Order Code RS20668
Updated July 18, 2003
CRS Report for Congress
Received through the CRS WebApril 15, 2008
How Measures Are Brought to the Senate
Floor: A Brief Introduction
James V. Saturno
Specialist on the CongressChristopher M. Davis
Analyst on the Congress and Legislative Process
Government and Finance Division
Summary
Two basic methods are used by the Senate to bring legislation to the floor for
consideration. The Senate, at the majority leader’s request, grants unanimous consent
to take up a matter, or agrees to his motion to proceed to consider it. Because the
motion to proceed is subject to debate in most circumstances, it is notless frequently used.
Both methods are derived from the basic premise that the Senate as a body may decide
what matters it considers. The Senate may also use the same two methods to bring up
executive business (nominations and treaties). This report will be updated to reflect
changes in Senate practice.
Introduction
Most measures considered by the Senate are taken from its Calendar of Business,
which lists measures available for floor consideration under the heading “General
Orders.” Usually, measures are placed on the calendar under General Orders when they
are reported by the committee to which they have been referred. If a committee reports
an original measure that was not previously referred to it, that measure is read twice
before then being placed on the calendar. A measure may also be placed on the Calendar
of General Orders immediately upon introduction. Normally, introduced measures are
immediately read twice and referred to a committee. If objection is heard to a second
reading on the same day, the measure is held over until the next day.1 After a second
reading, if objection is heard to further proceedings, the measure is not referred, but is
placed directly on the Calendar of General Orders.
Conference reports do not come up
for consideration from the calendar. Instead they
may be called up at anytime when the
conference papers are filed at the “desk” in the
Senate.
1
The “day” in question is a legislative day. A legislative day begins when the Senate convenes
after an adjournment. Often, the Senate recesses, rather than adjourning, at the end of a day’s
session, so that a legislative day may continue for many calendar days.
Congressional Research Service ˜ The Library of Congress
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Over the course of the Senate’s history, the majority leader has increasingly acquired
responsibility for arranging the schedule of the Senate’s business. Although the presiding
officer of the Senate is required to recognize any Senator seeking recognition, the practice
of the Senate is to allow the majority leader (or minority leader) to have priority for
recognition if seeking recognition at the same time as another Senator. Likewise, the
majority leader (or his designee) is, by custom, the only Senatorone who offers motions or
makes makes
unanimous consent requests concerning the floor agenda and scheduling, including
the the
consideration of legislation or the time for the Senate to meet, recess or adjourn.2
In general, the rules of the Senate place a strong emphasis on the prerogatives of
individual Senators, even at the expense of the majority.3 As a result, the Senate and its
agenda are greatly influenced by the preferences of individual Senators. Senators may
exercise their prerogatives at any time, but comity and compromise often lead Senators
to relinquish the opportunity to exercise their prerogatives fully. In exchange they enable
the Senate to conduct its business more efficiently, and receive corresponding concessions
in relation to the measure they favor.
Unanimous Consent
Most measures reach the floor of the Senate when the Senate accepts a unanimous
consent request to proceed to consider them, made by the majority leader (or his
designee). Normally, before a majority leader requests unanimous consent, he will
consult with interested Senators to ensure that no objection will be made. Although the
measures taken up are generally those that have been placed on the calendar, the Senate
may, by unanimous consent, agree to take up any measure, whether it is already on the
calendar, has been previously reported, or has even been introduced.
Unanimous consent agreements may provide for the Senate to immediately proceed
to consider a measure or may be made in advance of actual consideration. The agreement
may provide that the measure in question come up at a specific time in the future, or that
the majority leader (usually in consultation with the minority leader) bring it up
unilaterally at any time thereafter.
The request for consent to take up a measure is often made in a freestanding form,
but sometimes it is part of a more extensive unanimous consent request that also sets
terms for the measure’s consideration. The majority leader often seeks to negotiate such
terms in advance, placing limits on the ability of Senators to debate a measure or offer
amendments, because the rules of the Senate place no general limits on such prerogatives.
These negotiations are designed to produce unanimous consent agreements (sometimes
2
This custom was explicitly stated in the powersharing agreement at the beginning of the 107th
Cong. (S.Res. 8), which observed that “in keeping with the present Senate precedents, a motion
to proceed to any Legislative or Executive Calendar item shall continue to be considered the
prerogative of the majority leader, although the Senate Rules do not prohibit the right of the
Democratic leader, or any other Senator, to move to proceed to any item.” For more information,
see CRS Report RS21255, Motions to Proceed to Consider in the Senate: Who Offers Them, by
Richard S. Beth.
3
For more information, see CRS Report RL30850, Minority Rights and Senate Procedure, by
Stanley BachProcedures, by
Judy Schneider.
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called “time agreements,” since one of their primary objectives is to limit the time
available for debate) which govern consideration of a measure in place of the regular
standing rules of the Senate.4
Motions to Proceed
Alternately, the majority leader may instead offer a motion that the Senate proceed
to consideration of a measure, particularly if he has been unable to negotiate a unanimous
consent agreement to do so.5 Although this motion requires only a simple majority for
approval, in most situations it is debatable. As a result, the motion to proceed is itself
susceptible to extended debate. Even before a measure can itself reach the Senate floor,
there may be a filibuster on the question of whether the Senate should consider it at all.6
The majority leader may attempt to invoke cloture on the motion to proceed, but may
still be faced with a filibuster against the underlying measure. Since 1959, the rules of the
Senate have allowed cloture to be invoked on the motion to proceed regardless of the type
of underlying measure.7
Non-Debatable Motions to Proceed. Under certain circumstances the motion
to proceed is not debatable. In particular, the motion is non-debatable when offered on
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a conference report,8 or amendments between the houses;9
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a measure considered pursuant to a rule making statute;10 or
4
In the past, the majority leader would sometimes negotiate a time agreement in conjunction with
a unanimous consent request to consider a measure, but this is no longer as common. For more
on Senate procedure generally, see CRS Report 97-368, Senate Floor Procedure: A Summary,
by Stanley Bach.
96-548, The Legislative Process on the Senate
Floor: An Introduction, by Valerie Heitshusen.
5
Under Rule XVII all reports of committees, including written reports accompanying bill and the
bills themselves, must lie over one day before a motion to proceed to their consideration is in
order. This does not apply to privileged measures, and can be superseded by unanimous consent
or by two-thirds vote of the Senate.
6
For more information, see CRS Report RL30360, Filibusters and Cloture in the Senate, by
Richard S. Beth and Stanley Bach.
7
From the time the cloture rule was first adopted in 1917 until 1949, the motion to proceed was
not subject to cloture. From 1949 until 1959 cloture could be invoked on a motion to proceed
except when the underlying measure would amend Senate rules.
8
U.S. Congress, Senate, Riddick’s Senate Procedure, 101st Cong., 2nd sess., S.Doc 101-28
(Washington: GPO, 1992), pp. 471, 731. (Hereafter referred to as Riddick’s Senate Procedure)
.)
9
Ibid, pp. 1034-1035.
10
Congress occasionally enacts legislation which provides special procedures for considering
specific measures. One example is the Congressional Budget Act of 1974 which provides
procedures for considering concurrent resolutions on the budget and reconciliations measures.
These enactments are considered an exercise of the authority granted in Article I, Section 5 of
the Constitution to each house to “determine the rules of its proceedings.” Some of these statutes
specify that a motion to proceed to consider the measures they govern is non-debatable.
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during the morning hour.11
Although a non-debatable motion to proceed potentially could be made during the
morning hour on a wide variety of measures, it is not a frequent occurrence. When the
Senate adjourns often it will routinely stipulate by unanimous consent that no motion to proceed
be in order during morning hour at the start of the next legislative day.
Aat the start of the
next legislative day the morning hour be deemed to have expired, and thus, no motion to
proceed be in order. Additionally, a motion made during legislative session to proceed
to consider executive calendar
business (described below) is also not debatable.
Holds12
The practice of Senate majority leaders seeking advance clearance for unanimous
consent to call up measures often serves to give them advance notice of potential
objections to
consideration from other Senators. A complex network of formal and
informal avenues
of information flows between the majority leader’s office and those of
all other Senators.
This network is used to notify Senators of scheduling proposals from
the majority leader’s
office, and in return to provide the majority leader’s office with
specific requests or
objections of other Senators. Similar information flows through the
minority leader’s
office.
Notifications of prospective objections to requests to take up a measure are
sometimes referred to as holds. Holds are an informal practice of the Senate, and are not
defined or regulated by Senate rules.
to as holds. Senate rules provide a Senator placing a hold with
at least two possible ways
of enforcing it. First, if a unanimous consent request to
consider a measure is made
despite the hold, the Senator may object to the request.
Because one objection suffices
to defeat a unanimous consent request, the majority leader
will frequently refrain from
propounding the request on the floor when one or more
Senators have made it known that
they would object.
Second, if a request for unanimous consent meets objection, the majority leader may
instead attempt to bring the measure up by offering a motion to proceed. Inasmuch as the
motion to proceed is usually debatable, a Senator who wishes not to see the measure reach
the floor may attempt to block its consideration by engaging in extended debate of this
motion, a form of filibuster. Holds are given serious consideration by the majority leader
when negotiating the Senate’s floor agenda.
A hold is the prerogative of any Senator, and may be placed for any reason. In some
cases, a hold may simply reflect a request by a Senator that he or she be given advance
notice before a measure will be brought to the floor. In others, a hold may be part of a
11
Senate rules VII and VIII provide for a period of 2 hours known as “morning hour” at the
beginning of each new legislative day. During the second hour, or if the routine business known
as “morning business” is concluded before the end of the first hour, a non-debatable motion to
proceed would be in order (although it may not be used to call up a the measure that would
change Senate rules). If consideration of the measure called up by such a motion to proceed is
not concluded before the end of morning hour it is returned to the Calendar and the previous
unfinished business is laid before the Senate automatically. If there is no unfinished business,
the Senate may continue to consider the measure taken up during morning hour.
12
For more information, see CRS Report 98-712, “Holds” in the Senate, by Walter J. Oleszek.
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notice before a measure will be brought to the floor. In others, a hold may be part of a
complex negotiation over unanimous consent agreements covering consideration of one
or more measures or even part of a deliberate plan to block consideration.
At the beginning of the 106th Congress, the majority leader (Trent Lott) and minority
leader (Tom Daschle) jointly issued a “Dear Colleague” letter informing the Senate of a
change in policy regarding anonymous holds. In their letter they stated that:
. . . all members wishing to place a hold on any legislation or executive calendar
business shall notify the sponsor of the legislation and the committee of jurisdiction
of their concerns. Further, written notification should be provided to the respective
Leader stating their intentions regarding the bill or nomination.13In recent years, there have been efforts to regulate or limit the use of holds. On
September 14, 2007, President George W. Bush signed into law the Honest Leadership
and Open Government Act.13 Section 512 of the new law directs the majority and
minority leaders of the Senate to recognize an anonymous hold only when procedures
outlined in that section are followed by Senators.14
Executive Business
Senate rules provide that executive business (i.e., treaties and nominations) be
considered in executive session rather than in legislative session like other business of the
Senate.
Under Rule XXV, treaties are referred to the Foreign Relations Committee, and,
when they are reported, are placed on the executive business calendar. All treaties must
lie over for one calendar day before any subsequent Senate consideration. Similarly,
under Rule XXXI nominations must be referred to the appropriate committee, and cannot
be voted on the same day they are received from the President, or on the same day they
are reported, except by unanimous consent.
The majority leader will typically seek to obtain unanimous consent to go into
executive session to consider specific executive business. However, a majority leader
may alternatively make a motion to go into executive session which may specify a
particular treaty or nomination to be considered. The motion to go into executive session
is neither debatable nor amendable, and is highly privileged. It takes precedence over all
motions except to adjourn or recess and is not subject to a motion to table. If the motion
provides that the Senate go into executive session to consider a specific piece of executive
business, the effect is to raise executive business for consideration by non-debatable
motion.1415
The Senate may agree to a request or motion to go into executive session without an
item of executive business being specified. In that case, once the Senate is in executive
session, it may proceed to specific executive business by unanimous consent or by
motion, but the motion would be debatable.
13
Sen. Trent Lott, “Grassley-Wyden Initiative Letter,” Congressional Record, daily edition, vol.
145 (Mar. 3, 1999), pp. S2205-S2206.
14
Nominations are frequently considered en bloc, but only by unanimous consent.
Upon objection by any Senator a nomination must be considered separately.
13
S. 1 (110th Congress), P.L. 110-81.
14
For more on the provisions of section 512, see CRS Report RL34255, Senate Policy on
“Holds”: Action in the 110th Congress, by Walter Oleszek.
15
Historically, the practice of the Senate was to consider all treaties or nominations in the order
in which they appeared on the calendar of executive business, but more recent precedents have
established that the Senate may consider these matters in any order it chooses. See Riddick’s
Senate Procedure, pp. 941-942, and U.S. Congress, Senate Committee on Foreign Relations,
Treaties and Other International Agreements: The Role of the United States Senate,, 106th Cong.,
2nd sess., S. Prt. 106-71 (Washington: GPO, 2001), p. 137.
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Nominations are frequently considered en bloc, but only by unanimous consent.
Upon objection by any Senator a nomination must be considered separately.