House Rules and Precedents Affecting
Committee Markup Procedures
Christopher M. Davis
Analyst on Congress and the Legislative Process
November 19, 2010
Congressional Research Service
7-5700
www.crs.gov
97-1045
CRS Report for Congress
P
repared for Members and Committees of Congress
House Rules and Precedents Affecting Committee Markup Procedures
Summary
Markup procedures in standing committees of the House of Representatives generally conform to
guidelines the House follows when it conducts business on the floor under a set of procedures
known as consideration by the “House as in Committee of the Whole.” Consideration by the
“House as in Committee of the Whole” is not the same as the more common practice of the
House “resolving itself into the Committee of the Whole House,” but is, instead, a more rarely
used set of procedures that combines elements of both procedures used in the House and
procedures used in the Committee of the Whole. This report briefly discusses these procedures as
they relate to legislative business conducted on the floor and in committee.
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House Rules and Precedents Affecting Committee Markup Procedures
Contents
Background ................................................................................................................................ 1
House as in Committee of the Whole........................................................................................... 1
On the Floor................................................................................................................................ 1
In Committee .............................................................................................................................. 2
Points of Order............................................................................................................................ 4
Contacts
Author Contact Information ........................................................................................................ 4
Acknowledgments ...................................................................................................................... 4
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House Rules and Precedents Affecting Committee Markup Procedures
Background
The rules of the House of Representatives are ambiguous with respect to the procedures that its
standing committees are to follow when they mark up legislation. Clause 1(a)(1) of Rule XI
generally provides that “[t]he Rules of the House are the rules of its committees and
subcommittees so far as applicable.” At the same time, clause 2(a) of the same rule directs each
standing committee to adopt written rules governing its own actions that “may not be inconsistent
with the Rules of the House or with those provisions of law having the force and effect of Rules
of the House.”
Two problems arise from this ambiguity. First, the House rules do not clearly define which House
rules are applicable to committees and subcommittees, nor do they provide criteria to judge
whether individual committee rules are consistent with overall House rules. Second, the House’s
rules contain different sets of procedures that the House uses under different circumstances to
consider legislation on the floor. It would not be possible for all of these procedures to apply to
committees simultaneously.
House as in Committee of the Whole
Over time, markup procedures in standing committees of the House of Representatives have
come to generally conform to practices the House follows when it conducts business on the floor
under a rarely used set of procedures called consideration by the “House as in Committee of the
Whole.” It is important to note that consideration by the “House as in Committee of the Whole” is
not the same as the more common practice of the House “resolving itself into the Committee of
the Whole House” but is, instead, a more infrequently used hybrid set of procedures that
combines elements of both procedures used in the House and procedures used the Committee of
the Whole. It is not a practice that is defined in the House Rules.
The House parliamentarian provides guidance when he notes in the commentary accompanying
Section XXX of Jefferson’s Manual that “[t]he procedures applicable in the House as in the
Committee of the Whole generally apply to proceedings in committees of the House of
Representatives.” He also points out several exceptions to this general statement, some of which
are discussed below.
It should be emphasized that the rules of the House do not explicitly direct House committees to
follow the procedures applicable in the “House as in Committee of the Whole”; this nearly
universal practice has simply evolved over time. It is generally left to each committee to enforce
or disregard its procedures governing debate and amendment during markup sessions.
On the Floor
There is a distinctive set of procedures that the House follows when it considers a measure on the
floor in the House as in Committee of the Whole. These procedures are not spelled out in the
House’s standing rules; they are a matter of precedent, and the House does not use them very
often.
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House Rules and Precedents Affecting Committee Markup Procedures
There are four circumstances in which the House may consider measures in the House as in
Committee of the Whole. First, when the Committee on Oversight and Government Reform calls
up a bill on one of the days specially set aside for measures concerning the District of Columbia,
the House may agree by unanimous consent to consider that bill in the House as in Committee of
the Whole. Second, the House sometimes has agreed, by unanimous consent, to consider an
appropriations or rescission measure in this way. Third, private bills are to be considered in the
House as in Committee of the Whole. Fourth, this set of procedures is to be used for considering
measures that are on the Union Calendar (or would be placed on the Union Calendar if reported
from committee) and that are brought to the floor by unanimous consent. In the last two cases,
however, these bills usually are passed without any formal debate, so the procedures, while
technically in force, are rarely actually invoked.
As its name suggests, the procedures applicable in the House as in Committee of the Whole
combine elements of the procedures that apply in the House and those followed in Committee of
the Whole. When a bill is considered in the House as in Committee of the Whole, the Speaker
continues to preside. A quorum is 218 members, as opposed to a quorum of 100 in the Committee
of the Whole. The House does not actually resolve itself into Committee of the Whole, but in
some respects, it acts as if it had. There is no general debate, and all debate takes place under the
five-minute rule, not the one-hour rule. Thus, the majority floor manager moves to “strike the last
word” in order to secure five minutes in which to make his or her opening statement. Other
Members also use such pro forma amendments to gain time for debate.
In the House as in Committee of the Whole, the bill is not read for amendment; it is open to
amendment at any point. During consideration of the bill and each amendment to it, both the
motion to limit or close debate and the motion to order the previous question are available.
The majority floor manager (or another Member) may move to limit or close debate on a pending
amendment and all amendments thereto. Adopting this motion requires only a simple majority
vote. If the motion is adopted and after any remaining time for debate expires, Members still can
offer amendments to the pending amendment before the House votes on it, but there is no time for
debating any of these amendments either. Because the bill is open to amendment at any point, the
majority floor manager (or another Member) also may move to limit or close debate on the entire
bill and all amendments thereto. Again, once debate ends, additional amendments remain in order
but cannot be explained, except by unanimous consent.
Alternatively, the majority floor manager (or another Member) may move to order the previous
question on the pending amendment or on the bill and all amendments thereto. If the House
adopts this motion, also by simple majority vote, that ends the debate, precludes further
amendments, and brings the House to a vote on adopting the amendment or a vote on passing the
bill (unless a Member intervenes by offering a motion to recommit). The previous question may
not be moved on a portion of a bill.
In Committee
When a standing committee begins meeting to mark up the text or draft of a legislative measure,
the measure first should be read in full. This requirement derives from a provision of Jefferson’s
Manual (Section XXVI) that continues to apply to the House today. However, Rule XI, clause
1(a)(1)(B), provides for a highly privileged and nondebatable motion to waive this first reading in
committee or subcommittee if printed copies of the text are available.
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House Rules and Precedents Affecting Committee Markup Procedures
In committee, the text then is read for amendment, section by section. The text is not considered
as read and open to amendment at any point; this is one respect in which the procedures of the
House as in Committee of the Whole do not apply in committee. Furthermore, each section must
be read, not merely designated. By contrast, on the floor, when the House considers a bill in
Committee of the Whole under the terms of a special rule, that rule often provides for each
section to be designated, not read. In committee, the reading of a section can be dispensed with by
unanimous consent, but not by motion.
When a section has been read, committee members may offer amendments to it, just as they can
on the floor when the House has resolved into Committee of the Whole. Unless they obtain
unanimous consent, Members may not offer amendments to a section of the bill that has not yet
been read or to a section after a subsequent section has been read. Each amendment offered must
be in writing and must be read before debate on it begins, unless the reading is waived by
unanimous consent. An amendment may be withdrawn by the Member offering it without the
need for unanimous consent unless the committee has already acted on it.
Committee members may speak on the bill and amendments under a five-minute rule. In contrast
to the House’s floor procedures, however, committee members do not have to offer pro forma
amendments (i.e., moving to strike the last word) in order to secure five minutes for debate. A
committee member who wishes to speak for five minutes merely needs to seek recognition from
the chair.
In recognizing committee members to speak and offer amendments, the chair is expected to be
guided by the same practices that the chairman of the Committee of the Whole follows on the
floor: generally alternating between Members of the two parties and generally recognizing
Members in order of their seniority. Some committees have established so-called “early bird”
rules that afford priority in recognition to Members who arrived before the hearing commenced.
In committee, a motion is in order to limit or close debate on the pending amendment (and all
amendments thereto) or on the pending section of the bill (and all amendments thereto). However,
because a bill is read for amendment by sections, it is not in order to move to limit or close debate
on the entire bill until the reading of the bill has been completed or the committee has agreed by
unanimous consent to consider the bill as having been read. Similarly, a Member may move the
previous question on the pending amendment (and all amendments thereto), or on the entire bill
(and all amendments thereto) after the bill has been read or considered as read. As on the House
floor, the previous question may not be moved and ordered on just a section of a bill.
In addition, under one commonly used procedure, the chair can offer, or recognize another
Member to offer, an amendment in the nature of a substitute, which is essentially a full-text
alternative to the pending measure. Such an amendment can only be offered at the beginning or
end of the process, and is then open to amendment at any point. When an amendment in the
nature of a substitute is offered at the beginning of the markup, it serves as the base text, and
Members ordinarily will direct their amendments to the substitute, rather than the underlying bill.
Some committees choose to use this procedure because it allows the previous question to be
moved on such an amendment following debate on it, cutting off all further discussion and
amendments to the measure being marked up. An amendment in the nature of a substitute can
also have other political and parliamentary advantages. Using such an amendment allows the
chair to keep the text to be marked up out of the public eye literally until the markup commences
if he so chooses. Reporting one committee substitute that represents all of the changes made at a
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House Rules and Precedents Affecting Committee Markup Procedures
markup is also potentially easier to deal with on the House floor than reporting a bill with
multiple “cut and bite” amendments.
The parliamentarian notes that committees “may employ the ordinary motions which are in order
in the House,” such as motions to adjourn, table, postpone to a day certain, postpone indefinitely,
and reconsider. During debate on amendments, however, the motion to table rarely is employed in
committee because “when a proposed amendment is laid on the table the pending bill goes there
also.”
Points of Order
It is generally left to each committee to enforce or disregard its procedures governing debate and
amendment during markup sessions. The House parliamentarian has stated that a point of order
does not ordinarily lie in the House against consideration of a bill by reason of defective
committee procedures occurring prior to the time the bill was ordered reported to the House. Such
point of order, if made in the House, may be overruled on the ground that the rules of a particular
committee are for that committee to interpret unless they are in direct conflict with the rules of
the House or unless the House rules specifically permit the raising of such objections.1
Author Contact Information
Christopher M. Davis
Analyst on Congress and the Legislative Process
cmdavis@crs.loc.gov, 7-0656
Acknowledgments
This report was originally written by Stanley Bach, formerly a senior specialist in the Legislative Process at
CRS.
1 William Holmes Brown and Charles W. Johnson, House Practice, A Guide to the Rules, Precedents and Procedures
of the House (Washington: GPO, 2003), ch. 11, §15, p. 267.
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