Senate Rules for Committee Markups

Senate Rules for Committee Markups

Order Code 98-711 GOV
Updated February 20, 2001
CRS Report for Congress
Received through the CRS Web
Senate Rules for Committee Markups
Walter J. Oleszek
Government and Finance Division
“All committees are different” is an oft-made comment. It underscores that each
panel has its own history, customs, decisionmaking styles, procedures, jurisdiction, and so
on. What this means for Senate markups — sessions where committee members consider
changes in the text of the measure or matter before them — is that these drafting meetings
also reflect the “personality” of each committee. To a large extent, each committee has
considerable flexibility in how it goes about “marking up” a measure or matter before it.
For instance, during the 105th Congress, committee rules for the Senate Foreign Relations
Committee stipulate that, insofar as practicable, “proceedings of the Committee will be
conducted without resort to the formalities of parliamentary procedure.” By comparison,
other committees identify detailed procedures for their markup meetings.
Senate Rule XXVI, clause 2 states that “each committee shall adopt rules (not
inconsistent with the Rules of the Senate) governing the procedure of such committee.”
This requirement, however, does not mandate strict parallelism between committee rules
and Senate rules. Committees need not embrace procedures identical to those applied on
the floor of the Senate. For example, a supermajority vote is required to invoke cloture
in the Senate; the Judiciary Committee allows a majority of its members to invoke cloture
provided that at least one minority lawmaker votes to support this non-debatable motion.
Senate rules, however, do impose certain limited requirements and prohibitions on
committees during the markup stage. They specify, for instance, meeting, quorum,
openness, proxy voting, and reporting requirements. These and other related topics are
outlined in Senate Rule XXVI, which is titled “Committee Procedure.”
Markup Meetings during Senate Sessions. A committee may not meet on
any day (1) after the Senate has been in session for two hours, or (2) after 2:00 p.m. when
the Senate is in session. This prohibition does not apply to the Appropriations and Budget
Committees, and it may be waived for any other committee either by unanimous consent
or by joint agreement of the majority and minority leaders or their designees. (Clause 5 (a))
Quorum at Meetings. A committee or subcommittee may establish its own
quorum requirements for transacting business at meetings, so long as the quorum is not
less than one-third of its entire membership. (Clause 7 (a)(1))
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Open Markup Meetings. Committee and subcommittee meetings are open to the
general public unless the committee decides in open session by majority vote to close a
meeting or series of meetings. The Senate rule enumerates six reasons for closing
committee meetings, specifically when discussions will involve national security, internal
staff management, law enforcement agents or information, the privacy of an individual, the
release of trade secrets, and matters required to be kept confidential under other legal
provisions. (Clause 5 (b))
Proxy Voting. Any committee may adopt rules providing for proxy voting.
However, clause 7 (a)(3) of Rule XXVI stipulates that no “vote of any member of any
committee to report a measure or matter may be cast by proxy....” This rule has been
interpreted to mean that, if a physically present committee majority (see below) votes
“yes” on reporting a matter, proxies could be cast to change that decision to “no.” On the
other hand, if a physically present majority quorum votes “no” on reporting, proxies
cannot be employed to change that outcome to “yes” because it would violate the Senate
rule against reporting a measure by proxy votes. Senate rules further state that “proxies
may not be voted when the absent committee member has not been informed of the matter
on which he is being recorded and has not affirmatively requested that he be so recorded.”
(Clause 7 (a)(3)) Under Senate precedents, it is not in order to use proxies to establish a
quorum.
Vote to Report a Measure or Matter. Senate rules stipulate that “no measure
or matter or recommendation shall be reported from any committee unless a majority of
the committee were physically present.” (Clause 7 (a)(1)) Further, Senate rules require
“the concurrence of a majority of the members of the committee who are present” to
report a measure or matter to the floor. (Clause 7 (a)(3)) Senate precedents prohibit the
polling of committee members to report a measure or matter.
The “Clean Up” Provision. Clause 7(a)(3) might be called the “clean up”
provision. If committees violate the procedures of Rule XXVI, such as conducting secret
markups contrary to the terms of Clause 5 (b), that impropriety will have no effect if
committees follow proper procedures for voting to report measures or matters to the floor.
As Clause 7 (a)(3) states:
Action by any committee in reporting any measure or matter in accordance with the
requirements of this subparagraph [the majority physically present rule] shall constitute
the ratification by the committee of all action theretofore taken by the committee with
respect to that measure or matter, including votes taken upon the measure or matter or
any amendment thereto, and no point of order shall lie with respect to that measure or
matter ...
Worth highlighting is that many important markup practices are unregulated by
formal Senate rules. One involves the choice (usually made by the committee or
subcommittee chair) of what is to be marked up: a Senate bill, a House bill, the chair's
prepared “mark,” or something else. For further information, see Stanley Bach, Senate
Rules Affecting Committee Activities,” CRS Report 98-311 GOV, January 12, 2001, 10
pages.