Eight Mechanisms to Enact Procedural Change in the U.S. Senate

Eight Mechanisms to Enact Procedural Change in the U.S. Senate

Eight Mechanisms to Enact Procedural
Change in the U.S. Senate
Updated December 2, 2020
The Senate’s unique procedural rules have long been a source of interest both inside and outside of
Congress. While some hold the view that Senate rules operate wel , others have advocated an examination
of Senate procedures with an eye toward changing them. This Insight highlights eight parliamentary
mechanisms that might be used to implement procedural change in the Senate and links to additional
reading material on the subject.
The work of the U.S. Senate is regulated not just by its 44 standing rules but by multiple, sometimes
overlapping, procedural authorities. At any given time, unanimous consent agreements, standing orders,
statute, precedent, and provisions of the U.S. Constitution may also regulate the Senate as it processes its
legislative and executive business. It is perhaps natural for those seeking changes to Senate procedures to
think in terms of “amending Senate rules,” but directly amending the standing rules of the Senate is only
one way to affect chamber procedures. Because some Senate actions are, or may be, controlled by
multiple authorities, it is sometimes possible to achieve the same procedural outcome using more than one
parliamentary mechanism. While each mechanism may achieve identical ends, each may also have
procedural advantages and disadvantages that make it a more or less desirable path for action in a given
instance. Here are eight such mechanisms:
1. Amend the standing rules. Because the Senate is a “continuing body,” its standing rules
remain in force from Congress to Congress unless changed. A motion to proceed to
consider a resolution (S.Res.) reported by a committee directly amending the Senate’s
standing rules is always debatable and requires one day’s written notice. If a unanimous
consent request for the immediate consideration of a resolution amending the standing
rules is objected to, the resolution “goes over, under the rule” and is placed in a
parliamentary status from which it is difficult to retrieve. Although agreeing to a rules
change resolution requires only a majority vote, invoking cloture on such a resolution
(which is fully debatable and subject to amendment) requires a vote of two-thirds of
Senators present and voting, with a quorum present—67 if al Senators vote. It appears
the same cloture threshold would likely apply to the motion to proceed to such a
resolution. Direct amendments to the standing rules are also occasional y made by statute.
2. Create or amend a standing order. The Senate sometimes instead establishes chamber
procedures by standing order. Standing orders have the same force as standing rules but
are not codified in the rules. The Senate Manual lists major standing orders now in force.
Standing orders continue in effect until changed, unless the order specifies otherwise.
They are frequently established by resolution but can also be ordered by unanimous
consent. A motion to proceed to consider a reported resolution establishing a standing
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order is debatable, and invoking cloture on that motion, and on the measure itself,
requires a three-fifths vote of the Senate—60 votes if there is not more than one
vacancy—a lower threshold than required for cloture on resolutions proposing direct
amendments to the standing rules.
3. Unanimous consent. More than any other parliamentary mechanism, the Senate uses
unanimous consent agreements to process and establish the terms for considering floor
business. Senate Rule V provides that any rule may be suspended without notice by
unanimous consent unless the rules specify otherwise. Any Senator present on the floor
when a consent request is propounded can object, including on another Senator’s behalf,
blocking the request. Once agreed to, a unanimous consent agreement may be
subsequently altered in whole or in part by another such consent agreement.
4. Establish a new precedent. Senate procedural actions are also regulated by
parliamentary precedent. Rulings of the presiding officer on the application of chamber
rules are general y subject to an appeal to the full Senate. In most procedural
circumstances, appeals are debatable. This fact operates as a significant bar to creating
new precedent by appeal. When appeals are made in procedural circumstances that render
them nondebatable, however—for example, after cloture has been invoked or when the
appeal is made in relation to a nondebatable motion—no supermajority to limit debate is
needed, and a majority can overrule the chair and establish a new understanding of what a
Senate rule means or how it is applied.
5. Enact a rulemaking statute. The Senate sometimes enacts parliamentary rules in law,
such as the Congressional Review Act and the Trade Act of 1974. Doing so requires two-
chamber passage of a bil or joint resolution and presidential approval (or veto override).
Rules changes might appear in a bil as introduced or be added by amendment. Cal ing up
and reaching a final vote on legislation may each require a three-fifths vote for cloture
except if the measure directly amends the Senate’s standing rules, in which case a two-
thirds vote is necessary.
6. Suspend the rules. Rule V also makes in order a motion to suspend Senate rules,
including rules in law, such as the Congressional Budget Act. A motion to suspend the
rules does not permanently change Senate rules; it suspends them only in the specific
case and in the exact manner specified in the motion. The motion to suspend requires one
day’s written notice before consideration, and its adoption is by a two-thirds vote, a
quorum being present. Such motions are debatable, and a three-fifths cloture vote may be
necessary to reach a final vote. Under a 2011 precedent, motions to suspend the rules are
not in order postcloture.
7. Amend the Constitution. The Constitution establishes certain parliamentary rules for the
Senate, including its business quorum and the requirement to maintain a journal. A
constitutional amendment may be proposed by Congress by a two-thirds vote of each
chamber or by a constitutional convention cal ed for by two-thirds of the state
legislatures. Such an amendment becomes part of the Constitution once ratified by three-
fourths of the states. Joint resolutions proposing constitutional amendments are debatable
and amendable. Successfully cal ing up such a measure and reaching a vote on it in the
Senate could both require three-fifths vote for cloture.
8. Voluntary action. Significant procedural change can sometimes occur as a result of
voluntary action undertaken by Senate leaders or groups of Senators acting collectively.
In 2011, for example, Senate leaders entered into a voluntary informal agreement related
to extended debate and the offering of floor amendments. Such “gentlemen’s
agreements” are not procedural y enforceable, however.

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9.
For additional reading on mechanisms to change Senate procedures and recent related actions, see:
 CRS Report R42929, Procedures for Considering Changes in Senate Rules;
 CRS Report R41342, Proposals to Change the Operation of Cloture in the Senate;
 CRS Report R44395, Amending Senate Rules at the Start of a New Congress, 1953-1975: An
Analysis with an Afterword to 2015;
 CRS Report R42928, “First Day” Proceedings and Procedural Change in the Senate;
 CRS Report R42996, Changes to Senate Procedures at the Start of the 113th Congress
Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16); and
 CRS Report R43331, Majority Cloture for Nominations: Implications and the “Nuclear”
Proceedings of November 21, 2013.

Author Information

Christopher M. Davis

Analyst on Congress and the Legislative Process

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IN10875 · VERSION 5 · UPDATED