Order Code 98-306 GOV
Updated September 29, 2006
CRS Report for Congress
Received through the CRS Web
Points of Order, Rulings, and Appeals
in the Senate
Valerie Heitshusen
Analyst American National Government
Government and Finance Division
The Senate’
Points of Order, Rulings, and Appeals in the Senate
August 16, 2013
(98-306)
The Senate's presiding officer typically does not have responsibility for
pro-actively
proactively ensuring that matters under consideration comply with the rules. Instead, Senators may
enforce the Senate
’'s legislative rules and precedents by making points of order whenever
they believe that one of those rules or precedents is, or is about to be, violated. Under
some circumstances, a ruling by the presiding officer determines whether or not the point
of order is well taken. Under others, the Senate itself decides the point of order, usually
by majority vote. For more information on legislative process, see [http://www.crs.gov/
products/guides/guidehome.shtml].1
by majority vote.1
Senate Rule XX states in part that
“"[a] question of order may be raised at any stage
of the proceedings, except when the Senate is voting or ascertaining the presence of a
quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer
without debate, subject to an appeal to the Senate.
” The rule goes on to confirm that the
presiding officer may “submit any question of order for the decision of the Senate.”
"
Points of Order
.
Under most circumstances, a Senator may make a point of order
against a question (whether it be a bill, amendment, motion, or something else) at any
time that the question is pending before the Senate.
2 The primary exception arises when
the Senate is debating a question
— —usually an amendment or motion
— —under a
unanimous consent agreement that limits the time for debating it. Under this
circumstance, no point of order can be made until all time for debating the question has
expired or has been yielded back.
While3 Although Senate rules preclude debate on points of order
themselves on which the presiding officer rules, the presiding officer may, by precedent, entertain discussion at his or her
discretion.2
1
Paul S. Rundquist, former Specialist in American National Government at CRS, originally
wrote this report. Dr. Rundquist has retired. The listed author updated this report and is
available to respond to inquiries on the subject.
2
Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure, 101st Cong., 2nd sess., S.
Doc. 101-28 (Washington: GPO, 1992), p. 989.
Congressional Research Service ˜ The Library of Congress
CRS-2
Rulings. discretion.4
Rulings
In most situations, the presiding officer rules on
all points of order.
3
5 Under two circumstances, however, the point of order is decided by the Senate. First, the
presiding officer may, in rare instances, decline to rule and, instead, submit the point of
order directly for the Senate to decide
by majority vote. The presiding officer is most
likely to do so when the procedural question has not arisen before, and there is no Senate
rule or precedent on which to base a ruling. Second, only the Senate, not its presiding
officer, is empowered to decide certain points of order. Under Rule XVI, for example,
the question of whether
ana legislative amendment to an appropriations bill is germane is usually
submitted to the Senate to decide
by majority vote.(in the form of a "defense of germaneness").6 Also, by precedent, if a Senator
makes the point of order that the question pending before the Senate is unconstitutional,
then the Senate must decide that question
by majority vote. If.7 When the presiding officer submits a
point of order
(but not a defense of germaneness) to the whole to the Senate to decide
under either of these circumstances, it is subject to
, it is typically debatable under the regular rules of the Senate.8 A submitted point of order is, however, subject to a nondebatable motion to table (or kill) the matter
, which would dispose of the question
permanently and adversely.4 In any situation in which the presiding officer submits the
question to the whole Senate, it is debatable under the regular rules of the Senate.5
Appeals. ; agreeing to the motion to table disposes of the point of order permanently and adversely.9 Finally, note that a submitted point of order is not subject to debate when the Senate is operating post-cloture, pursuant to Rule XXII.
Appeals
In most cases, rulings made by the presiding officer in response to points
of order are subject to appeal.
10 When the presiding officer rules on a question of order,
any Senator who disagrees with the ruling may challenge it. That Senator rises and states,
“ "Mr. President, I appeal from the decision of the Chair.
”" Such an appeal
usually is
typically is debatable, though the Senate may end the debate and dispose of the appeal by agreeing
to a motion to table (or kill) it, which would uphold the ruling of the chair. Absent a
successful motion to table, debate on the appeal
usually is subject to extended consideration under
the regular rules of the Senate.6 By precedent, decisions of the presiding officer
concerning recognition of Senators are not subject to appeal.7 In addition, when the
Senate has invoked cloture, Rule XXII gives the presiding officer the authority to hold an
appeal to be dilatory and, therefore, not in order. (Also under Rule XXII, when the Senate
is operating under cloture, points of order and appeals are to be decided without debate.)
After any debate on the appeal takes place, the Senate votes on whether “the decision
of the Chair will stand as the judgment of the Senate.” Senators who support the ruling
vote “‘aye’; those who oppose it vote ‘no’.” Appeals usually are decided by simple
majority vote. A three-fifths vote of the entire Senate — 60 if no vacancies — is needed
to overturn rulings by the presiding officer on most budget process points of order.8
3
Assuming no action has been taken on the amendment on which a point of order has been laid,
the presiding officer may, by precedent, allow modification to the amendment prior to ruling on
the point of order. See Riddick’s, pp. 65, 988.
4
Riddick’s, pp. 52-54, p. 989.
5
Riddick’s, pp. 716, 736.
6
Riddick’s, p. 725. Under this circumstance, only a majority vote is required to overturn the
ruling of the chair, but ending debate on the appeal may require a three-fifths vote to invoke
cloture.
7
8
Riddick’s, p. 147.
The three-fifths threshold is required for those points of order for which a three-fifths vote
would be required for a waiver. For more information on budget points of order, see CRS Report
97-865, Points of Order in the Congressional Budget Process, by James V. Saturno.
CRS-3
Precedents. Rulings by the presiding officer invariably reflect the advice that the
Senate Parliamentarian gives based on his or her examination of how presiding officers
decided similar questions in the past.9 The presiding officer follows these precedents, and
in similar fashion, new rulings become precedents on which presiding officers will rely
in the future.
By the same token, when the presiding officer submits a point of order for the Senate
to decide, or when the Senate decides a point of order by overruling the decision of the
chair on appeal, that decision of the Senate also becomes a guiding precedent. In 2000,
for example, the Senate determined (through a successful appeal from a ruling of the
chair) that sense-of-the-Senate or sense-of-Congress amendments to appropriations bills
must comply with Rule XVI regarding germaneness, just as substantive amendments to
appropriations must.10 Nevertheless, although it is not unusual for Senators to appeal the
rulings of the chair, the Senate only rarely overturns the rulings of its presiding officer.
To routinely do so would undermine the continuity of Senate rules and the consistency
of rule interpretation essential to legislative work.
The most authoritative precedents are those established by vote of the Senate itself.
Rulings of the chair on which the Senate does not vote are of somewhat less probative
value. Still weaker as precedents are statements and opinions by presiding officers in
reply to parliamentary inquiries. A parliamentary inquiry is a question posed by a Senator
to the chair about the Senate’s procedures or the current procedural situation. The
presiding officer’s reply is not a ruling, so it is not subject to appeal. In addition,
successful motions to waive a Budget Act point of order do not establish precedents. A
successful motion to table would likewise not establish a precedent because the Senate
would not have voted directly on the question or appeal. It could, however, have
precedential value if it allowed a ruling of the chair to stand.
For additional information, see Riddick’ the regular rules of the Senate.11 When the Senate is operating under cloture, however, appeals are to be decided without debate, pursuant to Rule XXII (paragraph 2).12 In addition, debate on an appeal may also be limited in certain situations when provisions of a unanimous consent agreement limit consideration of the underlying matter, and debate of appeals made during consideration of certain budgetary measures is limited by caps on consideration of the measure (pursuant to provisions of the Budget Act).13
After any debate on the appeal, the Senate votes on whether "the decision of the Chair will stand as the judgment of the Senate." Senators who support the ruling vote "aye"; those who oppose it vote "no." Appeals usually are decided by simple majority vote. A three-fifths vote of the entire Senate—60 if no vacancies—is needed to overturn rulings by the presiding officer on most budget process points of order.14
Precedents
Rulings by the presiding officer invariably reflect the advice that the Senate Parliamentarian gives based on his or her examination of how presiding officers decided similar questions in the past.15 The presiding officer follows these precedents, and in similar fashion, new rulings become precedents on which presiding officers will rely in the future.
By the same token, when the presiding officer submits a point of order for the Senate to decide, or when the Senate decides a point of order by overruling the decision of the chair on appeal, that decision of the Senate also becomes a guiding precedent. In 2000, for example, the Senate determined (through a successful appeal from a ruling of the chair) that sense-of-the-Senate or sense-of-Congress amendments (sometimes called precatory amendments) to appropriations bills must comply with Rule XVI regarding germaneness, just as substantive amendments to appropriations must.16 Similarly, in 2011, the Senate overturned a ruling of the chair that motions to suspend the rules were not dilatory when the Senate was operating post-cloture. Nevertheless, although it is not unusual for Senators to appeal the rulings of the chair, the Senate only rarely overturns the rulings of its presiding officer. To routinely do so would undermine the continuity of Senate rules and the consistency of rule interpretation essential to legislative work.
The most authoritative precedents are those established by vote of the Senate itself. Rulings of the chair on which the Senate does not vote are of somewhat less probative value. Still weaker as precedents are statements and opinions by presiding officers in reply to parliamentary inquiries. A parliamentary inquiry is a question posed by a Senator to the chair about the Senate's procedures or the current procedural situation. The presiding officer's reply is not a ruling, so it is not subject to appeal. In addition, successful motions to waive a Budget Act point of order do not establish precedents. A successful motion to table would likewise not establish a precedent because the Senate would not have voted directly on the question or appeal. It could, however, have precedential value if it allowed a ruling of the chair to stand.
For additional information, see Riddick's Senate Procedure (Washington: GPO,
1992), especially
pp.pages 145-149 (
“Appeals”"Appeals") and 987-996 (
“"Points of Order
”"). In using
Riddick’s Senate Procedure Riddick's, care should be exercised in distinguishing between
references supported by footnotes using the phrase
“see” or “"see" or "see also,
”" and those which
do not use such terms. Footnotes with
“see” or “"see" or "see also
”" refer to statements by the chair
in response to parliamentary inquiries. Footnotes without such forms refer to rulings of
the chair or decisions of the Senate by vote in response to points of order.
9
In addition, rulings on certain budget points of order require examination of estimates supplied
by the Senate Budget Committee, which monitors the compliance of measures with the
Acknowledgments
[author name scrubbed], former Specialist in American National Government at CRS, wrote an early version of this report. The listed author updated this report and is available to respond to inquiries on the subject.
Footnotes
1.
|
In some circumstances, reaching a vote on the point of order or appeal may require a super-majority of the Senate to agree to end debate on the question. The fact that most appeals and submitted points of order are subject to extended debate in the Senate is central to recent discussions about potential changes in Senate rules and practices. For more information, see CRS Report R42929, Procedures for Considering Changes in Senate Rules, by [author name scrubbed].
|
2.
|
A Senator cannot raise a point of order unless he or she has the floor. See Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure, 101st Cong., 2nd sess., S. Doc. 101-28 (Washington: GPO, 1992), p. 993.
|
3.
|
Riddick's, pp. 1356-1359.
|
4.
|
Riddick's, p. 989.
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5.
|
Assuming no action has been taken on the amendment on which a point of order has been raised, the presiding officer may, by precedent, allow modification to the amendment prior to ruling on the point of order. See Riddick's, pp. 65, 988.
|
6.
|
On such a question of germaneness to an appropriations bill, the presiding officer does not submit the point of order itself to the Senate, but rather, a "defense of germaneness" response to a point of order, which is not subject to debate. Agreeing to the defense of germaneness requires only a simple majority vote. Only if the defense of germaneness fails (or is tabled) does the presiding officer rule on the point of order (Riddick's, pp. 162-163). Since 1979, the presiding officer typically only submits the question to the Senate for decision if the amendment meets a minimum threshold test; see Riddick's, pp. 167-168 for additional information.
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7.
|
CRS Report R40948, Constitutional Points of Order in the Senate, by [author name scrubbed], provides more information on Senate rules and practices relevant to constitutional points of order, as well as analysis of Senate disposition in recent cases.
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8.
|
Riddick's, pp. 716, 736. Only a majority vote is required to sustain a submitted point of order, but in this circumstance, ending debate on the point of order (so that a vote may occur) may require a three-fifths vote to invoke cloture. See CRS Report RL30360, Filibusters and Cloture in the Senate, by [author name scrubbed] and [author name scrubbed] for discussion of the operation of the cloture provisions of Rule XXII.
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9.
|
Riddick's, pp. 52-54, 989.
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10.
|
By precedent, decisions of the presiding officer concerning recognition of Senators are not subject to appeal; see Riddick's, p. 147.
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11.
|
Riddick's, p. 725. Under this circumstance, while a majority vote is required to overturn the ruling of the chair, ending debate on the appeal may require a three-fifths vote to invoke cloture, pursuant to Rule XXII.
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12.
|
The appeal may also be decided without debate in certain circumstances when made in connection with a non-debatable question. See Riddick's, p. 725, 726.
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13.
|
Riddick's, pp.1356-1359, and the Congressional Budget Act of 1974, as amended (Titles I-IX of P.L. 93-344, 2 U.S.X. 601-661).
|
14.
|
The three-fifths threshold is required for those points of order for which a three-fifths vote would be required for a waiver. For more information on budget points of order, see CRS Report 97-865, Points of Order in the Congressional Budget Process, by [author name scrubbed].
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15.
|
In addition, rulings on certain budget points of order require examination of estimates supplied by the Senate Budget Committee, which monitors the compliance of measures with the Congressional Budget Act of 1974, as amended (Titles I-IX of P.L. 93-344; 2 U.S.C. 601-688).
10
16.
|
According to the Majority Leader, who raised the point of order, no chair rulings or votes on
appeal had previously subjected sense-of-the-Senate and sense-of-Congress amendments to this
germaneness requirement for appropriations bills. Sen. Trent Lott,
“"Military Construction
Appropriations,
”" remarks in the Senate, Congressional Record, vol. 146, May 17, 2000, pp.
82838286.
8283-8286.