments between the houses. Each house has one opportunity to amend the amendments from the other house, so there can be Senate amendments to House amendments to Senate amendments to a House bill. House amendments to Senate bills or amendments are privileged for consideration on the Senate floor; Senate amendments to House bills or amendments generally are not privileged for consideration on the House floor. In practice, the House often disposes of amendments between the houses under the terms of a special rule reported by the Rules Committee. The Senate sometimes disposes of House amendments by unanimous consent, but the procedures associated with the exchange of amendments can become complicated. Alternatively, the House and Senate can disagree to each other‘s positions on a bill and then agree to create a conference committee to propose a package settlement of all their disagreements. Most conferees are drawn from the standing committees that had considered the bill initially. The House or Senate may vote to instruct its conferees before they are appointed, but such instructions are not binding. Conferees generally are free to negotiate in whatever ways they choose, but eventually their agreement must be approved by a majority of the House conferees and a majority of the Senate conferees. The conferees are expected to address only the matters on which the House and Senate have disagreed. They also are expected to resolve each disagreement within the

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scope of the differences between the House and Senate positions. If the conferees cannot reach agreement on an amendment, or if their agreement exceeds their authority, they may report that amendment as an amendment in true or technical disagreement. On the House and Senate floors, conference reports are privileged and debatable, but they are not amendable. The Senate has a procedure to strike out portions of the conference agreement that are considered, under Senate rules, to be ―out of scope material‖ or ―new directed spending provisions.‖ The House also has a special procedure for voting to reject conference report provisions that would not have been germane to the bill in the House. After agreeing to a conference report, the House or Senate can dispose of any remaining amendments in disagreement. Only when the House and Senate have reached agreement on all provisions of the bill can it be enrolled for presentation to the President.

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INTRODUCTION The process of resolving the legislative differences that arise between the House of Representatives and the Senate is one of the most critical stages of the legislative process. It is also potentially one of the most complicated. Each chamber continues to be governed by its own rules, precedents, and practices; but at this stage, each house also must take into account the preferences and, to some extent, the procedures of the other. This report1 summarizes the procedures the two houses of Congress use most frequently to resolve their legislative differences. It is based upon an interpretation of the rules and published precedents of the House and Senate, and an analysis of the application of these rules and precedents in recent practice. It bears emphasizing that this report is not exhaustive nor is it in any way an official statement of House or Senate procedures. It may serve as a useful introduction or general guide, but it should not be considered an adequate substitute for a study of House and Senate rules and precedents themselves, or for consultations with the parliamentarians of the House and Senate on the meaning and possible application of the rules and precedents. Readers may wish to study the provisions of the rules — especially House Rule XXII — and examine the applicable precedents as explained in House Practice: A Guide to the Rules, Precedents, and Procedures of the House, especially pp. 307-342 (on ―Conferences Between the Houses‖) and pp. 813-839 (on ―Senate Bills; Amendments Between the Houses‖), and in Riddick‟s Senate Procedure (Senate Document No. 101-28), especially pp. 126-143 (on ―Amendments Between Houses‖) and pp. 449-493 (on ―Conferences and Conference Reports‖).

THE NEED FOR RESOLUTION Before Congress can submit a bill or joint resolution to the President for his approval or disapproval, the Senate and the House of Representatives must agree on each and every provision of that measure.2 It is not enough for both houses to pass versions of the same measure that are comparable in purpose but that differ in certain technical or even minor details; the House and Senate

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must agree on identical legislative language. Nor is it enough for the two chambers to approve separate bills with exactly the same text; the House and Senate both must pass the same bill. In sum, both chambers of Congress must pass precisely the same measure in precisely the same form before it can become law.3 Each of these requirements — agreement on the identity of the measure (e.g., H.R. 1 or S. 1), and agreement on the text of that measure — is considered in turn in the following sections of this report.

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SELECTION OF THE MEASURE Because both chambers must pass the same measure before it can become law, at some point during the legislative process the House must act on a Senate bill or the Senate must act on a House bill. Congress usually meets this requirement without difficulty or controversy. In some cases, however, selecting the measure may require some parliamentary ingenuity and can have policy and political consequences. After either house debates and passes a measure, it sends (or ―messages‖) that bill to the other chamber. If the second house passes the first house‘s bill without any amendments, the legislative process is completed: both houses have passed the same measure in the same form.4 If the second house passes the bill with one or more amendments, both chambers have acted on the same measure; now they must resolve the differences between their respective versions of the text if the measure is to become law. In most cases, either the House or the Senate can be the first chamber to act. However, the Constitution requires that all revenue measures originate in the House, and the House traditionally has insisted that this prerogative extends to appropriations as well as tax measures.5 Thus, the House normally acts first on such a measure, and, consequently, it is a House-numbered bill or joint resolution that Congress ultimately presents to the President for enacting appropriations or tax laws. In some cases, the proponents of a measure may decide that one house or the other should act first. For example, a bill‘s supporters may first press for floor action in the chamber where they think the measure enjoys greater support. They may hope that success in one house may generate political momentum that will help the measure overcome the greater opposition they expect in the second chamber. Alternatively, one house may defer floor action on a bill unless and until it is passed by the other, where the measure is expected to encounter stiff opposition. The House leadership, for example, may decide that it is pointless for the House to invest considerable time, and for Representatives to cast possibly unnecessary and politically difficult votes, on a controversial bill until after an expected Senate filibuster on a comparable Senate bill has been avoided or overcome. As these considerations imply, major legislative proposals frequently are introduced in both houses — either identical companion bills or bills that address the same subject in rather different ways. If so, the appropriate subcommittees and committees of the House and Senate may consider and report their own measures on the same subject at roughly the same time. Thus, when one house passes and sends a bill to the other, the second chamber may have its own bill on the same subject that has been (or is soon to be) reported from committee and

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available for floor consideration. In such cases, the second chamber often acts initially on its own bill, rather than the bill received from the other house.6 This is particularly likely to happen when the committee of the second house reports a bill that differs significantly in approach from the measure passed by the first chamber. The text selected for floor consideration generally sets the frame of reference within which debate occurs and amendments are proposed. In most cases, the House or Senate modifies, but does not wholly replace, the legislative approach embodied in the bill it considers. It is usually advantageous, therefore, for a committee to press for floor consideration of its approach, rather than the approach proposed by the other house. In large part for this reason, the House (or the Senate) often acts on its own bill even though it has already received the other chamber‘s bill on the same subject. Under these circumstances, however, it would not be constructive for the House to pass its bill and then send it to the Senate. If the House were to do so, then each chamber would have in its possession a bill passed by the other, but both chambers would not yet have acted on the same measure. To avoid this potential problem, the second house often acts initially on its own bill, and then it also acts on the other chamber‘s bill on the same subject. The usual practices of the House and Senate for doing so differ slightly. The House customarily debates, amends, and passes the House bill and, immediately thereafter, takes up the counterpart Senate bill. The floor manager then moves to ―strike out all after the enacting clause‖ of the Senate bill (the opening lines of every bill — ―Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled‖) and replace the stricken text with the full text of the House bill as just passed. The House often agrees by unanimous consent to consider the Senate bill and approves the House substitute routinely. The Senate bill, as amended, then is passed by voice vote or without objection, and the House lays its own bill on the table (which disposes of it adversely). In some cases, the special rule under which a House bill is considered also includes provisions for such action on the Senate bill. For instance, a special rule may state: After the passage of H.R. 1, it shall be in order to take from the Speaker‘s table the bill S. l and to move to strike out all after the enacting clause of the said Senate bill and insert in lieu thereof the provisions contained in H.R. 1 as passed by the House. In this way, the House actually passes two bills on the same subject and with identical provisions, but it is the Senate bill (which both chambers now have passed) that is the subject of further action. The Senate acts in a comparable fashion, although it usually does not pass its own bill. Instead, the Senate debates and amends its bill, and agrees to third reading and engrossment of the bill, as amended.7 The Senate then takes up the House bill by unanimous consent, strikes out all after the enacting clause, inserts the amended text of the Senate bill, and passes the House bill, as it has been amended by the Senate‘s amendment in the nature of a substitute. The Senate bill that was debated and amended is never actually passed; after passing the House bill, the Senate indefinitely postpones further proceedings on its own bill. If the first house‘s bill has been referred to committee in the second chamber and is still there, it is first necessary to discharge the committee from further consideration of the bill. This also is normally accomplished routinely, either by unanimous consent or, in the House,

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pursuant to the provisions of a special rule. To avoid the need for this action, the Speaker often leaves a Senate bill on ―the Speaker‘s table,‖ instead of referring it to the appropriate House committee, if there is reason to expect that the House will soon act on a companion House bill. Similarly, a House bill may be taken up on the Senate floor without first being referred to committee when a companion Senate bill has been reported from committee and is on the Senate‘s legislative calendar. By these devices, the House and Senate arrange to act on the same bill, even if they have passed that measure with fundamentally different texts. In most cases, these arrangements are noncontroversial and routine. Under some circumstances, however, complications and difficulties can arise. The House operates under a rule which requires that all amendments must be germane to the measure being considered; the Senate does not.8 Unless the Senate imposes a germaneness requirement on itself by unanimous consent (which it often does), most measures are subject to whatever nongermane floor amendments Senators wish to offer. Consequently, the Senate may select a House bill on one subject as a convenient ―vehicle‖ and amend it to include provisions on other, unrelated subjects. Sometimes the use of unrelated legislative vehicles is accepted by both the House and the Senate as a useful, or even necessary, device to cope with different political and parliamentary conditions prevailing in the two chambers. Although such situations are relatively unusual, problems sometimes arise that make neutral vehicles useful for resolving them. During the 95th Congress, for example, President Carter submitted a massive proposal for major new national energy legislation. The Democratic leadership of the House chose to consider the President‘s entire program in a single bill, and eventually the House passed H.R. 8444. In the Senate, on the other hand, the Democratic majority leadership concluded that an omnibus bill would inspire a filibuster that probably could not be broken; consequently, the Senate debated and amended five separate bills that collectively dealt with the same subjects as H.R. 8444. A dilemma now arose. If the Senate passed its five bills and sent them to the House, the House would face different bills on different aspects of the President‘s program, which was precisely the situation the House had sought to avoid by consolidating the various proposals in H.R. 8444. Yet if the Senate attempted to pass the House bill, the feared filibuster was likely to develop. To resolve the dilemma, the Senate selected four neutral vehicles: minor House bills that had been awaiting Senate action. To each of these bills the Senate added the texts of one or more of its energy bills as well as provisions of the single House bill (H.R. 8444). It was on these bills that the House and Senate eventually resolved their differences over national energy legislation, even though the four bills originally had been for the relief of Jack R. Misner and Joe Cortina, and to suspend import duties on competition bobsleds and luges for the Lake Placid Winter Olympic Games and on certain doxorubicin hydrochloride antibiotics. In this instance, then, selecting the measure was complicated by the differing situations in the two houses, and was arranged through the use of four unrelated vehicles.9 Resorting to such convoluted procedures is unusual. Normally, the selection of the measure is arranged routinely, as the House and Senate proceed toward the more difficult task of resolving their differences over the substance, not the form, of legislation.

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TWO METHODS OF RESOLUTION Once the House and Senate have passed different versions of the same measure, there are basically two methods they can use to resolve the differences between their versions. One method involves a conference committee — a panel of members representing each house that attempts to negotiate a version acceptable to both chambers. Historically, Congress has sent most major bills to conference committees. The other method makes a conference committee unnecessary by relying instead on amendments between the houses — Senate amendments to the House position, or House amendments to the Senate position, or both. The two houses shuttle the measure back and forth between them, each chamber proposing an alternative to the position of the other or insisting on its own position, in the hope that both houses eventually will agree on the same position. The essential nature of each method can be described relatively simply. However, potential complications abound. Occasionally, some combination of the two methods may be used. For example, the House and Senate may begin the process of resolving their differences by amending each other‘s amendments. Then they may decide to go to conference if the first method is not totally, or even partially, successful. Alternatively, the two houses may decide immediately to create a conference committee that is able to resolve some, but not all, of the differences between their two versions. If so, the two chambers may acceptwhatever agreements the conferees have reached, and then attempt to deal with the remaining disagreements through an exchange of amendments between the houses. Under some circumstances, the process can become even more complicated. Certain patterns of action are most common, but the possible variations make the procedures at this stage of the legislative process the most difficult to predict with any assurance. Moreover, either house may refuse to act at any time and at any stage of this process, and if that chamber remains adamant in its refusal to act, the measure dies. In general, the House or Senate cannot take any action by either method unless it is in formal possession of the ―papers‖ — the official copies of the measure and whatever amendments, motions, and accompanying messages have been approved by the House and Senate. In attempting to resolve their differences, the two chambers act sequentially, not simultaneously.

AMENDMENTS BETWEEN THE HOUSES The need to resolve differences arises when one house passes a measure that the second chamber subsequently passes with one or more amendments.10 It is these amendments that create the differences between the two houses. The differences may be resolved by one chamber accepting the amendments of the other or by proposing new amendments that the other house agrees to accept. Within limits to be discussed, the measure may be sent back and forth between the House and Senate, each house amending the amendments of the other, in the hope that one chamber will agree to the proposals from the other. When the amending opportunities are exhausted, one house must accept the position of the other or the bill can die for lack of agreement.

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Alternatively, at any stage during this process, either house can request a conference, thereby proposing to use the other method for resolving their differences. (Then, if the conference is not totally successful, it may be necessary to return once again to amendments between the houses.) The second chamber‘s amendments to the bill are the text that is subject to amendments between the houses, and that text may be amended in two degrees.11 Assume that the House has passed H.R. 1 and the Senate has passed the same bill with an amendment. When the Senate sends the bill back to the House, the House may amend the Senate amendment; technically, the House concurs in the Senate amendment with a House amendment. This House amendment to the Senate amendment is a first-degree amendment. When the Senate receives from the House the bill with the House amendment to the Senate amendment, the Senate may concur in the House amendment to the Senate amendment. If the Senate does so, the differences between the chambers have been resolved. Alternatively, the Senate may amend the House amendment — technically, the Senate concurs in the House amendment to the Senate amendment with a further Senate amendment. This further Senate amendment is a second-degree amendment. When the bill and the accompanying papers (that is, the various House and Senate amendments and messages) are now returned to the House, that chamber may not propose a further amendment. That would be a prohibited amendment in the third degree.12 The House may concur in the final Senate amendment, in which case the differences are resolved, or it may disagree to the Senate amendment. (Note that this is the first point at which disagreement has been expressed; a later section of this report discusses the importance of reaching the stage of disagreement.) If the House disagrees to the final Senate amendment (or to any Senate amendment at some earlier stage), the Senate may recede from its amendment and concur in the last position offered by the House (thereby achieving agreement), or the Senate may insist on its amendment. In turn, if both chambers are adamant, the House may insist on its disagreement, the Senate may adhere to its amendment, and the House finally may adhere to its disagreement.13 If this stage is reached, the bill is almost certain to die unless one house or the other recedes from its last position. (This same sequence of events can begin in the Senate, with the subsequent actions of the chambers reversed.) The two houses may reach agreement at any stage of this process if one chamber concurs in the amendment of the other or recedes from its own amendment. Alternatively, stalemate could be reached more quickly — for instance, if the chambers refuse to alter their original positions and proceed directly through the stages of disagreement, insistence, and adherence, bypassing the intermediate stages at which they could offer new proposals in the form of firstand second-degree amendments between the houses. Fortunately, the House and Senate rarely reach the point of insistence and then adherence.

CONSIDERATION OF SENATE AMENDMENTS BY THE HOUSE The House may consider on the floor a House-passed measure with Senate amendments under several circumstances: (1) instead of sending the bill to a conference committee, (2) in the process of sending it to conference, or (3) after the measure has been considered by a

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conference. This section discusses House action on Senate amendments either instead of or before consideration in conference. House actions on Senate amendments after conference are discussed in later sections of this report on amendments in true and technical disagreement. A bill that the House has passed and that the Senate has amended and returned to the House usually remains at ―the Speaker‘s table‖ until it is taken up again on the House floor. It may be referred to a House committee at the discretion of the Speaker, but referral to committee is not mandatory and rarely occurs. The Speaker is most likely to refer the bill to committee if the Senate amendments are major in scope and nongermane in character, and especially if the Senate amendments would fall within the jurisdiction of a House committee that had not considered the bill originally.14 At this stage of the legislative process, the bill and the Senate amendments to it are not privileged for floor consideration by the House — in other words, it is not in order for the House to consider the Senate amendments to the bill — unless the Senate amendments do not include any authorization, appropriation, or revenue provisions that House rules require to be considered in Committee of the Whole. The bill and Senate amendments become privileged for House floor consideration only after the House has reached the stage of disagreement. The only motion that can be made on the House floor at this stage is a motion to go to conference with the Senate. This motion can take two forms. If the Senate has passed a House bill with Senate amendments, the motion proposes that the House disagree to the Senate amendments and request or agree to a conference with the Senate. If the Senate has disagreed to House amendments to a Senate bill and returned the bill to the House, the motion proposes instead that the House insist on its amendments and request or agree to a conference. In either case, the motion is entertained at the Speaker‘s discretion, and may be made only at the direction of the committee (or committees) with jurisdiction over the subject of the measure. The same result is achieved far more often by unanimous consent. If the Senate amendments require consideration in Committee of the Whole, it is not in order to move to concur in the Senate amendments (thereby reaching agreement), or to move to concur in the Senate amendments with House amendments (thereby proposing a new House position to the Senate). However, such actions frequently are taken by unanimous consent. The House floor manager may ask unanimous consent, for instance, to take the bill, H.R. 1, with Senate amendments thereto from the Speaker‘s table and concur in the Senate amendments. Another Member, generally a minority-party member of the committee of jurisdiction, often reserves the right to object, usually only for the purpose of asking the floor manager to explain the purpose of the request and the content of the Senate amendments. Their discussion usually establishes that the Senate amendments are either desirable or minor and, in any case, are acceptable to the Representatives who know and care the most about the measure. The reservation of objection then is withdrawn; the unanimous consent request is accepted, and the differences between the House and Senate are thereby resolved. In similar fashion, the House may — again, by unanimous consent — concur in some or all of the Senate amendments with House amendments. It bears repeating that, if there is objection to a unanimous consent request to concur in Senate amendments (with or without House amendments), no motion to that effect can be made if the amendments require consideration in Committee of the Whole. However, at least two alternatives are available. First, the Speaker may recognize the floor manager to move to suspend the rules and concur in the Senate amendments (again, with or without House amendments). Motions to suspend the rules may be considered, at the discretion of the

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Speaker, on a Monday or Tuesday, or Wednesday. The Speaker also may entertain motions to suspend the rules on other days by unanimous consent or pursuant to a special rule. Such a motion is debatable for forty minutes, it is not amendable, and it requires support from twothirds of the Members present and voting. Second, the Rules Committee may report, and the House may agree to, a special rule making in order a motion to concur (with or without amendments). In fact, the special rule even may be drafted in such a way that the vote to agree to the rule is also the vote to concur in the Senate amendments. Such a resolution is known as a self-executing rule, and may take the following form: Resolved, That immediately upon the adoption of this resolution the bill (H.R. 1), together with the Senate amendments thereto, is taken from the Speaker‘s table to the end that the Senate amendments be, and the same are hereby, agreed to. There are additional rules and precedents concerning the consideration of certain Senate amendments in Committee of the Whole, the germaneness of House amendments to Senate amendments, and the relative precedence of the motion to concur and the motion to concur with amendments. However, these rules and precedents are not often invoked at this stage of House proceedings because the measure and the Senate amendments are either sent directly to conference or they are disposed of by a means that waives these rules and precedents: unanimous consent, suspension of the rules, or special rules. Some of these possibilities are far more likely to arise during House floor action on Senate amendments in true or technical disagreement, and they are discussed in later sections on those subjects.

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CONSIDERATION OF HOUSE AMENDMENTS BY THE SENATE When the Senate receives a bill with House amendments, it normally is held at the desk. The motion to proceed to consideration of the amendments is privileged and, therefore, not debatable. (The motion to proceed normally is debatable.) Moreover, the consideration of these amendments suspends, but does not displace, the pending or unfinished business. Paragraph 3 of Rule VII provides: The Presiding Officer may at any time lay, and it shall be in order for a Senator to move to lay, before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives for appropriate action allowed under the rules and any question pending at that time shall be suspended for this purpose. Any motion so made shall be determined without debate. Normally, the majority leader asks the presiding officer to lay before the Senate the House message on a bill; such a message may state that the House has passed a certain Senate bill with amendments that are stated in the message. The message also may inform the Senate that the House has requested a conference. It usually is not necessary to call up the House amendments by use of a nondebatable motion; they usually are considered by unanimous consent. But unanimous consent probably is made easier to obtain by the knowledge that the nondebatable motion is in order (and, therefore, that extended debate is not possible).

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In many situations, House amendments are not called up on the Senate floor until after a process of consultations and negotiations as is characteristic of the Senate. The majority and minority floor managers can be expected to consult with each other and to decide if the House amendments are acceptable or if the two Senators can agree on amendments to those House amendments. Whatever agreement the floor managers reach also is discussed with other interested Senators in the hope of achieving general concurrence. If such concurrence is reached, it is reflected in an expeditious floor decision to agree to the House amendments, with or without further Senate amendments. If such an agreement is not reached, then a variety of parliamentary options are available for acting on House amendments.15 If the goal is to return the amendment(s) to the House to further the legislative process, then the basic choices before the Senate are to propose a change to the House amendment(s), agree to the House amendment(s), or to disagree to the House amendment(s). More formally, the three central motions to dispose of House amendments prior to the stage of disagreement are (1) that the Senate concur in the House amendment(s) with Senate amendment(s), (2) that the Senate concur in the House amendment(s), or (3) that the Senate disagree to the House amendment(s). Any of these motions are debatable and, therefore, subject to being filibustered. It is possible for multiple motions to dispose of a House amendment to be pending at the same time. The motions are listed above in their order of precedence; a motion can be understood to have precedence over another if it may be offered while the other is pending and it is disposed of first. Thus, with a motion to disagree pending, a motion to concur and a motion to concur with an amendment could be offered and would be voted on first. If a motion to concur with an amendment were pending, however, neither a motion to concur nor a motion to disagree could be offered until the Senate disposed of the motion to concur with an amendment. Furthermore, if the House has proposed several amendments to the Senate bill (or Senate amendment), then the Senate could take different actions on each of the House amendments. When the Senate receives multiple amendments from the House, it considers them in the order that they affect the Senate text. A single motion can be made to dispose of several amendments, as long as it is the same form of disposition (for example, to concur), but such a motion would be subject to division. At least in part due to the potential for procedural complexity in relation to consideration of House amendments, in recent Congresses the majority leader has used his right of preferential recognition to offer a motion to concur in House amendments, as well as all the other available amendatory motions related to it. This process has been referred to as ―filling the tree.‖ The procedural effect of filling the tree — or offering all of the amendatory motions available in a particular parliamentary situation — is that no Senator can propose an alternative method of acting on the House amendments until the Senate disposes of (or lays aside by unanimous consent) one of the pending motions. Filling the tree does not affect the right of Senators to debate the motions regarding House amendments at length. It does not, therefore, bring the Senate any closer to final disposition of the House amendments. If, however, the majority leader can build a coalition of at least 60 Senators (assuming no vacancies in the Senate) in order to invoke cloture, then he can fill the tree to block other Senators from having an opportunity to propose other ways of disposing of House amendments, including perhaps the opportunity to propose Senate amendments to the House amendments prior to Senate disposition of the House

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amendments. In recent Congresses, the majority leader has ―filled the tree‖ and then filed a cloture motion in order to end consideration of an underlying question. If the Senate agrees to invoke cloture on a motion to dispose of the House amendments, such as a motion to concur, then all other pending motions of a higher precedence fall. The motion on which cloture was invoked can then be considered for a maximum of 30 additional hours.

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THE INFORMAL ALTERNATIVE TO CONFERENCE If the House and Senate versions of a measure are submitted to conference, the conference committee must meet formally and, if it resolves some or all of the differences between the houses, prepare both a conference report and a joint explanatory statement. To avoid these and other requirements, the two chambers may use the process of sending amendments between the houses as an informal alternative that achieves much the same purpose and result as would a conference committee. 16 The purpose of a conference committee is to negotiate a settlement of the legislative differences between the two chambers. But these negotiations do not have to take place in the official setting of a conference committee meeting. They also can occur through informal discussions among the most interested Representatives and Senators and their staffs. If such informal discussions are successful, their results can be embodied in an amendment between the houses. As the second house nears or reaches completion of floor action on a measure, the staffs of the respective House and Senate committees are likely to be comparing the two versions of the bill and seeking grounds for settling whatever differences exist. After initial staff discussions, the House and Senate committee leaders themselves may become involved. If these informal and unofficial conversations appear productive, they may continue until a tentative agreement is reached, even though no conference committee has yet been created. If the tentative agreement proves acceptable to other interested Representatives and Senators, a conference committee may be unnecessary. Instead, when the bill with the second house‘s amendments has been returned to the first chamber, the majority floor manager may, under the appropriate rules or practices of that house, call up the bill and propose that the House or Senate (as the case may be) concur in the second chamber‘s amendments with some amendments. He or she then describes the differences between the House and Senate versions of the measure and explains that the proposed amendments represent a compromise that is agreeable to the interested members of both houses. The floor managers may express their confidence that, if the first house accepts the amendments, the other chamber also will accept them. If the first house does agree to the amendments, the second chamber then considers and agrees to them as well, under its procedures for considering amendments of the ―other body.‖ In this way, the differences between the House and Senate are resolved through the kind of negotiations for which conference committees are created, but without resort to a formal conference committee.

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THE STAGE OF DISAGREEMENT Since the purpose of conference committees is to resolve legislative disagreements between the House and Senate, it follows that there can be no conference committee until there is disagreement — until the House and Senate formally state their disagreement to each other‘s positions. A chamber reaches this stage either by formally insisting on its own position or by disagreeing to the position of the other house, and so informing the other house. Once the House or Senate reaches the stage of disagreement, it cannot then agree to (concur in) a position of the other chamber, or agree with an amendment, without first receding from its disagreement. The stage of disagreement is an important threshold. Before this threshold is reached, the two chambers presumably are still in the process of reaching agreement. Thus, amendments between the houses, as an alternative to conference, are couched in terms of one chamber concurring in the other‘s amendments, or concurring in the other‘s amendments with amendments. For example, when the House concurs in Senate amendments with House amendments, the House does so because it does not accept the Senate amendments — in fact, it disagrees with them. But the House does not state its disagreement explicitly and formally at this stage because crossing the threshold of disagreement has significant procedural consequences, especially in the House. Whereas House amendments are always privileged in the Senate, most Senate amendments are not privileged in the House before the House has reached the stage of disagreement. Moreover, the order of precedence among certain motions is reversed in the House (but not in the Senate) after the stage of disagreement has been reached. Before the stage of disagreement, the order of precedence among motions in both chambers favors motions that tend to perfect the measure further; after the stage of disagreement in the House, the order of precedence is reversed, with precedence being given to motions that tend to promote agreement between the chambers. Before the stage of disagreement, for example, a motion to concur with an amendment has precedence over a motion to concur; after the stage of disagreement in the House, a motion to recede and concur has precedence over a motion to recede and concur with an amendment. The precedence among motions before and after the stage of disagreement can become important during the process of exchanging amendments between the houses. It is most likely to matter after a conference committee has reported and the House and Senate are considering amendments in true or technical disagreement. For this reason, a more detailed discussion of the subject is reserved to the sections on such amendments.

ARRANGING FOR A CONFERENCE If the differences between the House and Senate cannot be resolved through the exchange of amendments between the houses, two possibilities remain. First, stalemate can lead to the death of the legislation if both chambers remain adamant. Or second, the two houses can agree to create a conference committee to discuss their differences and seek a mutually satisfactory resolution. Historically, major bills have been sent to a conference committee,

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either after an unsuccessful attempt to resolve the differences through amendments between the houses or, more often, without such an attempt having even being made. The process of arranging for a conference can begin as soon as the second house passes the bill at issue, either with one or more amendments to parts of the measure or with a single amendment in the nature of a substitute that replaces the entire text approved by the first chamber. The second house then may simply return the bill, with its amendments, to the first chamber if there is reason to believe that the first house might accept the amendments, or that amendments between the houses can be used successfully as an informal alternative to conference. It also may do so if the second house wishes to act first on an eventual conference report, because the chamber that asks for a conference normally acts last on the conference report. Alternatively, and more commonly, the second house may pass the bill and immediately insist on its amendments and also request a conference with the first chamber.17 By insisting on its amendments, the second chamber reaches the stage of disagreement. The bill, the second house‘s amendments, and the message requesting a conference, then are returned to the first house. The first house is not obliged to disagree to the second chamber‘s amendments and agree to the requested conference. The first house also has the options, for example, of refusing to act at all or concurring in the second chamber amendments, with or without amendments. When one chamber requests a conference, however, the other house normally agrees to the request. If the second chamber just returns the bill and its amendments to the first house without insisting on its amendments, the first house may disagree to the amendments and request a conference. The bill, the amendments, and the message requesting the conference then are returned to the second chamber, which usually insists on its amendments (thereby reaching the stage of disagreement) and agrees to the conference. Thus, there are essentially two direct routes to conference. (There are more indirect routes, of course, if an attempt is first made to resolve the differences through an exchange of amendments.) The second house may begin the process by insisting on its amendments and requesting the conference. If this does not occur, the first house then may begin the process by disagreeing to the second chamber‘s amendments and requesting the conference itself. The first route is likely to be followed when the need for a conference is a foregone conclusion. However, strategic considerations also may influence how the Senate and House agree to go to conference, especially in view of the convention that the chamber which asks for the conference normally acts last on the conference report. With this in mind, proponents of the legislation may prefer one route to the other. For example, House or Senate conferees can avoid the possibility of facing a motion in one house to recommit the conference report (with or without instructions) if they have arranged for the other house to act first on the report.18 By the same token, if Senate opponents are expected to filibuster the conference report, proponents may prefer for the Senate to agree to a House request for a conference, so that the Senate will act first on the report. This arrangement avoids compelling Representatives to cast difficult votes for or against a conference report that may not reach a vote in the Senate. On the other hand, a bill‘s supporters could prefer that the House agree to the conference and then vote first on the report, with the hope that a successful House vote might improve the prospects for later success on the Senate floor.

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SELECTION OF CONFEREES After either house requests or agrees to a conference, it usually proceeds immediately to select conferees, or managers as they also may be called. The selection of conferees can be critically important, because it is this group — sometimes a small group — of Representatives and Senators who usually determine the final form and content of major legislation. In the House, clause 11 of Rule I authorizes the Speaker to appoint all members of conference committees, and gives him certain guidelines to follow:

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The Speaker shall appoint all select, joint, and conference committees ordered by the House. At any time after an original appointment, the Speaker may remove Members, Delegates, or the Resident Commissioner from, or appoint additional Members, Delegates, or the Resident Commissioner to, a select or conference committee. In appointing Members, Delegates, or the Resident Commissioner to conference committees, the Speaker shall appoint no less than a majority who generally supported the House position as determined by the Speaker, shall name Members who are primarily responsible for the legislation, and shall, to the fullest extent feasible, include the principal proponents of the major provisions of the bill or resolution passed or adopted by the House. These guidelines carry weight as admonitions but they necessarily give the Speaker considerable discretion, and her exercise of this discretion cannot be challenged on the floor through a point of order. In the Senate, the presiding officer is almost always authorized to appoint ―the managers on the part of the Senate.‖ Should the Senate fail to give the presiding officer this authority, however, Senators would elect their conferees. A motion to elect certain Senators as conferees is both debatable and amendable. Before the formal announcement of conferees in each chamber, a process of consultation takes place that vests great influence with the chairman and the ranking minority member of the committee (and sometimes the subcommittee) that had considered the bill originally. These Representatives and Senators almost always serve as conferees. Furthermore, they usually play an influential, and often a controlling, role in deciding the number of conferees from their respective chambers, the party ratio among these conferees, and which of their committee colleagues shall be appointed to the conference committee. In the House, the Speaker often accepts without change the list developed by the House committee leaders; the presiding officer in the Senate always does so. If the bill at issue had been considered by more than one committee in either house, all the involved chairmen and ranking minority members from that chamber normally participate in determining its roster of conferees, and the conferees usually are drawn from both or all of those committees. In such cases, the party leaders in each house are more likely to become involved in the selection process — in determining the total number of House or Senate conferees and the division of conferees between or among the committees of jurisdiction, as well as in choosing individual members to serve. From time to time, the Speaker also exercises the authority granted in the rule to appoint a Representative who offered a key successful floor amendment, even if he or she is not on the committee(s) that reported the legislation.

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In some cases — and especially in cases of multiple committee jurisdiction — House or Senate conferees may be appointed for limited purposes: for example, only for the consideration of Title I of the House version, or only for the consideration of a particular (and possibly nongermane) Senate amendment. Such conferees are expected to limit their participation in the conference to consideration of the matters for which they are appointed. This practice protects the preponderant influence in conference of the appropriate House and Senate standing committees. Each house determines for itself the size of its delegation to the conference committee. The House and Senate need not select equal numbers of conferees, and they frequently do not. However, unequal numbers of House and Senate managers do not affect the formal power of either house in conference decisions. The conference report requires approval by a majority of the House conferees and a majority of the Senate conferees, rather than a majority of all conferees. Each house usually appoints an odd number of conferees to avoid tie votes.

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INSTRUCTING CONFEREES After the House or Senate decides to go to conference (either by requesting the conference or agreeing to a request from the other house), its conferees usually are appointed immediately. Between these two steps, however, both houses have an opportunity (although usually only a momentary opportunity) to move to instruct the conferees.19 For example, the managers may be instructed to insist on the position of their house on a certain matter, or even to recede to the position of the other house. Instructions are not binding in either house. They are only admonitions, or advisory expressions of position or preference. No point of order lies in either the House or the Senate against a conference report on the ground that conferees did not adhere to the instructions they received. In the Senate, a motion to instruct is debatable and amendable. In the House, such a motion is debated under the one-hour rule, and a germane amendment to the instructions is in order only if the House does not order the previous question during or at the end of the first hour of debate. In neither house can conferees be instructed to take some action that exceeds their authority. In the House, clause 7 of Rule XXII also bars instructions that ―include argument.‖ Only one valid motion to instruct is in order in the House before its conferees are named, whether or not the motion is agreed to; but if a motion to instruct is ruled out of order, another motion to instruct may be made. Under the precedents of the House, a member of the minority party is entitled to recognition to move to instruct. The Speaker normally looks first to senior minority party members of the committee that reported the measure at issue. This recognition practice can be used to try to control the instructions that are proposed; for example, instructions on one subject may be precluded if the ranking minority member seeks recognition to offer a motion to instruct on another subject.20 In the House, but not in the Senate, motions to instruct also are in order after House conferees have been appointed but have failed to report an agreement.21 Clause 7(c)(1) of House Rule XXII provides in part:

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Elizabeth Rybicki A motion to instruct managers on the part of the House, or a motion to discharge all managers on the part of the House and to appoint new conferees, shall be privileged — (A) after a conference committee has been appointed for 20 calendar days and 10 legislative days without making a report....

By precedent, more than one proper motion to instruct is in order when made pursuant to this clause, and the minority party does not enjoy preferential recognition in offering such motions. According to clause 7(c)(2), the Speaker ―may designate a time in the legislative schedule on that legislative day for consideration‖ of the motion to instruct.

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RESTRICTIONS ON THE AUTHORITY OF CONFEREES In principle, there are significant restrictions on the kinds of policy agreements that House conferees can accept. In practice, however, these restrictions are not as stringent as they might seem at first. Because conference committees are created to resolve disagreements between the House and Senate, the authority of House conferees is limited to the matters in disagreement between the two houses. House conferees have no authority to change matters that are not in disagreement — that is, either matters that appear in the House and Senate versions of the measure in identical form, or matters that were not submitted to the conference in either the House or the Senate version. Furthermore, as House conferees consider each matter in disagreement, their authority is limited by the scope of the differences between the House and Senate positions on that matter. The House‘s managers may agree on the House position, the Senate position, or some middle ground. But they may not include a provision in a conference report that does not fall within the range of options defined by the House position at one extreme and the Senate position at the other. If, for example, the House proposes to appropriate $1 billion for a certain purpose and the Senate proposes $2 billion instead, the House conferees may agree on $1 billion or $2 billion or any intermediate figure. But they may not agree on a figure that is less than $1 billion or more than $2 billion. To do so would exceed the scope of the differences between the House and Senate positions on that matter in disagreement. The concept of ―scope‖ relates to specific differences between the House and Senate versions of the same measure, not to the implications or consequences of these differences. Thus, House conferees on a general appropriations bill may agree on the higher (or lower) of the House and Senate positions on each appropriation item, even though the sum of their agreements is higher (or lower) than the total sum proposed in either the House or the Senate version of the bill (unless the two versions explicitly state such a total). Also, if one house proposes to amend some existing law and the other chamber does not, the scope of the differences over this matter generally is bounded by the proposed amendments, on the one hand, and the pertinent provisions of existing law, on the other. Thus, the House conferees may agree on the proposed amendments or on alternatives that are closer to existing law. Thus, there are significant restrictions on the authority of House conferees: their authority is restricted by the scope of the differences between the House and Senate over the matters in

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disagreement between them.22 However, it is far easier to make this statement than to apply it in all cases. It becomes much more difficult to define the scope of the differences when the differences are qualitative, not quantitative as in the example above. Moreover, how difficult it is to define the scope of the differences also depends on how the second chamber to act on the measure has cast the matters in disagreement. If one house takes up a measure from the other and passes the measure with a series of amendments to the first chamber‘s text, then the matters in disagreement in conference are cast in terms of two or more discrete amendments approved by the second house to pass the bill. These amendments usually are numbered for convenient reference. The two versions of the measure can be compared side by side to identify the provisions that are identical in both versions and those that are the subject of disagreements. Therefore, it is possible to identify both the matters in disagreement and the House and Senate positions on each of them. However, the second chamber that acts on a measure typically casts its version in the form of an amendment in the nature of a substitute for the entire text passed by the first house. In such cases, only one amendment is submitted to conference, even though that single amendment may encompass any number of specific differences between the House and Senate versions of the measure. In fact, the text of the bill as passed by one house and the text of the other house‘s amendment in the nature of a substitute may embody wholly different approaches to the subject of the measure. The two versions may be organized differently and may address the same subject in fundamentally different ways. Second house substitutes make it much harder, if not impractical, to specifically identify each matter in disagreement and the scope of the differences over that matter. When a second chamber substitute is in conference, therefore, the conferees must have somewhat greater room for maneuver. Technically, the House and Senate are in disagreement over the entire text of the measure; substantively, the policy disagreements may be almost as profound. In such cases, the conferees resolve the differences between the House and Senate by creating a third version of the measure — a conference substitute for both the version originally passed by the first house and the amendment in the nature of a substitute approved by the second house. This latitude may be necessary, but it also means that the conference substitute could take the form of a third and new approach to the subject at hand — an approach that had not been considered on the floor of either house. To inhibit such a result, clause 9 of House Rule XXII states that: Whenever a disagreement to an amendment has been committed to a conference committee, the managers on the part of the House may propose a substitute that is a germane modification of the matter in disagreement. The introduction of any language presenting specific additional matter not committed to the conference committee by either House does not constitute a germane modification of the matter in disagreement. Moreover, a conference report may not include matter not committed to the conference committee by either House and may not include a modification of specific matter committed to the conference committee by either or both Houses if that modification is beyond the scope of that specific matter as committed to the conference committee. Notwithstanding this specificity, determining whether a conference substitute includes some new ―matter‖ is far more difficult than determining whether the conferees‘ agreement

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on an appropriation for a program falls within the scope of the differences between the funding levels originally proposed by the House and Senate. If the House conferees have exceeded their authority in any one respect in agreeing to a conference report, that report as a whole is tainted and so is subject to a point of order on the House floor.23 However, there are at least three reasons why it is relatively unusual for a point of order to be made and sustained against a conference report. First, House conferees are aware of the limits within which they are to negotiate, and they usually try not to exceed their authority. Second, conferees frequently are presented with second chamber substitutes and, in those cases, they have somewhat greater discretion in the agreements they can reach. Third, even if the House managers propose a conference report that exceeds their authority, there are several ways in which they can protect their report against being subject to a point of order on the House floor. If the conferees were negotiating over separate numbered amendments and their agreement concerning one or more of the amendments is beyond their authority, they can report those amendments back to the House and Senate as amendments in technical disagreement. However, conferees may not report back in disagreement on part of an amendment in the nature of a substitute. Alternatively, the House can approve a conference report by a two-thirds vote under suspension of the rules, a procedure which does not allow points of order to be made on the floor. Finally, and perhaps most important in current practice, the House Rules Committee may propose that the House approve a special rule waiving any or all points of order against a conference report and against its consideration. Even if a conference report is ruled out of order, it may then be possible to propose precisely the same agreements that were contained in the report in the form of amendments between the houses (if the amendments are not in the third degree and do not contain nongermane matter). The Senate‘s rules and precedents embody roughly the same principles regarding restrictions on the authority of its conferees. Paragraphs 2 and 3 of Senate Rule XXVIII state, in part, that 2. (a) Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses. (b) If matter which was agreed to by both Houses is stricken from the bill a point of order may be made against the report, and if the point of order is sustained, the report is rejected or shall be recommitted to the committee of conference if the House of Representatives has not already acted thereon. (c) If new matter is inserted in the report, a point of order may be made against the conference report and it shall be disposed of as provided under paragraph 4. 3. (a) In any case in which a disagreement to an amendment in the nature of a substitute has been referred to conferees — (1) it shall be in order for the conferees to report a substitute on the same subject matter; (2) the conferees may not include in the report matter not committed to them by either House; and (3) the conferees may include in their report in any such case matter which is a germane modification of subjects in disagreement.

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Historically, the Senate has interpreted its rules and precedents affecting the content of conference reports in ways that grant conferees considerable latitude in reaching agreements with the House. According to Riddick‟s Senate Procedure, for example, a ―conference report may not include new ‗matter entirely irrelevant to the subject matter,‘ not contained in the House- or Senate-passed versions of a measure as distinct from a substitute therefor.‖24 And regarding conference substitutes, Senate precedents state that, ―in such cases, they [the conferees] have the entire subject before them with little limitation placed on their discretion, except as to germaneness, and they may report any germane bill.‖25 Under current practice, the Senate takes a commonsense approach to deciding whether new matter is sufficiently relevant to constitute ―a germane modification of subjects in disagreement.‖ The authority of Senate conferees is further limited by paragraph 8 of Senate Rule XLIV. A Senator can raise a point of order against provisions of a conference report if they constitute ―new directed spending provisions.‖ Paragraph 8 defines a ―new directed spending provision‖ as:

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... any item that consists of a specific provision containing a specific level of funding for any specific account, specific program, specific project, or specific activity, when no specific funding was provided for such specific account, specific program, specific project, or specific activity in the measure originally committed to the conferees by either House. Paragraph 8 of Senate Rule XLIV applies only to provisions of conference reports that would provide for actual spending. In other words, it applies only to discretionary and mandatory spending provisions and not to authorizations of appropriations.26 Discretionary spending is provided in appropriations acts, and generally funds many of the programs, agencies, and routine operations of the federal government. Mandatory spending, also referred to as direct spending, is provided in or controlled by authorizing law, and generally funds entitlement programs, such as Social Security and Medicare.27 The Senate can waive both of these restrictions on the content of conference reports by a three-fifths vote of Senators duly chosen and sworn (60 Senators assuming no vacancies). The process for waiving a point of order, as well as the effect of a successful point of order raised under either of these rules, are discussed in a later section of this report on floor consideration of conference reports.

CONFERENCE PROCEDURES AND REPORTS Rules of procedure guide and constrain the legislative activities of both the House and Senate. So it is striking that there are almost no rules governing procedure in conference. The members of each conference committee can select their own chairman. They also can decide for themselves whether they wish to adopt any formal rules governing such matters as debate, quorums, proxy voting, or amendments, but usually they do not. The only rules imposed by the two houses governing conference committee meetings concern approval of the conference report and the openness of meetings to all conferees and to the public. A majority of the House managers and a majority of the Senate managers must approve and sign the conference report. Decisions are never made by a vote among all the conferees

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combined. All votes take place within the House delegation and within the Senate delegation. This is why there is no requirement or necessity for the two houses to appoint the same number of conferees; five Senate conferees, for example, enjoy the same formal collective power in conference as 25 House conferees. Until the mid-1970s, conference meetings were almost always closed to the public; now they are open unless a specific decision is made to close part or all of a meeting. Paragraph 8 of Senate Rule XXVIII states that:

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Each conference committee between the Senate and the House of Representatives shall be open to the public except when managers of either the Senate or the House of Representatives in open session determine by a rollcall vote of a majority of those managers present, that all or part of the remainder of the meeting on the day of the vote shall be closed to the public. The comparable House rule is even more stringent. Clause 12 of House Rule XXII requires a majority vote on the House floor to close part or all of a conference meeting. In other words, House conferees cannot vote to close a conference committee meeting unless they have been authorized to do so by a specific rollcall vote of the House. This difference between House and Senate rules has not been a source of public contention because efforts to close conferences normally are made only when they must deal with national security matters. When House managers want the authority to close part or all of a formal conference meeting, they usually offer a motion to this effect at the time the House arranges to go to conference. House rules place additional requirements on conference committee meetings. According to clause 12 of House Rule XXII, managers ―should endeavor to ensure‖ that meetings only occur if every House manager has been given notice and an opportunity to attend. The House rule also explicitly states that all matters in disagreement are open to discussion at an conference meeting. If a point of order is made and sustained on the House floor that conferees met in violation of clause 12 (or that they never met at all), the conference report is rejected and the House is considered to have requested a further conference with the Senate. Similarly, the Senate has agreed that it is ―sense of the Senate‖ that conferees should hold ―regular, formal meetings of all conferees that are open to the public,‖ that conferees should be given ―adequate notice‖ of such meetings, and that all conferees should be given an opportunity to ―participate in full and complete debates‖ of the matters before the conference.28 Few other rules govern conference proceedings nor do conference committees often vote to establish their own rules. Instead, they generally manage without them. This absence of rules reflects the basic nature of the conference committee as a negotiating forum in which the negotiators should be free to decide for themselves how to proceed most effectively. In some cases, conferences are rather formal. One delegation puts a proposal on the table; the other delegation considers it and responds with a counter proposal. In other cases, conferences resemble free-form discussions in which the issues and the matters in disagreement are discussed without any apparent agenda or direction until the outlines of a compromise begin to emerge. In recent years, conferences on massive omnibus bills have even created ―sub-conferences‖ to seek agreements which then can be combined into a single conference report.

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Sometimes customary practices develop among members of House and Senate committees who meet with each other regularly in conference. For example, they may alternate the chairmanship from one conference to the next between the committee or subcommittee chairmen from each house. Conference bargaining also can be facilitated by preliminary staff work. Staff may prepare side-by-side comparisons of the House and Senate versions so that the conferees can understand more easily how the two houses dealt with the same issues or problems.29 Furthermore, senior staff may engage in preliminary negotiations among themselves, seeking agreements acceptable to their principals, so that the members themselves can concentrate on the more intractable disagreements. When the conferees reach full agreement, staff prepare a conference report which indicates how each amendment in disagreement has been resolved. For example, the report may propose that the Senate recede from certain of its amendments to the House bill, that the House recede from its disagreement to certain other Senate amendments, and that the House recede from its disagreement to the remaining Senate amendments and concur in each with a House amendment (the text of which is made part of the report). When the conferees have considered a single amendment in the nature of a substitute, the report proposes that the House which originated the bill recede from its disagreement to the other house‘s substitute, and concur in that amendment in the nature of a substitute with a substitute amendment that is the new version of the bill on which the conference committee has agreed. Two copies of the conference report must be signed by a majority of House conferees and a majority of Senate conferees. No additional or minority views may be included in the report. From time to time, a manager‘s signature may be accompanied by an indication that he or she does not concur in the conference agreement on a certain numbered amendment. This does not make the report subject to a point of order in the House so long as a majority of House conferees have agreed on each numbered amendment. House rules require that House conferees be given an opportunity to sign the conference agreement at a set time and place. At least one copy of the final conference agreement must be made available for review by House managers with the signature sheets. The conference report itself is not the most informative document, because it does not describe the nature of the disagreements that confronted the conferees. Therefore, the rules of both houses require that a conference report be accompanied by a joint explanatory statement. According to paragraph 6 of Senate Rule XXVIII, this statement is to be ―sufficiently detailed and explicit to inform the Senate as to the effect which the amendments or propositions contained in such report will have upon the measure to which those amendments or propositions relate.‖ Clause 7(e) of House Rule XXII contains a comparable requirement. Normally, this joint explanatory statement summarizes the House, Senate, and conference positions on each amendment in disagreement (or each provision, in the case of second chamber and conference substitutes). The statement also is prepared in duplicate and signed by majorities of both House and Senate conferees. The house that agreed to the conference normally acts first on the conference report.30 Because this is an established practice, not a requirement of either House or Senate rules, the order of consideration can be reversed, if that is strategically advantageous. For example, the House may wish to delay acting on a report until after the Senate has voted on it because of the possibility that the report may fall victim to a Senate filibuster. Alternatively, Senate conferees may agree that the House should act first if the report is likely to enjoy greater

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support in the House, in the belief (or hope) that the House vote will increase the prospects for approving the report in the Senate.31 Also, the first house to consider a conference report has the option of voting to recommit the report to conference. If and when either house agrees to the report, the effect of that vote is to discharge that house‘s conferees, so there no longer is a conference committee to which the report can be recommitted. Therefore, the second house to consider the report does not have the option of recommitting it; it only may accept or reject the report. Sometimes, therefore, the supporters of a bill arrange for one house or the other to act first on the conference report in order to avoid the possibility of a successful recommittal motion. Whatever the case may be, the conferees must see to it that the house they want to act first takes the papers out of the conference. If conferees cannot agree on any of the amendments before them, or if they cannot agree on all matters encompassed by one house‘s bill and the other‘s substitute, they may report back in disagreement. The House and Senate then can seek a resolution of the differences either through a second conference or through an exchange of amendments and motions between the houses. Conferees also may report in total disagreement if they have reached an agreement on a bill and a second chamber substitute which, in some respect, violates their authority. In such a case, their disagreement is technical, not substantive. After the House receives or the Senate agrees to the report in disagreement, the conferees‘ actual agreement is presented as a floor amendment to the amendment in disagreement, at which point considerations of the conferees‘ authority no longer apply. Alternatively, the conferees may submit their report to the House and Senate even though it violates their authority in one or more respects, and then, in the House, the Rules Committee can propose and the House can adopt a resolution protecting the report against points of order.

FLOOR CONSIDERATION OF CONFERENCE REPORTS A conference report may be presented or filed at almost any time the House or Senate is in session, but not when the Senate is in executive session or when the House has resolved into Committee of the Whole. A conference report is unlikely to be considered immediately because both the House and Senate have layover and availability requirements that apply to conference reports. In the House, conference reports are subject to a three day ―layover‖ requirement. Clause 8(a) of Rule XXII prohibits consideration of a conference report until the third day (usually excluding weekends and legal holidays) after the report and joint explanatory statement has been available in the Congressional Record. These requirements do not apply during the last six days of a session.32 In addition, copies of the report and the statement must be available for at least two hours before consideration of the report begins. Clause 2(b) applies the same requirements and conditions to amendments reported from conference in disagreement. However, the House may waive these restrictions by adopting a resolution reported from the Rules Committee for that purpose.33 A conference report that meets the availability requirements is considered as having been read when called up for consideration in the House. If a report does not meet one or more of the requirements but is called up by unanimous consent, it must be read. However, the House

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normally agrees by unanimous consent to have the joint explanatory statement read instead of the report, and then it also agrees to dispense with the reading of the statement. Conference reports are highly privileged in the House, and may be called up at almost any time that another matter is not pending. When called up, the report is considered in the House (not in Committee of the Whole), under the one-hour rule. Clause 8(d) of Rule XXII requires that this hour be equally divided between the majority and minority parties, not necessarily between proponents and opponents. The two floor managers normally explain the agreements reached in conference and then yield time to other Members who wish to speak on the report. If both floor managers support the report, a Member who opposes it is entitled to claim control of one-third of the time for debate. Before a second hour of debate can begin, the majority floor manager moves the previous question. If agreed to, as it invariably is, this motion shuts off further debate and the House immediately votes on agreeing to the conference report. Any points of order against a conference report in the House must be made or reserved before debate on the report begins (or before the joint explanatory statement is read). A conference report can be protected against one or more points of order if the Rules Committee reports and the House adopts a resolution waiving the applicable rules, or if the report is considered under suspension of the rules. In the Senate, paragraph 1 of Senate Rule XXVIII requires that a conference report must be ―available on each Senator‘s desk‖ before the Senate may consider it. In addition, under paragraph 9 of that same rule it is not in order to vote on the adoption of a conference report unless it has been available to Members and the general public for at least 48 hours before the vote. This availability requirement can be waived by three-fifths of Senators duly chosen and sworn (60 Senators if there are no vacancies). It can also be waived by joint agreement of the Majority and Minority Leader in the case of a significant disruption to Senate facilities or to the availability of the internet. Under the rule, a report is considered to be available to the general public if it is posted on a congressional website or on a website controlled by the Library of Congress or the Government Printing Office. The report and accompanying statement normally are not printed in the Senate section of the Record if they have been printed in the House section. Conference reports also normally are printed only as House documents. Conference reports are privileged in the Senate. The motion to consider a report on the Senate floor is in order at most times,34 and it is not debatable. The Senate‘s usual practice is to take up conference reports by unanimous consent at times arranged in advance among the floor and committee leaders. Under a standing order the Senate adopted at the close of the 106th Congress in December 2000, the reading of a conference report no longer is required if the report ―is available in the Senate.‖ When considered on the Senate floor, a conference report is debatable under normal Senate procedures; it is subject to extended debate unless the time for debate is limited by unanimous consent or cloture, or if the Senate is considering the report under an expedited procedures established by law (such as the procedures for considering budget resolutions and budget reconciliation measures under the Budget Act). Paragraph 7 of Senate Rule XXVIII states that, if time for debating a conference report is limited (presumably by unanimous consent), that time shall be equally divided between the majority and minority parties, not necessarily between proponents and opponents of the report. Consideration of a conference

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report by the Senate suspends, but does not displace, any pending or unfinished business; after disposition of the report, that business again is before the Senate. A point of order may be made against a conference report at any time that it is pending on the Senate floor (or after all time for debate has expired or has been yielded back, if the report is considered under a time agreement). If a point of order is sustained against a conference report on the grounds that conferees exceeded their authority, either by including ―new matter‖ (Rule XXVIII) or ―new directed spending provisions‖(paragraph 8 of Rule XLIV) in the conference report, then there is a special procedure to strike out the offending portion(s) of the conference recommendation and continue consideration of the rest of the proposed compromise.35 Under the new procedure, a Senator can make a point of order against one or more provisions of a conference report. If the point of order is not waived (see below), the presiding officer rules whether or not the provision is in violation of the rule. If a point of order is raised against more than one provision, the presiding officer may make separate decisions regarding each provision. Senate rules provide further that when the presiding officer sustains a point of order against a conference report on the grounds that it violates either the prohibition of ―new matter‖ or ―new directed spending provisions,‖ the matter is to be stricken from the conference recommendation. After all points of order raised under this procedure are disposed of, the Senate proceeds to consider a motion to send to the House, in place of the original conference agreement, a proposal consisting of the text of the conference agreement minus the ―new matter‖ or ―new directed spending provision‖ that was stricken.36 Amendments to this motion are not in order. The motion is debatable ―under the same debate limitation as the conference report.‖37 In short, the terms for consideration of the motion to send to the House the proposal without the offending provisions are the same as those that would have applied to the conference report itself. If the Senate agrees to the motion, the conference recommendation as altered by the deletion of the ―new matter‖ or ―new directed spending provision‖ would be returned to the House in the form of an amendment between the houses. The House would then have an opportunity to act on the amendment under the regular House procedures for considering Senate amendments discussed in earlier sections of this report. Senate rules also create a mechanism for waiving these restrictions on conference reports. Senators can move to waive points of order against one or several provisions, or they can make one motion to waive all possible points of order under either Rule XXVIII or Rule XLIV, paragraph 8. A motion to waive all points of order is not amendable, but a motion to waive points of order against specific provisions is. Time for debate on a motion to waive is limited to one hour and is divided equally between the majority leader and the minority leader, or their designees. If the motion to waive garners the necessary support, the Senate is effectively agreeing to keep the matter that is potentially in violation of either rule in the conference report. The rules further require a three-fifths vote to sustain an appeal of the ruling of the Chair and limit debate on an appeal to one hour, equally divided between the party leaders or their designees. The purpose of these requirements is to ensure that either method by which the Senate could choose to apply these rules, through a motion to waive or through an appeal of the ruling of the Chair, requires a three-fifths vote of the Senate (usually 60 Senators). A simple majority (51 Senators if there are no vacancies and all Senators are voting) cannot achieve the same outcome.

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Conference reports may not be amended on the floor of either house. Conferees are appointed to negotiate over the differences between the versions of the same bill that the two houses have passed; the delegations return to their respective chambers with identical recommendations in the form of a report that proposes a package settlement of all these differences. The House and Senate may accept or reject the settlement but they may not amend it directly. If conference reports were amendable, the process of resolving bicameral differences would be far more tortuous and possibly interminable. As noted in previous sections, the house that agrees to the request for a conference normally acts first on the report. The first chamber to act may vote to agree or not agree to the report, or it may agree to a preferential motion to recommit the report to conference, with or without non-binding instructions. Successful recommittal motions are quite unusual, in part because such an action implies that the conferees should and could have reached a more desirable compromise. If the first house agrees to the report, the second house only has the options of approving or disapproving the report. At this stage, the report cannot be recommitted. A vote by either house to agree to a conference report has the effect of automatically discharging its conferees and disbanding the conference committee; thus, there is no conference committee to which the second house could recommit the report. The defeat of a conference report in either house may kill the legislation, but only if no further action is taken, such as requesting a second conference or proposing a new position through an amendment between the houses. For lack of time, a second conference may not be practical near the end of a Congress, when many conference reports are considered. The vote to agree to a conference report normally completes that house‘s action on the measure, assuming the other house also approves the report. However, some conference reports, especially those on general appropriations bills, may be accompanied by one or more amendments in either true or technical disagreement. Furthermore, House rules include special procedures for coping with conference report provisions, originating in the Senate, that would not have been germane floor amendments to the bill in the House. These possibilities are discussed in separate sections that follow.

AMENDMENTS IN TRUE DISAGREEMENT It is generally in the interests of both the House and Senate managers and their parent chambers for the conferees to reach full agreement. Each house already has passed a version of the legislation and has entrusted the responsibility for resolving its differences with the other house to members who usually were actively involved in developing and promoting the measure. Nonetheless, conferees sometimes cannot reach agreement on all the amendments in disagreement. In such a case, the conferees may return to the House and Senate with a partial conference report dealing with the amendments on which they have reached agreement, but excluding one or more amendments that remain in disagreement. The result is complicated and potentially confusing procedural possibilities that, fortunately, do not often arise in current practice. The house that agreed to the conference first debates and votes on the partial conference report. After the report is approved, the reading clerk reads or designates the first amendment in disagreement, and the majority floor manager offers a motion to dispose of the amendment.

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When this process begins in the House, for example, the floor manager may move that the House insist on its disagreement to a Senate amendment. Agreeing to this motion implies that the House adamantly supports its original position and that the House wishes the Senate to recede from its amendment. Alternatively, the floor manager may move that the House either (1) recede from its disagreement to the Senate amendment and concur in that amendment, or (2) recede and concur with a House amendment. In the latter case, this House amendment (which must be germane to the Senate amendment) may be the position that the House managers had been advocating in conference, or it may be a new compromise position they have developed. By agreeing to this motion, the House supports the negotiating position of its conferees and asks the Senate to concur in this new House amendment. After the House disposes of the first amendment in disagreement, it acts in similar fashion on each of the other amendments that were not resolved in conference. The House then sends all the papers to the Senate with a message describing its actions. If the Senate agrees to the partial conference report and to the House position on all the amendments in disagreement on which Senate action is required, the legislative process is completed and the bill may be enrolled for presidential action. However, the Senate may agree to the partial conference report (which is rarely controversial), but not accept the House position on one or more of the amendments in disagreement. Instead, the Senate may vote to insist on its original position, support the negotiating position of its managers, or propose a new bargaining position to the House. If the House has insisted on its disagreement to a Senate amendment, the Senate may continue to insist on its amendment. If the House has receded from its disagreement to a Senate amendment and concurred in that amendment with a House amendment, the Senate may disagree to the House amendment or it may concur in the House amendment with a further Senate amendment (if such a Senate amendment would not be an amendment in the third degree). If one or more amendments remain in disagreement at the end of this process, either method of resolution may be pursued again. The amendments may be ―messaged‖ back and forth between the houses until one chamber accepts the position of the other or until stalemate is reached. Alternatively, either house may request a further conference to consider the amendments that remain in disagreement. The same or new conferees may be appointed. Only the amendments in disagreement are submitted to the new conference. The managers may not re-open matters that were resolved in the partial conference report that both houses approved because these matters are no longer in disagreement. But the partial conference report cannot become law until all the remaining disagreements have been resolved. If the second conference is successful, the managers submit a second report for action on the House and Senate floor. If not, the legislation, including the partial conference report, probably is dead for that Congress. Amendments in true disagreement rarely arise when conferees are presented with a second chamber substitute. In such a situation, there is only one amendment before the conference. The conferees either reach agreement or they do not; they may not report only part of the substitute as an amendment in disagreement. If the conferees report back in total disagreement, the House and Senate then can vote to insist on their original positions or propose new versions of the legislation. This hardly ever occurs; but when it does, the bill may die for lack of further action or the two houses may agree to a new conference to consider the same issues once again.

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Instead, amendments in true disagreement generally have arisen when the second chamber has passed a bill with a series of separate amendments. Since this has happened most often to general appropriations bills that originate in the House (and on which the Senate requests conferences), the House usually has acted first on partial conference reports and amendments in disagreement. The possibility of amendments in disagreement can make it exceedingly difficult to anticipate what will happen to a measure that is sent to conference. It is not simply a question of whether or not the conferees will be able to resolve all the amendments in disagreement by reaching compromises that fall within the scope of the differences between the House and Senate versions. If a number of amendments are considered in conference, the managers may reach agreement on some, but not on others. And what then happens to the amendments reported in disagreement depends on the motions that are made and agreed to by the House and Senate. Furthermore, the recourse to amendments in disagreement creates new possibilities that were not available in conference. In conference, the managers‘ options are defined and limited by the scope of the differences between the House and Senate positions before them. However, when the House and Senate act on an amendment in disagreement, they are not subject to this restriction. The concept of ―the scope of the differences‖ is a restriction on the authority of managers in conference; it is not a restriction on amendments between the houses.38 So, for example, the House may amend a Senate amendment in disagreement with a new House position (or technically, the House may recede from its disagreement to the Senate amendment and concur in the Senate amendment with a House amendment) that goes beyond the scope of either house‘s original position. Thus, it is possible, though not very likely in practice, that (1) the conferees could report an amendment in disagreement, (2) the first chamber to act could propose a new position in the form of an amendment to the amendment in disagreement, (3) the second chamber could respond with a further amendment that constitutes a new position of its own, and (4) conferees could be appointed for a second time to attempt to resolve the differences between these two new positions on the same subject. In this second conference, the same general policy question would be at issue, but the scope of the differences between the House and Senate versions (and consequently the options open to the conferees) would not be the same. To add to the uncertainties, several other complications can occur in the House as it acts on each amendment in disagreement. These options arise from the different order of precedence among certain motions in the House (but not in the Senate) that prevails before and after the House reaches the stage of disagreement, and the opportunities for crossing and re-crossing that threshold. These complications have arisen most often during action on amendments in disagreement to general appropriations bills. Before the House reaches the stage of disagreement, the order of precedence favors motions that tend to perfect the measure further; after the stage of disagreement, the order of precedence is reversed and favors motions that tend to promote agreement between the houses. Thus, if a motion to concur in a Senate amendment is made on the House floor before the stage of disagreement, a motion to concur with an amendment has precedence and may be offered and voted on while the motion to concur is pending. The motion to concur with an amendment has precedence because it tends to perfect the measure. If the House agrees to the motion to concur with an amendment, the straight motion to concur automatically falls without a vote, even though it had been offered first.39

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After the House has reached the stage of disagreement, however, a motion that the House recede from its disagreement and concur in a Senate amendment has precedence over a motion to recede and concur with an amendment. The motion to recede and concur tends to promote agreement more directly than the motion to recede and concur with an amendment. If a preferential motion to recede and concur is made and carries, no vote occurs on the motion to recede and concur with an amendment, even if that motion already had been made. As if this were not complicated enough, the motion to recede and concur is divisible in the House, as is the motion to recede and concur with an amendment. Any Representative may demand that it be divided into two proposals: first, that the House recede from its disagreement to the Senate amendment; and second, that the House then concur in the Senate amendment (or concur in it with an amendment, depending on which motion has been made). Following a demand for the division of the motion, the House first considers whether it should recede from its disagreement. But if the House votes to recede, it crosses back over the threshold of disagreement; consequently, the precedence of motions reverses, and a motion to concur with an amendment takes precedence over a motion to concur. As a result, the possibilities that may arise on the House floor as the House considers each amendment in disagreement depend: first, on which motion is made by the floor manager; second, on what motions have precedence over that motion; and third, on whether an attempt is made to change the order of precedence by demanding a division of the first motion. Suppose that the clerk reads an amendment in disagreement and the floor manager moves that the House recede from its disagreement to that amendment and concur therein. Because the House and Senate reached the stage of disagreement before they appointed their conferees, a motion to recede and concur with a House amendment does not have precedence. However, if any Member demands a division of the motion to recede and concur, the House first debates and votes on whether to recede. Normally, the House does vote to recede because rejecting this motion would imply that the House is unwilling to consider either the Senate amendment or any compromise version. But when the House recedes from its disagreement, it crosses back over the threshold of disagreement and the order of precedence among motions is reversed. When the House then considers the second half of the divided motion — to concur in the Senate amendment — another Member may move instead that the House concur in the Senate amendment with an amendment, because the motion to concur with an amendment now has precedence over the motion to concur. Only if the House rejects the motion to concur with an amendment would it then vote on the original proposal to concur in the Senate amendment. Suppose instead that, after an amendment in disagreement has been read, the floor manager moves that the House recede and concur with an amendment. The stage of disagreement having been reached, a simple motion to recede and concur has precedence and may be offered. But if this motion is divided, the House votes first on whether to recede. And if the House does recede, the threshold of disagreement again is re-crossed and the motion to concur with an amendment has precedence over the second half of the divided motion — that the House concur. Thus, the amendment originally proposed in the motion to recede and concur with an amendment may be offered again as a motion to concur with an amendment — after a preferential motion to recede and concur has been offered, after that motion has been divided, and after the House has voted to recede.40

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The array of possible complications on the Senate floor is more limited. First, the order of precedence of motions in the Senate is not reversed after the stage of disagreement has been reached. Second, Senators may not demand the division of a motion to recede and concur or of a motion to recede and concur with an amendment. Even in the House, Representatives seldom use the opportunities available to them. Amendments in true disagreement rarely arise and, when they do, the House usually accepts the floor manager‘s motions to dispose of them. The sheer complexity of some of the parliamentary maneuvers described above probably discourages Members from attempting them, for fear that they are more likely to create confusion than achieve some strategic advantage. Nonetheless, the possibility of amendments in true disagreement and the various options for dealing with each of them on the floor make it dangerous to predict with confidence exactly what will happen to a measure once it has been submitted to conference.

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AMENDMENTS IN TECHNICAL DISAGREEMENT As discussed in earlier sections of this report, there are important restrictions on the content of conference reports. Conferees may deal only with the matters that are in disagreement between the House and Senate, and they must resolve each of these matters by reaching an agreement that is within the scope of the differences between the House and Senate positions. If a conference report violates these restrictions in any one respect, the entire report is subject to a point of order.41 Yet conferees sometimes find it desirable or necessary to exceed their authority. For example, changing circumstances may make it imperative for Congress to appropriate more money for some program than either the House or the Senate initially approved. Or the conferees may decide that a bill should include provisions on a subject that was not included in the version passed by either house. In such cases, the conferees may be able to achieve their purpose, without subjecting their report to a point of order, by using the device of amendments in disagreement. In doing so, they take advantage of the fact that the restrictions that apply to provisions of conference reports do not govern amendments between the houses. If the conferees wish to exceed their authority in resolving one of the amendments in disagreement, they can exclude this amendment from the conference report; instead, they present to the House and Senate a partial conference report and an amendment in disagreement. This is called an amendment in technical disagreement. There is no substantive disagreement between the House and Senate conferees; they report the amendment in disagreement only for technical reasons — to avoid the restrictions that apply to conference reports. The first house considers the partial conference report and then the amendment in technical disagreement.42 When that amendment is presented (in the House, for example) the floor manager moves that the House recede from its disagreement to the Senate amendment and concur therein with an amendment that is the decision made in conference. Because this conference recommendation is considered outside of the conference report — as part of a motion to dispose of an amendment in technical disagreement — no point of order lies against the motion or the proposed amendment on the grounds that the amendment exceeds

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the scope of the differences or proposes a subject not committed to conference by either house. However, the proposed amendment still must be germane in the House. If the first house votes for the motion, the second chamber acts on the partial conference report and then on the first house‘s amendment to the amendment in technical disagreement. When the amendment is presented, the floor manager moves that the Senate concur in the House amendment (assuming that the House acted first). If the Senate agrees to this motion, the process of resolution is completed. Until recently, conferees used this device regularly, although for a somewhat different purpose, to complete congressional action on general appropriations bills. The rules of the House generally prohibit such bills from carrying unauthorized appropriations and changes in existing law (―legislation‖). The procedures of the Senate, however, are not as strict. Under a number of conditions, the Senate may consider floor amendments to general appropriations bills that would not have been in order in the House. If approved by the Senate, these amendments are sent to conference and constitute amendments in disagreement with the House. They are properly before the conference and the conferees may accept them without violating the restrictions on their authority that have been mentioned so far. This situation could create a significant problem for the House. On a general appropriations bill, conferees could present the House with a conference report that is not amendable but that includes matter that could not even have been considered, much less approved, by the House when it first acted on the bill on the floor. The remedy for the House can lie in the use of amendments in technical disagreement. Clause 5 of House Rule XXII states that House conferees may not agree to a Senate amendment to a general appropriations bill if the amendment would violate the prohibitions in the House‘s rules against unauthorized appropriations and legislation on such bills (in clause 2 of Rule XXI), ―unless specific authority to agree to the amendment first is given by the House by a separate vote with respect thereto.‖ Otherwise, the same clause provides, the Senate amendment in question ―shall be reported in disagreement by the conference committee back to the two Houses for disposition by separate motion.‖ The same two options are available to conferees in the case of a Senate amendment proposing to appropriate funds in any bill that is not a general appropriations bill. In practice, House conferees never seek separate House floor votes in advance. Instead, the conferees report any amendments to which Rule XXII, clause 5(a), applies as amendments in technical disagreement. After the House agrees to the partial conference report, it considers these amendments. As each of the Senate amendments is presented to the House, the majority floor manager offers a motion that the House recede from its disagreement and either concur in the Senate amendment or concur in it with a House amendment. In either case, the floor manager‘s motion incorporates the agreement reached in conference. After the House agrees to these motions, the Senate approves the partial report and then agrees to corresponding motions to dispose of the amendments that require Senate action. Whereas the House has dealt with most or all of the amendments separately, the Senate usually has disposed of most or all of them en bloc by unanimous consent. (The House may dispose of a number of such amendments en bloc, also by unanimous consent, when they are noncontroversial and when the floor manager proposes that the House recede and concur in each of them.) By this means, the House could respond, on a case-by-case basis, to Senate amendments to general appropriations bills that would not have been in order in the House. This procedure

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enabled the House to protect itself against having simply to vote for or against a conference report containing such Senate amendments (or modifications of them), and, therefore, having to choose between rejecting the report (and jeopardizing the bill) or violating the principles of its own rules. By voting on the motions made by the House floor manager, the House could decide in each instance whether to accept the judgment of its conferees that wisdom or necessity dictated an exception to a strict separation of appropriations from both authorizations and changes in existing law. Moreover, the House and Senate have the same options for dealing with amendments in technical disagreement that are available for disposing of amendments in true disagreement. Thus, amendments in technical disagreement have been a useful device to deal with the differences between House and Senate rules governing matters that may be included in general appropriations bills. This device was convenient for appropriations conferees because the Senate typically passed House appropriations bills with many separate, numbered amendments. Consequently, the conferees could report as many of these amendments as necessary as amendments in technical disagreement. In the last several Congresses, however, there have been far fewer amendments in technical disagreement accompanying appropriations conference reports. In many instances, the Senate has passed House appropriations bills with amendments in the nature of substitutes, and it is not possible to report back from conference with part of such an amendment in disagreement. Also, the House Rules Committee has reported, and the House has adopted, special rules waiving points of order against many of the appropriations conference reports. Anticipating that their reports would receive this protection, appropriations conferees could include all their agreements within their reports, without regard for considerations of scope or the matters in disagreement, and without fear that they would make their reports vulnerable to points of order on the House floor.

HOUSE CONSIDERATION OF NONGERMANE SENATE AMENDMENTS The contrast between House and Senate rules and procedures governing general appropriations bills poses one problem for bicameral relations that arises during the process of resolving legislative differences. A remedy has been the use of amendments in technical disagreement. Another and similar problem results from the contrast between House and Senate rules concerning the germaneness of amendments — a problem for which the House has devised a somewhat different remedy. House rules require amendments to be germane (unless this requirement is waived by a special rule). By contrast, Senate rules require that amendments be germane only when offered to general appropriations measures or budget measures (both budget resolutions and reconciliation bills) or when offered after the Senate has invoked cloture. In addition, the Senate sometimes imposes a germaneness requirement on itself as part of unanimous consent agreements governing consideration of individual measures, although such agreements may include exceptions that make specific nongermane amendments in order. Consider the potential consequences of this difference for the House. The Senate may pass a House bill with one or more nongermane amendments. Each of these amendments is ―conferenceable‖ (an unofficial term that is used from time to time by participants in the

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legislative process) as an amendment in disagreement between the House and Senate. The conferees may include it (or a modification of it) in their conference report without violating their authority. However, this situation could force the House into an up-or-down vote on a conference report including nongermane matters that were not debated on the House floor, that would have been subject to points of order if offered as House floor amendments, and that might not even have been considered by the appropriate House committees. The remedy for the House appears in clause 10 of House Rule XXII. This clause creates an opportunity for the House to identify nongermane matter originating in the Senate and to consider it separately. (Of course, the House can adopt a special rule reported from the Rules Committee that waives the point of order this clause creates.) Clause 10 states that when the House begins consideration of a conference report or a motion to dispose of a Senate amendment to which the House has disagreed, a Member may make a point of order (before debate begins) against matter contained in the report or the motion on the grounds that the matter in question would not have been germane if it had been offered as a House floor amendment to the measure (in the form the measure passed the House).43 If the Speaker sustains the point of order (thereby establishing that the matter in question is nongermane), the Member then may move that the House reject the nongermane matter. This motion is debatable for 40 minutes, to be equally divided between and controlled by proponents and opponents. After the House votes on the motion, another such point of order may be made against different nongermane matter; and if it is sustained, another motion to reject is in order. If the House defeats any and all motions to reject, the House thereby decides to retain the nongermane matter. The House may vote not to reject nongermane language for at least two reasons. First, a majority of Representatives may support the nongermane matter on its merits; or second, the House may conclude that the Senate is so insistent on its nongermane language that rejecting it could seriously jeopardize enactment of the entire bill. If the House does vote to reject any nongermane matter in a conference report, the report is considered as having been rejected. This is consistent with the principle that conference reports are not amendable. Clause 10(d)(2) states that, in most cases, the House then proceeds automatically to decide ―whether the House shall recede and concur in the Senate amendment with an amendment consisting of so much of the conference report as was not rejected.‖ In other words, the House votes to amend the Senate amendment with a House amendment that consists of the remainder of the conference agreement without the nongermane matter.44 If the Senate accepts this new House amendment, resolution is reached. If not, the Senate may disagree to the House amendment and request a new conference with the House. In this way, the House can isolate nongermane Senate matter for separate consideration, but neither chamber can impose its will on the other. Clause 10(d)(3) makes in order three possible motions, in an established order of precedence, that Members may make if the House votes to reject nongermane matter contained not in a conference report but in a motion that the House recede and concur in a Senate amendment, with or without amendment. In brief, these motions allow the House to amend the Senate amendment or to again disagree to it, perhaps also requesting a new conference with the Senate to resolve this disagreement.

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End Notes

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1

This report was written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS. Dr. Bach has retired, but the listed author updated the report and is available to answer questions concerning conference committees and amendments between the houses. 2 Each house may interpret the same legislative language differently; these differences sometimes emerge from a comparison of House and Senate committee reports and floor debates. Deliberate ambiguity in the language of legislation can be used to promote agreement between the two chambers. 3 This requirement also applies to joint resolutions proposing constitutional amendments and to concurrent resolutions, even though neither are sent to the White House for the President‘s signature or veto. House and Senate resolutions, on the other hand, do not require action by ―the other body.‖ Throughout this report, the terms ―bill‖ and ―measure‖ are used interchangeably to refer to all bills and resolutions on which House and Senate differences are to be resolved. 4 In this report, terms such as ―first chamber‖ and ―second house‖ are used to refer only to the order in which the House and Senate complete initial floor action on a measure. 5 From time to time, Senate committees and even the Senate as a whole may take some action on a Senate appropriations or tax measure. However, on the infrequent occasions when the Senate has passed such a bill and sent it to the House, the House often has returned it to the Senate on the ground that the bill infringed on the House‘s constitutional prerogatives, as interpreted by the House. The resolutions that the House has adopted for this purpose often are called ―blue slip‖ resolutions. 6 This may occur for strategic or institutional as well as procedural reasons, as when the House refuses to consider a Senate bill that the House finds to be in violation of its constitutional prerogative to originate revenue measures. Also, the two houses may prefer to retain the House or Senate bill number if one is more familiar than the other to the bills‘ supporters outside of Congress. 7 Third reading and engrossment is a technical and noncontroversial stage in both houses that marks the conclusion of the amending process and precedes the vote on final passage. 8 Senate rules require floor amendments to be germane only when offered to general appropriations bills or budget measures, or after the Senate has invoked cloture. 9 Once the conferees completed their work, the House agreed to an unusual special rule under which it cast one vote to approve all four conference reports. 10 Note that, at this point, both houses have agreed to everything in the text except the portion amended by the second chamber. Thereafter, neither chamber should propose changes in portions of the text to which both have agreed. 11 A measure normally can be amended in two degrees on the House or Senate floor. An amendment offered to the text of the measure itself is an amendment in the first degree. While a first degree amendment is pending (that is, after it has been offered but before it has been voted on), an amendment may be offered to the amendment. Such an amendment to a pending amendment is an amendment in the second degree. Although more complicated situations may arise, both chambers generally prohibit third degree amendments. (In the House, however, a substitute for a first degree amendment is amendable.) Roughly the same principles apply to amendments between the houses. For more detailed descriptions of these procedures, see CRS Report 98-853, The Amending Process in the Senate, by Betsy Palmer and CRS Report 98-995, The Amending Process in the House of Representatives, Christopher M. Davis. 12 The House or Senate may consider a third degree amendment by unanimous consent. In the House, it also may be considered under suspension of the rules or pursuant to a special rule. 13 The terms ―recede,‖ ―insist,‖ and ―adhere‖ have technical meanings in the legislative process. When the House or Senate ―recedes,‖ it withdraws from a previous position or action. To ―insist‖ and to ―adhere‖ have essentially the same meaning but are terms used at different stages of the process. 14 The same applies to a Senate bill with Senate amendments to House amendments, and to a House bill with Senate amendments to House amendments to Senate amendments. 15 For a full list of available motions and their relative precedence, see Riddick‟s Senate Procedure, pp. 127-130. 16 In the 110th Congress, many congressional observers reported an increase in the number of major bills on which differences were resolved through informal negotiations and amendments between the houses. For more information on this trend, see CRS Report RL34611, Whither the Role of Conference Committees: An Analysis, by Walter J. Oleszek. 17 In the Senate, there are three procedural steps the Senate must take to send a bill to conference. The steps are usually taken by unanimous consent, and without this consent they have to potential to be time-consuming. For more information, see CRS Report RS20454, Going to Conference in the Senate, by Elizabeth Rybicki. 18 This possibility is discussed in the section on floor consideration of conference reports. 19 Because the motion to instruct may be made only before the conferees are named, it is less likely to be viewed as a challenge to the intentions of the Members appointed as managers.

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20

However, the House may amend the instructions (if it has not already ordered the previous question on the motion). Such an amendment must be germane to either the House or Senate versions of the bill, but not necessarily to the instructions to which the amendment is proposed. 21 It is possible for Senate conferees to be instructed by resolution while a bill is in conference. 22 Clause 5 of House Rule XXII also restricts the authority of House conferees to include certain kinds of Senate amendments in conference reports on general appropriations bills. These restrictions are discussed in the section on amendments in technical disagreement. 23 Conference reports also are subject to points of order if they violate certain provisions of the Budget Act. 24 Riddick‟s Senate Procedure, p. 484. 25 Ibid., p. 463. 26 For more information on the applicability of Paragraph 8 of Rule XLIV, see a letter from the Majority Leader inserted into the Congressional Record (Congressional Record, daily edition, vol. 153 (September 24, 2007), pp. S11993-S11994). 27 For more information on discretionary and direct spending, see CRS Report RS20371, Overview of the Authorization-Appropriations Process, by Bill Heniff Jr. 28 The ―Sense of the Senate on Conference Committee Protocols‖ was included in the Honest Leadership and Open Government Act of 2007 (P.L. 110-81, sec. 515). 29 The preparation of such documents is not required, but they are particularly useful to help conferees identify and compare the corresponding House and Senate provisions of large and complex bills. These ―side-by-sides‖, as they often are called, sometimes are available from the House or Senate committee of jurisdiction. However, they are not generally available for public distribution to the same extent as House and Senate reports and documents, for example. 30 This practice is stated in Section XLVI of Jefferson‘s Manual. 31 Rather than violate the customary order for considering conference reports, the same end can be achieved by arranging for one house to request the conference instead of agreeing to a request by the other. 32 In contemporary practice, adjournment resolutions usually are not approved until very shortly before the adjournment takes place. This often makes it impossible to know when the ―last six days‖ begin. To achieve the same end, the House may adopt, as the end of the session approaches, a resolution reported from the Rules Committee that triggers certain provisions of House rules and waives others for the duration of the session. 33 Such a resolution always is in order, notwithstanding the usual requirement that a two-thirds vote is necessary for the House to consider a resolution from the Rules Committee on the same day the resolution is reported. 34 Several exceptions — for example, while the Journal is being read or a quorum call is in progress — are listed in paragraph 1 of Rule XXVIII. 35 For more information, see CRS Report RS22733, Senate Rules Changes in the 110th Congress Affecting Restrictions on the Content of Conference Reports, by Elizabeth Rybicki. 36 The form of the motion depends on what the House and Senate sent to conference. Very often, a House bill and a Senate amendment are sent to conference. The motion in that case would be for the Senate to recede from its amendment and concur in the House bill with a further Senate amendment consisting of the conference committee compromise without the ―new matter‖ or ―new directed spending provision.‖ If a Senate bill and House amendment were sent to conference, the motion would be that the Senate recede from its disagreement to the House amendment and concur in the House amendment with a further amendment. 37 Paragraph 4(b)(2) of Rule XXVIII; Paragraph 8(b)(2) of Rule XLIV. 38 However, floor amendments to amendments in disagreement still must meet normal requirements for floor amendments. For example, a House amendment to a Senate amendment in disagreement to a general appropriations bill still must be germane and may not propose a new unauthorized appropriation, even though the Senate amendment in disagreement may itself provide an unauthorized appropriation. 39 Such motions are not likely to be made in practice, for reasons discussed in the section on House consideration of Senate amendments. 40 Additional complications are possible. If a motion to concur with an amendment, or to recede and concur with an amendment, is made and rejected, another such motion could be made proposing a different germane amendment. Alternatively, if the previous question is not ordered on a motion to concur with an amendment (or a motion to recede and concur with an amendment), a germane second degree amendment could be offered to the amendment. 41 As discussed earlier, however, the Senate interprets its rules in a way that gives its conferees considerable latitude, and the House can waive points of order by adopting a special rule for that purpose. 42 The House usually acts first on partial conference reports and amendments in technical disagreement because they arise most often on general appropriations bills which originate in the House (and on which the Senate usually requests conferences). 43 The Speaker first entertains any points of order against the report as a whole (on grounds of scope, for example) before entertaining points of order concerning germaneness. 44 If the House rejects nongermane matter in a conference report accompanying a Senate measure that the House had amended, the House votes instead on insisting further on the House amendment to the Senate bill.

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Chapter 11

SOURCES OF LEGISLATIVE PROPOSALS: A DESCRIPTIVE INTRODUCTION Judy Schneider SUMMARY

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Ideas for legislation come from individual Members of Congress, congressional committees and subcommittees, informal groups of Members, the executive and judicial branches, state and local governments, foreign governments, constituents, advocacy and lobby groups, and the press.

Individual Members When Members are elected to Congress, they usually come to Washington to legislate on promises made during their campaign. They have ideas on what their district or state needs and what is best for the nation. Their ideas are frequently transformed into legislation that appears among the thousands of measures that are introduced in the first weeks of a new Congress and throughout the two years. Legislation can also be included in so-called omnibus measures. Members also initiate legislation following extended visits to their constituents after seeing and assessing needs firsthand.

Committee and Subcommittees Committees and subcommittees charged by House or Senate rules with legislating, studying and reviewing, and investigating specific policy areas make their own legislative proposals. House and Senate committees identify needs for legislation and are crucial in recommending that such legislation be introduced. By the time of the bill's introduction, the appropriate committee is well prepared to continue its work.

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Informal Groups In addition to the numerous committees and subcommittees, there is a myriad of informal groups of Members with interests in a particular issue or region of the country. These groups study issues and lobby for the enactment of specific policies. For example, the Congressional Black Caucus and the Congressional Caucus for Women's Issues are active in promoting causes and initiating legislation. Recent freshman classes have also been recognized as cohesive in their policy pursuits.

Executive Branch The Constitution of the United States grants to the President the power to propose legislation. At the beginning of each year, in a televised State of the Union Message, the President addresses Congress and the nation in the House of Representatives' chamber to announce his legislative priorities for that year. Throughout the year, through executive messages and policy speeches, among other ways, the President converts the broad concepts from his speech into specific legislative ideas for congressional consideration. Many proposals grow out of campaign issues and reflect the policy initiatives that may have led to the President's election. Many others reflect the recommendations of his Cabinet and other executive branch policy advisers as they determine new authority or reforms needed related to existing laws.

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State and Local Government Although autonomous from the national legislature, state and local governments often look to Congress for assistance in solving local problems. This aid is often monetary, but occasionally it may take the form of federal regulations affecting local activities. For example, in the case of the Safe Drinking Water Act, the needs of the locality are met through legislation providing funds, but also requiring that certain national standards be met. National legislators attempt to design such legislation in a fashion that favors conditions in their state or district.

Supreme Court Constitutionality, the highest court in the nation interprets the laws Congress passes. Legislation ruled unconstitutional by the court, or policy decisions or directives made by the Court in its rulings, often find their way back to Congress's agenda in the form of new legislative proposals.

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Foreign Governments Congress serves a foreign as well as a domestic policy function. The Senate is constitutionally charged with advice and consent on appointment of ambassadors and ratification of treaties with foreign governments. The needs of individual countries and global regions are addressed in Congress as legislative proposals.

Constituents Members of Congress serve legislative and representative functions. As representatives, they seek to address the needs of their constituents through the legislative process. Constituents‘ ideas often find their way into legislation. Pictures of average citizens, and in some cases, famous actors and actresses, rather than lobbyists and politicians, testifying about specific legislative needs, or the piles of mail from home being delivered to Members offices are commonplace. Because reelection is so closely tied to taking care of constituents, many of their demands are translated into legislation, especially when they affect many individuals and more than one district or state.

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Advocacy and Lobby Groups It is generally believed among Congress watchers that there exists an interest group for almost every issue before the Congress. Many of these groups seek to influence decision making once legislation is introduced; others seek to influence the legislative agenda itself, including which measures should be considered and which should be kept off the agenda. In addition to providing legislative proposals, these groups actively seek action on them.

Press An internal joke on Capitol Hill says that the day after the television show 60 Minutes is on, or the day after the magazine Readers Digest hits the newsstands, are the worst days to work in a congressional office, especially as a caseworker or press secretary. These two outside sources are believed on Capitol Hill to provoke more ideas for more legislation for more Members than all other sources combined. The press is a potent watchdog for Congress and an equally potent advocate for the citizenry. Ideas raised in the media, especially local media, elicit serious consideration by Members.

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Chapter 12

SPONSORSHIP AND COSPONSORSHIP OF HOUSE BILLS Betsy Palmer A Representative who introduces a bill or other measure in the House is called its sponsor. Under House Rule XII, clause 7, several Members together may submit a bill, but the first-named Member is the chief or primary sponsor; the others are cosponsors. A bill can have only one primary sponsor.

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SPONSORSHIP OF A BILL Representatives introduce bills in the House chamber by placing them in the clerk‘s ―hopper,‖ a box at the rostrum, when the House is in session. The original signature of the primary sponsor must appear on the measure when it is introduced. Cosponsors do not have to affix their signatures to the bill; the primary sponsor need only submit a list of names when the bill is dropped in the hopper. Cosponsors commonly ask the sponsors to add their names to a bill to signal support for the measure. Members typically sponsor bills they support. On occasion, a Representative may introduce a bill as a courtesy, such as legislation proposed by the President or a senior Administration official. In such a case, the sponsor may designate the bill as introduced ―by request.‖ As House Rule XII states, ―When a bill or resolution is introduced ‗by request,‘ those words shall be entered on the Journal and printed in the Congressional Record.” The primary sponsor may withdraw the measure he or she has placed in the hopper only until it receives a number and is referred to committee. Once referred, neither the sponsor nor any cosponsor nor any other Member may withdraw the bill, even by unanimous consent. The measure becomes the property of the House, and the House may act on it even if the primary sponsor resigns from the House, or dies.

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COSPONSORSHIP OF A BILL Representatives may cosponsor a bill either at the time of its introduction or subsequently. Members whose names are submitted with a bill at the time of introduction are commonly referred to as ―original cosponsors.‖ Once a bill has been introduced, Members may add their names as cosponsors until the bill has been reported from all the committees to which it is referred (or been discharged from the committees). The names of added cosponsors appear in the Congressional Record and in any subsequent prints of the bill. Sponsors and cosponsors of bills and amendments may be found by searching the Legislative Information System (LIS), CRS‘s online legislative resource. House Rule XII provides that a bill may be reprinted if 20 or more cosponsors have been added since the previous printing, and the primary sponsor submits a written request for the Speaker to reprint the bill. A cosponsor may also have his or her name removed from a bill until the last committee of referral has reported it. For this purpose, either the cosponsor or the primary sponsor of the bill must request unanimous consent on the House floor. Rules governing the number of cosponsors permitted on a bill have changed over the years. From 1967 to 1979, House rules limited the number of cosponsors to 25 per bill, requiring the introduction of identical bills when the number of cosponsors exceeded 25. Since 1979, an unlimited number of cosponsors has been allowed. Private bills are prohibited from having cosponsors.

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GAINING COSPONSORS Supporters of a bill often seek cosponsors in hope of demonstrating its popularity and improving its chances for passage. One of the most common techniques for soliciting support for a bill is the ―Dear Colleague‖ letter, a mass mailing to selected or all Members. These letters are so called after the salutation with which they begin. No House rules or formal procedures govern ―Dear Colleague‖ letters. They are, in effect, a sponsor‘s advertisement for a bill (or, sometimes, an amendment). Typically, the letters briefly state the issue the bill addresses, its major components, and its policy importance, and include an appeal to join as a cosponsor Almost always, they carry the name and phone number of a staff aide to contact. A new system for distributing ―Dear Colleagues‖ through the Internet was implemented in the 110th Congress. (See CRS Report RS21667, „Dear Colleague‟ Letters: A Brief Overview, by Jacob R. Straus.) Before a bill is formally introduced, a Member or an aide acting at his or her direction, who wishes to become a cosponsor may contact the sponsoring Member‘s office and request that his or her name be added to the bill. A form listing cosponsors is kept, usually by a staff aide, and submitted along with the bill at introduction. After the bill is introduced, a Member may also contact the primary sponsor‘s office and ask to be listed as a cosponsor. The primary sponsor decides when to submit these additional cosponsors to the House Clerk for publication in the Congressional Record.

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Sponsorship and Cosponsorship of House Bills

End Notes This report was originally prepared by former CRS Specialist Richard C. Sachs.

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Chapter 13

SPONSORSHIP AND COSPONSORSHIP OF SENATE BILLS Betsy Palmer A Senator who introduces a bill or other measure in the Senate is called its sponsor. Several Senators may submit a bill, but the first-named Senator is the chief sponsor, the others are considered cosponsors. For more information on legislative process, see [http://www.crs . gov/products/guides/guidehome. shtml]1

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SPONSORSHIP OF A BILL Senators introduce bills in the Senate chamber by handing them to a clerk at the table below the dais. The chief sponsor's signature must appear on the measure when it is introduced. Senators typically sponsor bills they support. Cosponsors almost always add their names to a bill to indicate their support. A Senator may introduce a bill as a courtesy, such as legislation proposed by the President. Such bills may be designated as introduced ―by request,‖ and this is indicated when the introduction of the bill is noted in the Congressional Record. Once a bill has been handed to the clerk, it becomes the property of the Senate and cannot be withdrawn. If a Senator desires that no action be taken on the bill, the Senator may by unanimous consent request that action on the bill be indefinitely postponed. As noted above, only one Senator can be the sponsor of a bill. Sometimes, a bill may become popularly known by the names of more than one Senator, for example, the 1995 Kassebaum-Kennedy health care bill. Only the first named Senator is the chief sponsor, in this case, Senator Kassebaum. Others identified, even though they may be seen both in Congress and by the general public as equally responsible for the bill, are, according to formal Senate procedure, cosponsors. The strategy of associating legislation with the names of more than one Senator is often useful in gaining support across partisan or ideological ranks.

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A Senate committee may report legislation it has drafted itself as an original bill. In such a case, there is no sponsor and there are no cosponsors. When the legislation is reported and a final draft printed, a Senator brings the draft to the clerk on the chamber floor, the draft is assigned a bill number, and the name of the Senator who brought the legislation forward is indicated on the bill. That Senator typically is the committee chairman, but he is not, under Senate procedure, the sponsor. For example, the Senate Committee on Foreign Relations reported an original bill in September 1997, on the issue of administration of national au pair programs. The legislative language was drafted, marked up, and reported by the committee. Because the chairman of the Foreign Relations Committee presented the legislation to the bill clerk, the bill indicated, ―Mr. Helms, from the Committee on Foreign Relations, reported the following original bill....‖ But, under Senate procedure, Senator Helms was not the sponsor of the bill.

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COSPONSORSHIP OF A BILL When a Senator introduces a bill, he or she commonly attaches to the bill a form with the names of cosponsors. Before a bill is formally introduced, a Senator becomes a cosponsor by contacting the office of the chief sponsor and requesting that his or her name be added. Initial cosponsors can be added until the bill is presented to the clerk. There is no limit to the number of cosponsors that can be added to a bill. After a bill is introduced, if a Senator wishes to cosponsor a measure, he or she may request unanimous consent on the Senate floor to be added as a cosponsor. A Senator may also contact the chief sponsor's office and ask to be included, or may add his or her name by calling the party cloakroom. However, a Senator's name can only be formally added to a bill by unanimous consent on the chamber floor. The names of additional cosponsors are added to the printed version of the bill if there is a subsequent printing of it. However, under the regulations of the Joint Committee on Printing, a bill cannot be reprinted solely for the purpose of adding cosponsors. Additional cosponsors also are listed in the Congressional Record and in Congress' online Legislative Information System. Unless agreed to by unanimous consent, a bill, upon introduction, may be held at the desk for a day, but no longer, for the purpose of adding one or more cosponsors. The number of cosponsors that a bill attracts is usually seen as a measure of support, and Senators and aides use a variety of techniques to encourage colleagues to sign on. One of the most common is the ―Dear Colleague‖ letter, a mailing to some or all Senators soliciting support for a bill. The letter is so named because it nearly always begins with the greeting ―Dear Colleague.‖ No Senate rules or any formal procedures govern ―Dear Colleague‖ letters. They are, in effect, advertisements for the sponsoring Senator‘s (or Senators‘) legislation. Typically, the letters briefly state the issue the legislation addresses, the major components of the measure, the likely impact of the legislation, and an appeal to join as a cosponsor Almost always, the letters carry the name and phone number of a staff aide to contact to become a cosponsor of the measure (see CRS Report RL 34636, „Dear Colleague‟ Letters: Current Practices, by Jacob R. Straus).

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End Notes This report was prepared by former CRS Specialist Richard C. Sachs.

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Chapter 14

THE AMENDING PROCESS IN THE HOUSE OF REPRESENTATIVES Christopher M. Davis

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SUMMARY Most amendments that Representatives propose to legislation on the House floor are offered in Committee of the Whole. Measures considered under suspension of the rules are not amendable on the floor, and few amendments are proposed to bills and resolutions considered in the House, or in the House as in Committee of the Whole. The House‘s procedures recognize distinctions between first and second-degree amendments, between perfecting and substitute amendments, and among amendments in the forms of motions to strike, to insert, and to strike out and insert. An amendment in the nature of a substitute proposes to replace the entire text of a bill or resolution. All amendments must be germane to the text they would amend, and they are subject to other general prohibitions such as that against proposing only to re-amend language that already has been fully amended. Additional restrictions apply to appropriations and tax amendments, and the budget process creates various other points of order that Members may make against certain amendments. In general, a Member must make a point of order against an amendment before debate on it begins, unless that point of order is waived by a special rule. In Committee of the Whole, measures usually are considered for amendment one section or title at a time. Members must offer their amendments to appropriate parts of a bill when it has been read or designated. Each amendment is debated under the five-minute rule, providing five minutes for the Member offering the amendment and five minutes for a Members in opposition. After this first 10 minutes of debate, Members may obtain additional time for debate by offering pro forma amendments in the form of motions to strike the last word or the requisite number of words. Unless barred by the terms of a special rule reported by the House Committee on Rules, each amendment in Committee of the Whole may be amended by a perfecting amendment or a substitute amendment or both. A substitute for an amendment also is amendable. After the Committee of the Whole disposes of the last amendment to be offered to the bill, it rises and the House then votes again on all the

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amendments the Committee has approved. A recommittal motion usually offers a final opportunity to amend a bill or joint resolution before the House votes on passing it.

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INTRODUCTION1 The amending process on the floor of the House of Representatives gives Members an opportunity to change the provisions of the bills and resolutions on which they are going to vote. This report2 summarizes many of the procedures and practices affecting this process, which can be among the most complex as well as the most important stages of legislative consideration.3 The discussion that follows is intended to be a useful introduction; however, it is not exhaustive and it cannot substitute for a careful examination of the House‘s rules and precedents themselves, for close observation of the House in session, and for consultation with the parliamentarian and his associates on specific procedural problems and opportunities. The way in which the House considers each measure affects Members‘ opportunities for amending it and the procedures that govern the amending process. There are essentially four alternative sets of procedures, or modes of consideration, by which the House considers public bills and resolutions on the floor: (1) under suspension of the rules, (2) in the House, under the hour rule, (3) in Committee of the Whole and the House, and rarely, (4) in the House as in Committee of the Whole.4 The overwhelming majority of the floor amendments on which Representatives vote are offered while measures are being considered in Committee of the Whole, before being reported back to the House for votes on final passage. Under the suspension of the rules procedure, floor amendments are prohibited, although the Member making the motion may do so with an amendment. In the House and the House as in Committee of the Whole, floor amendments are technically in order but are much less likely to be offered, either because of the procedures involved or because of the nature of the measures being considered. There are several distinctions among different kinds of amendments as well as some general principles and prohibitions governing the amendments that Members and committees can offer. These distinctions, principles, and prohibitions can be important, whatever set of procedures the House is following, although they are more likely to matter when measures are considered in Committee of the Whole than under other circumstances. This report begins with a discussion of distinctions among amendments, followed by some observations on drafting amendments and on several general principles and prohibitions affecting the amending process. Next it examines the specific possibilities and procedures for offering and debating amendments under each of the four sets of procedures, beginning with measures that are debated and amended in the House, under the hour rule, and then those that are considered first in Committee of the Whole and then in the House. The possible ―amendment tree‖ that may develop is then discussed. The report also discusses several other elements of the amending process: the special procedures and rules governing appropriations and tax amendments and amendments affecting federal spending programs; the procedures for making points of order against amendments; and the effects of special rules on the amending process. At the end of the report is a list of sources of additional information. This report concentrates on amendment procedures under the House‘s standing rules and precedents. It does not address the various ways in which special rules can affect the

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amending process, nor does it discuss the points of order that Members may make against amendments under the Congressional Budget and Impoundment Control Act of 1974 and subsequent laws. On these subjects, see CRS Report 98-612, Special Rules and Options for Regulating the Amending Process and CRS Report 97-865, Points of Order in the Congressional Budget Process, by James V. Saturno.

DISTINCTIONS AMONG AMENDMENTS Amendments are not all the same. One can distinguish among amendments in terms of their degree, their form, and their effects. Moreover, these are not merely analytical distinctions; they can help us understand what amendments Members may offer, under what circumstances, and with what consequences.

Degrees of Amendments

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Whenever a bill or resolution can be amended on the House floor, it is subject to amendments in two degrees. An amendment in the first degree proposes to change the text of the measure itself. After a Representative offers a first-degree amendment but before the House votes on it, another Member may propose an amendment to that amendment.5 An amendment to a first-degree amendment is an amendment in the second degree. The House then debates and votes on the second-degree amendment before voting on the first-degree amendment, which now may have been amended. As a general rule, third degree amendments (amendments to second-degree amendments) are not in order.6

Forms of Amendments Amendments may also be distinguished in terms of their form. First, an amendment may propose only to insert something into a bill or resolution (or first-degree amendment) without changing the provisions already in it. For example, the amendment may propose to insert a new section or title without affecting the existing sections and titles. Second, the amendment may propose only to strike out something from a measure (or first-degree amendment) without inserting anything in its place. For example, the amendment may propose to strike out as little as one word or as much as one or more titles of a bill. Third, and finally, an amendment may propose to both strike out and insert by replacing something that is already in the measure (or first-degree amendment) with something else. For example, the amendment may propose only to change a dollar amount, or it may replace a section or title of a bill with an entirely different version of that section or title. Members sometimes characterize their amendments in terms of these effects; for instance, Representatives may state that they wish to offer a motion to strike out a particular section or that their amendment is a motion to strike out and insert. As this indicates, amendments are a special kind of motion.

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Effects of Amendments A third way of distinguishing among amendments is in terms of their effects. With respect to first-degree amendments, an amendment may propose only to make some change in the portion of the bill or resolution being considered for amendment without affecting the rest of it. Such an amendment is a perfecting amendment; it proposes to change—and, therefore, presumably perfect—that portion of the bill without replacing it altogether. For instance, a section of a bill may authorize an amount of money to be appropriated for certain purposes. An amendment to change only the dollar figure, but not the purposes for which that amount is authorized, would be a perfecting amendment. On the other hand, an amendment may propose to strike out the entire pending portion of a bill— whether it be a paragraph, section, or title—and replace it completely. For instance, the amendment could propose to strike out a section of an authorization bill and replace it with a new section that changes both the amount that is authorized and the purposes for which it is authorized. Such an amendment may be designated an amendment in the nature of a substitute, although Members typically do not do so.7 Of greater practical importance are the differences in effects among amendments to amendments. An amendment proposing to make some change in the text of a first-degree amendment, without replacing it completely, is a perfecting amendment. By contrast, an amendment to replace the entire text of a first-degree amendment is a substitute amendment. The significance of this distinction will emerge from the discussion of the ―amendment tree.‖ The difference between perfecting amendments and substitute amendments depends primarily on the way in which they are drafted and not on the magnitude of the policy changes they would make. A perfecting amendment may replace all but the first word, line, or sentence of a section of a bill (or a first-degree amendment) and so entirely change its substantive effect. Conversely, a substitute for a first-degree amendment would amend the text completely but might make only one minor substantive change and replace the remainder with precisely the same language. A perfecting amendment may take any one of the three possible forms; it may propose to strike out, to insert, or to strike out and insert. On the other hand, a substitute amendment is a proposal to replace one thing with another, and so it always takes the form of a motion to strike out and insert.

Amendments in the Nature of Substitutes for Measures Finally, a special kind of amendment, known as an amendment in the nature of a substitute, always proposes to replace the entire text of a bill or resolution, not some lesser portion of the measure. This amendment strikes out everything after the enacting clause of a bill, or the resolving clause of a resolution, and replaces the entire text of the measure with a different text.8 If a majority of Members vote for such an amendment, Representatives cannot offer any additional amendments to the measure because it has been amended in its entirety. When Members refer to an amendment in the nature of a substitute, they almost always have this kind of amendment in mind, although, as noted above, the same phrase can be, in a technical

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sense, applied to an amendment that proposes to replace whatever portion of the measure is then being considered for amendment. There are several unique characteristics about the way in which the House considers amendments in the nature of substitutes for the entire text of measures. First, most often this kind of amendment is recommended by a committee at the same time it reports the measure itself. And in practice, Members almost always want to devote far more of their time and attention on the floor to this committee alternative than to the text of the bill as introduced. For this reason, special rules reported by the Rules Committee usually give a committee substitute special standing during the amending process in Committee of the Whole by providing for Members to offer their amendments to that substitute rather than to the bill itself. The committee substitute is considered ―as an original bill for the purpose of amendment,‖ meaning that it is not treated as a first-degree amendment. Instead, it is amendable in two degrees as if it were the text of a measure.9 Second, if an amendment in the nature of a substitute for a bill or resolution is not given this special standing, a Member can propose it as a first-degree amendment at only two points during the amending process in Committee of the Whole. The amendment is in order either at the very beginning of the process or at the very end, after the committee has voted on all other amendments to the text of the measure.10 But even if a Member or committee offers an amendment in the nature of a substitute at the beginning of the amending process, the Committee of the Whole typically does not vote on it until the end of the process because Members will direct most—usually all—of their amendments to it. Finally, when an amendment in the nature of a substitute for everything after the enacting or resolving clause is proposed at the beginning of the amending process, other Members can propose amendments to the pending portion of the measure as well as to the complete substitute; if so, they vote on any and all such amendments before voting on the amendment in the nature of a substitute. (This possibility, which rarely arises in practice, is discussed at the end of the section on ―The Amendment Tree.‖)

DRAFTING AMENDMENTS Clause 1 of Rule XVI requires that every amendment offered on the House floor must be in writing, and it must be drafted accurately to achieve its intended procedural and policy effects. Each amendment must state precisely where and how it would amend the measure or other amendment, identifying the specific pages, lines, and words it would affect.11 The text of every amendment reveals its form (whether it inserts, strikes out, or strikes out and inserts), and also may identify it as a perfecting or substitute amendment. The following examples illustrate some of the ways in which various kinds of amendments may be drafted.

Amendments to a measure: To insert: After line 8 on page 23, insert the following: At the end of Title III, insert the following new section:

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Christopher M. Davis To strike out: Beginning on page 3, strike out line 1 and all that follows through line 14 on page 4. To strike out and insert: On line 10 of page 7, strike out ―$100‖ and insert in lieu thereof ―$50‖. To strike out all after the enacting (or resolving) clause and insert: Strike out all after the enacting (or resolving) clause and insert in lieu thereof the following:

Amendments to an amendment: Perfecting amendment—to insert: At the end of the amendment offered by the gentleman from New York, insert the following: Perfecting amendment—to strike out: In the amendment offered by the gentlewoman from California, strike out Section 2. Perfecting amendment—to strike out and insert: In the amendment offered by the gentleman from Wisconsin, strike out ―$100‖ and insert in lieu thereof ―$50.‖ Strike out Section 1 of the pending amendment and insert in lieu thereof the following:

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Substitute amendment: In lieu of the matter proposed to be inserted by the gentleman from Texas, insert the following: It is sometimes possible to draft an amendment in more than one way. It bears emphasizing that the distinction between perfecting and substitute amendments generally is a matter of drafting style, not substantive effect. For example, imagine an appropriations bill that includes the following on lines 6 and 7 of page 12: For the salaries and expenses of the Congressional Research Service of the Library of Congress, $500. A Member who wishes to amend this appropriation to increase it to $1,000 could draft the amendment in at least two different ways: On line 7 of page 12, strike out ―$500‖ and insert in lieu thereof ―$1,000‖ or Strike out lines 6 and 7 on page 12 and insert in lieu thereof the following: ―For the salaries and expenses of the Congressional Research Service of the Library of Congress, $1,000.‖ These two amendments would have precisely the same substantive effect, even though they are drafted differently. Representatives sometimes find it advisable to have amendments (and especially amendments to amendments) drafted in more than one way, especially when a How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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bill or resolution is considered in Committee of the Whole, because the development of an ―amendment tree‖ may permit or encourage a Member to propose an amendment in one form, but not in another. The examples offered above are illustrative only. The House Rules Committee regularly points out to Members drafting amendments that they should, ―... use the Office of Legislative Counsel to ensure that their amendments are properly drafted and should check with the Office of the Parliamentarian to be certain their amendments comply with the rules of the House.‖

PRINCIPLES AND PROHIBITIONS A number of general principles and prohibitions govern the amending process and restrict the amendments that committees and individual Representatives may propose on the floor. Many of these principles and prohibitions derive from House precedents, but the best known restriction on amendments—the germaneness requirement—is embodied in the House rules themselves. Like most other House procedures, Members generally must enforce these principles and prohibitions, and thereby protect their own rights and interests, by making appropriate points of order. The procedures for doing so are discussed in a later section of this report.

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In General The House‘s published precedents are the source for many of the principles and restrictions affecting the amending process. For example, the prohibition against third degree amendments is one of the most basic limitations on the amendments that Members may offer, but it is not stated explicitly in the standing rules.12 Precedents govern the amending process in several other important respects.

Committee Amendments Standing committees do not actually amend measures during their markups; instead, a committee votes on what amendments it wishes to recommend to the House. These amendments then have the status of committee amendments. If the committee reports a measure with one or more amendments, they receive priority consideration on the floor and they are considered automatically.13 The House considers each of them at the appropriate time; it is not necessary for a committee member to offer them from the floor. When and how the committee amendments are considered depends on the set of procedures under which the bill or resolution itself is being considered. Under several possible procedures for considering amendments to a measure, it is ―open to amendment at any point‖—that is, amendments can be offered to any part of the bill in any order. In such a case, the Speaker directs the clerk to read the first committee amendment as soon as the bill is considered for amendment. After the House votes on this amendment, it considers any additional committee amendments in turn. Members may be able to offer their

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own amendments to each committee amendment, but they generally may not propose amendments to the text of the bill itself until the House has completed action on the committee amendments. The amending process under these procedures usually is routine; typically, no more than one committee amendment is to be considered. On the other hand, the particularly important procedures governing the amending process in Committee of the Whole usually are governed by the principle that a measure is to be ―read for amendment‖—that is, only one paragraph, section, or title of the measure is open to amendment at a time. In this case, the Committee of the Whole automatically considers any committee amendment(s) to each part of the bill as soon as it is read. Again, Representatives may propose amendments to each committee amendment, but the Members must dispose of the committee amendments to each part of the measure before they can offer other amendments to that part of it. An exception to this principle arises whenever the committee amendment takes the form of a motion to strike out some language or provision of the bill. While such a committee amendment is pending, a Member may offer an amendment to change the part of the bill that the committee proposes to strike out altogether. This possibility is considered in more detail during the discussion of the ―amendment tree.‖ Also, the committee‘s recommendations for changes in a bill or resolution often are embodied in a single amendment in the nature of a substitute. As already noted, the special rules for considering measures often make special arrangements for Members to consider a committee substitute in Committee of the Whole by designating it as a proposal that Members may amend in two degrees. Because of this widespread practice, it is increasingly rare to see multiple committee amendments considered on the House floor in this way.

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General Principles Several other general principles govern the amending process. First, clause 2 of Rule XVI requires that the clerk is to read each amendment when it is offered and before debate on it begins, whether it is a committee amendment or one proposed by an individual Member.14 The sponsor or principal proponent of the amendment very often asks unanimous consent that the amendment be considered as read, and there usually is no objection unless an interested Member is not familiar with it and wants time to examine the amendment before it is debated. In addition, a Member may move to dispense with the reading, under circumstances discussed in a later section, but only if Members already have access to a printed copy of the amendment. Second, an amendment should not affect the measure in more than one place. This principle protects the House against having to cast one vote on two or more propositions that may be unrelated. Thus, an amendment to replace the text of Section 201 and add a new sentence at the end of Section 203 is subject to a point of order if the bill is being read by sections. Instead, the sponsor of the amendment could offer each part of it as a separate amendment, or the sponsor could ask unanimous consent that the two amendments be considered ―en bloc‖—that is, as if they were one amendment.15 There often is no objection to such a request if both amendments are necessary to achieve a single purpose. Alternatively, if the title containing Sections 201 and 203 has been read for amendment, or if the bill is open to amendment at any point, the sponsor could avoid a point of order by drafting a single amendment to strike out Sections 201-203 and replace them with the preferred provisions.16

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Third, any Member may demand, as a matter of right, the division of an amendment proposing to insert additional provisions into (or strike provisions from) a measure or firstdegree amendment, but only if the amendment to be divided (or the matter to be stricken) consists of two or more parts that, in the judgment of the chair, could stand as independent propositions. When an amendment is divided, the House considers each division of the amendment in turn, as if each were a separate amendment. This right, which also protects the House against having to cast a single vote on two or more separable proposals, is conveyed by clause 5 of Rule XVI; however, the same rule states in part that a motion to strike out and insert is not divisible. It is important to keep in mind that special rules can limit the divisibility of amendments. Fourth, the same amendment may not be offered more than once.17 If the House has considered and rejected an amendment, it may not be offered again unless it has been changed substantively. Otherwise, the House could not be sure of its ability to dispose of questions conclusively. However, a part of a rejected amendment may be offered as a separate amendment, and the entire text of the rejected amendment may be included as part of a larger amendment. In addition, it is sometimes possible to offer two amendments that are substantively identical. For example, a Member may propose to add a new title to the text of a bill, and also move to insert the same new title into the text of an amendment in the nature of a substitute for the bill. These amendments are different procedurally because each seeks to amend a different text. Fifth, it is not in order for a Representative to offer an amendment that proposes only to amend language that already has been amended.18 If not for this principle, the House would have difficulty resolving questions once and for all. Thus, if a dollar number in an appropriations bill has been amended, another amendment that would only change the same number again is subject to a point of order. Or if the House agrees to a substitute for a section or title of a bill, no further amendments only to that section or title are in order because it has been fully amended.19 Any further amendment to it would constitute a prohibited attempt to re-amend. An important implication of this principle is that adoption of an amendment in the nature of a substitute precludes all further amendments to the measure. This complete substitute replaces the entire text of the bill or resolution, so any new amendment would propose to re-amend something that already has been fully amended. An exception to the prohibition against re-amendment is what is sometimes called the principle of ―the bigger bite.‖ Representatives may seek to amend something already amended if they do so as part of an amendment to change a larger part of the text.20 For example, a Member may re-amend a dollar figure in an appropriations bill by offering a substitute for the paragraph containing that number, so long as the amendment also makes some other substantive change in the paragraph. Similarly, after the House has agreed to a substitute for a section of a bill, a Member may propose a substitute for the title containing that section, and thereby re-amend the section in the process of amending other sections of the same title. Each of these amendments takes a bigger bite out of the text than the amendment the House already has considered and adopted.

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The Germaneness Rule Clause 7 of Rule XVI states in part that ―no motion or proposition on a subject different from that under consideration shall be admitted under color of amendment.‖ This brief clause constitutes the germaneness rule—a rule that is simple and straightforward in principle, but complex and sometimes difficult to apply in practice. Indeed, determining whether an amendment is germane can be the most challenging, and even perplexing, task in interpreting the House‘s legislative procedures. The four-line rule is accompanied by 28 pages of commentary and explanation in the House Rules and Manual for the 109th Congress, and discussions of precedents on this subject consume all the 1,957 pages of volumes 10 and 11 of Deschler‟s Precedents of the House of Representatives.21 The principle underlying the germaneness rule is that the House should consider one subject at a time. While debating authorizations for military weapons systems, for example, the House should not be distracted by amendments concerning food safety, mass transit, or other unrelated subjects. The object of the rule is not simply orderliness. If not for the germaneness requirement, Members could offer amendments on any subject of their choice, thereby bypassing the standing committee system and depriving the House of the committees‘ expert appraisals, recommendations, and reports. Furthermore, Members could be compelled to vote on unanticipated questions without adequate time for preparation. In sum, the germaneness rule is designed to encourage systematic and thoughtful legislative decisions. Germaneness is a requirement that applies to all amendments originating in the House, whether proposed by individual Representatives or recommended by House committees. Because the rule prohibits amendments on a new subject, it does not apply to the provisions of measures themselves; anything contained in a bill or resolution is immune to challenge on grounds of germaneness. Also, Members generally may not make points of order against nongermane Senate amendments until the House has reached the stage of disagreement with the Senate over a measure—and usually when the House begins to consider a conference report.22 In determining whether an amendment proposed on the House floor is germane, the chair normally is concerned with the relationship between the amendment and the text it proposes to amend. In general, a second-degree perfecting amendment or a substitute for an amendment must be germane to the amendment it would affect. So it may be ruled nongermane even though it could be germane to the underlying text of the bill. And a firstdegree amendment to a section or title of a bill must be germane to that section or title; the chair may rule it nongermane even though it might be germane to some other portion of the bill.23 On the other hand, an amendment proposing to add a new section or title at the end of a measure may be subjected to a broader test: whether it is germane to the text of the measure as a whole. Also, an amendment must be germane to the text it would amend as that text reads at the time the amendment is proposed. Thus, it is not sufficient that an amendment be germane to the bill as originally introduced (or to the first-degree amendment as originally proposed). Instead, the amendment must be germane to the bill (or amendment) as it already may have been amended. By its votes on amendments offered earlier during its consideration, the House may have broadened or narrowed a bill (or amendment) in ways that affect the germaneness of other amendments that Members then propose. This situation adds to the difficulty of anticipating, evaluating, and protecting against germaneness challenges. The parliamentarian

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and his associates can offer a Representative expert advice on the germaneness of a prospective amendment. But by the time the Representative actually offers the amendment on the floor, the House may have amended the bill (or amendment) in ways that change the relationship on which the germaneness ruling is based—the relationship between the proposed amendment and the text it proposes to amend. The concept of germaneness is akin to that of relevance or pertinence, but more restrictive. The mere fact that the House is considering a tax bill, for instance, does not necessarily mean that any amendment affecting federal taxes is germane. Instead, case by case, the House has gradually developed an extensive body of precedents to assist and guide the chair in ruling on points of order that particular amendments are not germane. No other question of order arises so often, and no other rulings can be as difficult for Members and staff to predict. The precedents on germaneness are voluminous and often based on fine distinctions, distinctions that the chair explains in making rulings but that are not always obvious from the concise way in which the rulings have been summarized in print. Thus, although new rulings are always based on earlier ones, it is often possible to develop from the precedents plausible arguments both for and against the same point of order on germaneness. However, while germaneness decisions may appear to be contradictory if only the published headnotes are studied, there is more apparent consistency if the factual situations are carefully reviewed. To help Members and staff understand how the germaneness rule has been interpreted and applied, the parliamentarian‘s commentary in the House Rules and Manual identifies three ―tests‖ of germaneness: subject matter, fundamental purpose, and committee jurisdiction. First, to be germane, ―[a]n amendment must relate to the subject matter under consideration.‖ For example, ―[t]o a bill seeking to eliminate wage discrimination based on the sex of the employee, an amendment to make the provisions of the bill applicable to discrimination based on race....‖ was ruled to be nongermane. In this case, the chair evidently held that the subject matter of the bill was not wage discrimination in general, but sex discrimination in particular.24 Thus, the amendment to extend the coverage of the bill to race discrimination proposed to raise a different subject and, therefore, was nongermane. Second, ―[t]he fundamental purpose of an amendment must be germane to the fundamental purpose of the bill.‖ More specifically, ―an amendment must not only have the same end as the matter sought to be amended, but must contemplate a method of achieving that end that is closely allied to the method encompassed in the bill or other matter sought to be amended....‖ Among amendments that have met this test, the parliamentarian cites the following example: ―to a proposition to accomplish a result through regulation by a governmental agency, an amendment to accomplish the same fundamental purpose through regulation by another governmental agency....‖ was held germane. On the other hand, ―to a bill to aid in the control of crime through research and training an amendment to accomplish that result through regulation of the sale of firearms....‖ was held not germane. In the first case, the method of action proposed by the amendment was ―closely allied‖ to that of the bill; in the second case, it was not. Third, ―[a]n amendment when considered as a whole should be within the jurisdiction of the committee reporting the bill....‖ This test is most likely to be applied when the jurisdictional issues are clear cut—when the pending text is entirely within one committee‘s jurisdiction and the amendment offered to that text falls entirely within another committee‘s

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jurisdiction. For instance, ―[t]o a bill reported by the Committee on Government Operations (now Government Reform)25 creating an executive agency to protect consumers, an amendment conferring on congressional committees with oversight over consumer protection the authority to intervene in judicial and administrative proceedings (a rule-making provision within the jurisdiction of the Committee on Rules)....‖ was ruled not germane. But committee jurisdiction is not the sole or exclusive test of germaneness, especially in cases in which ―the proposition to which the amendment is offered is so comprehensive (overlapping several committees‘ jurisdictions) as to diminish the pertinency of that test‖ or ―the amendment does not demonstrably affect a law within another committee‘s jurisdiction...,‖ or ―where the portion of the bill also contains language, related to the amendment, not within the jurisdiction of the committee reporting the bill....‖ As this last statement suggests, no one of these three tests is always conclusive, nor is one of them necessarily more controlling than the others. An amendment may satisfy one test but not one or both of the others, so the chair must look to the particular case in deciding how much weight to give to each of them. Moreover, even when these three tests are taken together, they do not constitute a complete standard of germaneness. ―[A]n amendment and the matter to which offered may be related to some degree under the tests of subject matter, purpose, and jurisdiction, and still not be considered germane under the precedents.‖ To help understand this conclusion, the parliamentarian‘s commentary on the rule elaborates other principles of germaneness, of which three are particularly explicit. The essence of these three principles turns on the relationship between the scope of the amendment and the scope of the matter to be amended. First, ―[o]ne individual proposition may not be amended by another individual proposition even though the two belong to the same class....‖ For example, ―[t]o a bill proposing the admission of one territory into the Union, an amendment for admission of another territory‖ was not germane. Similarly, ―to a proposition to appropriate or to authorize appropriations for only one year (and containing no provisions extending beyond that year), an amendment to extend the authorization or appropriation to another year....‖ was not germane. The first bill applied to only one territory; the second concerned only one fiscal year. Extending either bill to another item in the same class—a second territory or a second fiscal year—violated the prohibition against amending one individual proposition with another, even though the amendments may have met one or more of the three tests discussed above. Second, ―[a] specific subject may not be amended by a provision general in nature, even when of the class of the specific subject....‖ Under this principle, which applies to amendments that would expand the general applicability of measures that are limited in scope, the following illustrate the kinds of amendments that would not be germane: ―to a bill relating to all corporations engaged in interstate commerce, an amendment relating to all corporations...; to a bill proscribing certain picketing in the District of Columbia, an amendment making the provisions thereof applicable throughout the United States...; and to a bill authorizing funds for radio broadcasting to Cuba, an amendment broadening the bill to include broadcasting to all dictatorships in the Caribbean Basin....‖ These two principles limit the amendments that satisfy the germaneness rule; the third, related principle, on the other hand, provides a basis for holding amendments germane. ―A general subject may be amended by specific propositions of the same class....‖ ―Thus, the following have been held to be germane: To a bill admitting several territories into the Union,

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an amendment adding another territory...; to a bill providing for the construction of buildings in each of two cities, an amendment providing for similar buildings in several other cities...;‖ and ―to an amendment prohibiting indirect assistance to several countries, an amendment to include additional countries within that prohibition....‖ Generally, if a bill already deals with several items in a class, amendments to add additional items in the same class may be germane under this principle. Germaneness rulings may be based on a combination of two or more of these tests and principles, or perhaps others. Because individual amendments may differ in so many respects, the application of these tests and the relationships among them cannot be reduced to a formula or obviously predictable standard. Furthermore, the illustrative examples quoted above are clear and simple ones; they do not fully reflect the difficulties and subtleties that can arise in applying these six tests and principles. A bill may amend so many provisions of an existing law, for example, that an amendment affecting any other provision of that law may be germane, but there is no simple test to determine when this threshold is reached. Thus, germaneness determinations often are difficult to make and even more difficult to anticipate.

OFFERING AND DEBATING AMENDMENTS

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In the House It is natural to think of all legislative action that occurs on the House floor as taking place ―in the House.‖ In the conventional language of the legislative process, however, this phrase refers to one of the four modes of consideration by which the House may act on a public bill or resolution. A bill considered ―in the House‖ is not debated and amended in the same way as it would be if considered in Committee of the Whole or under suspension of the rules, for example. For reasons that will become evident, only a few kinds of bills and resolutions— most notably, the special rules reported by the Rules Committee to affect the order of business—usually are considered ―in the House.‖ One of the most important reasons is the difficulty Members have in proposing amendments under this set of procedures. The essential rule governing debate on the House floor is the ―hour rule‖—the provision of clause 2 of Rule XVII which states that ―[a] Member, Delegate, or Resident Commissioner may not occupy more than one hour in debate on a question in the House....‖ A Representative who has been recognized to speak may not hold the floor for more than an hour, under normal House rules, without the unanimous consent of all colleagues who are present. Equally important, under this rule, each Member may speak for an hour on each debatable question; and a bill or resolution and each amendment to it are different debatable questions, as are a variety of motions that Members may make. A Representative can offer an amendment only when the Speaker has recognized him to control the floor for an hour, or when another Member who controls the floor has yielded to him for that purpose.26 A measure considered in the House, under the hour rule, is ―open to amendment at any point.‖ If a Member controls the floor and chooses to offer an amendment, that amendment may propose to affect any part of the bill. And if another Member were to offer a second amendment at a later time, that amendment also could address any part of the bill that has not

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already been amended. For instance, if the first amendment changes Section 3 of the measure, a second amendment could propose to change Section 1. In other words, the order in which Members offer amendments ―in the House‖ generally is not determined by where or how the amendments would affect the measure. Most measures that the House considers under the hour rule are ―privileged.‖ Clause 5 of Rule XIII grants certain committees ―leave to report‖ measures on certain subjects or for certain purposes ―at any time.‖ This authority includes general appropriations bills reported by the Appropriations Committee, budget resolutions and reconciliation measures reported by the Budget Committee, committee funding resolutions reported by the Committee on House Administration, and amendments to House rules reported by the Rules Committee. Other measures are privileged under other rules—for instance, resolutions approved by the Republican Conference or Democratic Caucus to appoint members to House committees are privileged under clause 5(a)(1) of Rule X. There are two differences between the treatment of privileged measures and the treatment of other bills and resolutions. First, a committee chair filing a report on a measure normally does so without comment, by merely submitting the report to the appropriate clerk on the floor while the House is in session. In the case of reports on privileged measures, however, the chair announces his action and files the report from the floor, and the Speaker refers it to the appropriate calendar. More important, when a committee reports a nonprivileged bill or resolution, it is referred to either the Union or the House Calendar, where it remains until it can be made in order for floor consideration.27 On the other hand, once a privileged measure has been reported and placed on one of the same two calendars, and a one- or three-day layover requirement has been met,28 the committee (or subcommittee) chair may call it up for consideration at any time that another matter is not already pending.29 When the Speaker recognizes a chair (or another Member) to call up a privileged measure, at the direction of her committee, the chair is recognized to control the first hour of debate. The chair is certain to yield to other Members to participate in debate during this hour, but only the chair may offer an amendment or make any other motion during the hour she controls, unless she chooses to yield to another Member to do so.30 At the end of the first hour, another Representative (usually the ranking minority member of the reporting committee) would be recognized to control the second hour of debate, and, if so, this Member becomes the only one with the right to offer an amendment or make another motion during that hour. And so the process could continue. Each Member can debate the measure for an hour, and the Member controlling each hour of debate determines whether an amendment is offered. If an amendment is proposed—whether it be an amendment in the nature of a substitute for the measure or a perfecting amendment to any part of it—each Representative then may debate the amendment for an hour.31 Thus, in theory, there could be hundreds of hours of debate on the measure itself and an equally lengthy debate on each amendment to it. In practice, however, when the House considers a bill or resolution ―in the House‖—and, therefore, under the hour rule—the House almost always votes on passing it without considering any amendments except committee amendments, and after no more than a total of one hour of debate. The device for limiting the debate and precluding all floor amendments is the motion to order the previous question. A Representative who has been recognized to control the floor for an hour can make this nondebatable motion which immediately stops debate on the measure the House is considering. If a majority of Members vote to order the previous question, the House then proceeds to vote

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on pending amendments and on final passage of the measure without further debate and without considering any further amendments.32 In practice, the committee or subcommittee chair rarely proposes an amendment during the first hour of debate, which she controls, and is even less likely to yield to another Member to do so. As the majority floor manager, the chair typically supports the measure as it was reported by committee. But she always moves the previous question before or when her hour expires, and the House normally votes for this motion.33 Thus, a Representative wishing to offer an amendment must obtain part of the first hour of debate and convince the House to vote against ordering the previous question when that motion is made. Only if the previous question is not ordered is a second Member—almost always a minority party Member— recognized for an hour, during which he may propose an amendment. If the previous question is not ordered (or in the very unlikely event it is not even moved) and a second hour of debate begins, the Member controlling it then may propose an amendment and debate on that amendment proceeds under the hour rule.34 But the Representative offering the amendment is almost certain to move the previous question, on both the measure and the amendment thereto, before or at the end of the hour she controls. And if the House votes for this motion, it then votes without further debate on the amendment and finally on the measure as it may have been amended. In daily practice, therefore, the hour rule does not operate to permit one hour of debate per Member on each measure considered ―in the House,‖ and another hour of debate per Member on each amendment to the measure. Instead, because the previous question is routinely moved and normally ordered, there is only one hour of debate in total on the bill and no floor amendments may be offered, unless the floor manager yields for this purpose. The House must vote against ordering the previous question before there can be a second hour of debate, when the Member controlling that second hour can propose an amendment. And then the House is virtually certain to order the previous question on both the bill and the amendment during the second hour, precluding still more debate and still other amendments. In short, the procedures governing consideration of measures in the House, under the hour rule, are not well suited—in theory or in practice—for permitting many Members to participate in debate and offer their amendments. It is largely because of this problem that the House considers most major bills instead in Committee of the Whole.

In Committee of the Whole and the House The Committee of the Whole House on the State of the Union is a committee on which all Representatives serve and which meets on the House floor. The House resolves itself into Committee of the Whole to consider a particular measure and amendments to it. Then it transforms itself back into the House, and the House proceeds to vote on whatever amendments the Committee of the Whole has recommended, followed by a vote on final passage of the bill or resolution itself. The House uses the device of the Committee of the Whole largely because it provides a set of parliamentary procedures for debating measures and for offering and debating amendments that are more flexible and accommodating than those that govern the other modes of consideration. Because of these advantages, the House first considers most major bills and resolutions in Committee of the Whole before voting on them in the House. Clause 3 of Rule XVIII requires

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that certain kinds of measures be considered in this way; these are essentially the authorization, appropriations, and tax measures that are placed on the Union Calendar after being reported from committee. In addition, most measures Members consider important or controversial are called up on the floor only after the House first agrees to a resolution, or ―special rule,‖ reported by the Rules Committee, that makes the measure in order for consideration and provides for debating and amending it in Committee of the Whole.35 Considering a bill in Committee of the Whole involves a four-stage process. First, the House resolves itself into Committee of the Whole for the sole purpose of considering the bill. Second, there is a period of general debate. Third, the bill is considered for amendment; the Committee of the Whole votes on whatever amendments are proposed, and then it ―rises‖ and reports the bill back to the House with the amendments the Committee has adopted. Fourth, the House votes on these amendments and, shortly thereafter, votes on passing the bill. The following discussion concentrates on the latter two stages during which Members consider and vote on amendments. There are two ways in which the House resolves itself into Committee of the Whole to consider a measure. A special rule typically authorizes the Speaker, pursuant to clause 2(b) of Rule XVIII, to declare the House resolved into Committee of the Whole for that purpose at any time after the House adopts the resolution. On the other hand, the special rule governing consideration of a general appropriations bill technically need not include such a provision, although such language is typically included under current practices. Instead, the chair of the reporting committee may make a non-debatable motion that the House resolve into Committee of the Whole to consider a measure his committee has reported. In either case, the Speaker designates another majority party Member to serve as chair of the Committee of the Whole during its consideration of that measure.36 The chair then directs the clerk to report the bill by title before general debate begins.37

General Debate The special rule governing consideration of the measure normally specifies the length of general debate. Typically it is one hour, though there may be more time provided for debating bills Members view as particularly important or controversial. In rare instances, the amount of time is controlled by a unanimous consent agreement (such as in the case of the House resolving into Committee of the Whole under a privileged motion), or it may be governed by a provision of a rule-making statute (for example, in the case of a budget resolution or reconciliation measure). Control of the time usually is divided equally between the chair and ranking minority member of the committee of jurisdiction, each of whom yields part of her time to other Members during the course of the debate. When a bill had been referred to two or more committees, there often is a longer period for general debate, with part of it controlled by each committee chair and ranking member. In unusual circumstances, a special rule also may allocate control of some general debate time to other, individually named Members who oppose the committee‘s position in an important respect.38 The Committee of the Whole does not consider and act on any amendments during general debate. This period is reserved for discussions of the state of existing law, the conditions stimulating new legislation, the provisions of the measure, and the advisability of enacting it. Members may debate the merits of committee amendments and the amendments individual Representatives intend to propose, but the amendments are not formally proposed

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or considered during this time. At the conclusion of general debate, the Committee of the Whole may vote to rise, which temporarily concludes its business and transforms the committee back into the House. Then the House may resolve back into Committee of the Whole at some later hour or date to resume consideration of the measure. Alternatively, the committee may move directly from general debate to the third stage of consideration, during which the amending process takes place. During this third stage, the Committee of the Whole considers and votes on amendments to the measure and on any amendments to those amendments. The committee never votes directly on any section or title of the measure itself or on the measure as a whole. This amending process is somewhat akin to the markup of a bill that has been reported by one committee and then referred sequentially to another. After a standing committee reports the bill, it is referred sequentially to this unique committee on which all Members serve. The Committee of the Whole debates and votes on all the amendments recommended by the standing committee and then on whatever additional amendments individual Members offer. But neither a standing committee nor the Committee of the Whole actually has the authority to amend the bill; that is the exclusive power of the House. Both committees only recommend amendments for the House to consider. The text that Members can attempt to amend may be the text of the bill as it was introduced. However, the special rule for considering it frequently provides instead for floor amendments to be directed to an amendment in the nature of a substitute that is to be considered ―an original bill for the purpose of amendment.‖ Typically, this is a committee substitute, though it may be an amendment in the nature of a substitute printed in the Rules Committee‘s report on the rule or in the Congressional Record, or it may even be the text of another measure on the same subject. Whatever form it may take, an amendment in the nature of a substitute considered in this way almost always reflects the position of the committee or committees of jurisdiction, or at least their leading majority party members.

Reading Measures for Amendment The flow of the amending process is governed by the requirement that a measure considered in Committee of the Whole is to be ―read for amendment.‖ Members may propose amendments only to the part of the bill that the clerk has read, and they may no longer offer amendments to it (except by unanimous consent) after the clerk has read the next part.39 The typical procedure is for a bill or resolution to be read for amendment section by section (or paragraph by paragraph, in the case of a general appropriations bill). When a special rule states that a measure shall be ―read for amendment under the five-minute rule,‖ it is to be read by sections. Alternatively, the special rule may specify that the measure is to be read by titles. And especially when a special rule prohibits most or all floor amendments, it may state that each section shall be considered as having been read or that the entire measure ―shall be considered as having been read for amendment.‖ There would be no point in the clerk reading each section or title in turn if Members may not offer amendments to it after it is read. These alternatives affect what kinds of amendments Members can propose, and when. If a measure is being read or considered for amendment by sections, Representatives may offer amendments only to each section when the clerk has read or designated it. It is no longer in order to propose an amendment to a section that had been read previously, and it is premature to offer an amendment to a section not yet reached, unless the Members agree by unanimous

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consent to consider such an amendment. Thus, after the clerk reads or designates Section 4, only amendments to Section 4 are in order. It is now too late to offer an amendment to Section 3, and it is not yet appropriate to amend Section 5. Furthermore, an amendment affecting Sections 4 and 5 would not be in order because the bill is being considered for amendment one section at a time.40 An important exception to this rule is that offest amendments to appropriations measures may look forward.41 Thus, Members must pay careful attention to the pace of the amending process in Committee of the Whole in order to protect their right to propose amendments by being on the floor and by seeking recognition at the appropriate time. The same procedures govern a measure being considered for amendment by titles; amendments are in order only to the title that the clerk has read or designated most recently. Considering a measure by titles gives Members somewhat more latitude, because they can offer amendments that span more than one section of the title or that propose to strike or replace the entire title. Thus, when a bill is divided into titles, which in turn are subdivided into sections, a special rule frequently provides for it to be considered for amendment title by title. The one exception to these procedures concerns amendments in the nature of substitutes. A Member can offer this kind of amendment after the clerk reads or designates the first section of the measure, even though the amendment also would affect all its other sections or titles. But once this opportunity passes, an amendment in the nature of a substitute is not in order again until the committee has acted on all amendments to the last section or title of the bill. On the other hand, when a measure is open to amendment at any point, Members may propose amendments to any part of it in any order, so long as the amendments meet the other requirements of House rules and precedents and are not prohibited by the special rule. The Committee of the Whole sometimes expedites consideration of amendments by adjusting the process of reading for amendment. If a bill containing several titles is being read section by section, the majority floor manager may ask unanimous consent that a title be considered as read and open to amendment at any point.42 Or the manager may extend this request to cover several titles or even the entire measure. The manager is most likely to make such a request when few amendments are anticipated and no useful purpose is served by having the clerk read each section or title individually.

Offering Amendments After the clerk reads or designates the first section, the chair directs the clerk to read the first of any committee amendments to it. The majority floor manager typically asks unanimous consent that the reading be dispensed with. The Committee of the Whole debates and votes on this amendment, and any floor amendments to it, after which the clerk reads and the committee acts in turn on any other committee amendments to that section. Individual Members then may propose their own amendments to the section.43 After the committee debates and votes on all of them, the clerk reads or designates the next section and the process is repeated. When a bill is being considered by titles, a comparable process occurs, as the committee first considers and acts on each committee amendment (and amendments to it) to a title before individual Representatives‘ amendments to the title are in order. When a bill is open to amendment at any point, on the other hand, the committee first considers and acts on all the committee amendments, in the order in which they would affect the measure, before Members propose their own amendments to the measure.

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Beginning in the late 1990s, special rules began to include provisions under which the committee did not always vote on one first-degree amendment before considering the next one. These provisions were subsequently incorporated into the House‘s standing rules and now are routinely utilized. Clause 6(g) of Rule XVIII now provides that:

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The Chairman may postpone a request for a recorded vote on any amendment. The Chairman may resume proceedings on a postponed request at any time. The Chairman may reduce to five minutes the minimum time for electronic voting on any postponed question that follows another electronic vote without intervening business, provided that the minimum time for electronic voting on the first in any series of questions shall be 15 minutes. In most cases, there are not very many committee amendments to a measure. If the committee wishes to amend a measure extensively, it may report the bill or resolution with a long series of amendments. However, in current practice, it is far more likely to recommend an amendment in the nature of a substitute by which the committee incorporates all its proposed changes to the measure in a single amendment. Although it is used far less frequently, a committee may also propose a ―clean‖ measure, carrying a different bill or resolution number, that addresses the same subject in the way the committee prefers. When the Committee of the Whole has disposed of all committee amendments to the section or title being considered (or to the entire bill, if it is open to amendment at any point), the chair looks to the majority and minority tables on the floor for Members seeking recognition to offer amendments of their own. It is the responsibility of a Member wishing to offer an amendment to seek recognition for that purpose.44 If two or more Members are seeking recognition, the chair has the discretionary authority to recognize one or the other. However, the chair is guided in decisions regarding recognition by practices that are very well-established, if not actually binding as precedent. The chair almost always gives preference in recognition to members of the committee and subcommittee that reported the measure, in approximate order of seniority, alternating between Democrats and Republicans. Thus, the majority floor manager is recognized in preference to anyone else, followed by the minority floor manager. If neither of the managers seeks recognition, the chair tends to recognize a senior committee member before a more junior member, and any committee member before another Representative. The chair also attempts to give Members of both parties a roughly equal opportunity to propose amendments. These practices promote fairness, and also focus the attention of the Committee of the Whole first on amendments sponsored by Members who are presumed by virtue of their committee membership to have an expert knowledge of the subject. Every amendment offered must be in writing. In addition, clause 5(b) of Rule XVIII states: When a Member, Delegate, or Resident Commissioner offers an amendment in the Committee of the Whole House on the state of the Union, the Clerk shall promptly transmit five copies of the amendment to the majority committee table and five copies to the minority committee table. The Clerk also shall deliver at least one copy of the amendment to the majority cloak room and at least one copy to the minority cloak room.

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Although this rule places the responsibility on the clerk, it is generally accepted practice for Members to bring multiple copies of amendments with them to the floor, or to arrange for copies to be made of amendments they or their staff prepare on the floor during debate. This permits the sponsor of an amendment to distribute copies of it to colleagues who want to examine it. In most cases, Representatives find it advisable to alert the majority and minority floor managers of the measure, and other interested Members, of the amendments they plan to offer. This is not done only as a matter of courtesy. Floor managers who support the bill often are inclined to oppose amendments that they have not had an opportunity to study. But if the floor managers have copies of an amendment in advance, they may decide to support it or at least discuss possible changes that would make it acceptable to them. Clause 8 of Rule XVIII also provide for Members to submit their amendments in advance for printing in the Congressional Record. Under clause 8(c), Material submitted for printing in the Congressional Record under this rule shall indicate the full text of the proposed amendment, the name of the Member, Delegate or Resident Commissioner proposing it, the number of the bill or resolution to which it will be offered, and the point in the bill or resolution or amendment thereto where the amendment is intended to be offered. The amendment shall appear in a portion of the Record designated for that purpose. Amendments to a specified measure submitted for printing in that portion of the Record shall be numbered in the order printed.

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And clause 7 permits a non-debatable motion to dispense with the normal requirement that an amendment be read before it is debated, but only if the amendment has been printed in the Record in this way or printed in a measure as reported from committee: It shall be in order in the Committee of the Whole House on the state of the Union to move that the Committee of the Whole dispense with the reading of an amendment that has been printed in the bill or resolution as reported from a committee, or an amendment that a Member, Delegate, or Resident Commissioner has caused to be printed in the Congressional Record. Such a motion shall be decided without debate. The House‘s standing rules do not accord any special priority for consideration on the floor to an amendment that has been printed in the Record; the rules do not require, for example, that a Member with a printed amendment be recognized to offer it before another Representative whose amendment is merely handwritten. However, Members who submit their amendments for printing in the Record do gain some assurance of time for debate when they actually propose the amendments in Committee of the Whole. Also, it is not uncommon for special rules to authorize the chair to afford priority in recognition for offering amendments in Committee of the Whole to Members who did submit them in advance for printing. Special rules for considering some measures—often complicated or technical measures, such as tax bills—sometimes permit consideration of only those amendments that have been printed in the Record by a date certain or at least before the measure is called up on the floor. This requirement gives committee members and others an opportunity to study the amendments in advance and evaluate their effect and merit. More generally, the Rules Committee may ask Members to submit to it copies of the floor amendments they want to

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offer to a bill. It is virtually certain that amendments not submitted in response to such a request will not to be made in order under the special rule for that bill.

Debating Amendments The essential rule governing debate on amendments in Committee of the Whole is the five-minute rule, contained in clause 5(a) of Rule XVIII:

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A Member, Delegate, or Resident Commissioner who offers an amendment shall be allowed five minutes to explain it, after which the Member, Delegate, or Resident Commissioner who shall first obtain the floor shall be allowed five minutes to speak in opposition to it. There shall be no further debate thereon, but the same privilege of debate shall be allowed in favor of and against any amendment that may be offered to an amendment. An amendment or an amendment to an amendment may be withdrawn by its proponent only by the unanimous consent of the Committee of the Whole. The five minutes for opposing a first-degree amendment often are claimed by one of the floor managers who supports the measure in its present form; in turn, the sponsor of a firstdegree amendment often seeks recognition for the five minutes to speak against an amendment to her amendment. Time may not be yielded or reserved. This rule clearly states that there shall be only 10 minutes for debating each amendment. Yet debate on an amendment often continues for much longer, sometimes for hours at a time. The explanation for this apparent contradiction lies in the use of pro forma amendments. A Representative offers a pro forma amendment when he or she moves to strike the last word. In theory, this motion is an amendment that proposes to strike out the last word of whatever the Committee of the Whole is then considering—a measure or a portion of it, a first-degree amendment, or an amendment to an amendment. In practice, however, the Committee recognizes pro forma amendments to be only a well-accepted device by which Members secure time for debate. After two Representatives have consumed the 10 minutes provided by Rule XVIII for debating an amendment, any other Member whom the chair recognizes can obtain five minutes to speak simply by moving to strike the last word. A Member also can move to strike the last word when no amendment is pending, if the Member wishes to discuss the measure itself. Technically, the next Member wishing to speak for five minutes should move to strike the last two words because the same amendment cannot be proposed more than once. This leads some Members to move to strike ―the requisite number of words,‖ in order to make certain that they are not offering an amendment for the second time. However, the committee recognizes that there is no point in prohibiting Members from offering the same pro forma amendment more than once because these amendments are not substantive. Thus, many Representatives often move to strike the last word. Because a pro forma amendment is not actually written out, but is only a device to get time for debate, no Member claims five minutes to speak against it, and the committee does not vote on it. When a Member who has made such a motion has used her five minutes or has yielded back the balance of her time, the amendment is deemed to have been automatically withdrawn by unanimous consent.

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The time for debating any amendment, whether substantive or pro forma, may be extended by unanimous consent. When offering an amendment, for example, a Member may expect that five minutes will not be sufficient to explain it. So even before beginning the statement, the Member may ask unanimous consent that an additional five minutes or more be granted. Alternatively, when the chair informs the Member that the five minutes have expired, the Member then may ask unanimous consent to proceed for an additional minute or more. The one who has the floor may yield to others who want to speak; and in turn, a Representative to whom the Member has yielded may ask unanimous consent that the Member be granted additional time so they may continue their exchange.45 Representatives usually do not object to such unanimous consent requests, although they have the right to do so. At any time after the sponsor of an amendment has consumed or yielded back the balance of his five minutes for debate, other Members may seek recognition either to propose a substantive amendment that is in order or to offer a pro forma amendment (even instead of seeking recognition for the five minutes provided by Rule XVIII to speak against the amendment). However, a Representative who has been recognized for one of these purposes may not use it for another; thus, a Member who has been recognized to speak against the amendment under Rule XVIII, or who has moved to strike the last word, may not offer a substantive amendment during that five-minute period. In Committee of the Whole, the chair must recognize a Representative before he or she can propose an amendment or control five minutes for debate. The chair‘s exercise of the power of recognition is not subject to challenge or appeal, but normally the same priorities are followed in recognizing Members to move to strike the last word as in recognizing them to offer substantive amendments. Committee members are recognized before others, and the chair usually recognizes them in an order consistent with their committee or subcommittee seniority. The chair also makes an effort to assure that Members of both parties have roughly the same opportunities to offer amendments and to speak. But it is each Member‘s responsibility to seek recognition at the appropriate time; the chair cannot protect Members‘ rights unless he knows that they wish to exercise them. Pro forma amendments permit each Representative to speak for five minutes on each portion of the measure as it is considered for amendment and on each amendment that Members propose. If every Member took advantage of this opportunity, there could be more than 36 hours of debate per amendment, which would make it impossible for the House to conduct its legislative business in a timely way.46 However, the rules and practices of the House protect against this possibility through a device for bringing debate under the fiveminute rule to an end. This device can effectively prevent a minority from filibustering in Committee of the Whole by debating amendments at great length. By unanimous consent or by motion, the committee may decide to close the debate on (1) an amendment, (2) an amendment and all amendments thereto, or (3) the measure, or a portion of it, and all amendments thereto. In the last case, however, the committee can close debate only on whatever part of the measure has been read or designated for amendment. If a bill is being considered by sections or titles, the committee can end debate only on each section or title as it is considered.47 But if the measure is open to amendment at any point, the committee may close debate on it as a whole, as well as on any amendments that are pending at the time and all other amendments that Members intend to offer.

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After a Representative has proposed an amendment and concluded his five minutes for debate, and at any time that another Member does not control the floor, the majority floor manager may ask unanimous consent that all debate on that amendment (and any amendments to it) be brought to an end. He may request that the debate end immediately, or at a certain stated time, or after the expiration of a specified additional period of time. While any Representative may make such a request, it is unusual for anyone other than the majority floor manager to do so. If another Member objects, or reserves the right to object, that Member and the floor manager may discuss whether the amendment and the issues it raises have been fully argued, and they attempt to find a mutually acceptable accommodation. If the floor manager cannot obtain unanimous consent to his request, he then may make a nondebatable motion to close the debate—immediately, at a time certain, or after a specified period of time.48 The committee agrees or disagrees to the motion by simple majority vote. Again, any Member whom the chair recognizes may make such a motion, but this is a prerogative normally exercised only by the majority floor manager. If the committee agrees to a unanimous consent request or votes for a motion that leaves some time remaining for debate, the chair may continue recognizing Members for five minutes each but also has the authority to dispense with the five-minute rule. Instead, the chair may divide the remaining time between the control of two Members (for example, the sponsor of a pending amendment and the majority floor manager) and allow them to yield part of their time to others as they choose. Or the chair may divide the remaining time equally among the Members who stand to indicate their desire to be recognized. Thus, if the committee agrees to a motion that permits 30 minutes more for debate and 15 Members still want to be recognized, the chair has at least three options: to recognize each of the 15 Members for two minutes each, to recognize only six of the Members for five minutes each, or to recognize only two Members to control 15 minutes each. When all the time for debate has expired, pursuant to a motion or unanimous consent agreement, Members may continue to offer amendments that are otherwise in order but they have no time to explain their amendments, which obviously puts them and their amendments at a significant disadvantage.49 Anticipating this potential problem, clause 8 of Rule XVIII offers Members some protection by reserving five minutes for one of them to explain, and then five minutes for another to oppose, any amendment that has been printed in advance in the Congressional Record: If the Committee of the Whole House on the state of the Union closes debate on any portion of a bill or resolution before there has been debate on an amendment that a Member, Delegate, or Resident Commissioner has caused to be printed in the Congressional Record at least one day before its consideration, the Member, Delegate, or Resident Commissioner who caused the amendment to be printed in the Record shall be allowed five minutes to explain it, after which the Member, Delegate, or Resident Commissioner who shall first obtain the floor shall be allowed five minutes to speak in opposition to it. There shall be no further debate thereon. This rule permits only this 10 minutes of debate on each amendment; Members cannot extend the debate through pro forma amendments. Furthermore, this clause may be superseded by the special rule for considering a bill if, for example, that resolution prohibits consideration of all but certain specified amendments.

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From time to time, a Member who is opposed to a bill or pending amendment secures time for debating it that otherwise would not be available by moving that the Committee rise and report the measure back to the House with the recommendation that the enacting (or resolving) clause be stricken. When a Representative makes this motion, the chair recognizes him and another Member to debate it for five minutes each, after which the committee votes without further debate.50 If the committee agrees to the motion and the House then concurs, the bill is thereby rejected because striking the enacting clause removes from it the language required by law that would be necessary to give the bill statutory force.51 However, Members rarely make this motion with any serious expectation that it will carry. Instead, it is most often used as another device to obtain five minutes for debate. The motion proposing that the enacting clause of a bill be stricken is in order in Committee of the Whole only once each legislative day, unless the bill has been materially changed. And it is in order only so long as there remains time for debating the measure itself. If the committee has agreed to limit further debate on an amendment, for example, and all that time has expired, a Member can still debate the amendment and the bill for five minutes by making this motion. On the other hand, the motion is no longer in order once the committee has concluded debate on the bill and all amendments thereto.

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After the Committee Rises and Reports When the Committee of the Whole has acted on the last amendment to be proposed, the committee rises and reports the bill or resolution back to the House with whatever amendments to the measure it has agreed to. Most special rules provide for the committee to rise and report automatically; in a case where the House resolved into Committee of the Whole by a privileged motion, the majority floor manager makes a non-debatable motion that the Committee rise and report.52 Once the committee rises, the Speaker again presides over the House, and the chair reports to her that the committee has had the bill under consideration and now reports it back to the House, usually with an amendment or several (―sundry‖) amendments. The committee also recommends that the House agree to the amendment or amendments and then pass the bill as amended. The Committee of the Whole only reports the amendments to the measure that it adopted. It does not report any amendments that it rejected nor does it report any amendments to amendments. Thus, if the committee perfects and then adopts a first-degree amendment, it reports only the perfected first-degree amendment. And if the committee concludes the amending process by agreeing to an amendment in the nature of a substitute, as amended, it reports only that amended substitute.53 The House then must vote on the amendments recommended by the Committee of the Whole because, as has been stated, only the House itself actually has the authority to amend the bill. More often than not, the House agrees to all these amendments ―en gros,‖ by one single voice vote. If Members wanted a record vote on one or more of them, they probably obtained it when the Committee of the Whole voted on each amendment. However, any Member has a right to demand a separate vote in the House on any amendment the committee has recommended, and this is very likely to be a roll call vote.54 The goal of requesting a separate vote may be to reverse the result of the earlier vote in favor of the amendment. If the committee agreed to an amendment by a very narrow margin, an opponent may believe that a second, subsequent, roll call vote will produce the opposite result and defeat the amendment.

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In some instances, the request for a separate vote or votes in the House has been undertaken as a dilatory tactic. When Members demand one or more separate votes, the House first agrees to the other amendments en gros by voice vote, and then acts on each of the amendments that require separate votes. Members normally may demand separate votes in the House only on the amendments proposed by the Committee of the Whole to the bill or resolution itself, not on any amendments to those amendments that the committee may have adopted.55 But this right to vote a second time on the committee‘s proposals could be effectively nullified when the committee recommends an amendment in the nature of a substitute. In this situation, the committee reports the bill back to the House with only that one amendment, even though most or all of the other amendments on which the committee voted probably were amendments to the substitute. There are no separate amendments on which Members could demand separate votes in the House. For this reason, when a special rule anticipates or provides that the Committee of the Whole is to consider an amendment in the nature of a substitute, it also routinely permits Members to demand separate votes in the House on amendments to the bill itself or to that substitute. When the Committee of the Whole has reported a bill or resolution and the House acts on the committee‘s recommended amendments, the measure and the amendments are considered under the set of procedures that govern consideration in the House, especially the hour rule. In theory, therefore, the amending process that took place in Committee of the Whole could be repeated under the hour rule. Each amendment the Committee of the Whole reported could be debated for one hour or more and perhaps even amended, depending on when and if the House orders the previous question on the bill and all amendments to it. Then, if the House failed to order the previous question after acting on all the committee‘s amendments, Members could offer their own amendments, each of which would be debatable for at least an hour. But this would not only be repetitious; it would effectively nullify the value of having already considered the bill and amendments to it in Committee of the Whole. To avoid this situation, special rules for considering measures typically provide that, after the Committee of the Whole rises, ―the previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit.‖ The effect of the previous question is to preclude further debate and amendments. Thus, ordering the previous question in advance requires the House to vote on each committee amendment without debate or amendment and precludes Members from proposing additional amendments. In addition, this provision prevents consideration of any other motion except one motion to recommit (discussed below). Consequently, after the House votes on the committee‘s amendments—usually en gros, but with the possibility of one or more separate votes on individual amendments—it votes on engrossment and third reading, and the clerk then reads the title of the measure. This vote, which is never contested, also directs the clerk to engross the bill—to have it printed as the House has amended it.56 After acting on a motion to recommit, if one is made, the House then completes action on the bill by voting to pass or defeat it. A motion to reconsider that vote is routinely tabled ―without objection,‖ making the vote on final passage conclusive.57

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Procedures for Amendments on Which the Votes of Delegates Were Decisive When discussing the House‘s consideration of amendments adopted by the Committee of the Whole, it should be noted that in the 110th Congress, a procedure was incorporated in House rules providing for the automatic reconsideration of certain amendments adopted in the Committee of the Whole if the votes of the territorial delegates and the Resident Commission from Puerto Rico were deemed to have determined the outcome on the question of adopting the amendment. Under changes made to Rule III and Rule XVIII on January 24, 2007,58 when the House is sitting in Committee of the Whole, the Delegates and Resident Commissioner have the same right to vote as Representatives, subject to immediate reconsideration in the House when their recorded votes ―have been decisive‖ in the committee. The rule governing voting in the Committee of the Whole by Delegates and the Resident Commissioner has not been interpreted to mean that any recorded vote with a difference of five votes or less is subject to automatic reconsideration. In determining whether the votes of the Delegates and the Resident Commissioner were decisive, the Chair follows a ―but for‖ test— namely, would the result of a vote have been different if the Delegates and the Commissioner had not voted?59 If the votes of the Delegates and Resident Commission on a question are determined to be decisive by this standard, the committee automatically rises and the Speaker puts the question to a vote. The vote is first put by voice, and any Representative may, with a sufficient second, obtain a record vote. Once the final result of the vote is announced, the Committee of the Whole automatically resumes its sitting.60

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The Motion to Recommit Under clause 6(c) of Rule XIII, not even a special rule may prevent a motion to recommit as provided for under Rule XIX, clause 2, from being made after engrossment and third reading and before the vote on final passage. This motion almost always proposes to recommit the bill or resolution to the committee that reported it. In practice, however, the motion takes one of two forms; one is designed to reject the measure, the other to amend it. A simple or ―straight‖ motion to recommit only proposes to send the bill back to committee. This motion is not debatable.61 If a majority of the House votes for it, the measure is returned to committee. While the committee has the option to re-report the legislation, it rarely does so. In practice, adoption of a simple motion to recommit has the effect of killing the bill. In other words, this motion offers Members an indirect opportunity to defeat the bill, and the opportunity arises immediately before they would vote directly on final passage. For these reasons, simple motions to recommit are not made frequently and rarely succeed. The alternative is a motion to recommit the bill to committee ―with instructions.‖ These instructions may take various forms. For example, they may direct the committee to hold additional hearings on some issue relating to the bill before reporting it back to the House. In most cases, however, the instructions direct the committee to report the bill back to the House immediately (―forthwith‖) with one or more amendments stated in the motion. Clause 2 of Rule XIX provides for ten minutes of debate on a motion to recommit with instructions, but also permits the majority floor manager to demand that the debate be extended to an hour. In either case, the time for debate is divided between the Representative making the motion and the majority floor manager or another Member opposing it.62

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A motion to recommit with instructions usually constitutes one last attempt to amend the bill before the House votes on passing it. The instructions typically direct the committee to report the bill back to the House ―forthwith‖ with a certain amendment. When the House votes for such a motion, it is telling one of its committees exactly what it must do, and it also is requiring the committee to act immediately. Under these circumstances, there is no point in the committee actually meeting to comply with the instructions because it has been given no time or discretion. Instead, the committee chair immediately rises on the floor and states that, pursuant to the motion and on behalf of the committee, the bill is reported back to the House with the amendment. The House then votes on the amendment itself, normally agreeing to it by voice vote because the amendment presents the same policy choice as the motion to recommit on which the House just voted. Finally, the House votes on passage of the bill as it now has been amended by the motion to recommit with instructions. Although less common, a motion to recommit with instructions may instead direct a committee to report back with an amendment or amendments ―promptly,‖ rather than ―forthwith.‖ Such wording sends the bill to committee, whose eventual report (if any) is not immediately before the House as it would be when the word ―forthwith‖ is used. In addition, these instructions are considered advisory and are not required to be carried out by the committee.63 Because of this, some have characterized the use of the word ―promptly‖ in a motion to recommit with instructions as an attempt to kill, not amend, a measure.64 Only one motion to recommit is in order; but if one is ruled out of order, another can be proposed.65 In addition, two other important kinds of constraints on the recommittal motion affect who may make it and what instructions it may contain. First, in order to qualify to offer the motion, a Representative must be opposed to the measure, at least in ―its present form.‖ Equally important, this motion is the prerogative of the minority party; the Speaker recognizes any Member of the minority to make it before recognizing any Member of his own party. The Speaker gives preference in recognition to the Minority Leader or his designee to offer the motion, and then to a minority party Representative who serves on the committee that reported the bill. Second, when the instructions contain an amendment, that amendment must comply with the principles and prohibitions that apply to amendments under other circumstances. Members may not propose as instructions anything that they could not have proposed directly as amendments. For instance, a Member may make a point of order against a motion to recommit with instructions if the instructions require the committee to report the bill back with an amendment that is not germane. Similarly, a recommittal motion may not propose instructions to amend a part of the bill that the House already amended when it agreed to the amendments recommended by the Committee of the Whole. Once again, a special problem could arise when the Committee reports a bill or resolution back to the House with a single amendment in the nature of a substitute. When the House agrees to this amendment, it thereby amends every part and provision of the measure. This common occurrence could preclude any recommittal motion with instructions containing an amendment, because such a motion would be subject to the point of order that it violates the prohibition against amending something that already has been amended. With this potential problem in mind, when a special rule anticipates or provides that the Committee of the Whole is to consider an amendment in the nature of a substitute, it normally provides explicitly for a motion to recommit ―with or without instructions.‖ This phrase, as well as the provisions of

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Rule XIII, clause 6, permits the instructions to contain an amendment, even if the effect of agreeing to the recommittal motion would be to re-amend the text of the measure.66

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In the House as in Committee of the Whole As its name implies, ―the House as in Committee of the Whole‖ is a hybrid set of procedures, involving some of the characteristics of consideration under the hour rule in the House and some of those applicable to consideration under the five-minute rule in Committee of the Whole. These procedures are utilized infrequently. Traditionally, they have been used to act on measures concerning the District of Columbia, reported by the Committee on Oversight and Government Reform. When the chair of this committee calls up a measure, which is privileged on the second and fourth Mondays of each month under clause 4 of Rule XV, he may ask unanimous consent that it be considered in the House as in Committee of the Whole. The House occasionally acts on other public bills and resolutions under these procedures, either by unanimous consent or pursuant to a special rule.67 When the House acts on a measure in this way, the Speaker continues to preside over the House. There is no general debate and the bill or resolution is considered as having been read for amendment. It is immediately open to amendment at any point and all debate is governed by the five-minute rule.68 Thus, the majority and minority floor managers secure time for making their opening statements by moving to strike the last word. Other Members then may offer substantive or pro forma amendments, the Speaker normally following the same priorities for recognition as does the Chair of the Committee of the Whole. In general, the same rules, principles, and practices governing the amending process in Committee of the Whole also apply in the House as in Committee of the Whole, except that measures are not read for amendment. There is one other important exception. In the House as in Committee of the Whole, a Member may move the previous question on an amendment (and all amendments thereto) or on the measure as a whole (and all amendments thereto), just as in the House.69 This motion, which is invariably made by the majority floor manager, permits the House to decide by majority vote whether it wishes to consider amendments and how long it wishes to debate the bill and any amendments that Members do offer. After the House orders the previous question, or if no one seeks recognition, the House votes on engrossment and third reading of the measure, then on a recommittal motion if offered, and finally on passing the bill.70

Under Suspension of the Rules Individual Representatives may not offer floor amendments to a measure considered under suspension of the rules.71 However, amendments to the measure may be included as part of the motion itself. A Member may move to suspend the rules and pass a certain bill ―as amended.‖ After the 40 minutes of debate permitted on a suspension motion is used or yielded back, the House then casts one vote on suspending the rules and passing the bill as proposed to be amended under the terms of the motion. No separate vote on the amendments, individually or collectively, is in order.72 Support by two-thirds of the Members present and voting is required to pass a measure under suspension of the rules.

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A suspension motion typically is made by a committee or subcommittee chair. Consequently, the amendments proposed as part of the motion are usually committee amendments, or at least amendments making post-committee adjustments supported by the chair of the committee or subcommittee of jurisdiction. The amendments also enjoy the support or acquiescence of the Speaker, because the Speaker has discretion in deciding whether or not to recognize a Member to offer a suspension motion.

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THE AMENDMENT TREE The amending process on the House floor normally does not become very complicated. As has been noted, amendments usually are not proposed to measures considered in the House, under the hour rule, because the House precludes them by voting to order the previous question. Although it is possible to propose amendments to bills and resolutions considered in the House as in Committee of the Whole, these procedures are rarely used. Finally, the House acts on more measures under suspension of the rules than under most other procedures, and no floor amendments are in order at all under the suspension procedure. It is when the House has resolved into Committee of the Whole to consider a measure that Representatives are most likely to offer amendments, some of which Members may debate at length. More often than not, however, there are few, if any, procedural complications. In many cases, the amendment process will be limited and scripted by the terms of a structured special rule adopted by the House. Even under an open rule, however, the amendment process rarely becomes complicated; a Member proposes an amendment and other Members join her in debating it; the Committee of the Whole eventually votes on the amendment and proceeds to consider the next amendment to be proposed. Alternatively, another Member may offer a second-degree amendment to the amendment, and the committee then votes on the second-degree amendment before voting on the first-degree amendment, as it may have been amended. Yet from time to time, the amending process does become more complex, as Members take advantage of the opportunities afforded by clause 6 of House Rule XVI: When an amendable proposition is under consideration, a motion to amend and a motion to amend that amendment shall be in order, and it also shall be in order to offer a further amendment by way of substitute for the original motion to amend, to which one amendment may be offered but which shall not be voted on until the original amendment is perfected. An amendment may be withdrawn in the House at any time before a decision or amendment thereon. An amendment to the title of a bill or resolution shall not be in order until after its passage or adoption and shall be decided without debate. This rule creates the possibility for as many as four (and sometimes even five or more) amendments to be proposed before Members must vote on any of them. It would be extraordinary for such a situation to develop when bills are considered in the House or in the House as in Committee of the Whole, and it arises infrequently in Committee of the Whole. Nonetheless, Rule XVI, clause 6, creates a number of strategic possibilities that Members can employ when they believe it to be in their interests to do so. The situation that may result can be depicted graphically and is often described as the ―amendment tree.‖

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The amending situations that may develop depend primarily on the form of the firstdegree amendments that Representatives offer. If a Member proposes a first-degree amendment in the form of a motion to insert or, in most cases, in the form of a motion to strike out and insert, this amendment tree depicts the kinds of amendments, and the maximum number of amendments, that Representatives may propose before the Committee of the Whole (or the House) must vote on any one of them. Somewhat different situations, to be discussed later, may arise if the first-degree amendment is a motion to strike out or if it is an amendment in the nature of a substitute proposing to replace the entire text of the measure.

Figure 1. The Amendment Tree

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Motions to Insert and to Strike Out and Insert Assume that a Representative proposes an amendment that would insert something into a measure, or that would replace part but not all of it. No other first-degree amendment may be offered until after the committee votes on this amendment. And this being a first-degree amendment, it is amendable. The amendment to the amendment may either be a secondperfecting amendment that would strike from, add to, or replace something in the first-degree amendment, or it may be a substitute amendment that proposes a complete alternative to what the first-degree amendment would insert or strike and insert. Under Rule XVI, both of these amendments are in order. After one Member proposes a second-perfecting amendment, and before the committee votes on it, another Representative may offer a substitute for the first-degree amendment. And it is equally possible for Members to propose these two amendments in the opposite order. Thus, Members can offer two different amendments, each directed toward the first-degree amendment, before the committee votes on either of them. In addition, Rule XVI provides that the substitute for the same first-degree amendment also is amendable. Another Member may propose an amendment to the substitute, either before or after the second-perfecting amendment is offered. And the amendment to the substitute is in order even though it could be construed to be a third degree amendment (an amendment to a substitute amendment for an amendment), which normally is prohibited.73 In this way, Members may propose four different amendments before any votes must occur. The Representative offering the first-degree amendment may not propose the perfecting amendment to, or the substitute for, her amendment, because a Member may not amend her own amendment. However, this Member may amend the substitute for her amendment. After Representatives have offered these four amendments, they and other Members may continue to debate them. When there is no more debate or when the committee has voted to end the debate, Rule XVI specifies the order in which the committee votes on the amendments. First Members vote on the second-perfecting amendment, thereby perfecting the first-degree amendment. Next comes the vote on the amendment to the substitute, which perfects the alternative to the first-degree amendment. Third, the committee votes on the substitute amendment, as it may have been amended. And finally, a vote occurs on the original first-degree amendment, again as it may have been amended.74 In this way, the committee can perfect two alternatives before choosing between them. The substitute for the first-degree amendment presents the committee with a choice between two alternatives. One alternative, the first-degree amendment, is perfectible by a seconddegree amendment. Therefore, Rule XVI also permits the committee to perfect the other alternative, the substitute amendment.75 Both alternatives are perfected before the committee votes on the substitute and thereby chooses between the two of them. If the substitute wins, the last vote—on the first-degree amendment, as amended by the substitute—is nothing more than a second vote on the same substantive proposal made by the substitute. On the other hand, if the substitute loses, the committee usually ratifies its decision by agreeing to the firstdegree amendment (perhaps as perfected). The committee may reject the first-degree amendment, whatever the outcome of the preceding votes, but the decisive vote more often occurs on the substitute amendment.

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By their amendments, Representatives may create only part of this amendment tree. For instance, different Members may offer a perfecting amendment to, and a substitute for, a firstdegree amendment, but no amendment to the substitute. Or they may propose a substitute for the first-degree amendment and an amendment to that substitute, but no second-perfecting amendment. In any event, the order in which the committee votes on the amendments that Members do offer remains the same: the first votes are to perfect either or both alternatives before the committee votes on a substitute, if any. Furthermore, the situation depicted by the amendment tree is not necessarily a static one. There may only be one amendment on each ―branch‖ of the amendment tree at a time. But after the committee votes on each amendment, a Member can offer a different amendment on the same branch, subject to the prohibition against attempting only to re-amend matter that already has been amended. A Member who seeks recognition may offer an amendment on any unoccupied branch of the tree, if it is otherwise in order, and no Member can claim a right to be recognized before another because of the nature of the amendment he wishes to offer. After the committee votes on a second-perfecting amendment, for example, it does not necessarily proceed to act immediately on the next amendment in the voting order. Instead, a Member may propose another second-perfecting amendment, so long as it would not only reamend something already amended. The committee then debates and votes on this new amendment, and any other subsequent perfecting amendments, even if a substitute amendment and an amendment to it had been offered previously. In other words, Members may offer a series of second-perfecting amendments, each addressed to matter in the firstdegree amendment that has not yet been fully amended, and the committee acts on each of these amendments in turn before voting on the amendment to the substitute and the substitute itself. If no Member seeks recognition to offer another second-perfecting amendment, the committee votes on the amendment to the substitute, after which a Representative may propose a different amendment either to the substitute or to the first-degree amendment. The vote on an amendment to the substitute does not preclude additional perfecting amendments to the first-degree amendment. And should the committee eventually reject the substitute, the first-degree amendment remains open to another substitute and to other perfecting amendments. The amending process may continue until the first-degree amendment has been fully amended or until Members have no further amendments they wish to offer.76 The opportunities that Rule XVI offers suggest several strategic considerations. If Member A plans to offer an amendment to a bill and knows that Member B is likely to have a different amendment on the same subject, it is not necessarily advantageous for Member A to offer his proposal as a first-degree amendment. Member B then can offer her amendment either as a perfecting amendment or as a substitute, and should it win, there will be no ―clean,‖ direct vote on the unamended version of Member A‘s original first-degree amendment. If Member A does offer his amendment as a first-degree amendment to the bill, Member B may decide to propose her amendment as a second-perfecting amendment (if that can be done in a way that makes substantive sense), so that the Committee of the Whole will first vote on Member B‘s position. But if Member B adopts this strategy, Member A can attempt to re-coup the situation by having Member C offer a slightly changed version of Member A‘s amendment as a substitute for that amendment. Thus, even if the committee votes for Member B‘s second-perfecting amendment, it could vote for Member A‘s basic position as well by

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adopting Member C‘s substitute. And if the committee votes for both amendments, it is Member C‘s amendment that ultimately prevails, because the effect of adopting a substitute for an amendment is to fully replace the text of that amendment as it already may have been amended by one or more perfecting amendments. Of course, Member C‘s substitute also is amendable. So Member B or a colleague could offer the substance of her proposal a second time, as an amendment to the substitute. Although a Member may not offer the same amendment twice, Member B may propose equivalent amendments to both the first-degree amendment and the substitute for it, because each of her amendments would amend a different text. Anticipating this development, Member A or another ally could seek recognition first to offer an amendment to the substitute that is consistent with Member A‘s original proposal. Finally, after the committee votes on both perfecting amendments—one to the first-degree amendment, the other to the substitute— Members might still be able to offer additional perfecting amendments to either. Alternatively, Member B could propose a substitute for Member A‘s first-degree amendment. To ensure that the eventual vote on the substitute would not preclude a vote on Member A‘s position, an ally of his could offer a second-perfecting amendment on which the committee will vote first. If the committee votes for this perfecting amendment, it may be unwilling to vote also for a substitute that is inconsistent with the amendment already adopted. But if the substitute prevails, the victory achieved by the second-perfecting amendment is lost, because the substitute will replace the text of the first-degree amendment as perfected. Member A‘s ally also has the option of amending Member B‘s substitute; if the committee supports that amendment, there will be no ―clean‖ vote on the substitute. In response, however, Member B or an ally might obtain a vote on the essence of their position in the form of a second-perfecting amendment to Member A‘s original amendment. As these possibilities suggest, there is no ideal strategy for Representatives to adopt when they anticipate the development of an amendment tree. A Member‘s preferred strategy can depend on such considerations as the amount and intensity of the support for the Member‘s position and the importance of having the committee vote first on that position. The nature of the issue also may matter. In some cases, Members may be inclined to vote for more than one approach to responding to a widely shared concern; in others, Members are less likely to vote for one approach and then to vote as well for a second, inconsistent approach. In addition, the positions of the Representatives offering the amendments can make a difference. The sequence in which the amendments actually are offered depends on the order in which the chair recognizes Members to propose them. And the chair traditionally gives preference in recognition to the senior members of the committee that reported the bill being considered. Another implication of these possibilities is that the way in which an amendment is drafted— whether as a perfecting or a substitute amendment—depends not only on the nature of the proposal but also on the parliamentary circumstances under which it is likely to be offered. This is particularly true of amendments to amendments, which Members and staff may have to prepare after the floor debate has begun. It sometimes is advisable to draft the same amendment in several different forms, to preserve procedural flexibility and to maximize the likelihood that the Member actually will have an opportunity to offer it. Even then, the amendment‘s sponsor may have to complete the drafting process on the floor by ―keying‖ it to the appropriate page and line numbers of the text she intends to amend. Thus far, this discussion of the amendment tree has assumed that the first-degree amendment from which the tree ―grows‖ is either (1) a motion to insert or (2) a motion to

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strike out and insert which affects only part of the measure‘s text. Somewhat different opportunities arise if, instead, the first-degree amendment is a motion to strike out or an amendment in the nature of a substitute (proposing to strike out the entire text of the measure and insert a different version in its place).

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Motion to Strike Out A motion to strike out usually is not amendable; in the conventional practice of the House, Members do not offer perfecting amendments to, or substitutes for, such motions. However, House precedents do permit Members to propose amendments to the part of the measure that the motion would strike. In other words, the House can perfect a part of a bill or resolution before deciding whether to strike it.77 In this case, therefore, two Members can propose first-degree amendments to the text of a measure before the Committee of the Whole votes on either of them—the amendment to strike and the amendment to change the text proposed to be stricken. The latter amendment can be a perfecting amendment—replacing, striking, or adding to part of the language to which the motion to strike is directed. Or the amendment may be a substitute for whatever the first amendment offered would strike. In either case, the amendment to the text proposed to be stricken is a first-degree amendment that is amendable, and the other three branches of the amendment tree may ―grow‖ on this amendment. Thus, five amendments may be offered before any votes occur: first, the motion to strike; second, an amendment to the text proposed to be stricken; and then, a perfecting amendment to the second amendment, a substitute for it, and an amendment to the substitute. All of the preceding discussion of the amendment tree applies to this situation, with one exception. After the committee votes on all the other amendments, there also may be a final vote on the original motion to strike. If the amendment that comes behind the motion to strike is a perfecting amendment, the committee votes on the perfecting amendment and then on the motion to strike. But if the amendment proposes to replace the whole text at which the motion to strike is directed, and if it attracts a majority vote on the floor, no vote occurs on the motion to strike. The matter proposed to be stricken has been completely amended, so the motion to strike becomes an attempt to re-amend something that the committee already has amended. The chair announces that the motion to strike ―falls‖ without the need for a vote because the motion is no longer in order.78

Amendment in the Nature of a Substitute for a Measure Finally, a considerably more elaborate amendment tree can develop when a Member offers an amendment in the nature of a substitute for the entire text of a bill or resolution, though there are procedural reasons why this rarely occurs. Such an amendment in the nature of a substitute presents the Committee of the Whole with a choice between two versions of the bill: the version embodied in the bill as it was introduced and brought to the floor, and the version embodied in the complete substitute. The amendment in the nature of a substitute is a first-degree amendment, and so it is amendable to the same extent as any other first-degree amendment. The amendment is perfectible; in

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addition, it is subject to a substitute (in effect, a third version of the bill) which also is amendable. After the committee votes on all amendments to the amendment in the nature of a substitute, it then votes on that complete substitute as it may have been amended. If the committee adopts the amendment in the nature of a substitute, it replaces the entire text of the measure, amending it fully. This precludes any further amendments to the bill because of the prohibition against re-amendment. If this were the extent of the amendments in order, the Committee of the Whole would be able to perfect one version of the bill but not the other. It could vote on amendments to the amendment in the nature of a substitute before voting on it, and thereby choosing between it and the other version, the text of the bill. But it could not perfect the text of the bill itself before making this choice. For this reason, House precedents allow Members to offer amendments to the bill itself as well as to the complete substitute for it. The result is the potential for Members to offer eight amendments before the committee begins to vote: the amendment in the nature of a substitute and three amendments relating to it, and four amendments relating to the original text of the bill. Under such a scenario, two full trees of the type depicted above would arise. After a Representative proposes the complete substitute, another Member may offer an amendment to the substitute or a first-degree amendment to perfect the pending part of the original version of the bill. If the latter is offered, it is subject to the same amendment tree as any other first-degree amendment (unless, of course, it is a motion to strike). If any or all of this two-trunk tree develops, the committee votes first on amendments to the perfecting amendment and then on the perfecting amendment (perhaps as amended), before it acts on amendments relating to the amendment in the nature of a substitute. And after the vote on the perfecting amendment to the bill, Members may propose additional perfecting amendments, one at a time, and amend and vote on them, while the complete substitute and any amendments to it remain pending. Fortunately, there are at least two reasons why such extremely complicated situations rarely develop. Most amendments in the nature of substitutes for measures are committee amendments (or substitutes supported by committee chairmen) which special rules regularly make in order as the original text to be amended. Under such a rule, it is the substitute, not the bill, that is read for amendment and may be amended in two degrees. Members may not offer amendments to the text of the bill as introduced until after voting on all amendments to the amendment in the nature of a substitute and on the substitute itself, and then only if the committee rejects it. Because the Committee of the Whole rarely, if ever, rejects an amended committee substitute, it almost never reaches the original text of the bill. And even if this were to happen, both versions would not be open to amendment at the same time. First the committee would act on the substitute and all amendments to it, and then on amendments to the original version of the bill. The two-trunk amendment tree is unlikely to develop even if a special rule does not provide for the Committee of the Whole to consider the amendment in the nature of a substitute as original text, and, instead, a Member offers it as a first-degree amendment. The reason lies in two elements of the amending process. First, as already noted, a Representative may propose an amendment in the nature of a substitute at only two points during the amending process in Committee of the Whole: either at the very beginning, after the first section has been read, or at the very end, after the committee has disposed of all other amendments. Second, Members may only propose amendments to that portion of the measure

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itself that has been read or designated for amendment, and bills and resolutions typically are considered for amendment section by section or title by title. If the substitute is offered at the beginning, after the clerk reads or designates the first section of the bill, Members can propose amendments to any part of the substitute but only to the first section of the bill (which often does nothing more than state its short title).79 The clerk resumes reading the remaining sections or titles of the bill for amendment only after the committee acts on all amendments to the substitute and then rejects it. Unless the committee agrees, by unanimous consent, to consider the entire bill as read and open to amendment at any point, this situation effectively precludes substantive amendments to the text of the bill while the amendment in the nature of a substitute is pending. If, on the other hand, a Member proposes the substitute at the end of the process, the committee already will have considered and voted on whatever amendments to the bill itself Members wished to offer. There is little likelihood that they would want to propose many additional amendments to it after the complete substitute is finally offered. Except under the most extraordinary circumstances, therefore, only the first of the two amendment tree develops on the House floor. Also, while in theory this tree could grow during consideration of measures in the House or in the House as in Committee of the Whole, this is even more unlikely. In practice, Members do not create amendment tree very often, and then only in Committee of the Whole.

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SPECIAL PROCEDURES FOR TAX AND APPROPRIATIONS MEASURES In addition to the principles and prohibitions that apply to all amendments, House Rule XXI imposes certain special restrictions and procedures governing floor amendments to tax and appropriations measures. Clauses 4 and 5 are intended to ensure that Members offer tax and appropriations amendments only to measures on those subjects that have been reported by the appropriate House committees. Clause 4 prohibits consideration of ―an amendment proposing an appropriation...during the consideration of a bill or joint resolution reported by a committee not having that jurisdiction‖— namely, any committee other than the Appropriations Committee. And similarly, clause 5(a) provides for a point of order against ―an amendment in the House or proposed by the Senate carrying a tax or tariff measure...during the consideration of a bill or joint resolution reported by a committee not having that jurisdiction‖—namely, any committee other than the Ways and Means Committee. The same clause contains two other provisions affecting tax measures. First, no amendment, measure, or conference report is in order if it proposes a retroactive increase in federal income tax rates. Second, a three-fifths vote is required to approve any amendment, bill or joint resolution, or conference report that carries a federal income tax rate increase. Clause 2 also includes provisions, which are invoked more often than those of clause 4 or 5, that restrict amendments to general appropriations measures. Their essential purposes are (1) to enforce the requirement that appropriations are to be authorized by law and (2) to preserve a separation between policy and funding decisions. These restrictions apply only to general appropriations bills, but not to other legislation that may include appropriations.80

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Clause 2(a)(1) states that almost all appropriations must have been authorized by law before they may be considered on the House floor, whether as provisions of bills and resolutions or as amendments to them: An appropriation may not be reported in a general appropriation bill, and may not be in order as an amendment thereto, for an expenditure not previously authorized by law, except to continue appropriations for public works and objects that already are in progress. Furthermore, clause 2(c) provides in part that:

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An amendment to a general appropriation bill shall not in order if changing existing law. . . . Enforcing the second of these prohibitions depends on what constitutes a change in existing law, or ―legislation.‖ The House has traditionally distinguished between ―legislation‖ and a ―limitation,‖ which is an appropriations provision or amendment that restricts the purposes for which or the means by which appropriations may be used. An amendment limiting the availability of appropriations may be in order if it meets the requirements of a complex body of precedents:81 for example, if it applies only to the funds appropriated by the bill or resolution to which it is offered (and not to the funds appropriated by ―this or any other act‖), and if it does not impose any new duty or responsibility on an official of the federal government.82 However, clause 2(d) imposes special procedures relating to limitation amendments. A Member wanting to offer a limitation to a certain paragraph of a general appropriations bill may not do so after the clerk has read that paragraph, even though that normally would be the appropriate time for offering an amendment in Committee of the Whole. Instead, as the bill is read for amendment, the Committee of the Whole considers and acts on all amendments except limitations. Then, after the bill has been completely read for amendment and the committee has voted on the last amendment, a Representative may propose a limitation amendment relating to any paragraph of the bill or to the bill as a whole. But clause 2(d) provides a means by which the House can vote not to consider this or any other limitation. Either before a Member proposes a limitation amendment, or after she offers it but before debate begins, the majority floor manager can offer a preferential and non-debatable motion that the committee rise and report the bill back to the House with whatever amendments the committee already has adopted.83 The Committee of the Whole normally does not rise and report until after it has considered all the amendments that Members wish to offer. In this case, however, the committee can vote against considering a limitation amendment by agreeing to a motion to rise and report before the limitation is proposed or before debate on it begins. If the motion is rejected, the limitation amendment is in order. But after the committee votes on that amendment, the floor manager again may move that the committee rise and report, and thereby preclude consideration of the next or any subsequent limitation.84 Thus, this special procedure under clause 2(d) permits the Committee of the Whole to cast a vote which, in effect, can preclude Members from proposing one or all limitation amendments that otherwise would be in order. Clause 2(f) of Rule XXI also contains an exception to the general principle that, when a bill is being read amendment in Committee of the Whole, Members may offer amendments

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only to the part of the bill that has been read (or designated) and is open to amendment. Clause 2(f) permits a Member to offer amendments en bloc if the combined effect of the amendments is to ―transfer appropriations among objects in the bill without increasing the levels of budget authority or outlays in the bill.‖ Such amendments are in order even if they amend portions of the bill that have not yet been read for amendment, and the amendments are not subject to a demand that they be divided and considered separately.85 House rules also limit the ability of Members to add so-called ―earmarks‖ to legislation via certain types of amendment. Under Clause 9 of Rule XXI, it is not in order to consider amendments to bills or joint resolutions, ―to be offered at the outset of its consideration for amendment by a member of a committee of initial referral‖ unless the proponent has caused a list of congressional earmarks, limited tax benefits, and limited tariff benefits in the amendment (and the name of any Member, Delegate, or Resident Commissioner who submitted a request to the proponent for each respective item included in such list) or a statement that the proposition contains no congressional earmarks, limited tax benefits, or limited tariff benefits to be printed in the Congressional Record prior to its consideration. Clause 10 of Rule XXI is known as the House‘s ―pay-as-you-go,‖ or ―PAYGO‖ rule. This provision requires that bills and joint resolutions—as well as amendments thereto—that affect direct spending or revenues must not increase the deficit or reduce the surplus over a six-year window. This window includes the current year, the upcoming fiscal year, and the four following fiscal years, as well as an 11-year period (the period cited above as well as the ensuing five fiscal years). This requirement, like all other rules of the House, may be waived by a special rule. Beginning in the 110th Congress, when crafting special rules on certain measures affecting direct spending or revenues, the Rules Committee has ―strongly encouraged‖ Members to send their amendments to the Congressional Budget Office (CBO), ―for analysis regarding possible violations of the PAYGO rule before submitting them for Rules Committee consideration.‖86

MAKING AND RESERVING POINTS OF ORDER Several sections of this report have identified points of order to which amendments may be subject. If a Representative makes a point of order against an amendment and the point of order is sustained, the amendment may not be considered. The Speaker or the chair of the Committee of the Whole usually does not rule an amendment out of order until after a Member makes a point of order against it. It is the responsibility of each Member to enforce the procedures of the House, and thereby protect her own rights, by making appropriate points of order. If no Member makes a point of order, an amendment normally may be considered even though it violates some requirement of the House‘s legislative procedures. When a Representative wants to make a point of order against an amendment, she usually does so as soon as the amendment is offered, or she may reserve the point of order before the debate begins and then make it at a later time during debate on the amendment. However, the special rule under which a measure is being considered may waive applicable points of order against specific amendments that Members are expected to propose. Furthermore, no point of order lies against an amendment presented to the House as part of a motion to suspend the

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rules and pass a measure as amended; the suspension procedure has the effect of waiving all points of order that otherwise might lie against the bill or any amendment incorporated in the motion. In almost all cases, there is only one appropriate moment for making a point of order against an amendment: after the clerk has finished reading the amendment, or after the reading has been dispensed with by unanimous consent, but before the sponsor of the amendment begins to debate it.87 In some cases, therefore, a Member may insist on having an amendment read in full to give him time to examine it. Once debate begins on the amendment, in most cases it is too late to make a point of order against it. The exceptions to this general rule are points of order made under clauses 4 and 5 of Rule XXI, prohibiting an appropriations or tax amendment to a measure that was not reported by the appropriate committee. Such a point of order ―may be raised at any time;‖ a Member may make it at any time that the Committee of the Whole is considering the amendment under the five-minute rule. Instead of making a point of order against an amendment at the appropriate time—before there has been any debate on it—a Member may seek to ―reserve‖ the point of order, and then make it after there have been five or more minutes of debate on the amendment.88 There are two primary reasons for doing so. First, the Member may want more time to study the amendment, to decide if it is subject to a point of order and, if so, whether she chooses to make it. Second, the Member may intend to make a point of order but prefers to allow the amendment‘s sponsor (and perhaps other Members) some time to discuss it. If a Member reserves a point of order and a colleague then demands ―the regular order,‖ the ―chair hears and rules on the point of order as expeditiously as possible.‖89 Members do not have any right to debate points of order; instead, the chair has discretion to entertain as much or as little debate for his information as he wishes. Traditionally, the Speaker or the chair recognizes the Member making the point of order to explain the basis for it—identifying the principle, rule, or precedent that the amendment violates—and to argue in favor it. The sponsor of the amendment next has an opportunity to defend it against the point of order, after which the chair may recognize other Members to speak on the procedural question. The Speaker or chair then makes a ruling, with the advice of the parliamentarian, which reflects past interpretations of the applicable rules and precedents. Any Member may appeal the ruling of the chair on a point of order against an amendment, in which case the House then decides by majority vote whether to sustain or overturn the ruling.90 But this is rarely done, and virtually never done successfully. The presiding officer of the House has not been overruled against his will in more than 50 years. Thus, rulings of the chair, either in the House or in Committee of the Whole, are conclusive for all practical purposes.

SUMMARY OF THE EFFECTS OF SPECIAL RULES There have been references throughout this report to the usual or possible impact of special rules on the amending process. These effects are summarized here.91 First, special rules usually specify the set of procedures under which the House considers a measure. The overwhelming majority of rules provide for consideration in Committee of the

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Whole, but they may state instead that a bill or resolution is to be considered in the House or in the House as in Committee of the Whole. On rare occasions, special rules concerning general appropriations measures, which are privileged for floor consideration, may only waive points of order against the measure, its provisions, and amendments to it. Second, special rules specify the length of general debate in Committee of the Whole and allocate it between or among committee chairmen, ranking minority members, and in rare instances, other Members as well. Third, special rules routinely provide for an amendment in the nature of a substitute, usually recommended by the committee that reported the measure, to be considered as an original bill for purpose of amendment. The effect of this provision is to make the substitute amendable in two degrees and to direct all amendments to it, rather than to the text of the measure as introduced, except in the unlikely event that the committee ultimately rejects the substitute. Fourth, special rules may restrict the amendments that Representatives can offer in Committee of the Whole. A ―closed rule‖ precludes all amendments, or all but those offered at the direction of the committee of jurisdiction. A ―structured‖ rule is a restrictive special rule that either permits only the amendments identified by the special rule or prohibits amendments on certain subjects or to certain parts of the measure. Modified open rules permit amendments to be offered as long as they have been preprinted in the Congressional Record. Special rules also may prohibit amendments to amendments. Fifth, special rules may waive points of order against one or more committee amendments or amendments that Members intend to offer. Sixth, and finally, special rules typically provide for the previous question to be considered as ordered when the Committee of the Whole rises and reports the measure back to the House. This provision prohibits debate on the amendments that the committee has recommended and prevents Members from offering additional amendments at this late stage of the process.

SOURCES OF ADDITIONAL INFORMATION House of Representatives The following official publications of the House contain further information on the amending process and related procedures: Constitution, Jefferson‟s Manual, and Rules of the House of Representatives of the United States, published each Congress as a House document. (Cited in the notes as House Rules and Manual.) William Holmes Brown, Charles W. Johnson, House Practice, A Guide to the Rules, Precedents, and Procedures of the House, 108th Congress, 1st session. Washington: GPO, 2003. Procedure in the U.S. House of Representatives, 97th Congress. Washington: GPO, 1982. Procedure in the U.S. House of Representatives, 1985 and 1987 Supplements. Washington: GPO, 1985 and 1987.

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Cannon‟s Procedure in the House of Representatives. 87th Congress, 2nd session. House Document No. 610. Washington: GPO, 1963. Hinds‟ and Cannon‟s Precedents of the House of Representatives of the United States (in 11 volumes). Washington: GPO, 1907 and 1936. Deschler‟s Precedents of the U.S. House of Representatives and Deschler-Brown Precedents of the U.S. House of Representatives (in 16 volumes to date). 94th Congress, 2nd session. House Document No. 94-661. Washington: GPO, 1977.

House Parliamentarian The parliamentarian and his assistants welcome inquiries about House procedures, and offer expert assistance compatible with their other responsibilities.

End Notes

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1

This report was originally written by Dr. Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS. 2 All citations in this report, which necessarily are selective, are to the rules of the 110th Congress; the annotations to the rules appearing in the House Rules and Manual for the 109th Congress (H.Doc. 108-241), and the precedents compiled and published in House Practice, A Guide to the Rules, Precedents, and Procedures of the House, (cited as House Practice), Procedure in the U.S. House of Representatives and its 1985 and 1987 Supplements (cited as House Procedure, House Procedure, 1985 Supplement, and House Procedure, 1987 Supplement). The amendment process also is the subject of volume 9 of Deschler-Brown Precedents of the U.S. House of Representatives. 3 This report only addresses the amending process that may take place on the floor before the House first votes on passing a measure. It assumes a basic familiarity with some of the other stages of the legislative process, such as committee hearings, markups, and reports, the manner in which measures reach the House floor for consideration, and the general purposes and uses of special rules. CRS reports that discuss some of these and related subjects are listed at the end of this report. 4 Clause 5 of Rule XV provides for considering private bills and resolutions under this procedure, although it is rarely used in practice. 5 Unless otherwise noted, references throughout this report to the House also apply to the Committee of the Whole. Clause 12 of Rule XVIII states that ―[t]he Rules of the House are the rules of the Committee of the Whole House on the state of the Union so far as applicable.‖ 6 House Practice, ch. 2, sec. 14, p. 29. When the amendment to an amendment is a substitute, the substitute may be amended. See the section on ―The Amendment Tree.‖ 7 While an amendment in the nature of a substitute is in every instance a ―motion to strike out and insert,‖ the term ―amendment in the nature of a substitute‖ applies only to those motions which propose to strike out an entire pending text and to insert new matter and is not used to describe those motions to strike out and insert which may be properly characterized as ―perfecting amendments‖ and which go only to a portion of the pending text. House Practice, ch. 2, sec. 7, p. 21. 8 The enacting clause reads ―Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,‖ and is followed by the text of the bill. There is a different resolving clause for each kind of resolution (simple, concurrent, and joint) that also precedes the text of the resolution. 9 Special rules also may give the same special standing to such an amendment in the nature of a substitute that has been printed in a report of the Rules Committee or the Congressional Record or that is embodied as the text of another bill. 10 An amendment in the nature of a substitute for a bill is in order after the first section of the bill has been read for amendment...or following the reading of the final section of the bill.... However, an amendment in the nature of a substitute for a bill is not in order at an intermediate stage of the reading.... Of course, if the bill is considered as having been read for amendment, then an amendment in the nature of a substitute may be offered at any time during consideration of the bill. An amendment in the nature of a substitute may ordinarily be offered after the reading of the first section of a bill being read by sections notwithstanding the pendency of committee amendments adding new sections to the bill. House Practice, ch. 2, sec. 19, p. 19.

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Ibid., p. 18. In Section XXXIII of his Manual of Parliamentary Practice, Thomas Jefferson held third degree amendments to be out of order, and House Rule XVIII states in part that the ―rules of parliamentary practice comprised by Jefferson‘s Manual shall govern the House in all cases to which they are applicable and in which they are not inconsistent with the Rules and orders of the House.‖ 13 For a discussion of precedents concerning committee amendments, see House Practice, ch. 2, sec. 29, pp. 44-45. 14 House Practice, ch. 2, sec. 27, p. 41. 15 House Practice, ch. 2, sec. 30, p. 45. 16 If so, the text of Section 202 proposed in the amendment would be identical to the text of Section 202 already in the bill. 17 House Practice, ch. 2, sec. 44, pp. 57-58. 18 Annotations to Section XXXV of Jefferson‟s Manual in House Rules and Manual. 19 House Procedure, ch. 2, secs 8-41, pp. 52-56. 20 Annotations to Section XXXV of Jefferson‟s Manual in House Rules and Manual. 21 For a more digestable selection of recent precedents on germaneness, see House Practice, ch. 26, pp. 525-585. 22 The standing rules of the Senate do not require floor amendments to be germane except when proposed to general appropriations measures, when a rule making statute requires it, and after cloture has been invoked. On the other hand, the Senate sometimes imposes a germaneness requirement on itself, by unanimous consent, during consideration of individual measures. House procedures for dealing with nongermane Senate amendments appear in clauses 9 and 10 of Rule XXII. See also ―Sources of Additional Information,‖ and Stanley Bach, ―Germaneness Rules and Bicameral Relations in the U.S. Congress,‖ Legislative Studies Quarterly, vol. VII, no. 3, August 1982, pp. 341-357. 23 House Practice, ch. 26, sec. 3, p. 529. 24 The remaining quotations in this section are taken from the annotations to Rule XVI, clause 7 in the House Rules and Manual for the 109th Congress. 25 In the 110th Congress, this committee was renamed the Committee on Government Oversight and Reform. 26 House Practice, ch. 16, sec. 16, p. 390. 27 On the various calendars, see House Practice, ch. 16, sec. 5, p. 380. 28 Clause 4(a)(1) of Rule XIII generally requires that the House may not consider a measure until the accompanying report has been available to Members for at least three calendar days, excluding Saturdays, Sundays, and legal holidays. Clause 6(a) of the same rule imposes only a one-day layover requirement for most special rules reported by the Rules Committee, and the House may waive this requirement by a two-thirds vote. For more information on layover requirements in the House, see CRS Report RS22015, Availability of Legislative Measures in the House of Representatives (The “Three-Day Rule”), by Elizabeth Rybicki. 29 A privileged matter may interrupt the daily order of business specified in clause 1 of Rule XIV. 30 The majority floor manager routinely yields control of half of the first hour to the minority floor manager ―for purposes of debate only.‖ If the committee has reported an amendment to the measure, it is automatically presented to the House for consideration when the measure is called up. 31 The sponsor of the amendment may withdraw it at any time, as a matter of right, before the House amends it, orders the previous question on it, or votes on it. 32 After the House orders the previous question but before it votes on final passage, one Member usually has an opportunity to move to refer or recommit the measure to committee, with or without instructions. The motion to recommit does not apply to special rules. House Practice, ch. 48, sec. 9, p. 808. 33 In practice, measures considered under the hour rule, such as special rules from the Rules Committee, often tend to divide the House along party lines, so a majority usually supports ordering the previous question. Measures that many Representatives wish to amend are unlikely to be considered in this way. 34 House Practice, ch. 16, sec. 16, p. 390. 35 House Practice, ch. 12, sec. 5, pp. 304-305. 36 Clause 2 of Rule XVIII. 37 The bill is to be read at this point, but this reading is routinely waived by the terms of the special rule or by unanimous consent. 38 House Practice, ch. 16, sec. 14, p. 386-387. 39 House Practice, ch. 12, sec. 13, pp. 312-313. 40 House Practice, ch. 2, sec. 17, p. 33. 41 For more information on such amendments, see CRS Report RL31055, House Offset Amendments to Appropriations Bills: Procedural Considerations, by Sandy Streeter. 42 House Practice, ch. 2, sec. 18, pp. 33-34. 43 House Practice, ch. 2, sec. 29, pp. 44-45. 44 In order to obtain recognition to offer an amendment, a Member must not only be standing but must also actively seek recognition by addressing the Chair at the appropriate time. House Practice, ch. 2, sec.20, pp. 35-36. 45 During general debate in Committee of the Whole, and during debate in the House under the hour rule, a Member controlling time may yield a specific number of minutes to a colleague or he may yield such time as the other

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Member may consume. During debate under the five-minute rule, however, the Member controlling the floor may yield but not for a specified period of time. However, a Member who has been recognized for five minutes and then yields to another may reclaim his time whenever he chooses. For more information, see CRS Report RL32200, Debate, Motions, and Other Actions in the Committee of the Whole, by Bill Heniff Jr. and Elizabeth Rybicki. 46 Pro forma amendments are not in order when a measure or amendment is being considered under a closed or restrictive rule that does not explicitly provide for them. House Practice, ch. 12, sec. 14, p. 313. 47 House Practice, ch. 16, sec. 56, pp. 433-434. 48 Clause 8(a) of Rule XVIII. 49 House Practice, ch. 2, sec. 35, p. 50. 50 House Practice, ch. 12, secs. 22-24, pp. 320-323. 51 Clause 9 of Rule XVIII. 52 House Practice, ch. 12, secs.25-30, pp. 323-327. 53 Annotations to Section XII of Jefferson‟s Manual in House Rules and Manual. 54 Ibid. 55 House Practice, ch. 2, sec. 45, p. 59. 56 House Practice, ch. 44, sec. 5, p. 759. 57 Clause 3 of Rule XIX provides one opportunity for a Member to move to reconsider the vote on final passage or on most other motions and questions decided in the House, but not in Committee of the Whole. The motion to reconsider must be made on the same day as the vote or on the following day, and by a Member who voted on the prevailing side. In the overwhelming majority of cases, the motion is made and routinely tabled, thereby disposing of it adversely. (Normally, the Speaker merely states that, ―without objection, a motion to reconsider is laid on the table,‖ and no Member objects.) Rollcall votes on reconsideration motions are rare because few votes are decided by such narrow margins that a sufficient number of Members actually might change their positions and reverse the outcome. 58 H.Res. 78, 110th Cong. 59 Under a previous incarnation of this rule, on May 19, 1993, a series of parliamentary inquiries were directed to the Chair about how the ―but for‖ test is applied. Congressional Record, vol. 139, May 19, 1993, pp. 1040810409. 60 It should be noted that these provisions, by which the House automatically reconsiders such decisive votes, are a different procedure apart from the right of any Member to demand a separate vote in the House on any first degree amendment reported from the Committee of the Whole. 61 See commentary accompanying Rule XIX, House Manual, sec. 1002a. 62 The instructions are amendable if the House votes against ordering the previous question on the motion. 63 House Practice, ch. 48, sec. 17, pp. 813-814. 64 See Rep. David R. Obey, remarks in the House, Congressional Record, daily edition, vol. 153, May 10, 2007, p. H 4878. 65 House Practice, ch. 48, sec. 13, pp. 810-811. 66 House Manual, sec. 859, p. 636. 67 ―Where the House grants unanimous consent for the immediate consideration of a bill on the Union Calendar, or which would belong on the Union Calendar if reported, the bill is considered in the House as in Committee of the Whole....‖ Annotations to Section XXX of Jefferson‟s Manual in House Rules and Manual. 68 House Practice, ch. 12, sec. 1, p. 297. 69 Ibid. 70 Also, ―a motion is in order in the House as in Committee of the Whole to close debate on the bill or on an amendment....‖ Annotations to Section XXX of Jefferson‟s Manual in House Rules and Manual. However, the previous question is used more often than the motion to close debate because the latter does not preclude Members from proposing additional amendments. 71 Clause 1 of Rule XV addresses suspension of the rules. 72 House Practice, ch. 53, sec. 8, p. 878. 73 For this reason, it is not wholly accurate to characterize each amendment to an amendment as a second-degree amendment. Under Rule XVI, a substitute for a first-degree amendment is also treated as a first-degree amendment in that it is amendable. 74 House Practice, ch. 2, sec. 28, p. 42. 75 House Practice, Ch. 2, sec. 13, pp. 27-30. 76 House Practice, ch. 2, sec. 28, pp. 42-44. 77 On how motions to strike may affect the amending process, see House Practice, ch. 2, secs. 14, 21, 22, 31, 40. 78 Annotations to Section XXXV of Jefferson‟s Manual in House Rules and Manual. 79 House Procedure, 1985 Supplement, ch. 27, sec. 7.12, p. 505. 80 House Practice, ch. 4, sec. 6, pp. 78-79. 81 House Practice, ch. 4, secs. 50-59, pp. 120-136. 82 Annotations to Rule XXI, clause 2.

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Ibid. These same procedures apply to ―germane amendments which retrench expenditures by reduction of amounts of money covered by the bill.‖ Annotations to Rule XXI, clause 2. 85 For additional information on amendments to appropriations bills, see CRS Report RL31055, House Offset Amendments to Appropriations Bills: Procedural Considerations, by Sandy Streeter. 86 For more information on how the PAYGO Rule may affect the House amending process, see CRS Report RL33850, The House‟s “Pay-As-You-Go” (PAYGO) Rule in the 110th Congress: A Brief Overview, by Robert Keith. 87 House Practice, ch. 37, sec. 4, p. 666. 88 House Practice, ch. 37, sec. 3, p. 665. 89 House Procedure, ch. 31, sec. 2.5, p. 698. 90 House Practice, ch. 37, sec. 12, pp.371-372. 91 For additional information, see CRS Report 98-612, Special Rules and Options for Regulating the Amending Process, by Megan Suzanne Lynch.

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Chapter 15

THE AMENDING PROCESS IN THE SENATE Betsy Palmer

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SUMMARY A bill is subject to amendment as soon as the Senate begins to consider it. Committee amendments are considered first; then Senators can offer amendments to any part of the bill in any order. Senators may debate each amendment without limit unless the Senate (1) agrees to a motion to table (kill) the amendment, (2) agrees to a unanimous consent request to limit debate on the amendment, or (3) invokes cloture, limiting debate on the amendment or on the bill and all amendments to it. There are several different types of amendments. A first degree amendment proposes to change the text of the bill; a second degree amendment proposes to change the text of a first degree amendment that the Senate is considering. Third degree amendments are not allowed. An amendment may propose to strike out language from a bill (or a first degree amendment), to insert new language, or to replace language by striking out and inserting. In general, an amendment that proposes to replace the entire text of a bill is known as an amendment in the nature of a substitute; an amendment to replace the entire text of a first degree amendment is known as a substitute amendment. An amendment, especially in the second degree, that makes some lesser change is known as a perfecting amendment. Depending on the kinds of amendments that Senators offer and the order in which they are recognized to offer their amendments, Senators can offer anywhere from three to 11 amendments before the Senate has to vote on any of them. ―Amendment trees‖ are the graphic ways of depicting these possible situations. The Senate only requires that amendments be germane when amendments are offered (1) to general appropriations bills and budget measures, (2) under cloture, or (3) under certain unanimous consent agreements and certain statutes. Otherwise, Senators can offer amendments on any subject to any bill. There are several general restrictions on the amending process. For example, it is not in order to propose an amendment that proposes only to amend language in a bill that already has been amended. However, it is possible to re-amend that language in the process of amending a larger portion of the bill. There also are special

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provisions in Senate rules to limit amendments to appropriations bills if those amendments propose unauthorized appropriations or changes in existing law. The Senate can, and sometimes does, choose not to enforce these restrictions. The Senator who has offered an amendment may withdraw or modify it at any time until the Senate has taken some action on it, such as by amending it or by ordering a rollcall vote on it. Senators also may demand that certain amendments be divided into two or more parts. A rollcall vote on an amendment is ordered at the request of at least eleven Senators. The Senate‘s amending process changes under cloture. For example, no amendment can be offered under cloture unless a Senator submitted it in writing before the cloture vote occurred.

INTRODUCTION

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This report1 summarizes many of the rules, precedents, and practices of the Senate affecting the consideration of amendments to measures on the floor. Much of the information presented here has been extracted from Riddick‟s Senate Procedure (Senate Document 10128) the published collection of Senate precedents. This report should be read with several caveats in mind. First, no report of this length can take account of every ruling that has been made and every contingency that can arise. Second, the Senate conducts much of its business by unanimous consent, and may thereby change or set aside its rules or customary procedures. Although this report may provide useful background information, it should not be considered a substitute for consultation with the parliamentarian and his associates on specific procedural problems and opportunities. This report should not be cited as authority in Senate proceedings.

OFFERING AND DEBATING AMENDMENTS When the Senate agrees to consider a bill or resolution (either by motion or by unanimous consent), the title of the measure is read. If there are committee amendments printed in the measure as reported, the first of these amendments then is pending automatically. Debate usually begins with opening statements about the measure as a whole by its majority and minority floor managers and other Senators. This is a customary practice of the Senate; its rules do not set aside a time for these opening statements. The Senate then acts on the committee amendments, after which Senators may offer their own amendments to any part of the measure in any order. In the House, measures often are read for amendment by sections or titles; in that case, Representatives may offer amendments only to the one section or title that is then open to amendment. In the Senate, by contrast, measures are considered to be open to amendment at any point. The first amendments that the Senate considers are amendments recommended by the committee or committees that reported the measure. Senators do not have to call up these amendments for consideration. They are considered automatically, one by one, and in the order in which they are printed in the measure as reported (except by unanimous consent). Individual Senators may offer second degree amendments to each committee amendment (or first degree amendments to that part of the measure that a committee amendment proposes to

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strike out or replace — see ―The Amendment Trees‖), and the Senate considers and disposes of any such amendments before acting on the committee amendment itself. Under regular Senate procedure, then, the Senate may consider each committee amendment before Senators offer other unrelated amendments from the floor. But the Senate may not dispose of all committee amendments at the beginning of the amending process. In fact, when a committee reports a measure with an amendment in the nature of a substitute for the entire text of the bill, the vote on that committee amendment may conclude the amending process and immediately precede the vote on passing the bill (see ―The Amendment Trees‖). In another common alternative, the Senate may consider an amendment in the nature of a substitute for a measure and, by unanimous consent, consider it to be adopted with the text considered to be original text for the purposes of further amendment. In this way, the Senate can preserve the ability to amend the substitute in two degrees. This can also be the situation when a Senate committee reports a bill with a series of separate amendments, and the Senate often decides not to consider the amendments individually. The Senate can agree, by unanimous consent, to consider and agree to all the committee amendments en bloc, that is, as if they were one amendment, and then to consider the measure, as thus amended, as original text for the purpose of further amendment. Under such an agreement, Senators may offer amendments in two degrees to the text of each committee amendment that now has been made part of the measure. The effect of this arrangement is to create the same opportunities for Senators to propose amendments to each of the committee‘s recommendations that Senators enjoy when a committee reports a single text that includes all of its recommendations — either in the form of either a complete substitute for a measure referred to it or in the form of a new original measure that is introduced at the same time the committee reports it to the Senate. From time to time, one or more committee amendments may be excluded from such a unanimous consent agreement, leaving that amendment or those amendments to be considered separately. The Appropriations Committee is the only Senate committee that may occasionally report measures to the Senate with a series of separate committee amendments. Most other Senate committees usually consolidate all their amendments to a major bill into a single complete substitute amendment for the text of the bill as introduced, or they incorporate their amendments into the text of an original bill that the committee chairman introduces on behalf of the committee. This later option is also sometimes used by the Appropriations Committee. Paragraph 5 of Rule XV prohibits the consideration of a substantive committee amendment ―which contains any significant matter not within the jurisdiction of the committee proposing such amendment.‖ However, this prohibition does not apply if a committee chooses to incorporate that committee amendment into the text of an original bill it orders reported. After disposing of committee amendments, the Senate considers additional first degree amendments, and amendments thereto, in whatever order Senators wish to offer them. In the case of a committee amendment in the nature of a substitute for the entire text of the bill, both that amendment and the text of the underlying measure are open to amendment at any point. To offer an amendment, a Senator must have the floor, and paragraph 1 of Rule XIX directs the presiding officer ―to recognize the Senator who shall first address him.‖ As a matter of established practice, however, preference in recognition is accorded to the majority and minority leaders when either leader and another Senator are seeking recognition at the same time. The chair also may give preference in recognition to either floor manager of the

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measure the Senate is considering. Technically, a Senator loses the floor after offering an amendment (or making any motion) unless recognized again. In practice, the Senator offering an amendment normally is recognized to begin the debate on it. With the exception of committee amendments, the order in which first degree amendments are offered is determined not by rule or precedent, but by the convenience of Senators. A second degree amendment, of course, may only be offered while the first degree amendment it would affect is pending. The form of first and second degree amendments determines what additional amendments may be offered and pending simultaneously. (See ―Classification of Amendments‖ and ―The Amendment Trees.‖) Normally, amendments are offered and considered individually, but Senators may request unanimous consent that two or more related amendments be considered en bloc. This is a useful practice when, for example, a Senator needs to amend a bill in two non-contiguous places in order to accomplish a single policy change. An amendment must be in writing and, when offered, is to be read before debate begins. The reading of an amendment usually is dispensed with by unanimous consent when the floor managers and other interested Senators already are familiar with the amendment‘s purpose and provisions. In 2007, the Senate‘s Rule XV was amended to require that a written copy of each amendment be provided to all Senators on their desks and to the majority and minority leaders before debate on the amendment commences.2 For the information and convenience of the Senate, Senators often submit proposed amendments to be printed in the Congressional Record a day or more before they are to be called up for consideration. They are listed in a section called ―Amendments Submitted.‖ If an amendment is submitted for printing in the Record, it is assigned a number at that time. Otherwise, the amendment is numbered at the time it is offered and read on the floor. In this way, all floor amendments are numbered sequentially throughout the course of a Congress. The text of each amendment usually appears in the Congressional Record at the point at which it is called up, even if it had been printed in an earlier issue of the Record Except under cloture, an amendment printed in advance in the Record enjoys no special standing (see ―Amendments Under Cloture‖); it must be called up by a Senator in the same manner as any other amendment. However, a printed amendment may be called up by any Senator, not just by the Senator who submitted it for printing. This does not occur often. In Senate practice, a pending amendment may sometimes be laid aside temporarily, by unanimous consent, in order to permit consideration of another amendment instead. Once the second amendment is disposed of, the first amendment is back before the Senate automatically. The Senate sometimes does not dispose immediately of the second amendment in this scenario. Instead, amendments may virtually be ―stacked,‖ having been offered but not disposed of, until the Senate decides to act on one of the set-aside amendments. When an amendment is laid aside temporarily, it is usually for one of two reasons: either to accommodate another Senator who wishes to offer an amendment at a certain time, or to permit interested Senators to discuss, and perhaps to agree on changes in, a pending amendment without occupying the time of the full Senate. The Senate can (but rarely does) adopt a motion that postpones to a time certain further action on an amendment that it has been considering. After the Senate agrees to consider a measure, amendments to it are in order at any time, subject to limitations on the number and types of amendments that may be pending simultaneously, until the measure has been read a third time by title. Except under cloture,

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Senate rules and precedents impose no limits on the number of amendments that may be offered. By the same token, there is no limit on how long Senators may debate one amendment or all amendments, except (1) by unanimous consent, (2) under cloture, or (3) under the provisions of certain statutes, such as the Congressional Budget and Impoundment Act of which imposes a time limit for Senate floor action on budget resolutions and reconciliation bills. Rule XIX states that ―no Senator shall speak more than twice upon any one question in debate on the same day without leave of the Senate,‖ but the length of each speech is not controlled. A Senator may stop debate on an amendment by being recognized and then moving to lay it on the table. If the Senate agrees to this non-debatable motion, the amendment is considered to be rejected, or tabled. (The Senate may vote to table a first degree amendment while a second degree amendment to it is pending.) If the tabling motion is defeated, debate on the amendment may resume. However, the vote on a motion to table an amendment often is considered to be a decisive test vote on the amendment; if the tabling motion is defeated on a roll call vote, the amendment itself may be agreed to by voice vote shortly thereafter. Moving to table an amendment is essentially a negative action, and there is no other motion available in the Senate to bring the body to an immediate vote to dispose of a pending amendment. The notion of precedence has an important effect on the amending process. Paragraph 1 of Rule XXII specifies an order of precedence among motions, including the motion to amend. Under the terms of this paragraph, a motion to adjourn or recess is in order while an amendment is pending. It is in order also to move to lay a pending amendment on the table. In fact, all the other motions listed in Rule XXII have precedence over the motion to amend.

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Unanimous Consent Agreements The Senate frequently does impose limitations on itself in the form of unanimous consent agreements that specify parliamentary conditions for considering and amending a particular measure. In their most comprehensive form, these agreements can impose a time limit for debating each first and second degree amendment and indicate how the time in each case is to be divided and controlled. A standard period of time may be provided for debating each amendment — for example, one hour for each first degree amendment and 30 minutes for each second degree amendment and any other debatable question — but the agreement may permit lengthier debates on certain specific amendments. The time for debating each amendment usually is divided between its proposer and the majority floor manager (or the minority floor manager, if the majority floor manager supports the amendment). Such comprehensive unanimous consent agreements (or time agreements, as they often are called) also provide a period of time for debate on the question of final passage — debate on the measure as a whole, that may be used or yielded by the majority and minority floor managers at any time that the Senate is considering the measure. In addition, these agreements normally require that all amendments must be relevant, although specific amendments may be exempted from this requirement. Instead of approving a comprehensive time agreement when it begins debate on a bill, the Senate frequently debates and amends a major bill for some time before developing an agreement that identifies the remaining amendments that may be offered to the bill and the amount of time available for debating each of those amendments. That agreement even may

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specify the order in which the remaining amendments are to be offered. The Senate also may reach agreements during the course of debate that apply only to individual amendments — for instance, an agreement limiting how long the pending amendment will be debated and which amendment will be the next one to be considered. Unanimous consent agreements affect the amending process in another important respect. Under such an agreement, covering one or all amendments to a measure, it is not in order to move to table a pending amendment, or to offer another amendment that has precedence, or to make a point of order against the amendment, until all the time for debating it has expired or has been yielded back, at least by the proponent of the amendment. In the absence of a unanimous consent agreement, any Senator who is recognized may take any of these actions at any time after an amendment has been called up. A unanimous consent agreement to limit debate on a specific amendment also constitutes action by the Senate on that amendment. Once such an agreement is reached, the Senator offering the amendment may modify or withdraw it only by unanimous consent. (See ―Modification, Withdrawal, and Division of Amendments.‖) Through unanimous consent agreements, the Senate imposes an order and some limits on the amending process that are not required by Senate rules and precedents. These agreements require the explicit or implicit concurrence of every Senator: if a single Senator objects, the amending process may continue indefinitely or until the measure is fully amended, and without limitations on debate unless the Senate invokes cloture.

CLASSIFICATION OF AMENDMENTS

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As noted in Riddick‟s Senate Procedure, amendments may be distinguished in terms of their degree, form, type and class.

Degree As a general rule, a measure being considered on the Senate floor is open to amendment in two degrees. Unless the Senate agrees otherwise by unanimous consent, it is in order to offer an amendment to the text of any measure (an amendment in the first degree), and it is also in order to offer an amendment to that amendment (an amendment in the second degree) while the first degree amendment is pending. It is not in order to offer an amendment in the third degree — an amendment to an amendment to an amendment — except by unanimous consent. (There are parliamentary conditions under which, in principle, as many as 11 amendments may be pending simultaneously; see ―The Amendment Trees.‖)3

Form There are three different forms an amendment can take. First, an amendment may propose to insert additional language in a measure or pending first degree amendment without changing anything that already is in the text it would amend. Second, an amendment may take

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the form of a motion to strike out part of a measure or pending first degree amendment without inserting anything in its place. Or third, an amendment may propose to strike out and insert — to replace one or more words or provisions of a measure or pending first degree amendment with one or more different words or provisions.

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Type There are different types of amendments. A substitute amendment in the first degree proposes to replace some part of the text of a measure. A complete substitute (denoted in this report as an amendment in the nature of a substitute) is a special form of substitute amendment that proposes to replace the entire text of the measure — to strike all after the enacting clause and insert ―in lieu thereof‘ a different text.4 A substitute amendment in the second degree proposes to replace the entire text of a pending first degree amendment with a different text. All substitute amendments are motions to strike out and insert; but not all motions to strike out and insert are considered substitutes. Perfecting amendments may insert, strike or strike and insert. A first degree amendment to insert or a first degree motion to strike out is a perfecting amendment. A first degree amendment in the form of a motion to strike out and insert is a perfecting amendment if it would replace less of the measure than a pending first degree substitute amendment. A perfecting amendment in the second degree may take any of the three possible forms so long as it proposes to alter or ―perfect,‖ rather than to replace entirely, the text of a pending first degree amendment. Whether a first degree amendment is considered to be a perfecting or a substitute amendment may depend on the parliamentary circumstances in which it is offered. Also, the distinction between perfecting and substitute amendments can depend on the way in which the amendments are drafted, not on the significance of the legislative changes they propose. When a Senator offers a first degree amendment in the form of a motion to strike out and insert, that amendment is considered to be a substitute amendment if no other such first degree amendment is already pending. However, the same first degree amendment to strike out and insert may be considered to be a perfecting amendment instead if it is offered while there is already pending a substitute for some larger portion of the measure. Any motion to strike out and insert in the first degree — even an amendment that would replace an entire title of the measure — is a perfecting amendment if it is offered while the Senate is considering an amendment in the nature of a substitute that would replace the text of the measure altogether. With regard to second degree amendments, any amendment is a substitute amendment so long as it proposes to insert something in the measure in place of the matter that the pending first degree amendment proposes to insert — without regard to whether the first degree amendment proposes only to insert or to strike out and insert. On the other hand, a second degree amendment is a perfecting amendment so long as it proposes to alter, but not replace entirely, the matter proposed to be inserted by the pending first degree amendment. As a result, a second degree perfecting amendment may propose major changes in a first degree amendment, while a second degree substitute amendment may be identical to the text it would replace except for one word or number. It is sometimes possible, and useful, for the same second degree amendment to be drafted both as a perfecting amendment and as a

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substitute amendment so that the amendment may be offered under the widest range of parliamentary circumstances.

Class There are two classes of amendments, committee and floor, which have been discussed earlier in this report.

PRECEDENCE AMONG AMENDMENTS

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The distinctions among amendments can be of considerable practical importance because of the relations of precedence among amendments. For purposes of the amending process in the Senate, ―precedence‖ has two related meanings. If one amendment has precedence over another, (1) it may be offered while the other is pending, and (2) it is disposed of first. Thus, if amendment A has precedence over amendment B, amendment A may be offered even though amendment B already has been offered and is still pending before the Senate. And if both amendments are pending at the same time, the Senate acts on amendment A before it acts on amendment B. Precedence also has negative consequences: amendment B may not be offered while amendment A is pending and if both are pending at the same time, the Senate may not act on amendment B before it acts on amendment A (except by unanimous consent). Senate precedents set out three principles of precedence among amendments that are directed to the same text: 1. a second degree amendment has precedence over a first degree amendment; 2. a motion to insert and a motion to strike out and insert have precedence over a motion to strike out; and 3. a perfecting amendment (and an amendment to it) has precedence over a substitute amendment (and an amendment to it). The first of these principles is axiomatic. A second degree amendment is an amendment to a first degree amendment, and it must be offered while the first degree amendment is pending — that is, after the first degree amendment has been offered but before the Senate has disposed of it. The Senate also acts on an amendment to a first degree amendment before it acts on the first degree amendment itself. So this principle conforms to Senate practice under both meanings of precedence. It may be helpful in understanding the second two principles to think about decisions the Senate needs to make about a text. Changing the text of an amendment, through a seconddegree amendment, could ―cure‖ a problem Senators may have had with the amendment‘s original language. That could obviate the need to strike out the text entirely. For example, if a first degree substitute amendment is pending (including an amendment in the nature of a substitute), an amendment may be offered to perfect the part of the measure that the substitute proposes to replace. If that perfecting amendment is offered, the Senate

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votes on the perfecting amendment to the measure before it acts on the substitute. By the same token, while a motion to strike out part of a measure is pending, an amendment may be offered to the text proposed to be stricken, and the Senate acts on the latter amendment before it votes on the motion to strike out. Because of these principles of precedence among amendments, a number of amendments may be pending at the same time (see ―The Amendment Trees‖). Precedence controls what amendments may be offered at any given time, but it has no effect on the order in which Senators are recognized to offer amendments. If two Senators wish to offer amendments, the order in which the amendments are called up for consideration, assuming both are in order, depends on which Senator seeks recognition first, not on the relative precedence of the two amendments.

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THE AMENDMENT TREES Under certain parliamentary circumstances, a number of amendments may be pending at the same time. The graphic display of the amendments that are in order at any one time can be called an ―amendment tree.‖ Senators sometimes speak of ―filling the amendment tree,‖ when talking about offering a series of amendments to a bill. Sometimes, the goal of filling the amendment tree might be to prevent or limit further amendments from being offered to the underlying measure. Even if several amendments to a measure have been offered, a Senator may be able to offer an amendment by asking for unanimous consent that a pending amendment be set aside so that the Senate may consider his or her amendment. In this way, the Senate may consider one or more amendments even in the absence of final action on a prior amendment. This action, however, requires unanimous consent to set aside the earlier amendment. One indication that the tree may have been filled for the purpose of blocking further amendments is that objection is heard when the Senate is asked to lay aside pending amendments. The same tactic can also be used to limit the amendments that can be offered if one or more Senators systematically object to laying aside pending amendments in order to allow additional amendments to be offered unless they meet specified conditions. For example, by keeping the amendment tree full, a Senator might be able to prevent non-germane amendments from being offered to a bill. Amendments that are offered to measures under these circumstances, often are slight variations on the base text, so that, whether adopted or defeated, they achieve the basic intent of supporters of the measure. Sometimes the amendment can be all- encompassing, so that if it is adopted it will amend the entire text of the bill, thus prohibiting further amendment. In addition, once the amendment tree has been filled, a Senator also may then file a cloture petition, either to the pending amendment or to the underlying measure. If cloture is successful, it both limits amendments that may be offered to the underlying measure to those that are germane and also establishes a time limit for further consideration of the bill. By keeping the amendment tree full until the expiration of the time available under cloture, a Senator or a group of Senators may even be able to prevent any other amendments from being offered to the bill.

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Two methods of depicting the amendment trees are presented in this report. First is the official system used in Riddick‟s Senate Procedure. The four diagrams in this section that are labeled ―charts‖ are taken directly from Riddick and are explained in considerable detail in its extended discussion of precedents concerning amendments (pages 24-125). On the pages facing three of the four charts from Riddick‟s Senate Procedure are ―figures‖ that depict precisely the same situations and possibilities, but using different visuals.5 The discussion that follows in this section focuses on these figures as an alternative way of visualizing and understanding the amendment situations that can develop on the Senate floor. Both depict the same information, however, only the charts in Riddick‟s Senate Procedure have any standing as Senate precedents. The amendments that are in order at any one time depend on the form and scope of the first amendment to be proposed, and then on the form, type, and degree of subsequent amendments. Thus, depending on the form and type of the first amendment to be offered, as few as two or as many as ten other amendments may be offered before the Senate must vote on any one of them. But whether all of these amendments actually will be pending depends on what amendments Senators wish to offer and the order in which they are recognized to do so.

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With an Amendment to Insert Pending An amendment to insert additional matter in a measure is a first degree perfecting amendment. While such an amendment to the text of the measure is pending, no other first degree amendments may be offered (because no other first degree amendment has precedence over such a perfecting amendment to a measure). However, the amendment to insert, as a first degree amendment, is open to an amendment in the second degree, which may be either a perfecting amendment or a substitute amendment. Once the second degree amendment is disposed of, another perfecting or substitute amendment may be proposed to the pending first degree amendment, so long as a subsequent second degree amendment does not propose only to amend matter in the first degree amendment that already has been amended. The process of offering and disposing of second degree amendments may continue until no further second degree amendments are proposed or until the entire text of the first degree amendment has been amended. After acting on all second degree amendments, the Senate proceeds to vote on the first degree amendment, if and as amended. If a second degree perfecting amendment is offered — that is, an amendment to alter or perfect the matter proposed to be inserted — no further amendments are in order until the second degree amendment is disposed of. The second degree perfecting amendment may propose to delete, insert, or replace matter in the first degree amendment. The order in which the second degree amendments are offered is decisive. Because a perfecting amendment has precedence over a substitute amendment directed to the same text (in this case, the text being the first degree amendment), a second degree perfecting amendment may be offered before the Senate votes on a pending second degree substitute. The converse, however, is not true: a second substitute is not in order while a second degree perfecting amendment is pending. A second-degree substitute amendment may be offered if the first amendment in the second degree to be offered is a substitute rather than a perfecting amendment, or if a second

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degree substitute is offered when a second degree perfecting amendment is not already pending. In such a case, while the second degree substitute is pending to the first degree perfecting amendment, it also is in order for a Senator to offer a second degree perfecting amendment to the first degree amendment. (See Chart 1 and Figure 1.) If second degree perfecting and substitute amendments are pending at the same time to a first degree amendment to insert, the Senate acts first on the second degree perfecting amendment and then on the second degree substitute amendment; after disposing of both second degree amendments, the Senate then acts on the first degree amendment, if and as amended. This voting order also reflects the principles of precedence: the perfecting amendment has precedence over the substitute amendment directed to the same text, and both second degree amendments have precedence over the first degree amendment.

(x,y) = order of offering, order of voting Figure 1. With an amendment to insert pending

Thus, when the first amendment is a first degree perfecting amendment, there may be three amendments pending at the same time: the first degree perfecting amendment to insert additional matter, a second degree perfecting amendment to that amendment, and a second degree substitute amendment. After the Senate acts on the second degree perfecting amendment, Senators may offer other such amendments, one at a time, and the Senate acts on each of them before acting on the second degree substitute. By the same token, if the second degree substitute is rejected or tabled, another such substitute may be proposed and, while it is pending, additional second degree perfecting amendments may be offered. Neither of the

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second degree amendments is open to amendment because third degree amendments are prohibited.

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A through C = order of offering 1 through 3 = order of voting Chart 2. Amendment to Insert

With an Amendment to Strike Out and Insert Pending When a Senator proposes a first degree amendment in the form of a motion to strike out and insert and does so when no other such amendment is pending, that motion to strike out and insert is considered to be a substitute amendment for part of the measure, and as many as four other amendments may be pending simultaneously, but only if the amendments are offered in a specific order. (See Chart 3 and Figure 2.) A first degree substitute for part of the measure is open to an amendment in the second degree, and the second degree amendment may be either a perfecting amendment or a substitute amendment. If a second degree perfecting amendment is offered, no additional amendments to the first degree substitute are in order until the Senate acts on the second degree amendment. At that time, a second degree substitute amendment or another second degree perfecting amendment may be offered while the first degree substitute remains pending. If a Senator offers a second degree substitute amendment for the pending first degree substitute, a second degree perfecting amendment also may be offered while the first and second degree substitute amendments are pending. The second degree substitute must be

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offered before any second degree perfecting amendment has been offered, or after one or more second degree perfecting amendments already have been offered and acted on. With a second degree substitute amendment pending, the Senate may consider and act on a series of second degree perfecting amendments before it votes on the second degree substitute. Should the second degree substitute be rejected or tabled, another such substitute may be offered and, while it is pending, additional second degree perfecting amendments may be offered to the first degree substitute amendment. To this point, the tree is the same for a first degree perfecting amendment that would insert language and a first degree substitute amendment. But with the substitute amendment, further branches of the tree may develop — more amendments may be offered. When a substitute amendment for part of the measure is pending, and when a second degree perfecting amendment or a second degree substitute amendment, or both, is pending to the first degree substitute, it is also in order for a Senator to offer a perfecting amendment to the part of the measure that the first degree substitute would strike out and replace. That is because a perfecting amendment has precedence over a substitute amendment that is directed to the same text, and the perfecting amendment also has precedence over an amendment to the substitute. As a result, first degree perfecting and substitute amendments may be pending to the same part of the measure at the same time. The perfecting amendment may take the form of an amendment to insert, to strike out, or to strike out and insert. Moreover, because the perfecting amendment to the measure is a first degree amendment, it is open to an amendment in the second degree. With a substitute amendment pending for part of the measure, therefore, as many as four additional amendments may be pending simultaneously: (1) a second degree substitute amendment for the first degree substitute, (2) a second degree perfecting amendment to the first degree substitute, (3) a first degree perfecting amendment directed to the same part of the measure that the first degree substitute would strike out and replace, and (4) a second degree perfecting or substitute amendment directed to the first degree perfecting amendment. When a substitute amendment for part of the measure is pending, the first degree perfecting amendment to the measure may be a motion to strike out and insert, but if so, it proposes to replace less of the measure than the initial motion to strike out and insert. This is one situation in which a first degree amendment is considered to be a perfecting amendment even though it might be treated as a substitute amendment under other circumstances. For example, if the first degree substitute amendment (the first motion to strike out and insert to be offered) proposes to replace a title of the measure, the first degree perfecting amendment may propose to replace an entire section of that title. This latter amendment would be considered a substitute if no other amendments already were pending, but it is treated as a perfecting amendment if it is offered while a substitute amendment for a larger part of the measure is pending. For all five amendments to be pending simultaneously, they must be offered in exactly the order in which they were listed earlier. If the various amendments are not proposed in the specific order noted in Figure 2 and Chart 3, only part of the five- branched tree may develop.

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(x,y) = order of offering, order of voting Figure 2. With an amendment to strike out and insert pending

If part or all of this tree does develop, the order of voting is the reverse of the order in which the amendments are offered. The Senate acts first on perfecting amendments to the measure; the first vote occurs on the second degree amendment (or on a tabling motion), after which the Senate disposes of the first degree perfecting amendment to the measure (as amended, if amended). The Senate then acts, in order, on the second degree perfecting amendment to the first degree substitute, the second substitute for the first degree substitute, and, finally, the first degree substitute (as amended, if amended). The five amendments may not be disposed of in any other order (except by unanimous consent), but the Senate may consider and act on several amendments on one branch of the amendment tree before it turns to the amendment on the next branch in order. For example, if all five amendments have been offered, and the Senate has acted on the first and second degree perfecting amendments to the measure, Senators may offer additional such amendments, and they must be acted on before the Senate acts on the second degree amendments to the first degree substitute. Similarly, once the text of the measure has been perfected, a succession of second degree perfecting amendments to the first degree substitute may be proposed and acted on before a vote occurs on the second degree substitute. If the first

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degree substitute (as amended, if amended) finally is rejected by the Senate, another first degree substitute may be offered and the amendment tree may develop once again.

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A through D = order of offering to get all the above amendments before the Senate 1 through 4 = order of votingChart 3. Amendment to Strike and Insert (Substitute for Section of a Bill) Chart 3. Amendment to Strike and Insert (Substitute for Section of a Bill)

With an Amendment to Strike Out Pending An amendment (or motion) to strike out is not amendable. However, Senators may offer amendments to the part of the measure that is proposed to be stricken. A motion to insert has precedence over a motion to strike out; therefore, an amendment may be offered to insert new matter in the text against which a motion to strike out is pending. After one Senator has moved to strike out some matter from a measure, it is in order for another Senator to move to strike out only part of that matter. Under these circumstances, one may think of the first motion to strike out as akin to a substitute amendment — in that it proposes to substitute nothing for something — and the second motion to strike out as a perfecting amendment — proposing to strike out less than the first motion. Senate precedents permit variations of the amendment trees in Charts 1 and 3 (Figures 1 and 2) to develop after a motion to strike out has been offered and before the Senate votes on it. Which of these amendments (and how many of them) may be offered while a motion to strike out is pending depends first on the next amendment that is called up — that is, whether

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or not it is an amendment to strike out and insert that would replace all of the text proposed to be stricken — and then on the other amendments that Senators seek recognition to offer. The maximum number of amendments that Senators can offer with a motion to strike out pending is depicted in Chart 2 of Riddick‟s Senate Procedure. These five amendments to the text proposed to be stricken are the same five amendments shown in Figure 2, when the pending first degree amendment was to strike out and insert. In other words, the amendment tree in Figure 2 may develop while a motion to strike out is pending if the first amendment offered after the motion to strike out is a complete substitute for the text proposed to be stricken. That motion to strike out and insert is amendable by a perfecting amendment or a substitute amendment or both, and, while any or all of these amendments are pending, Senators may propose perfecting amendments in two degrees to the text that is proposed to be stricken or entirely replaced.

A through E = order of offering to get all of the above amendments before the Senate 1 through 5 = order of voting Chart 2. Amendment to Strike

If the motion to strike out is followed by either a motion to insert or a motion to strike out and insert that would replace only part of the text proposed to be stricken, fewer amendments would be in order. Either amendment is considered to be a perfecting amendment and it may How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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be amended in the second degree. However, only one second degree amendment may be pending at a time; Senators may not offer both the second degree perfecting amendment and the second degree substitute amendment depicted in Figure 1 before either is voted on. Finally, if the motion to strike out is followed by a motion to strike out less of the text that is at issue, neither motion to strike out is amendable. Since Figure 2 may develop with a motion to strike out pending, there can be as many as three amendments offered to change a section (or any part) of a measure before the Senate must act on any one of them — a motion to strike out the section, an amendment to strike out and insert that constitutes a complete substitute for the section, and an amendment to perfect the section (by inserting, striking out, or striking out and inserting). The Senate acts on any and all of the amendments that ―come behind‖ a motion to strike out before it then acts on that motion to strike out. If a Senator offers an amendment to perfect the text proposed to be stricken, the Senate votes on that amendment (as and if amended) and then it proceeds to vote on the motion to strike out. If that motion is agreed to, the effect is to remove the text at issue, as it has been perfected. On the other hand, if the Senate agrees to a complete substitute for the text proposed to be stricken, the motion to strike out falls automatically without being voted on. The entire text in question having been amended, the motion to strike out would constitute an attempt to re-amend that text and, therefore, is no longer in order. It should be noted that it would be highly unusual for all of the amendments depicted in Figure 2 to be proposed after an amendment to strike out is offered. Also, the opportunity to perfect or substitute for the text that a motion to strike out proposes to eliminate is only available when the motion to strike out is directed to a part of the text of a measure or to a part of a complete substitute for the text of the measure (which is treated as an original question for purposes of amendment). If a Senator offers a second degree perfecting amendment that proposes to strike out part of a first degree amendment, that part of the first degree amendment may not be perfected while the motion to strike out is pending.

With an Amendment in the Nature of a Substitute Pending The most complex amendment tree can develop when a Senator or Senate committee proposes an amendment in the nature of a substitute for the full text of the measure — that is, a complete substitute that proposes to strike out all after the enacting (or resolving) clause of the measure and replace it with a completely different text. Individual Senators do not offer such amendments very often, but it is a common practice for Senate committees to report a House or Senate measure with an amendment in the nature of a substitute that preserves the original number of the bill or resolution while proposing to replace its entire text. Under the precedents of the Senate, such an amendment is treated as an original question for purposes of amendment under either of two circumstances: (1) when it is a reported committee amendment that becomes pending automatically when the measure itself is called up, or (2) when an individual Senator offers it at a time that no other amendment of any kind is pending. As an original question for purposes of amendment, such a complete substitute is not considered to be a first degree amendment that may only be amended in one further degree. Instead, both the amendment in the nature of a substitute and the text of the measure itself

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may be amended in two degrees, creating the possibility of seven or even eleven amendments pending simultaneously. (See Figure 3 and Chart 4.) To repeat, when an amendment in the nature of a substitute is considered as an original question, it is amendable in two degrees. A Senator may propose a first degree amendment that is a substitute for the amendment in the nature of the substitute for the measure; the effect of such an amendment is to propose a third version of the text of the bill or resolution. It is then in order also to offer a first degree perfecting amendment to the text of the substitute for the measure that the first degree substitute would replace. Furthermore, both the first degree substitute amendment and the first degree perfecting amendment are open to amendments in the second degree.

(x,y) = order of offering, order of voting Figure 3. With an amendment in the nature of a substitute pending

Only one second degree amendment may be pending at a time to each of the first degree amendments. Second degree perfecting and substitute amendments may not be pending at the same time to either the first degree perfecting amendment or the first degree substitute amendment.

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A through J = order of offering to have all amendments pending at the same time 1 through 11 = order of voting Circled and parenthetical material apply only when C is a motion to strike Chart 5. Amendment to strike and insert (substitute for bill)

Even when any or all of these amendments are pending to the amendment in the nature of a substitute, the text of the measure itself is amendable in two degrees. Any first degree amendment to the measure is considered to be a perfecting amendment, even though it might be a substitute under other circumstances, because it must affect less of the measure than the

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pending amendment in the nature of a substitute. Furthermore, this perfecting amendment to the text of the measure may be amended by either a perfecting amendment or a substitute amendment in the second degree, but second degree perfecting and substitute amendments may not both be pending simultaneously. Once a perfecting amendment is offered to the text of the measure, no further amendments are in order to the amendment in the nature of a substitute until the Senate disposes of that perfecting amendment and any amendment proposed to it. Thus, as many as seven amendments may be pending at the same time, but only if offered in the following order:

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1. the amendment in the nature of a substitute, considered to be an original question for purposes of amendment; 2. the first degree substitute for the text of the amendment in the nature of a substitute; 3. the second degree perfecting or substitute amendment directed to the first degree substitute; 4. the first degree perfecting amendment to the amendment in the nature of a substitute; 5. the second degree perfecting or substitute amendment directed to the perfecting amendment to the amendment in the nature of a substitute; 6. the first degree perfecting amendment to the text of the measure; and 7. the second degree perfecting or substitute amendment directed to the first degree perfecting amendment to the measure. The order in which these amendments must be offered if they are all to be pending is dictated by their relative precedence, and primarily by the principle that a perfecting amendment (and an amendment to it) has precedence over a substitute amendment (and an amendment to it). This principle applies to the amendments depicted in Figure 3, whether the substitute in question is the amendment in the nature of a substitute or the first degree substitute for that amendment. Should all seven amendments be pending simultaneously, the order for acting on them is the reverse of the order for offering them. First, the Senate perfects the original text of the measure, considering and acting on any second degree amendments, one at a time, before acting on the first degree amendment, if and as amended. Other perfecting amendments to the measure then may be offered, amended, and acted on. Second, the Senate disposes of the perfecting amendments (and amendments to them) to the amendment in the nature of a substitute. Third, the Senate turns to the amendment to the first degree substitute, and then to the first degree substitute as it may have been amended.

Motions to Commit or Recommit and Amendment Trees In addition to amendments to a measure, Senators may also offer motions to commit or recommit the measure to committee. Such a motion may be offered even when an amendment tree is full. A motion to commit or recommit would send the bill to a specified committee, if it is successful, and may be offered with or without instructions. Motions that include instructions typically contain language that would instruct a committee to amend the bill.

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Those instructions may be amended to two degrees: a first degree amendment to the instructions and a second degree amendment to the amendment. This procedure is not common and may be indicative of an intent to fill the amendment tree.

RESTRICTIONS ON AMENDMENTS

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In General In addition to the limitations on the amending process that already have been noted — for example, the general prohibition against third degree amendments the Senate imposes a number of other restrictions on the amendments that its members may offer. Several of these restrictions are a matter of precedent and apply to all amendments. It is not in order, for instance, to offer an amendment that is substantially the same as an amendment that already has been offered and disposed of unfavorably (for example, an amendment that has been tabled). However, a Senator may offer part of a previously rejected or tabled amendment as a separate amendment, and an amendment that has been rejected or tabled may be re-offered as part of a later amendment that proposes other changes as well. An amendment that has been offered and withdrawn may be offered again without being substantially changed, except under cloture (see ―Modification, Withdrawal and Division of Amendments‖). Under some circumstances, the substance of an amendment that has been offered and agreed to may be proposed a second time. For example, if the Senate has agreed to an amendment to a substitute for part or all of the measure, an amendment with the same effect also may be proposed to the text of the measure that the substitute would replace. In this way, the effect of the amendment is certain to survive, regardless of the fate of the substitute. Once the text of a measure or first degree amendment has been amended, it is not in order to propose an amendment that simply would re-amend the text already amended (with certain limited exceptions made by the Congressional Budget and Impoundment Act). However, a Senator may offer a second amendment that takes a ―bigger bite‖ out of the measure or first degree amendment — that is, an amendment that re-amends text that already has been amended, but does so in the process of proposing a substantive change in a larger part of the text. For example, after the Senate has adopted an amendment that changes provisions within a section of a measure, a substitute for the whole section is in order. Similarly, after substitutes have been adopted for several sections of a title, a Senator may move to strike out the entire title. But once the Senate agrees to an amendment for the entire text of a measure (or first degree amendment), no further amendments to that text are in order because there is no part of the measure (or first degree amendment) that has not already been amended. An amendment that would amend a measure in several different places is actually a series of amendments that may be considered en bloc without objection or by unanimous consent. A second degree amendment should affect the same portion of the measure as the first degree amendment to which it is offered. By the same token, while a substitute is pending for part of a measure, any perfecting amendment to the measure should deal with the same part of the measure that the substitute would replace.

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Germaneness and Relevancy Rule XVI of the Standing Rules of the Senate require that first degree amendments be germane only when offered to general appropriations measures. And Rule XXI lists the same requirement when cloture has been invoked. Some statutes also impose a germaneness requirement — for example, Section 305(b) of the Congressional Budget and Impoundment Act prohibits non-germane amendments to concurrent budget resolutions. Amendments to budget reconciliation bills also must be germane Under all other circumstances, there is no rule limiting the subjects of amendments. Senators may impose a germaneness requirement on themselves as part of unanimous consent agreements. An agreement that limits and divides control of the time for debating a measure and all amendments thereto may include an additional provision that ―no amendment that is not germane to the provisions of the said bill shall be received.‖ Senators who wish to protect their right to offer non-germane amendments may object to the inclusion of the germaneness provision or request that their proposed amendments be specifically exempted under the terms of the agreement. Alternatively, the Senate usually includes in unanimous consent agreements the requirement that amendments to a specific bill must be relevant. To be relevant, an amendment must not introduce a subject that the bill does not already address. It is possible for an amendment to be relevant but not germane — for example, if the amendment were to expand the applicability of the bill or the authority it grants. The parliamentarian advises the presiding officer and other Senators as to whether amendments qualify as germane or relevant.

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On General Appropriations Measures The Senate imposes certain special restrictions on the amendments that may be offered to general appropriations measures. A general appropriations bill is a measure that appropriates funds for more than a single, specific purpose or program. The regular annual appropriations bills, some supplemental and deficiency appropriations bills and joint resolutions making continuing appropriations have generally been held by the Senate to be general appropriations bills. Rule XVI of the Senate is devoted to the subject of appropriations measures and amendments to them. Because of the longstanding practice that general appropriations are enacted into law as House bills, much of this rule is framed in terms of Senate amendments to House-passed appropriations bills. These practices have been fluid, however. Prior to the mid-1990s, the Senate Appropriations Committee typically reported general appropriations bills in the form of the House- passed bill with a series of individual amendments adopted in their markup. In recent years, particularly for appropriations measures on which the House had not acted, initial Senate action has sometimes been in the form of an original bill reported from the Senate Appropriations Committee. In current practice, the Appropriations Committee has typically reported general appropriations bills in the form of the House-passed bill with a committee substitute. Generally, the provisions of Rule XVI are designed to preserve a separation between the process of appropriating funds and the process of enacting substantive legislation, including

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authorizations and re-authorizations. However, each of the restrictions in the rule is modified by exceptions, derived either from the rule itself or from precedents. In some respects, these exceptions are so major that the Senate cannot be said to enforce a strict separation between appropriations on the one hand and authorizations and other substantive legislation on the other. Certainly the restrictions on amendments to general appropriations measures are not nearly as severe in the Senate as they are in the House. Paragraphs 1, 3, and 7 of Rule XVI address the relationship between authorizations and appropriations. Paragraphs 2, 4, and 6 restrict the inclusion of other legislative provisions in general appropriations measures. Paragraph 1 deals with appropriations amendments, whether recommended by a Senate committee or offered by a Senator in his or her individual capacity. Under the terms of this paragraph, no amendment may propose to add or increase an item of appropriation unless it meets one of four conditions. Such an amendment is in order (1) if it already has been authorized by law or treaty, (2) if it would carry out the provisions of a bill or joint resolution already passed by the Senate during that session, even if the measure has not yet been enacted into law, (3) if it is recommended by the Appropriations Committee or a Senate committee with legislative jurisdiction over the subject of the amendment, or (4) if the appropriation amendment is ―proposed in pursuance of an estimate submitted in accordance with law.‖ The Senate may consider an amendment making an unauthorized appropriation if the authorization has passed the Senate alone or if the appropriation is recommended by the Committee on Appropriations. The Appropriations Committee is free to propose any appropriation it wishes, whether authorized or not. The existence of a statutory authorization is merely one of the conditions, and not a necessary one, by which an appropriation amendment is eligible for consideration in the Senate. Paragraph 3 requires that, when an amendment to add or increase an appropriation is offered at the direction of any other Senate committee, the amendment is to be referred to the Appropriations Committee at least one day before it is offered on the floor. This procedure, which very rarely is invoked, is designed to give the Appropriations Committee an opportunity to examine the proposed amendment but not to prevent the Senate from considering it. Paragraph 3 also provides that the appropriation proposed in any such amendment may not be increased by a further amendment on the Senate floor. Paragraph 7 of the rule requires that the reports of the Appropriations Committee on general appropriations bills must indicate all amendments it is proposing for appropriations that do not have prior Senate or statutory authorization. Other provisions of Rule XVI address the inclusion of legislative amendments in general appropriations measures. Paragraph 2 deals with amendments recommended by the Appropriations Committee; legislative amendments proposed by other committees or individual Senators are the subject of paragraph 4. Paragraph 2 prohibits the Appropriations Committee from reporting an appropriations measure ―containing amendments proposing new or general legislation.‖ However, the rule implicitly acknowledges that limitation amendments are in order — amendments that impose some restrictions on how appropriations may be expended without, for example, repealing or amending existing statutory authorities. No such limitation amendment is in order under paragraph 2 if its effect is dependent on some contingency, such as the subsequent enactment of an unrelated measure.

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Paragraph 4 imposes similar restrictions on amendments to general appropriations bills other than those recommended by the Appropriations Committee. No such amendment may propose general legislation except in the form of a limitation, and no limitation may be tied to the occurrence of a contingency. In addition, this paragraph imposes a germaneness requirement on all amendments to general appropriations bills, even amendments recommended by the Appropriations Committee. Although the precedents cited in Riddick‟s Senate Procedure do not provide clear and explicit criteria for determining in all cases whether a particular limitation amendment is in order, paragraph 6 of Rule XVI directs that points of order against questionable limitations should be sustained. However, the Senate enjoys somewhat greater discretion when it amends a limitation that already has been passed by the House. If the House includes a limitation (or some other legislative provision) in a general appropriations bill, the limitation is subject to germane amendments in the Senate, even if the amendments would have the effect of changing existing law. If the House of Representatives ―opens the door‖ by incorporating legislation in a general appropriations bill, the Senate allows itself the opportunity to walk through that door and perfect or replace the House‘s language. This opportunity does not exist if the Senate acts on a Senate version of an appropriations bill. The Senate‘s germaneness requirement and the prohibition against legislative amendments apply only to general appropriations measures. Thus, amendments to special appropriations bills, which appropriate funds for only one agency, need not be germane and may be legislative in character and effect. Moreover, Senate rules and precedents do not prohibit legislative measures from including appropriations, but this asymmetry is more apparent than real because the House may well refuse to consider an appropriation originating in the Senate. Also, special appropriations bills are rarely used. Paragraph 8 of Rule XVI states that no general appropriations bill, or amendment to such a bill, shall be considered if it would reappropriate unexpended balances of appropriations — that is, if it would continue the availability of appropriations that otherwise would lapse — unless ―in continuation of appropriations for public works on which work has commenced.‖ The rationale underlying this prohibition is that money should be appropriated anew each year, so that Congress can accurately gauge the annual costs of federal activities. Paragraph 5 of the same rule prohibits amendments to general appropriations bills that would provide funds for a private claim unless the proposed amendment would carry out the provisions of some existing law or treaty.

POINTS OF ORDER AGAINST AMENDMENTS Under regular Senate procedure, a Senator who has the floor can make a point of order against an amendment at any time after the amendment is offered but before the Senate begins to act on it. When an amendment is being considered under a unanimous consent agreement limiting debate, no point of order may be made against the amendment until at least all of the proponent‘s time for debating it has expired or has been yielded back. In either case, a point of order may not be made against only part of an amendment; if a point of order is sustained against any portion of an amendment, the entire amendment is tainted and is out

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of order. However, the Senator offering an amendment may modify it even while a point of order is pending against it, so long as the Senate has not already taken some action on the amendment (see ―Modification, Withdrawal and Division of Amendments‖). Rule XX provides that most questions of order are to be decided by the Presiding Officer, but he or she may submit any question of order directly to the Senate instead. Some questions of order must be decided by a vote of the Senate itself, not by the presiding officer; for example, only the Senate as a whole may decide whether a measure or amendment is out of order on the ground that it is unconstitutional. Similarly, Rule XVI requires that questions of germaneness raised against proposed amendments to general appropriations bills shall be submitted directly to the Senate and decided without debate. When a point of order is to be decided by the presiding officer, Senators have no right to debate it, although the chair may entertain as much or as little debate as he or she chooses. Points of order to be decided by the Senate generally are debatable unless a rule provides otherwise, as in the case of questions of germaneness on general appropriations bills. Time agreements on measures usually limit debate relating to points of order, and questions of order are not debatable when the Senate is operating under cloture. In most cases, a proposed amendment may be ruled out of order without affecting the status of the measure to which it is offered. For example, if an amendment to add or increase appropriations on a general appropriations bill is ruled out of order, the Senate proceeds to consider other amendments to the bill. However, if the Appropriations Committee proposes an amendment to add new or general legislation to such a measure, a point of order may be made against the bill itself; if the point of order is sustained, the bill is recommitted to the committee. If a point of order is made against any amendment to a general appropriations bill on the ground that it is legislative in character, a Senator may raise the question of germaneness before the point of order is decided. If the Senate votes that the amendment is germane, the point of order falls automatically; the presiding officer does not rule on it. The most frequent bases for points of order against amendments are those already mentioned: the germaneness or relevancy requirement when in force, and the restrictions on amendments to general appropriations bills under Rule XVI. In addition, points of order may be made against amendments for violating one of several provisions of the Congressional Budget and Impoundment Act of , as amended. The points of order that can be made in the Senate under these increasingly complex procedures are identified and described in CRS Report 97-865, Points of Order in the Congressional Budget Process, by James V. Saturn. If the measure itself would violate a provision of the Congressional Budget and Impoundment Act, the Senate may adopt a resolution waiving that provision. Such a resolution protects consideration of the measure, but it does not protect amendments, including committee amendments, that may be offered to it. Under Section 904(b) of the Congressional Budget and Impoundment Act, an amendment (or provision of a measure) can be protected against certain point of orders if a majority of the Senate agrees to a motion to waive the applicable provision of the Act. Section 904(c) requires a vote of three-fifths of the entire Senate (not just the Senators present and voting) to waive other Congressional Budget and Impoundment Act and related statutory provisions. Possible points of order against amendments also may be waived by unanimous consent agreements. If an agreement under which a measure is considered provides for a specific amendment, that amendment is protected against the general requirement imposed by the agreement that all amendments to the measure must be germane or relevant.

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Any Senator may appeal the ruling of the presiding officer on a point of order, and such appeals are not unusual in the Senate. When a ruling is appealed, the Senate votes on whether it will sustain the ruling of the chair. There are no constraints, of course, on the criteria that Senators may apply in deciding how to vote on appeals.

MODIFICATION, WITHDRAWAL AND DIVISION OF AMENDMENTS

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Modification of Amendments Under certain conditions, an amendment maybe modified— that is, its text may be changed without the Senate acting on a second degree amendment to it. Except under cloture, a Senator who has offered an amendment may modify it, without unanimous consent, at any time before the Senate takes some action on the amendment. Under Senate precedents, the Senate has taken action for this purpose if (1) the yeas and nays have been ordered on the amendment, (2) the Senate has entered into a unanimous consent agreement limiting debate on that specific amendment, (3) the Senate has amended the amendment, or (4) the amendment itself has been agreed to, rejected, or tabled. An amendment may be modified even while a tabling motion or a point of order against the amendment is pending. After the Senate has taken some action on an amendment, it may be modified only by unanimous consent. However, a Senator who has lost the right to modify his or her own amendment has another recourse; that Senator may offer an amendment to his or her own amendment instead. This is the only condition under which a Senator may propose to amend his or her own amendment. One Senator may modify an amendment offered by another Senator only by unanimous consent, and committee amendments may be modified only at the direction of the committee or by unanimous consent.

Withdrawal of Amendments Even under cloture, a Senator who has offered an amendment may withdraw it from consideration, without unanimous consent, unless the Senate already has taken some action on it in one of the four ways listed above. The amendment may be withdrawn even while a point of order is pending against it. But after the Senate has taken some action on an amendment, it may be withdrawn only by unanimous consent. Withdrawing a first degree amendment also eliminates any second degree amendment that may be pending to it, even if the yeas and nays have been ordered on the second degree amendment. An amendment that has been withdrawn may be re-offered at a later time, except under cloture. One Senator may withdraw another Senator‘s amendment only by unanimous consent, and committee amendments may be withdrawn only by unanimous consent or at the direction of the committee.

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Division of Amendments Rule XV permits any Senator to demand that an amendment containing several propositions be divided into its component parts. The presiding officer determines, subject to appeal to the Senate, whether an amendment is susceptible to division that is, whether its parts can stand independently. When an amendment is divided, each part is considered as if it were a separate amendment. After the Senate disposes of one part (division), the next division is placed automatically before the Senate for consideration. An amendment may be divided even after the yeas and nays have been ordered on it. In such a case, a rollcall vote occurs on each part unless the order for the yeas and nays is vitiated by unanimous consent. Amendments considered en bloc may be divided only by unanimous consent. Rule XVIII also includes an important exception: motions to strike out and insert are not divisible. Consequently, the only amendments that typically are subject to demands for division are amendments to add new provisions to a measure or pending amendment.

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VOTING ON AMENDMENTS The Senate may act on an amendment either by voting on it directly or by voting on a motion to table the amendment. If an amendment is tabled, it is disposed of adversely and permanently (unless the Senate reconsiders the vote on the tabling motion). Tabling an amendment does not affect the status of the measure to which it was offered. Except under cloture or the provisions of certain rule-making statutes or by unanimous consent, the Senate may not vote on an amendment if there are Senators seeking recognition to debate it further (subject to the two-speech limit of Rule XIX). Under these circumstances, the motion to table offers two advantages: it may be offered by a Senator who has the floor at any time after debate on the amendment has begun, and the motion is not debatable. So a tabling motion can be used to end debate on an amendment, but only if the Senate is prepared to reject the amendment. If a tabling motion is made and defeated, debate on the amendment may resume. Another motion to table the same amendment may not be made unless the amendment has been changed significantly or a substantial period of time has elapsed (in practice, normally three days). Under a unanimous consent agreement that limits and divides control of the time for debating an amendment, a motion to table is not in order until at least all the proponent‘s time on the amendment has expired or has been yielded back, at which point the Senate may be ready to vote on the amendment itself. As a result, tabling motions are somewhat less frequent and useful when amendments are being considered under the terms of unanimous consent agreements. In practice, the Senate usually votes on amendments and motions to table amendments either by voice vote or by rollcall vote. Division votes occur infrequently. The Constitution provides that a rollcall vote maybe demanded by one- fifth of the Senators present, a quorum being present. Since a quorum of the Senate is 51 Senators, the minimum number required for demanding a rollcall is 11 (unless the number of Senators actually present was ascertained shortly before the demand)

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The yeas and nays may be demanded on an amendment at any time that it is pending before the Senate, but not before it is offered nor while an amendment that has precedence is pending (except by unanimous consent). A rollcall vote may be demanded even after a voice or division vote has occurred, but before the result has been announced. In practice, however, rollcall votes normally are ordered while debate on the amendment is still in progress. The yeas and nays must be ordered separately on a tabling motion, even if a rollcall already has been ordered on the amendment proposed to be tabled. The yeas and nays on a measure may be ordered at any time it is before the Senate, even while an amendment to the measure is pending. The Senate acts on all amendments and tabling motions by majority vote of the Senators present and voting, even if offered during consideration of a measure or matter such as a constitutional amendment that requires a two-thirds vote for final action. The Constitution requires that a quorum (a majority of all Senators) must be present for the Senate to conduct business. But the Senate assumes that a quorum always is present unless a majority of Senators fail to respond to a quorum call or fail to participate in a rollcall vote. Consequently, a voice or division vote in which only a few Senators participate is still valid unless challenged.

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AMENDMENTS UNDER CLOTURE A decision by the Senate to invoke cloture, under the terms of Rule XXII, affects the amending process in a number of important respects. First, the cloture rule imposes a time limit on the amending process. After the Senate has considered a matter under cloture for a total of 30 hours, no further amendments may be called up for consideration and the Senate proceeds to vote on any pending amendments and then on the matter on which cloture was invoked. (The thirty hours for consideration may be increased by a three-fifths vote of all Senators.) Second, no Senator may offer more than two amendments until every other Senator has had an opportunity to offer two amendments. This provision is intended to give every Senator a chance to offer some amendments during the 30 hours of consideration under cloture. Third, to be in order under cloture, amendments must be submitted in writing to the Journal clerk by certain deadlines before the Senate votes on the cloture motion. Specifically, any first degree amendment must be submitted by 1:00 P.M. on the day after the cloture motion is filed; any second degree amendment must be received at least one hour before the Senate begins to vote on the cloture motion. The difference between these two deadlines is designed to give all Senators roughly one day to examine the first degree amendments that may be proposed and to frame any second degree amendments they may wish to offer. Fourth, after cloture is invoked, all amendments must be germane to the matter under consideration. The presiding officer also is empowered in extreme circumstances to rule amendments out of order as being dilatory. Fifth, the reading of an amendment is dispensed with automatically, not by unanimous consent, if it has been reproduced and available for at least 24 hours. Sixth, unanimous consent is required to modify amendments, except for changes in page and line numbers that may be required if the matter under consideration is reprinted after cloture is invoked.

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Finally, once an amendment has been submitted in writing, it may be called up by any Senator. Thus, any Senator may call up any amendment that is eligible for consideration under cloture. But once an amendment has been withdrawn under cloture, it may not be reoffered. Consequently, if one Senator offers and withdraws an amendment, another Senator may not bring the same amendment back before the Senate for a vote unless he or she also had submitted it in writing before cloture was invoked.

End Notes 1

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This report was written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS. Dr. Bach has retired, but the listed author updated the report and is available to answer questions concerning its contents. 2 P.L. 110-81, formerly S. 1, The Honest Leadership and Open Government Act of 2007, enacted on Sept. 14, 2007.. 3 Technically, there may be only one amendment pending before the Senate at any moment. The ―pending amendment‖ is the amendment on which the Senate is to act first. For the sake of convenience in this report, however, the term ―pending amendments‖ is used more generally to refer to all the amendments that have been offered and that have not been laid aside temporarily, withdrawn, or disposed of by the Senate in some fashion. 4 Unlike the House, the Senate does not use the phrase ―amendment in the nature of a substitute‖ to refer consistently and exclusively to an amendment that proposes to strike out all after the enacting clause of a bill (or resolving clause of a resolution) and replace that text with a different text. For purposes of clarity, the phrase will be used only in that sense in this report; but it should be borne in mind that Senators may use the same phrase in a broader sense. When an amendment in the nature of a substitute has been offered, it is not considered to be a first degree amendment, thus the amendment in the nature of a substitute is open to two degrees of amendment. 5 There is no companion figure for Riddick‟s Chart 2. Amendment to Strike. The tree that can develop in that situation is depicted in Figure 2.

How Laws are Made in the U.S.A., edited by Helen Maes, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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CHAPTER SOURCES

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The following chapters have been previously published: Chapter 1 is an edited, excerpted and augmented edition of a United States 110th Congress Document, revised and updated by John V. Sullivan, Parliamentarian, U.S. House of Representatives, presented by Mr. Brady of Pennsylvania dated July 24, 2007. Chapter 2 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code RL33471. Updated March 19, 2008. Chapter 3 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code 98-826 GOV. Updated March 24, 2008. Chapter 4 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code RL34480, dated May 7, 2008. Chapter 5 is an edited, excerpted and augmented edition of website information obtained from www.senate.gov. Chapter 6 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code 98-458 GOV. Updated March 25, 2008. Chapter 7 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code 98-459 GOV. Updated November 25, 2008. Chapter 8 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code RS20735. Updated March 31, 2008. Chapter 9 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code RS20856. Updated March 31, 2008. Chapter 10 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code 98-696 GOV. Updated November 26, 2008. Chapter 11 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code RS21169. Updated April 17, 2008. Chapter 12 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code RS22477. Updated November 25, 2008. Chapter 13 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code 98-279 GOV. Updated November 25, 2008.

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212

Chapter Sources

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Chapter 14 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report 98-995, dated May 31, 2007. Chapter 15 is an edited, excerpted and augmented edition of a Congressional Research Service publication, Report Order code 98-853 GOV. Updated November 26, 2007.

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INDEX

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A accommodation, 159 accountability, 59 accuracy, viii, 41, 51, 52, 59, 61 achievement, ix, 85 acquisition of knowledge, 52 administration, ix, 15, 54, 85, 86, 89, 134 Administrative Procedure Act, 4 advertisement, 29, 130 advertisements, 134 advocacy, x, 86, 90, 125 age, 2, 9 agent, 80 agents, 42 aid, ix, 89, 90, 126, 147 alternative, 20, 25, 26, 57, 96, 100, 101, 102, 103, 138, 141, 162, 167, 183, 190 alternatives, 98, 106, 153, 167, 168 ambassadors, 127 ambiguity, 123 Amendment trees, 181 analysts, 51, 52, 57, 58, 59 antibiotics, 95 application, 15, 92, 149 appraisals, 146 appropriations bills, xi, 70, 115, 117, 120, 121, 123, 124, 150, 172, 180, 181, 202, 203, 204, 205 Appropriations Committee, 4, 150, 172, 183, 202, 203, 204, 205

Archivist, 6, 43, 47 argument, 25, 35, 38, 105 armed forces, 54 arrest, 25 Articles of Confederation, 45, 54 assessment, 56 asymmetry, 204 attachment, 71, 72 attorney-client relationship, 90 availability, 15, 39, 112, 113, 173, 204

B background information, 57, 58, 182 bankruptcy, 8 bargaining, 76, 111, 116 behavior, 43 bell, 28, 29 benefits, 14, 23, 38, 174 binding, x, 9, 35, 43, 91, 105, 115, 155 bipartisan, 9, 81 bipartisan appeal, 79 bounds, 6 Budget Committee, 150 budget measures, 121, 181 budget resolution, 29, 113, 121, 150, 152, 185, 202 buildings, 149

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Index

214

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C Calendar of Business, 32, 33 Canada, 53 candidates, 3, 56 Capitol Hill, 127 cast, 3, 14, 27, 74, 93, 103, 107, 123, 144, 145, 173 casting, 27 caucuses, 8 Census, 2 chamber floor, 134 citizens, ix, 54, 57, 58, 79, 81, 127 classes, 126, 188 Clerk of the House, 6, 7, 31, 41, 46, 47, 61, 62, 66 clients, 53 cloture, xi, 33, 34, 100, 113, 121, 123, 178, 181, 182, 184, 186, 189, 201, 202, 205, 206, 207, 208, 209 cloture motion, 101, 208 clusters, 27 Co, 68 Columbia, 2, 20, 60, 148, 164 combined effect, 174 commerce, 148 committee chairman, 10, 134, 183 Committee on Appropriations, 9, 11, 15, 21, 46, 203 Committee on House Administration, 21, 67, 150 Committee on Intelligence, 11 Committee on Oversight and Government Reform, 20, 164 Committee on Rules and Administration, 45, 82, 90 Committee on Standards, 8, 9, 10, 21 Committee on the Judiciary, 8, 9 Committees on Appropriations, 4, 9, 11, 12, 14 communication, 4 community, 53 competition, 53, 54, 55, 56, 95 complexity, 31, 86, 90, 100, 119 compliance, 86 complications, 75, 95, 96, 117, 119, 124, 165 components, viii, 61, 74, 85, 130, 134 composition, 54

concentrates, 138, 152 Conference Committee, v, 72, 75, 91, 123, 124 conference reports, x, 24, 76, 86, 90, 92, 109, 112, 113, 114, 115, 117, 119, 121, 122, 123, 124 confidence, 101, 119 confidentiality, 51, 52 conflict, 53 conformity, 30, 31 confusion, 87, 90, 119 Congressional Black Caucus, 126 congressional budget, 29 Congressional Budget Act of 1974, 13 Congressional Budget and Impoundment Control Act, 29, 139 Congressional Budget Office, 14, 51, 52, 58, 174 Congressional Caucus for Women's Issues, 126 congressional elections, 56 Congressional Record, viii, 7, 10, 14, 19, 22, 23, 24, 39, 42, 44, 47, 63, 69, 73, 82, 112, 124, 129, 130, 133, 134, 153, 156, 159, 174, 176, 177, 179, 184 Congressional Research Service, v, viii, 45, 47, 48, 51, 52, 59, 69, 87, 90, 142, 211, 212 consolidation, 44, 45 Constitution, vii, ix, 1, 2, 3, 4, 5, 6, 14, 25, 27, 40, 41, 42, 45, 46, 53, 54, 62, 63, 66, 69, 75, 77, 91, 93, 126, 176, 207, 208 constraints, 29, 30, 163, 206 construction, 149 consulting, 33, 57 consumer protection, 148 consumers, 148 contingency, 182, 203, 204 contracts, 11 control, 10, 22, 54, 55, 58, 105, 113, 147, 149, 150, 152, 158, 159, 178, 202, 207 copyrights, 8 corporations, 148 cosponsors, x, 7, 79, 80, 81, 82, 129, 130, 133, 134 costs, 14, 52, 204 counsel, ix, 79, 80, 81, 85, 86, 89, 90 Court of Appeals, 63 courts, viii, 13, 42, 44, 46, 63, 65, 66, 68 covering, 4, 6, 43, 46, 186

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Index crime, 32, 147 CRS, viii, 51, 52, 53, 55, 56, 57, 58, 59, 60, 63, 69, 70, 80, 82, 83, 87, 90, 123, 124, 130, 131, 134, 135, 139, 177, 178, 179, 180, 205, 209 Cuba, 148 curriculum, 11

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D death, 102 decision making, 127 decisions, 29, 37, 45, 46, 52, 54, 56, 57, 58, 69, 83, 105, 114, 126, 146, 147, 155, 172, 188 Declaration of Independence, 45 defense, 32 deficiency, 202 deficit, 30, 174 Deficit Reduction Act, 68, 70 delivery, viii, 42, 61, 72 Democrats, 155 Department of Justice, 63 deposits, 80 differentiation, 32, 55 dignity, 21 directives, 30, 126 disability, 86, 90 disclosure, 11 discretionary, 27, 43, 109, 124, 155 Discretionary spending, 109 discrimination, 147 disposition, 20, 39, 68, 100, 114, 120 distribution, 15, 124 District of Columbia, 2, 20, 60, 148, 164 diversity, 55 division, 26, 38, 72, 75, 100, 104, 118, 119, 145, 207, 208 domestic policy, 127 draft, 3, 4, 57, 73, 80, 81, 134, 142, 169 drafting legislation, ix, 79, 81 duration, 14, 62, 124 duties, 69, 86, 89, 90, 95

E election, 2, 3, 8, 9, 54, 56, 126

215 email, 86 emerging issues, 51, 52, 59 employees, 52, 53, 55, 86, 89 employment, 14 empowered, 86, 89, 208 energy, 95 engrossment, 34, 61, 63, 68, 70, 94, 123, 161, 162, 164 enrolled bill, viii, 41, 42, 43, 62, 65, 66, 67, 68, 69, 76 enrollment, viii, 34, 41, 61, 63, 65, 66, 67, 68, 69, 70 entitlement programs, 109 entrepreneurs, 56 environment, 56 equality, 2 exchange of amendments, ix, 91, 96, 112 excuse, 25 execution, 15, 20 Executive Branch, 126 Executive Calendar, 32 Executive Order, 48 exercise, 55, 104, 158 expenditures, 13, 29, 180 expertise, 55

F failure, 5 fairness, 155 fax, 86 fear, 119, 121 February, 77 federal courts, viii, 65, 66 federal elections, 55 federal government, 53, 109, 173 federal grants, 11 federal law, vii, 1, 2, 4 Federal Register, 43, 44, 47, 48 firearms, 147 First Amendment, 4 first degree amendment, xi, 123, 179, 181, 184, 185, 186, 187, 188, 190, 191, 192, 193, 196, 197, 198, 199, 200, 201, 206, 208, 209 fitness, 89 flexibility, 169

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Index

216 floor action, ix, 35, 85, 93, 99, 101, 123, 185 floor amendments, 18, 95, 122, 124, 138, 150, 153, 154, 156, 165, 172, 184 floor managers, 33, 39, 74, 76, 100, 101, 113, 156, 157, 164, 182, 184, 185 flow, 153 fluid, 202 food, 146 food safety, 146 forecasting, 15 Foreign Relations Committee, 134 forgery, 66 Friday, 77 funding, 14, 21, 60, 108, 109, 150, 172 funds, 109, 120, 126, 148, 173, 202, 204

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G gauge, 204 General Accounting Office, 60 goals, 14, 58 government, iv, viii, x, 4, 10, 11, 14, 16, 30, 32, 51, 52, 53, 54, 59, 72, 109, 125, 126, 127, 173 Government Accountability Office, 9, 51, 52, 60 Government Printing Office, 7, 13, 44, 53, 70, 71, 113 governors, 2 GPO, 63, 69, 70, 80, 176, 177 grand jury, 3 grants, 11, 69, 126, 150, 179, 202 gravity, 55 Great Britain, 53 groups, ix, x, 4, 29, 57, 79, 81, 125, 126, 127 Guam, 2, 60 guidance, 22 guidelines, 17, 36, 104

H hands, 54, 66 Hawaii, 2 health, 133 health care, 133 hearing, viii, 10, 11, 13, 21, 73

Honest Leadership and Open Government Act, 124, 209 House amendments, ix, 35, 40, 91, 96, 98, 99, 100, 102, 123 House as in Committee of the Whole, x, 137, 138, 164, 176, 179 House bill, ix, 35, 40, 41, 91, 93, 94, 95, 98, 121, 123, 124 House bills, ix, 16, 91, 95 House Manual, 69, 70, 179 House Office of Legislative Counsel, 79, 85, 89 hybrid, 164

I id, 70 identification, 43 identity, 93 immigration, 5, 8 impeachment, 3 incentive, 54 inclusion, 39, 52, 74, 202, 203 income, 18, 27, 172 income tax, 18, 27, 172 independence, 54 indication, 111, 189 indicators, 27 informal groups, x, 125, 126 Information System, 70, 71, 134 infringement, 41 injury, iv INS, 6, 63 inspection, 11 institutions, 53, 54, 55, 59 instruction, 37 integrity, 21, 66 intentions, 123 interest groups, ix, 57, 79, 81 internet, 113 Internet, 130 interstate, 148 interstate commerce, 148 investigative, 15

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Index

J Jefferson, 22, 45, 66, 69, 124, 176, 178, 179 Joint Committee on Printing, 134 joint resolutions, viii, 4, 6, 14, 21, 23, 61, 62, 65, 123, 174, 202 judges, 54 judgment, 121, 145 judicial branch, x, 125 jurisdiction, 4, 8, 9, 15, 18, 19, 20, 35, 76, 80, 83, 98, 104, 105, 124, 147, 148, 152, 153, 165, 172, 176, 183, 203 jurisdictions, 83, 148 jury, 3 justice, 43

K killing, 162

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L land, 5, 43, 75 language, x, xi, 4, 23, 30, 31, 36, 44, 57, 93, 107, 122, 123, 134, 137, 140, 144, 145, 148, 149, 152, 160, 170, 181, 186, 188, 193, 200, 204 law enforcement, 11, 32 laws, iv, vii, 1, 3, 4, 13, 15, 30, 43, 44, 45, 46, 47, 48, 55, 59, 93, 126, 139 lawyers, 9, 52 leadership, 8, 93, 95 learning, 56 Legislative Calendar, 8, 71, 95 Legislative Clerk, 71 legislative drafting, ix, 79, 81, 85, 86, 89, 90 legislative elections, 53 Legislative Information System, 71, 130 legislative policy, 86, 90 legislative proposals, 4, 56, 57, 93, 125, 126, 127 librarians, 52 Library of Congress, 47, 48 likelihood, 169, 172 limit debate, xi, 114, 181, 186, 205 limitation, 33, 75, 109, 114, 173, 203, 204

217 limitations, 33, 143, 173, 184, 185, 186, 201, 204 litigation, 86, 90 lobby, x, 125, 126 lobbyists, 127 local government, x, 125, 126 long period, 33, 62

M majority leader, 95, 99, 100, 114 management, ix, 32, 85, 86, 89 mandates, 14, 30, 86, 90 markup, ix, 10, 12, 72, 73, 74, 85, 153, 202 meanings, 123, 188 media, 10, 11, 127 Medicare, 109 membership, 2, 8, 155 messages, 21, 41, 48, 63, 93, 96, 97, 126 military, 54, 146 momentum, 93 money, 16, 33, 119, 140, 180, 204 morning, 33, 82

N nation, 125, 126 National Archives and Records Administration, 43, 44, 47, 48 national emergency, 15 national policy, 51, 52, 53 national security, 11, 110 natural, 52, 149 naturalization, 5 negative consequences, 188 negotiating, 108, 110, 116 new language, xi, 31, 181 New York, 43, 52, 63, 142 New York State Library, 51 non-binding, 115 nongovernmental, 11 nonpartisanship, 51, 52, 59 normal, 113, 124, 149, 156

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Index

218

O objectivity, 51, 52 obligation, 4, 30, 54 observations, 138 Office of Management and Budget, 9 Office of Personnel Management, 60 Olympic Games, 95 omnibus, 30, 95, 110, 125 online, 60, 130, 134 openness, 109 opposition, xi, 19, 20, 23, 39, 93, 137, 157, 159 oral, ix, 11, 22, 73 oral presentations, 11 orientation, 59 original bill, 12, 74, 134, 141, 153, 176, 183, 202 oversight, 8, 9, 13, 15, 55, 59, 148

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P pairing, 28 parliamentary procedure, 151 party system, 55 patents, 8 pay-as-you-go, 30, 174 PAYGO, 174, 180 Pennsylvania, 211 perfecting amendment, xi, 137, 140, 146, 150, 167, 168, 169, 170, 171, 181, 187, 188, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201 permit, 11, 19, 26, 34, 39, 68, 143, 151, 156, 158, 170, 176, 184, 185, 195 philosophy, 56, 57 phone, 82, 130, 134 planning, viii, 73 play, 104 policy choice, 163 policy initiative, 126 political affiliations, 89 political leaders, 53 political parties, 8, 35, 54, 56 politicians, 127 population, 1, 2, 5

power, 2, 10, 17, 53, 54, 62, 105, 110, 126, 153, 158 powers, 3, 14, 53, 54, 55 practical activity, 80 precedents, 23, 67, 92, 99, 105, 108, 109, 138, 143, 146, 147, 148, 154, 170, 171, 173, 175, 177, 178, 182, 185, 186, 188, 190, 195, 197, 203, 204, 206 preference, 25, 28, 90, 105, 155, 163, 169, 183 presidency, 55 President pro tempore, ix, 41, 62, 63, 69, 89 presidential elections, 3, 55 presidential veto, 5, 54 Presiding Officer, 7, 8, 30, 33, 34, 35, 71, 99, 205 primary elections, 56 primary sponsor, x, 7, 129, 130 principles, 6, 108, 121, 123, 138, 143, 144, 148, 149, 163, 164, 172, 188, 189, 191 printing, 13, 21, 31, 67, 70, 71, 130, 134, 156, 184 privacy, 32 private, viii, 5, 7, 11, 17, 43, 51, 52, 56, 57, 58, 177, 204 private citizens, 57 Procedure in the House, 46, 177 professionalization, 52 program, 9, 14, 53, 95, 108, 109, 119, 202 prohibitions, x, 120, 137, 138, 143, 163, 172, 173 property, iv, 16, 22, 33, 80, 129, 133 proposition, 14, 19, 20, 25, 146, 147, 148, 165, 174 protection, vii, 1, 121, 148, 159 proxy, 74, 109 public, viii, ix, 5, 7, 8, 10, 11, 13, 14, 16, 17, 18, 19, 20, 32, 33, 36, 43, 44, 47, 48, 53, 56, 58, 59, 73, 89, 90, 109, 110, 113, 124, 133, 138, 149, 164, 173, 204 public notice, viii, 73 public offices, 44 public policy, 56 public service, 14 Puerto Rico, 2, 7, 60, 162

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Index

Q quorum, 3, 11, 12, 20, 22, 24, 25, 26, 27, 28, 29, 33, 38, 42, 74, 75, 124, 207, 208

219 Rules Committee, ix, 68, 86, 91, 99, 108, 112, 113, 121, 122, 124, 141, 143, 149, 150, 152, 153, 156, 174, 177, 178

S

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R race, 9, 147 radio, 29, 148 Ramseyer rule, 86 range, 55, 106, 188 reading, 18, 21, 22, 34, 38, 61, 94, 113, 115, 123, 144, 153, 154, 156, 161, 162, 164, 172, 175, 177, 178, 184, 208 recall, 62 recognition, 10, 19, 25, 33, 80, 100, 105, 106, 154, 155, 156, 157, 158, 163, 164, 168, 169, 178, 183, 189, 196, 207 reconciliation, 29, 30, 113, 121, 150, 152, 185, 202 reelection, 56, 127 Reform Act, 30 reforms, 126 regular, 3, 4, 9, 28, 33, 44, 110, 114, 175, 183, 202, 204 regulation, 32, 147 regulations, 48, 126, 134 rejection, 12, 25 relationship, 53, 86, 146, 147, 148, 203 relationships, 149 relevance, 147 replace language, xi, 181 Republican, 55, 60, 150 Republicans, 155 reputation, 21 reservation, 98 reserves, 98, 159, 175 resources, viii, 51, 52, 57, 59 responsibilities, 8, 9, 16, 54, 59, 67, 177 returns, 67, 103 revenue, 3, 5, 16, 29, 30, 32, 40, 93, 98, 123 Revenue Act, 85, 87, 89, 90 roll-call votes, 74

Safe Drinking Water Act, 126 safeguards, vii, 1 safety, 21 salaries, 142 Samoa, 2, 60 scheduling, 27 search, 70 searching, 130 second degree amendment, xi, 124, 181, 184, 185, 187, 188, 190, 192, 194, 197, 198, 201, 206, 208 secret, 32 Secretary of State, 48 Secretary of the Senate, viii, 6, 7, 31, 41, 47, 61, 62, 65, 66, 67, 69, 70, 72 secrets, 32 security, 11, 110 selecting, 53, 93, 95 selectivity, 18 self-interest, 54 Senate amendments, ix, 34, 35, 37, 91, 98, 99, 100, 102, 111, 121, 123, 178, 202 Senate bills, ix, 91 Senate floor, ix, 58, 91, 95, 103, 113, 134, 185, 190, 203 Senate Journal, 71 Senate Legal Counsel, 90 Senate Office of Legislative Counsel, 81, 89 separation, 4, 53, 121, 172, 202 separation of powers, 4, 53 Sergeant-at-Arms, 25, 26 series, 27, 32, 44, 107, 117, 155, 168, 179, 183, 189, 193, 201, 202 services, iv, ix, 59, 85, 86, 87, 89, 90 sex, 9, 147 sharing, 53, 54 sign, 7, 17, 19, 33, 37, 41, 42, 62, 63, 66, 69, 80, 109, 111, 134 signs, 42, 62, 63, 77 sine, 42, 77

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Index

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220 Social Security, 109 socioeconomic, 59 Speaker of the House, ix, 4, 8, 24, 41, 66, 69, 72, 76, 85, 86 specificity, 107 speech, 126, 185, 207 spelling, 31, 70 sponsor, x, 7, 56, 70, 80, 82, 129, 130, 133, 134, 144, 156, 157, 158, 159, 169, 175, 178 Sponsorship, v, vi, 82, 129, 133 staff attorneys, 79, 81 stages, 5, 6, 21, 33, 57, 68, 92, 97, 123, 138, 152, 177 standards, 14, 126 Standing Rules, 202 state legislatures, 2, 4 State of the Union, 4, 18, 126, 151 statutes, xi, 4, 74, 90, 181, 185, 202, 207 statutory provisions, 205 strike out language, 181 strikes, 37, 94, 140, 141 subpoena, 10, 11 subpoenas, 10 substitute amendment, xi, 39, 111, 137, 140, 141, 167, 168, 169, 181, 183, 187, 188, 190, 191, 192, 193, 195, 196, 197, 198, 200 substitutes, 37, 107, 108, 109, 111, 121, 141, 154, 170, 171, 187, 201 substitution, 41 supervision, viii, 48, 62, 65, 86 supplemental, 13, 31, 70, 202 supplements, 44, 48 support staff, ix, 85, 89 Supreme Court, 2, 6, 43, 45, 53, 63, 68, 69, 126 surplus, 30, 174

T tactics, 23 tariff, 14, 23, 38, 172, 174 task force, 8 tax amendments, x, 137, 138 taxes, 147 technical assistance, 57 telephone, 51, 52, 86 television, 29, 127

territory, 148, 149 testimony, ix, 4, 11, 12, 32, 73 Texas, 142 Third degree amendments, xi, 181 threat, 54 threshold, 30, 102, 117, 118, 149 time allocation, 22 time use, 22 timeliness, 51, 52 title, xi, 5, 6, 7, 24, 34, 44, 45, 59, 60, 70, 71, 137, 139, 140, 144, 145, 146, 152, 153, 154, 155, 158, 161, 165, 172, 182, 184, 187, 193, 201 Title III, 141 trade, 32 Trade Act, ii trademarks, 8 tradition, 3, 5, 17, 32, 40, 41 training, 147 transcript, 11, 22 transcripts, 15, 21 transfer, 174 transmits, 43 treaties, 3, 32, 48, 54, 127 trees, xi, 171, 190, 195 tribunals, 44 triggers, 124

U unanimous consent request, 32, 76, 98, 181 Uniform Code of Military Justice, 4 United States, 1, 2, 5, 6, 16, 32, 41, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, 55, 59, 62, 63, 67, 69, 70, 72, 77, 94, 126, 148, 176, 177, 211 universe, 23

V vacancies, 100, 109, 113, 114 variance, 2 vehicles, 95 Vice President, 3, 31, 41, 53, 69, 76 visible, 55

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Index voice, 26, 34, 68, 72, 75, 94, 160, 162, 163, 185, 207, 208 voters, 2, 56 voting, x, 3, 12, 14, 20, 21, 24, 26, 27, 34, 38, 55, 74, 92, 99, 109, 112, 114, 121, 139, 141, 151, 155, 161, 162, 164, 165, 168, 171, 191, 192, 194, 196, 198, 199, 205, 207, 208

W

winning, 55, 56 Wisconsin, vii, 51, 52, 142 wisdom, 121 witnesses, viii, 11, 58, 73 working groups, ix, 79 World War, 54 World War I, 54 World War II, 54 writing, 19, 34, 63, 69, 86, 141, 155, 182, 184, 208, 209

Y yield, 22, 33, 113, 150, 151, 158, 159, 178

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war, 15 weapons, 146 White House, ix, 42, 43, 48, 62, 71, 72, 79, 81, 123

221

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