House Committee Markups: Manual of
Procedures and Procedural Strategies
,name redacted,
Senior Specialist in American National Government
,name redacted,
Specialist on the Congress
Updated March 27, 2018
Congressional Research Service
7-....
www.crs.gov
R41083
House Committee Markups: Manual of Procedures and Procedural Strategies
Summary
A principal responsibility of House committees is to conduct markups—to select legislation to
consider, to debate it and vote on amendments to it (to mark up), and to report recommendations
on passage to the House. This manual examines procedures and strategy related to committee
markups and provides sample procedural scripts.
A committee faces many decisions when it considers a policy matter in a markup. It must select
what legislation to mark up; decide whether to mark up in committee only or in both
subcommittee and committee; consider the effect of referral on the markup; choose how to report
to the House; and take into account congressional and Administration sentiments. With policy and
political considerations in mind, the committee plans its procedural strategy.
The first element of a markup strategy is selection of a markup vehicle. A committee might mark
up a measure as introduced, a version of the measure previously marked up in subcommittee, a
draft prepared before, after, or without subcommittee markup, or an amendment in the nature of a
substitute. Procedural and political consequences attach to each markup vehicle. Two parts of the
manual deal with this element: Procedural Strategy and the Choice of a Markup Vehicle, and
Beginning a Markup.
The second element of a markup strategy is conduct of the amendment process. A committee may
mark up a measure by section or by paragraph or by another subdivision, such as title; open it to
amendment at any point or use an amendment roster; or mark up an amendment in the nature of a
substitute. Specific procedural and political consequences attach to each choice. One part of the
manual deals with this element: Reading a Measure for Amendment.
The third element of a markup strategy is the decision of what to report. If a committee marks up
legislation as introduced, it may report that with recommended amendments. If a committee
marks up a draft or an amendment in the nature of a substitute, it must convert that vehicle into
legislation that can be reported. A committee may also choose to report a “clean” measure. Two
parts of the manual deal with this element: Reporting a Measure, and Committee Reports.
The final element of a markup strategy cuts through the other elements—anticipating the motions
and requests that the majority and minority might make at each stage of the markup. Four parts of
the manual deal with this element: Parliamentary Inquiries; Points of Order; Motions, Requests,
and Demands; and Voting.
Six parts of this manual supplement these elements of markup strategy by providing background
and context: Introduction to House Committee Markup Procedures, Committee Rules, Procedural
Restrictions in Law on Certain Markups, Referral of Legislation in the House, Considerations
Prior to a Markup, and Role of Committee and Personal Staff.
Two parts of the manual deal with Options for House Consideration and Considerations in a Two-
House Strategy. Although House floor consideration follows committee action, and Senate action
may precede or follow House committee action, plans for a markup must anticipate the larger
arenas in which reported legislation will be considered. This context is examined in these two
parts.
An Overview of Manual section explains the relationship between the elements and the parts of
the manual, and includes a subsection on How To Read or Use This Manual.
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House Committee Markups: Manual of Procedures and Procedural Strategies
Contents
1. Overview of Manual .................................................................................................................... 1
1.1. Resources: Experts and CRS Reports ................................................................................ 4
1.2. How To Read or Use This Manual ..................................................................................... 5
2. Introduction to House Committee Markup Procedures ............................................................... 6
2.1. What Rules Apply in Committees? .................................................................................... 6
2.2. Summary of Procedures of the House as in the Committee of the Whole as These
Procedures Operate in House Committees ............................................................................. 8
2.3. Importance of Procedure in Committee ............................................................................. 9
3. Committee Rules ......................................................................................................................... 9
3.1. Subcommittees ................................................................................................................. 10
3.2. Meetings ............................................................................................................................ 11
3.2.1. Meeting Days and Chairing Meetings ..................................................................... 11
3.2.2. Members’ Initiative to Hold a Markup..................................................................... 11
3.2.3. Notice and Documents ............................................................................................ 12
3.2.4. Open and Closed Meetings ..................................................................................... 13
3.2.5. Media Coverage ...................................................................................................... 13
3.3. Opening Statements ......................................................................................................... 14
3.4. Postpone Votes ................................................................................................................. 14
3.5. Quorum Requirements ..................................................................................................... 14
3.6. Recess ............................................................................................................................... 15
3.7. Reporting .......................................................................................................................... 15
3.8. Subpoenas ........................................................................................................................ 15
3.9. Committee Records .......................................................................................................... 16
4. Procedural Restrictions in Law on Certain Markups ................................................................. 16
5. Referral of Legislation in the House ......................................................................................... 18
5.1. House Rules on Referral .................................................................................................. 18
5.2. Speaker’s Authority .......................................................................................................... 19
5.3. Drafting Strategy and the Referral of Legislation ............................................................ 20
5.4. Protecting a Committee’s Jurisdiction ............................................................................. 22
6. Considerations Prior to a Markup .............................................................................................. 23
6.1. Timing .............................................................................................................................. 24
6.2. Party Leadership Planning ............................................................................................... 25
6.3. Public and Media Attention .............................................................................................. 26
6.4. Should Subcommittee Markup Precede Committee Markup? ......................................... 27
6.5. Legislative Vehicle ........................................................................................................... 28
6.6. Chair Responsibilities: Markup and Floor ....................................................................... 29
6.6.1. Scheduling Meetings and Setting an Agenda .......................................................... 30
6.6.1.1. Pre-Meeting Party Caucuses .......................................................................... 31
6.6.2. Maintaining Order and Decorum ............................................................................ 32
6.6.2.1. Parliamentary Inquiries .................................................................................. 32
6.6.2.2. Points of Order, Dilatory Motions, and Appeals ............................................ 32
6.6.3. Reporting Legislation .............................................................................................. 33
6.6.4. Floor Consideration ................................................................................................ 33
7. Procedural Strategy and the Choice of a Markup Vehicle ......................................................... 34
7.1. Introduced Measure .......................................................................................................... 36
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7.2. Subcommittee Version—Committee Print ....................................................................... 37
7.2.1. Options for Action on Committee Print .................................................................. 37
7.2.2. Committee Print as Markup Vehicle ....................................................................... 38
7.2.3. Committee Print as Amendment in the Nature of a Substitute ............................... 39
7.3 Staff Draft—Chairman’s Mark ......................................................................................... 39
7.3.1. Original Measure .................................................................................................... 40
7.3.2. Managers’ Amendment ........................................................................................... 40
7.4. Amendment in the Nature of a Substitute ........................................................................ 41
7.5. Markup Based on Sole, Primary, Additional Initial, or Sequential Referral .................... 43
8. Beginning a Markup .................................................................................................................. 45
8.1. Notice ............................................................................................................................... 46
8.1.1. Unfinished Markup ................................................................................................. 47
8.2. Quorum and Call to Order ................................................................................................ 49
8.3. Opening Statements ......................................................................................................... 49
8.4. Calling Up and Reading the Measure .............................................................................. 50
8.5. Potential Motions as a Measure Is Called Up .................................................................. 52
8.5.1. Question of Consideration ...................................................................................... 52
8.5.2. Motion to Postpone ................................................................................................. 53
8.6. Unanimous Consent ......................................................................................................... 54
8.6.1. Unanimous Consent Implied ................................................................................... 56
9. Reading a Measure for Amendment .......................................................................................... 56
9.1. General Debate ................................................................................................................. 57
9.2. Options for Reading for Amendment ............................................................................... 58
9.2.1. Reporting, Reading, or Designating a Section or Other Unit ................................. 58
9.2.2. Reading for Amendment by Section ....................................................................... 58
9.2.3. Reading for Amendment by Title or Another Unit ................................................. 60
9.2.4. Open to Amendment at Any Point .......................................................................... 62
9.2.4.1. Single-Section Bill or Resolution .................................................................. 63
9.2.5. Amendment Roster .................................................................................................. 63
9.3. Reading an Amendment ................................................................................................... 65
9.4. Drafting Amendments and Amendment Strategy ............................................................. 66
9.5. Form, Scope, and Degree of Amendments ....................................................................... 70
9.5.1. Form ........................................................................................................................ 70
9.5.2. Scope ....................................................................................................................... 70
9.5.3. Degree ..................................................................................................................... 71
9.6. Relationship Among Amendments ................................................................................... 71
9.6.1. Order of Offering Amendments Based on Their Scope .......................................... 72
9.6.2. The Amendment Tree .............................................................................................. 72
9.6.3. Who May Offer an Amendment .............................................................................. 73
9.6.4. Precedence of Amendments When Their Form Is To Strike, or To Strike
and Insert, an Entire Section of Base Text ..................................................................... 74
9.6.4.1. Motion to Strike an Entire Section ................................................................ 75
9.6.4.2. Motion to Strike Out an Entire Section and Insert New Text ........................ 75
9.6.4.3. Motion to Amend a Portion of a Section ....................................................... 75
9.6.5. Order of Voting on Amendments ............................................................................ 76
9.7. Amendment in the Nature of a Substitute ........................................................................ 76
9.7.1. Offering ................................................................................................................... 77
9.7.2. Reading ................................................................................................................... 78
9.7.3. Amending ................................................................................................................ 78
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9.7.3.1. Amending Text Not Made Base Text ............................................................. 80
9.7.3.2. Amending Text Made Base Text .................................................................... 81
9.7.4. Adopting .................................................................................................................. 82
9.8. Additional Procedural Considerations for Amendments .................................................. 82
9.8.1. Precedence of the Motion to Amend ....................................................................... 82
9.8.2. In Writing ................................................................................................................ 83
9.8.3. Amending Amended Text ........................................................................................ 83
9.8.4. Reoffering an Amendment ...................................................................................... 84
9.8.5. En Bloc Amendments ............................................................................................. 84
9.8.6. Modifying an Amendment ...................................................................................... 85
9.8.7. Withdrawing an Amendment .................................................................................. 85
9.8.8. Amendment to the Title ........................................................................................... 85
9.8.9. Motion to Strike the Enacting Clause ..................................................................... 86
9.9. Debate on Amendments ................................................................................................... 86
9.9.1. Five-Minute Rule .................................................................................................... 87
9.9.2. Decorum .................................................................................................................. 88
9.9.2.1. Chair’s Duty .................................................................................................. 88
9.9.2.2. Members’ Responsibilities ............................................................................. 89
9.9.2.3. Disorderly Language or Words Taken Down ................................................. 89
9.9.3. Limiting or Closing Debate .................................................................................... 91
10. Parliamentary Inquiries ........................................................................................................... 92
11. Points of Order ........................................................................................................................ 92
11.1. Reserving or Making a Point of Order against an Amendment ...................................... 94
11.1.1. Making a Point of Order ....................................................................................... 94
11.1.2. Reserving a Point of Order .................................................................................... 95
11.2. Demand for Regular Order ............................................................................................. 96
11.3. Debate and Chair’s Ruling ............................................................................................. 96
11.4. Appeal of the Chair’s Ruling .......................................................................................... 98
11.5. Germaneness .................................................................................................................. 98
11.5.1. Text to Which an Amendment Must Be Germane............................................... 100
11.5.2. Tests, Principles, and Applications of the Germaneness Rule............................. 102
11.5.3. Sources of Information on Tests, Principles, and Applications ........................... 104
11.5.4. Subject-Matter Test ............................................................................................. 104
11.5.5. Fundamental Purpose Test .................................................................................. 105
11.5.6. Committee Jurisdiction Test ................................................................................ 107
11.5.7. Individual Proposition or Class Not Germane to Another .................................. 108
11.5.8. General Provision Not Germane to a Specific Subject ....................................... 109
11.5.9. Specific Subjects Germane to General Propositions ........................................... 109
11.5.10. Studies ................................................................................................................ 110
11.5.11. Amendments Imposing Conditions, Qualifications, or Limitations ................... 110
11.5.12. Amendments to Bills Amending Existing Law .................................................. 111
11.6. Rule X Committee Jurisdiction Point of Order ............................................................. 112
11.7. Constitutionality Point of Order .................................................................................... 112
11.8. Matters Not Subject to a Point of Order ........................................................................ 113
12. Motions, Requests, and Demands .......................................................................................... 113
12.1. To Adjourn ..................................................................................................................... 117
12.2. To Commit or Recommit to a Subcommittee ................................................................ 118
12.3. To Discharge a Subcommittee ....................................................................................... 118
12.4. Previous Question ......................................................................................................... 119
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12.5. To Recess ...................................................................................................................... 121
12.6. To Table ........................................................................................................................ 121
13. Voting .................................................................................................................................... 122
13.1. Forms of Voting ............................................................................................................ 122
13.2. Majority Vote ................................................................................................................ 125
13.3. Motion to Reconsider ................................................................................................... 125
13.4. Order of Voting on Amendments .................................................................................. 126
13.5. Divisibility of a Question ............................................................................................. 126
13.6. Postponing Votes .......................................................................................................... 128
14. Reporting a Measure.............................................................................................................. 129
14.1. Options for How a Committee May Report to the House ............................................ 130
14.1.1. Report Favorably ................................................................................................ 130
14.1.2. Report Unfavorably ............................................................................................ 130
14.1.3. Report Without Recommendation ....................................................................... 130
14.2. Options for Reporting Recommended Changes to the House ...................................... 130
14.2.1. Without Amendment ........................................................................................... 131
14.2.2. Cut and Bite Amendments .................................................................................. 131
14.2.3. Clean Bill or Resolution ...................................................................................... 131
14.2.4. With an Amendment in the Nature of a Substitute .............................................. 132
14.3. Subcommittee Reporting .............................................................................................. 132
14.4. Actions by a Committee in the Course of Reporting .................................................... 133
14.4.1. Motions to Approve and Report .......................................................................... 133
14.4.2. Motion to Reconsider .......................................................................................... 134
14.4.3. Minority and Other Views ................................................................................... 135
14.4.4. Technical and Conforming Changes ................................................................... 135
14.4.5. Authorization to Seek Conference with Senate ................................................... 136
14.4.6. Script to Approve and Report a Measure with an Amendment in the
Nature of a Substitute, Not Base Text .......................................................................... 136
14.4.7. Script to Approve and Report a Measure with an Amendment in the
Nature of a Substitute, Made Base Text ....................................................................... 137
14.5. Sponsorship and Cosponsorship of Reported Measures .............................................. 139
15. Committee Reports ................................................................................................................ 139
15.1. Preparing and Filing a Committee Report .................................................................... 140
15.1.1. Privileged and Nonprivileged Reports ................................................................ 140
15.2. Late Filing of a Committee Report .............................................................................. 141
15.3. Required Contents of a House Committee Report ....................................................... 141
15.4. Report with Parts—Measures Referred to More Than One Committee ...................... 143
15.5. Supplemental Report .................................................................................................... 144
15.6. Star Print ...................................................................................................................... 144
15.7. Consequences of Rules Violations in Markups and Committee Reports ..................... 144
15.7.1. Committee Reports and Reporting ...................................................................... 145
15.7.2. Remedy ............................................................................................................... 145
16. Options for House Floor Consideration................................................................................. 145
16.1. Routes to the Floor ....................................................................................................... 146
16.1.1. Legislation That Is Considered in the House ...................................................... 146
16.1.2. Suspension of the Rules ...................................................................................... 147
16.1.3. Special Rules ....................................................................................................... 148
16.1.4. Other Routes ....................................................................................................... 149
16.2. Considerations Pertinent to a Special Rule .................................................................. 149
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16.2.1. Floor Vehicle ....................................................................................................... 151
16.2.2. Waivers of Points of Order .................................................................................. 152
16.2.3. General Debate .................................................................................................... 152
16.2.4. Amendments Made in Order ............................................................................... 153
16.2.5. Motions Precluded or Restricted ......................................................................... 153
16.2.6. House Action ....................................................................................................... 154
16.2.7. Motion to Recommit ........................................................................................... 154
16.2.8. Post-Passage ........................................................................................................ 154
17. Considerations in a Two-House Strategy .............................................................................. 155
18. Role of Committee and Personal Staff .................................................................................. 156
18.1. Administrative Role ..................................................................................................... 157
18.2. Procedural Role ............................................................................................................ 158
18.3. Issue Role ..................................................................................................................... 158
Figures
Figure 1. Sample Committee Markup Notice ................................................................................ 48
Figure 2. Sample Committee Amendment Form ........................................................................... 69
Figure 3. House Amendment Tree ................................................................................................. 73
Tables
Table 1. Motions, Requests, and Demands Commonly Made in Committee Markups ................ 114
Table 2. Required Contents of House Committee Reports .......................................................... 142
Appendixes
Appendix A. Glossary of Selected Markup Terms ...................................................................... 160
Appendix B. House Committee Markups: Administrative Preparation ...................................... 165
Appendix C. Sample Script for Opening Statements .................................................................. 167
Appendix D. Sample Scripts for Calling Up and Reading a Measure ......................................... 168
Appendix E. Sample Scripts When Motions Are Made as a Markup Begins ............................. 169
Appendix F. Sample Scripts for Options for Reading a Measure for Amendment ..................... 171
Appendix G. Sample Script for Offering an Amendment in the Nature of a Substitute.............. 173
Appendix H. Sample Scripts for Offering an Amendment and Disposing of a Point of
Order ........................................................................................................................................ 175
Appendix I. Sample Scripts for Selected Motions and Requests in the Amendment
Process ...................................................................................................................................... 178
Appendix J. Sample Scripts for Motion to Close Debate; Parliamentary Inquiry; and
Point of Order of Absence of Quorum ..................................................................................... 183
Appendix K. Sample Scripts for Voting on Amendments ........................................................... 185
Appendix L. Sample Script for Parliamentary Inquiry on Voting Order on Amendments,
with Votes on Amendments to an Amendment in the Nature of a Substitute Made Base
Text ........................................................................................................................................... 187
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Appendix M. Sample Scripts for Division of a Question: Amendments and En Bloc
Amendments............................................................................................................................. 189
Appendix N. Sample Scripts for Postponing a Recorded Vote; Calling a Recess ....................... 192
Appendix O. Sample Script for Subcommittee Reporting .......................................................... 194
Appendix P. Sample Script for Reporting a Measure with or without Amendments, or
with an Amendment in the Nature of a Substitute Considered as Base Text ........................... 195
Appendix Q. Sample Script for Reporting a Measure with an Amendment in the Nature
of a Substitute, Not Base Text .................................................................................................. 197
Appendix R. Sample Script for Reporting a Clean Bill or Resolution ........................................ 199
Appendix S. Consideration and Reporting of a Measure by Unanimous Consent ...................... 200
Contacts
Author Contact Information ........................................................................................................ 200
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House Committee Markups: Manual of Procedures and Procedural Strategies
On the theory that a government of laws is preferable to a government of men, the House
has repeatedly recognized the importance of following its precedents and obeying its
well-established procedural rules.… The House adheres to settled rulings, and will not
lightly disturb procedures that have been established by prior decision of the Chair.1
House committees are required to follow the procedures prescribed by the rules of the
House ‘so far as applicable.’ …They are also bound by those provisions of Jefferson’s
Manual that are consistent with the rules of the House…. Finally, they are bound by their
written rules which are adopted by each standing committee under clause 2(a) of rule XI.2
1. Overview of Manual
One of the principal responsibilities of House committees is to conduct markups—to select
legislation for committee consideration, debate and vote on amendments to it, write a report
advocating for the committee’s decisions on it, and report the committee’s recommendations to
the House. Committees also mark up matters such as subpoenas and committee rules. This
manual examines procedures and procedural strategy related to House committee markups and
relevant to all committee members. It also discusses the roles of a chair, a ranking minority
member, and committee members in the conduct of markups. Sample scripts that illustrate
markup procedures, motions, and requests appear as part of the text and in appendices.
The first element of a markup strategy is a chair’s selection of the markup vehicle—an introduced
measure, a draft, a subcommittee-approved measure, or an amendment in the nature of a
substitute. Specific procedural consequences attach to each form of markup vehicle. With the
markup vehicle chosen, a chair schedules and convenes a markup meeting. This element of
markup strategy is analyzed in these parts and appendices:
“7. Procedural Strategy and the Choice of a Markup Vehicle”
“8. Beginning a Markup”
Appendix C. Sample Script for Opening Statements
1 Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham Jr.,
House Practice: A Guide to the Rules Precedents,
and Procedures of the House, 115th Cong., 1st sess. (Washington, DC: GPO, 2017), ch. 50, § 2, p. 853. (Hereinafter
House Practice.) Available online from GPO at https://www.gpo.gov/fdsys/pkg/GPO-HPRACTICE-115/pdf/GPO-
HPRACTICE-115.pdf.
The preface to
House Practice describes this work as a “summary review of selected precedents” and “not an
exhaustive survey of all applicable rulings” to volumes containing the rules and precedents of the House. It is contained
in single volume, arranged alphabetically into chapters named for principal procedural concepts, beginning with
“Adjournment” and ending with “Withdrawal.” An index aids the user in finding specific explications of procedures.
House Practice, pp. iii-iv.
At footnote 6, see the description of the
Constitution, Jefferson’s Manual, and Rules of the House of Representatives of
the United States, One Hundred Fifteenth Congress, which includes parliamentarian’s notes on nearly every section of
the House rules. Many footnotes to the
Constitution, Jefferson’s Manual, and Rules of the House of Representatives of
the United States, One Hundred Fifteenth Congress, throughout this report are references to specific parliamentarian’s
notes.
Both
House Practice and
Constitution, Jefferson’s Manual, and Rules of the House of Representatives of the United
States, One Hundred Fifteenth Congress contain extensive references to the precedent volumes of the House of
Representatives—
Deschler’s Precedents, Cannon’s Precedents, and
Hinds’ Precedents—which are available online
through the GPO Access website at https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=GPO&
browsePath=Precedents+of+the+U.S.+House+of+Representatives&isCollapsed=false&leafLevelBrowse=false&
ycord=0.
2 Ibid., ch. 11, § 15, p. 275.
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Appendix D. Sample Scripts for Calling Up and Reading a Measure
Appendix E. Sample Scripts When Motions Are Made as a Markup Begins
The second element of a markup strategy is conduct of the amendment process. Again, a
committee has choices, depending on how the markup vehicle is drafted—to mark up a measure
by section or paragraph; by another unit, such as title or chapter; with the measure open to
amendment at any point or with an amendment roster; or by laying down an amendment in the
nature of a substitute. Specific procedural consequences also attach to each of these choices. This
element of markup strategy is analyzed in these parts and appendices:
“9. Reading a Measure for Amendment”
Appendix F. Sample Scripts for Options for Reading a Measure for Amendment
Appendix G. Sample Script for Offering an Amendment in the Nature of a
Substitute
Appendix H. Sample Scripts for Offering an Amendment and Disposing of a
Point of Order
Appendix I. Sample Scripts for Selected Motions and Requests in the
Amendment Process
Appendix J. Sample Scripts for Motion to Close Debate; Parliamentary Inquiry;
and Point of Order of Absence of Quorum
Appendix K. Sample Scripts for Voting on Amendments
Appendix L. Sample Script for Parliamentary Inquiry on Voting Order on
Amendments, with Votes on Amendments to an Amendment in the Nature of a
Substitute Made Base Text
Appendix M. Sample Scripts for Division of a Question: Amendments and En
Bloc Amendments
Appendix N. Sample Scripts for Postponing a Recorded Vote; Calling a Recess
The third element of a markup strategy is the decision of what to report and how to report it. If a
committee marks up legislation as introduced, it may report the measure with recommended
amendments. If a committee marks up a draft, it must convert that draft into legislation that can
be reported, for example, by amending a measure referred to the committee and reporting that
measure as amended. Alternately, if a committee marks up a draft, the chair or another committee
member could introduce the draft, as amended, and the committee could report the newly
introduced bill. If a committee marks up an amendment in the nature of a substitute, it normally
amends the measure to which the amendment was offered. A committee might also choose to
report a “clean” bill or resolution. This element of markup strategy is analyzed in these parts and
appendices:
“14. Reporting a Measure”
“15. Committee Reports”
“16. Options for House Floor Consideration”
“17. Considerations in a Two-House Strategy”
Appendix O. Sample Script for Subcommittee Reporting.
Appendix P. Sample Script for Reporting a Measure with or without
Amendments, or with an Amendment in the Nature of a Substitute Considered as
Base Text
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Appendix Q. Sample Script for Reporting a Measure with an Amendment in the
Nature of a Substitute, Not Base Text
Appendix R. Sample Script for Reporting a Clean Bill or Resolution
Appendix S. Consideration and Reporting of a Measure by Unanimous Consent
The final element of a markup strategy cuts through the other elements—the motions and requests
that members might make at each stage of the markup, acting for the majority or minority or in
behalf of a policy perspective or individual interest. This element of markup strategy is analyzed
in these parts and appendices:
“10. Parliamentary Inquiries”
“11. Points of Order”
“12. Motions”
“13. Voting”
Appendix E. Sample Scripts When Motions Are Made as a Markup Begins
Appendix H. Sample Scripts for Offering an Amendment and Disposing of a
Point of Order
Appendix I. Sample Scripts for Selected Motions and Requests in the
Amendment Process
Appendix J. Sample Scripts for Motion to Close Debate; Parliamentary Inquiry;
and Point of Order of Absence of Quorum
Appendix M. Sample Scripts for Division of a Question: Amendments and En
Bloc Amendments
Appendix N. Sample Scripts for Postponing a Recorded Vote; Calling a Recess
Several parts and appendices of this manual supplement these elements of markup strategy by
providing background, context, and other information. These parts and appendices are as follows:
“2. Introduction to House Committee Markup Procedures”
“3. Committee Rules”
“4. Procedural Restrictions in Law on Certain Markups”
“5. Referral of Legislation in the House”
“6. Considerations Prior to a Markup”
“16. Options for House Floor Consideration”
“17. Considerations in a Two-House Strategy”
“18. Role of Committee and Personal Staff”
Appendix A. Glossary of Selected Markup Terms
Appendix B. House Committee Markups: Administrative Preparation
This manual organizes and analyzes the procedures, practices, and procedural strategy of House
committees and subcommittees in conducting markups of legislation or other matters in a manner
that may be used by a committee chair, committee ranking minority member, majority members
of a committee, minority members of a committee, or members with a policy-majority or policy-
minority viewpoint on a committee. The manual explains procedures, practices, and strategy, and
includes sample excerpts of dialogue related to commonly used procedures, motions, and
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requests. Longer sample scripts of portions of markups appear in appendices. A checklist for staff
preparing for a markup and a glossary of selected markup terms appear in separate appendices.
The manual contains two additional parts:
“16. Options for House Floor Consideration” and
“17.
Considerations in a Two-House Strategy.” These parts of the manual examine some of the
procedural options for House floor consideration and explain some of the political and procedural
considerations for House committees anticipating Senate action on a related measure. A chair,
ranking minority member, and other committee members anticipate floor action and agreement
between the houses in designing their markup procedural strategy, as examined in
“6.
Considerations Prior to a Markup.”
1.1. Resources: Experts and CRS Reports
This manual seeks to cover the range of frequently encountered markup procedures and
considerations in markup procedural strategy. In using this manual in conjunction with a specific
markup, the reader will need to first take into account that markup’s policy and political
considerations, and then study procedural options relevant to those considerations. Congressional
Research Service (CRS) specialists and analysts are available to committees, committee
members, and committee and personal staff to assist in understanding the parliamentary
procedures and strategy analyzed in this manual and in applying them to specific committees and
parliamentary circumstances.3
In general, procedures applicable to committees are also applicable to subcommittees.
Sometimes, subcommittees as well as committees are mentioned to reinforce this fact. Where a
procedure is not applicable to a subcommittee, such as reporting a measure to the House, a
distinction is made.
Throughout the manual, the words “member” and “members” normally appear without an initial
capital because the reference is to a committee member or members. If reference is made to a
“Member” or “Members” of the House, the word is capitalized.
Related CRS products that contain information and analyses that might also be of interest to the
reader include—
CRS Report RL34679,
House Committee Chairs: Considerations, Decisions, and
Actions as One Congress Ends and a New Congress Begins, by (name redacted)
and (name redacted)
;
CRS Report 98-151,
House Committees: Categories and Rules for Committee
Assignments, by (name redacted);
CRS Report 98-367,
House Committees: Assignment Process, by (name redacted);
CRS Report RS21165,
House Standing Committee Chairs and Ranking Minority
Members: Rules Governing Selection Procedures, by (name redacted);
CRS Report R42778,
House Committee Funding: Description of Process and
Analysis of Disbursements, by (name redacted)
;
CRS Report RL32794,
House Committee Funding Requests and Authorizations,
104th-115th Congresses, by (name redacted)
;
3 Readers may also consult House rules and precedents, committee rules, committee staff, the parliamentarian’s staff, or
CRS staff concerning specific rules, precedents, and practices applicable in specific committees.
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CRS Report RL30244,
The Committee Markup Process in the House of
Representatives, by (name redacted); and
CRS Report R41605,
House Standing Committees’ Rules on Legislative
Activities: Analysis of Rules in Effect in the 114th Congress, by (name redac
ted) and (name redacted)
.
CRS reports on specific aspects of the legislative process are cited in footnotes in the appropriate
parts of this manual. In addition, two-page explanations of specific aspects of House legislative
and budget processes and longer CRS products and other procedural materials can be found in the
Congressional Process, Administration, and Elections section of the CRS website, at
http://www.crs.gov/iap/congressional-process-administration-and-elections. An extensive
congressional glossary can be found on the CRS website, at http://www.crs.gov/resources/
GLOSSARY?source=search.
1.2. How To Read or Use This Manual
The authors expect readers to use this manual as a reference tool and as an explication of the
conduct of committee markups. In approaching the manual, readers will find a detailed Table of
Contents that allows them to find the specific topic on which they are seeking information or
reference.
The Table of Contents also gives the reader ready access to analysis and explanation of House
committee markups—their components and the relationships between those components, majority
and minority options, definitions and distinctions, and both the breadth and detail of the markup
process from planning to options for House floor consideration. Section 1 clusters the sections of
the manual and the appendices by a stage of the markup process, allowing the reader to see which
sections and appendices are most closely related.
The reader will find extensive cross-referencing in each section to other sections and the
appendices. Readers should also consult the gl
ossary in Appendix A. Committee staff should
examine staff responsibilities detailed in
“18. Role of Committee and Personal Staff” and
Appendix B, House Committee Markups: Administrative Preparation.
The report’s three figures and two tables may also be easily located from the Table of Contents.
All the appendices are also listed in the Table of Contents. Except for the first two appendices, the
remaining 16 appendices contain procedural scripts that committee staff may use to organize
tailored markup scripts for a chair, ranking minority member, or other committee or
subcommittee members.
The authors recommend that potential readers, regardless of their official position or length of
service, carefully orient themselves to committee markups and the manual by reading Sections 1-
6, just over 30 pages in length. These sections contain the background or context necessary for
understanding markups as one of the most important of congressional processes and as a key part
of the legislative process for determining how a particular bill might become law.
The manual is organized as a progression from pre-markup through House consideration of a
committee-reported measure for readers who wish to read it from beginning to end. Readers who
wish to build expertise in parliamentary procedures or learn about aspects of procedures
described compendiously in this manual are strongly encouraged to read
House Practice and the
parliamentarian’s notes expounding on rules and constitutional provisions in
Constitution,
Jefferson’s Manual and Rules of the House of Representatives of the United States, One Hundred
Fifteenth Congress. (These documents are described at footnotes 1 and 6, respectively.)
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The manual may also be used as a desk reference in the office and during markups. Many
committee parliamentarians have printed and placed it in a binder, inserting section and key
subsection tabs.
2. Introduction to House Committee
Markup Procedures
The primary legislative function of standing committees in the House of Representatives is to
evaluate the thousands of bills and resolutions that Members introduce during each Congress,
which are normally referred upon introduction to the appropriate committee or committees. This
evaluation process typically begins with an initial screening in which the majority-party
committee leaders and staff, perhaps in conjunction with majority-party leadership, identify the
relatively small percentage of measures referred to a committee that may merit more
consideration. A committee or one of its subcommittees may conduct one or more days of public
hearings to receive testimony about the policy issues in legislation selected for action and the
merits of legislation proposed to address it.4
If the committee recommends that the House take action on legislation, hearings are followed by
markup meetings at which committee members propose and vote on amendments to a measure
(or the draft of a measure). These meetings are called markups because committee members
“mark up” the legislation before them as they decide what amendments to recommend to the
House. Finally, the committee votes to report the bill or resolution with any recommended
amendments to the House for chamber consideration.
2.1. What Rules Apply in Committees?
The rules of the House of Representatives are not specific concerning the procedures that
committees are to follow in marking up legislation. Rule XI, clause 1(a)(1)(A) states, “The Rules
of the House are the rules of its committees and subcommittees so far as applicable.” Rule XI,
clause 2(a)(1) directs each standing committee to adopt “written rules governing its procedure.”
This paragraph continues: “Such rules…(B) 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….” Finally,
Rule XI, clause1(a)(1)(B) subordinates subcommittees to the committee of which they are a part:
“Each subcommittee is a part of its committee and is subject to the authority and direction of that
committee and to its rules, so far as applicable.”5
These rules do not state which House rules are applicable to committees and their subcommittees.
House rules contain different sets of procedures that the House uses under different circumstances
to consider various bills and resolutions. It would be not be possible for all of these procedures to
4 Hearings are not necessarily held on the specific legislative vehicle that is later marked up in committee. Hearings
might be held on policy issues, legislative proposals, or previously introduced legislation, with a legislative vehicle for
markup developed subsequently. Hearings might also occur in one Congress when legislative action on a major bill is
anticipated in the next Congress. Field hearings and oversight hearings also inform decision making in a committee.
Hearings are not necessarily held on noncontroversial legislation, such as the naming of public buildings. As explained
later, a committee might schedule open hearings, closed hearings, or a mix of both open and closed hearings. See
“3.2.4. Open and Closed Meetings.” 5 A brief elaboration of subcommittee powers vis-à-vis a parent committee appears in
House Practice, ch. 11, § 15, pp.
275-276.
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be applicable to committees or applicable at the same time. It would also not be possible for
committees to adopt rules that avoid inconsistency with all House procedures.
The House parliamentarian, however, has provided important guidance in the parliamentarian’s
notes to Section XXX of
Jefferson’s Manual: “The procedures applicable in the House as in the
Committee of the Whole generally apply to proceedings in committees of the House....”6 The
phrase “House as in the Committee of the Whole” refers to a distinctive set of procedures that the
House may, but rarely does, use to consider measures. These procedures are not listed in the
House’s rules; rather, they are a matter of well-established precedent. As the phrase suggests, the
procedures applicable in the House as in the Committee of the Whole combine elements of the
procedures that apply in the House and those that are followed in Committee of the Whole House
on the state of the Union (the Committee of the Whole).
Although no House rule specifically requires committees to follow these procedures in marking
up legislation, committees typically do follow them—unless a committee agrees by unanimous
consent to diverge from these procedures. To the extent feasible or applicable, House rules and
precedents on reading measures; amending; voting; and other aspects of legislative procedures,
including the authority of the presiding officer, are employed in committee and subcommittee
markups. In the commentary accompanying Rule XI, clause 2(a)(1), nonetheless, the House
parliamentarian explains 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 is ordered reported to the House….”7
There are in addition some well-established procedures in committees that differ from the
procedures of the House as in the Committee of the Whole. For example, in the House as in the
Committee of the Whole, a measure is considered as read and open to amendment at any point.8
However, the same parliamentarian’s notes that indicate that the procedures of the House as in
Committee of the Whole “generally apply” in committee proceedings also state, “…except that a
measure considered in committee must be read (by section) for amendment….”9
6 In U.S. Congress, House,
Constitution, Jefferson’s Manual, and Rules of the House of Representatives of the United
States, One Hundred Fifteenth Congress, H.Doc. 114-192, 114th Cong., 2nd sess. (Washington, DC: GPO, 2017), § 427,
p. 226. (Hereinafter
House Rules and Manual.) Available online from GPO at https://www.gpo.gov/fdsys/pkg/HMAN-
115/pdf/HMAN-115.pdf. In addition, the parliamentarian comments in the notes to Rule XI, cl. 2(a): “Many of the
procedures applicable to committees derive from Jefferson’s Manual, which governs the House and its committees in
all cases to which it is applicable....”
House Rules and Manual, § 792, p. 560. Regarding the relationship of Jefferson’s
Manual to House rules, Rule XXIX states: “the rules of parliamentary practice comprised by
Jefferson’s Manual shall
govern the House in all cases to which they are applicable and in which they are not inconsistent with the Rules and
orders of the House.” See also
House Practice, ch. 11, § 18, p. 280. See also CRS Report 97-1045,
House Rules and
Precedents Affecting Committee Markup Procedures, by (name redacted)
.
As is clear from its title,
House Rules and Manual contains the texts of the Constitution,
Jefferson’s Manual, and
current rules of the House. What is not clear is that each constitutional,
Jefferson’s Manual, and rules provision is
accompanied by extensive parliamentarian’s notes explaining the operation of a provision in House precedent and
practice. These notes also trace the evolution of each rules provision. The initial printing of the rules adopted by the
House at the beginning of a new Congress, published by the clerk of the House, contains only the current rules.
See, for
example,
Rules of the House of Representatives, One Hundred Fifteenth Congress, prepared by Karen L. Haas, Clerk of
the House of Representatives, January 5, 2017.
7
House Rules and Manual, § 792, p. 560. See also
House Practice, ch. 11, § 15, p. 276.
8
House Practice, ch. 2, § 15, pp. 32-33.
9
Jefferson’s Manual, § XXX, in
House Rules and Manual, § 427, p. 226.
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2.2. Summary of Procedures of the House as in the Committee of
the Whole as These Procedures Operate in House Committees
Based on the parliamentarian’s guidance and House rules, the key procedures applicable to House
committees in the markup process are as follows:
First Reading. A measure is first read in full. This first
reading may be waived
by a highly privileged, nondebatable motion, however, if printed copies of the
measure are available. Rule XI, clause 1(a)(2)(A)(ii) makes this motion in order.
(See
“8.4. Calling Up and Reading the Measure.”)
Reading Sections (or Paragraphs) of a Measure. A section (or paragraph) of a
measure must be read verbatim before committee members offer amendments to
it. This reading may be waived
only by unanimous consent. (See
“9.2.1.
Reporting, Reading, or Designating a Section or Other Unit.”)
Reading a Measure for Amendment. A measure must be read for amendment
one section (or, if so organized, one paragraph) at a time, unless the committee
agrees by unanimous consent to another reading procedure. Members offer their
amendments to each section of a measure after that section has been read and
before the next section is read. A committee may consider a measure as open for
amendment in another way (for example, by title or at any point)
only by
unanimous consent. (See
“9.2. Options for Reading for Amendment.”)
Reading Amendments. Each amendment must be read before debate on it
begins. Reading of an amendment may be waived
only by unanimous consent.
(See
“9.3. Reading an Amendment.”)
Debate. All debate on amendments and the legislative vehicle is conducted under
the five-minute rule. The chair normally entertains debate on points of order and
parliamentary inquiries at his or her discretion. Discussion under reservations of
the right to object to a unanimous consent request is by practice normally brief,
but is not limited by the five-minute rule. (See
“9.9. Debate on Amendments.”)
Motion to Limit or Close Debate. A committee member may move to limit or
close debate on a pending section (and all amendments thereto) or on a pending
amendment (and all amendments thereto). This motion may provide that debate
end immediately, at a certain time, or after a specified number of minutes or
hours. A motion is not in order to close debate on an entire measure if any portion
of the measure has not yet been read. (See
“9.9.3. Limiting or Closing Debate.”)
Previous Question. A nondebatable motion to close debate does precisely that: it
stops the debate. It does not prevent committee members from offering additional
amendments. To end debate
and preclude further amendments, a member may
move the previous question on a pending amendment and all amendments
thereto. A member may also move the previous question on an entire measure
(and all amendments thereto) only after the measure has been read in full. (See
“12.4. Previous Question.”)
Vote to Report. After a committee disposes of the last amendment to a measure,
it votes on a motion to report the measure, together with any amendments the
committee has agreed to. The committee does not vote on passing the measure,
and amendments agreed to are not changes to the measure but recommendations
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for change to the House. A majority of a committee must be “actually present” to
vote to report a measure.10 (See
“14. Reporting a Measure.”)
Neither House nor committee rules are self-enforcing, and it is left to each committee to enforce
House rules and precedents and committee rules governing the process of debate and amendment
in a markup. A member must make a point of order if he or she believes a rule is being violated.
Each committee may also create its own informal or customary practices.
2.3. Importance of Procedure in Committee
House rules and precedents and committee rules are important to the majority and the minority,
whether that is a
party majority or minority or a
policy majority or minority, and to committee
leaders of both parties and to individual committee members. The rules normally allow the party
majority to reach a conclusion in markup when it has the votes for its legislative policy. The rules
allow the minority to present its views and to seek changes in the legislative text being marked
up. Adherence to established rules allows all committee members fair treatment and the ability to
represent their constituents and political point of view, even if the positions they favored did not
garner the support of a majority of the committee’s members.
In addition, majority-party leaders expect their committee chairs to acquit themselves
commendably or at least positively. Having conducted a markup with adherence to House rules
and precedents and committee rules, a committee presents its House leadership with a clean
parliamentary record in anticipation of floor action. Alternatively, as explained later (
“15.7.
Consequences of Rules Violations in Markups and Committee Reports”), although a committee
vote to report a measure largely wipes out points of order occurring during committee
consideration of a measure, the process of achieving that end could compromise the majority-
party leadership’s strategy. The Rules Committee, acting at the reporting committee’s or the
leadership’s behest, might believe it is compelled to include in a special rule waivers of rules and
other provisions that could add procedural issues to the policy debate.
If a committee does not acquit itself well procedurally, it might erode the majority-party
leadership’s and the minority’s trust in the committee’s leadership. The majority-party leadership
could assign leading roles on future legislation important to the majority to other committees or to
the leadership itself. The minority of the committee, if it feels that it has been treated unfairly,
could become intransigent and challenge procedurally future actions of the majority, both in
committee and on the floor.
3. Committee Rules
Committee rules are adopted at the first meeting of a panel soon after a new Congress convenes
and committee members are selected. House committees are required by Rule XI, clause 2(a)(1)
to adopt their own internal rules of procedure in an open committee meeting with a quorum
present. These rules must incorporate the provisions of Rule XI, clause 2, which are numerous,
“to the extent applicable.” A committee’s rules “may not be inconsistent” with House rules or
statutory provisions in effect as House rules (Rule XI, clause 2(a)(1)(B)). Committee rules must
be published in the
Congressional Record and in an electronic form
not later than 30 days after
the election of a committee’s chair.
10 Rule XI, cl. 2(h)(1).
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As noted above, Rule XI, clause 1(a)(1) also states, “The Rules of the House are the rules of its
committees and subcommittees so far as applicable….” Committee rules generally restate the
requirements of Rule XI, but also modify or add new provisions consistent with the intent or
meaning of Rule XI and other House rules.11 The effect of Rule XI is that committees have not
only
direction regarding markup procedure but also
discretion in creating their own rules,
procedures, and customary practices. As is the case with House rules, committee rules are not
self-enforcing: a member must raise a point of order if he or she thinks a violation is occurring.
Committees normally adopt the rules in effect in the previous Congress, with any changes usually
being incremental. The rules developed over time, fit the practices and culture of a committee,
and favored the majority. A committee’s chair might consider potential changes in light of the
major policy issues the chair anticipates the committee might consider in that Congress and the
political environment in which they will be debated, including the committee’s party ratio and the
ideological makeup of the majority-party members. A chair might also consider his or her party’s
leadership expectations for how committees will operate, for example, an enhanced or diminished
role for subcommittees or the ability to report key legislation aligned with political objectives.
Aspects of committee rules that might be examined include
the role and authority of the committee’s chair in scheduling meetings, referring
legislation to and discharging it from subcommittees, issuing subpoenas, and
taking other actions;
the role and authority of the ranking minority member, for example, whether the
chair may take specific actions without any involvement of the ranking minority
member, after “notice” to that member, after “consultation” with that member, or
with the “concurrence” of that member;
the role and authority of the committee vis-à-vis the chair—whether specific
actions by the committee may be taken only “by majority vote”;
the role and authority of the minority party, for example, whether the presence of
one or more members of the minority party will be required for a quorum for
specific business; and
changes to House rules affecting committees, such as the change in the 108th
Congress (2003-2005) that allowed committees to adopt a rule authorizing the
chair of a committee and the chairs of its subcommittees to postpone the taking
of certain recorded votes.
3.1. Subcommittees
As noted above, Rule XI, clause 1(a)(1)(B) states, “Each subcommittee is a part of its committee
and is subject to the authority and direction of that committee and to its rules, so far as
applicable.” Some provisions of Rule XI and other rules affecting committee activities apply
specifically to subcommittees, whereas other provisions of these rules do not. Within the
parameters of House rules, committees may grant or withhold authority from their subcommittees
in their rules.
Some committees’ rules provide extensive guidance concerning the prerogatives of
subcommittees, whereas other committees’ rules do not. Some committees grant a degree of
11 When committee rules are silent on a particular matter, House rules prevail. Some committees repeat nearly verbatim
some applicable House rules in their committee rules, whereas others simply reference some House rules.
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autonomy and authority to their subcommittees, whereas others limit their subcommittees to the
conduct of hearings. Some committees’ rules require measures referred to the committee to be
referred to a subcommittee, often within a specified time period, whereas other committees’ rules
leave the decision to refer a measure to subcommittee to the chair’s discretion. Some committees
provide funding to subcommittees for their own staff, whereas other committees require
subcommittees to obtain funding and staff from the committee chair for each specific
subcommittee activity. (Additional committee rules applicable to subcommittees are discussed
below at
“6.4. Should Subcommittee Markup Precede Committee Markup?”.)
Subcommittees do not have the power to report legislation directly to the House without specific
authority granted by the House to do so. (For an explanation of subcommittees reporting to parent
committees, see
“14.3. Subcommittee Reporting,” and
Appendix O, Sample Script for
Subcommittee Reporting.)
3.2. Meetings
Committees meet pursuant to House and individual committee rules on notice, the availability of
documents, open-meeting requirements, and quorums (see
“3.5. Quorum Requirements”). Rule
XI, clause 2(i) prohibits committees from meeting while the House and Senate are in a joint
session or during a recess when a joint meeting is in progress.
Rule XI, clause 2(m)(1)(A) authorizes committees to meet and hold hearings, whether the House
is in session or has recessed or adjourned, providing the meeting is in the United States. Rule XI,
clause 6 allows business to be carried over to a successive session of Congress, normally to the
second session from the first session.
3.2.1. Meeting Days and Chairing Meetings
Rule XI, clause 2(b) requires standing committees to adopt regular meeting days not less
frequently than monthly for the consideration of committee business. Clause 2(c) grants the chair
authority to call additional meetings, and most committee meetings are these additional meetings,
held several times a month, as explained below
(“3.2.3. Notice and Documents” and
“8.1.
Notice”).
Clause 2(c) also establishes a procedure by which committee members, including minority
members, may request or call additional meetings. (See
“3.2.2. Members’ Initiative to Hold a
Markup.”) Clause 2(d) directs committee chairs to appoint committee and subcommittee vice
chairs, and designates that a majority member preside over a meeting in the absence of a chair or
vice chair.12
Committees are not required to meet on their regular meeting days, and such a meeting is held
only if it has been noticed. (See
“3.2.3. Notice and Documents.”) An established day, however,
can provide a determined minority an opportunity to force a meeting if one is not planned.
3.2.2. Members’ Initiative to Hold a Markup
If a chair refuses to call a meeting on a matter, Rule XI, clause 2(c)(2) allows a majority of a
committee’s membership to convene a meeting. Under this rule, any three members of a
committee via a letter to the chair may request a committee meeting on a specific subject. The
12 The rules of the Democratic Caucus provide that each committee caucus elect a vice ranking member when
Democrats are the minority party in the House.
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chair has three calendar days to call the requested meeting, which must be scheduled within seven
calendar days after the request is filed. If the chair does not act, a majority of committee members
may file a written notice in the committee offices ordering the meeting to occur and specifying
the time of the meeting and the subject matter. If a majority files the notice, the committee clerk is
then required to inform all committee members of the meeting, which will be held at the time
identified in the notice.
This authority may be employed as a tactic of the minority, or of members having a minority
policy viewpoint, in seeking action on a matter. Such a tactic is unlikely to be successful if the
chair has the backing of his or her party’s committee members, but it might prove suasive in
obtaining an assurance from the chair to schedule the desired business at a future date. A chair
might also act if he or she believes that his or her own party’s members are sympathetic to action
on the matter at issue.13
3.2.3. Notice and Documents
Rule XI, clause 2(c)(1) authorizes committees to adopt procedures for scheduling meetings, and
most committee meetings are scheduled pursuant to these committee rules. Under this
authorization, committees minimally adopt “notice requirements” in their rules to inform
committee members of a meeting a certain number of hours or days in advance of the meeting
and of the agenda for the meeting. (For an example of a notice, see
Figure 1.)
Because of House rules, committees typically distinguish between notice for hearings and notice
for meetings. The House requires a notice of at least one week for hearings and of at least three
days for meetings. The House also allows shorter notice for both hearings and meetings if the
chair obtains the concurrence of the ranking minority member or, by majority vote, the
concurrence of the committee. In addition, for a markup meeting, a chair must make available to
committee members at least 24 hours in advance the text to be marked up, in electronic form. If
notice of a markup is less than 24 hours, the text must be made available prior to the meeting, in
electronic form. (Rule XI, clause 2(g)(4).) Some committees’ rules exceed the requirements of the
House rules.14
Some committees have specific scheduling requirements applicable to their subcommittees.15
Committees have turned by practice to electronic notification in addition to or instead of written
notification. Although most committees’ rules do not make a distinction, some committee chairs
clarify what a committee’s practice will be in the course of markup of the committee’s rules or in
a later committee meeting. (See also the introduction to this part,
“3. Committee Rules.”)
13 In contrast to the disadvantage a committee minority has to call a markup contrary to a chair’s desires, the minority
membership of a committee, specifically, has the power to obtain a hearing with witnesses it has called, pursuant to
Rule XI, cl. 2(j)(1). The minority can insist on a day of hearings under the rule. For additional explanation, see CRS
Report RS22637,
House Committee Hearings: The “Minority Witness Rule,
” by (name redacted).
Committees or
subcommittees usually work out an agreement to include minority witnesses on panels or as part of a hearing
comprising largely majority-called witnesses. Some committees have taken cognizance of the majority-minority ratio
on the committee in allocating majority and minority witness slots on panels or among witnesses, with the minority
allocation increasing or decreasing as the ratio changes.
14 The Rules Committee is exempted from the operation of these rule provisions.
15 Committees’ requirements for their subcommittees is examined in CRS Report R41605,
House Standing
Committees’ Rules on Legislative Activities: Analysis of Rules in Effect in the 114th Congress, by (name redacted)
and (name redacted).
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Some committees’ rules and practices provide for distribution of the markup text to occur further
in advance than 24 hours and require amendments to be submitted thereafter but prior to the
markup. (See, for example,
“7.4. Amendment in the Nature of a Substitute.”)
Rule XI, clause 1(a)(2)(A)(ii) allows a privileged, nondebatable motion in committee to dispense
with the first (full) reading of a measure on the agenda if printed copies of the measure are
available. Committees normally interpret the availability criterion to be met by distributing the
measure (or link to the measure) with the meeting notice. (See
“8. Beginning a Markup” for a
discussion of notice, reading a measure, and other procedural aspects of commencing a markup.)
3.2.4. Open and Closed Meetings
Pursuant to Rule XI, clause 2(g)(1), committee and subcommittee markups must be open to the
public and media coverage. To hold an executive, or closed, markup session, a committee or
subcommittee must vote in open session, with a majority present and by recorded vote, to close a
meeting on “that all or part of the remainder of the meeting on
that day.”
(Emphasis added.) A
motion to close a committee meeting is not debatable.16 The rule states that a meeting may be
closed only for one of four reasons:
“disclosure of matters to be considered would endanger national security”;
“disclosure of matters to be considered…would compromise sensitive law
enforcement information”;
“disclosure of matters to be considered…would tend to defame, degrade, or
incriminate any person”; or
“disclosure of matters to be considered…otherwise would violate a law or rule of
the House.”
There are generally three nondebatable motions available to close a committee’s business: (1) a
motion to close; (2) a motion to close pending discussion; and (3) a motion to close proceedings
for a subsequent day.
There may be unanimity among committee members on the need for an executive session.
However, tactical use could be made of any of these motions to delay proceedings, to identify
differences among committee members, or for another purpose.
Rule XI, clause 2(g)(1) also lists the persons permitted at an executive session “as the committee
may authorize”: members of the committee; other Members, including the Delegates and
Resident Commissioner; congressional staff; and departmental representatives. Rule XI, clause
2(k)(7) allows proceedings conducted in an executive committee session to be released only by a
majority vote of the committee.
3.2.5. Media Coverage
Rule XI, clause 4 establishes guidelines for nonprint media coverage of committee meetings. This
clause regulates audio and visual coverage of committee meetings, and establishes procedures to
16
House Practice, ch. 11, § 20, p. 281. There are also specific rules or exceptions applicable to one or more
committees. For example, Rule XI, cl. 3(h) requires the Ethics Committee to have a committee rule closing most
meetings “unless the committee or subcommittee by an affirmative vote of a majority of its members opens the meeting
or hearing to the public….” See also Rule XI, cl. 2(g)(a), excepting the Ethics Committee from open meeting
requirements.
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be followed in the conduct of such coverage in open meetings of committees. Committees are
directed to adopt rules implementing this clause.
3.3. Opening Statements
Committee rules, but not House rules, allow and regulate opening statements—short, initial
statements made orally or submitted in writing by committee members on the business for which
a chair has called a meeting. A committee’s rules adopted at the beginning of a Congress may
restrict oral opening statements, often to those of the chair and ranking minority member of the
committee or a subcommittee. Some committees’ rules or practices also allow the relevant
subcommittee chair and ranking minority member to make oral opening statements at full-
committee markups, and they allow a full committee’s chair and ranking minority member, who
serve ex officio on some or all subcommittees, to make oral opening statements at subcommittee
meetings. A committee rule or practice might also allow a committee member who is the sponsor
of a measure to be considered by the committee to make a statement, with time allocated as well
to a committee member of the other party.
By committee rule or practice or by unanimous consent, other committee members are allowed to
submit opening statements in writing for the record; they are not typically read aloud.
Alternatively, committee rules or practices may follow House rules and precedents and restrict
oral opening statements to five minutes. Committees that allow members other than the chair and
ranking minority member to make oral opening statements may limit opening statements to less
time, for example, three minutes.
3.4. Postpone Votes
Rule XI, clause 2(h)(4) authorizes each committee to adopt a rule to allow its chair to postpone
proceedings to take a recorded vote on an amendment or approval of a measure and to permit a
chair to resume proceedings after notice. All committees have adopted this rule. (For a discussion
of voting, including postponing votes, see
“13. Voting.”)
In practice, most committees postpone votes to allow members to vote on the House floor or to
attend a House or congressional event, such as a classified briefing for House Members or a
ceremony for awarding the Congressional Gold Medal. Because floor votes are often clustered
and might therefore consume much more time than the 15 minutes that a single vote could take,
committee chairs typically announce when proceedings will resume in committee after the vote,
for example, 10 minutes following the conclusion of the last floor vote. A quorum must be
reestablished when the committee reconvenes.
A determined minority might take tactical advantage of this situation by not returning to
committee in a timely fashion, requiring additional time for a quorum to be assembled and
thereby delaying the resumption of business.
3.5. Quorum Requirements
Rule XI, clause 2(h)(3) sets the quorum for committees (except the Appropriations, Budget, and
Ways and Means Committees) to conduct business at not less than one-third of a committee’s
members, although pursuant to clause 2(h)(1) a majority of a committee must be present to
report
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a measure or recommendation. A quorum must again be established when a committee
reconvenes after a recess.17
Most committees have adopted the House rule as their quorum rule for business such as markups,
although some committees require a majority to be present for committee business or for specific
business items. (In contrast, a few committees have adopted the House quorum rule for hearings
but in addition seek the presence of one or more minority members.) Committee quorum rules are
expressed most often as a proportion of a committee’s membership, but may be expressed as a
specific number.
Convening a meeting without a quorum or with more minority members present than majority
members may open procedural opportunities for frustrating a chair’s agenda. (See
“8.2. Quorum
and Call to Order.”) Failing to maintain a quorum may result in a point of order and a suspension
of business. (See
“11. Points of Order.”)
3.6. Recess
Rule XI, clause 1(a)(2) authorizes a chair to recess a committee subject to the chair’s call within a
24-hour period. The provision also allows a privileged motion to be made in committee (or
subcommittee) to allow it to recess day to day. The motion to recess is neither debatable nor
amendable.18 (See
“12.5. To Recess” and
“13.6. Postponing Votes.”)
3.7. Reporting
Rule XI, clause 2(l) allows any committee member to file supplemental, minority, additional, or
dissenting views for inclusion in a committee report accompanying legislation reported to the
House, provided that the views are to be filed “not less than two additional calendar days after the
day of such notice (excluding Saturdays, Sundays, and legal holidays except when the House is in
session on such a day).”
As indicated, a majority must be present for a committee to report. Committee reporting and
committee reports are discussed extensively at
“14. Reporting a Measure” and
“15. Committee
Reports,” respectively.
3.8. Subpoenas
Rule XI, clause 2(m) authorizes committees and subcommittees to issue subpoenas for the
attendance of witnesses and the production of documents, “a majority being present.” Unless
otherwise provided in their rules, a quorum of one-third is required to debate a subpoena, under
Rule XI, clause 2(h)(3). Rule XI, clause 2(m)(3) allows committees to adopt rules to delegate the
issuance of subpoenas to a committee’s chair “under such rules and under such limitations as the
committee may prescribe.”19
17 If a committee adjourns for lack of a quorum, a majority of committee members may not call for a meeting of the
committee on the same day without the consent of the chair.
House Rules and Manual, § 793, p. 563.
18
House Practice, ch. 45, § 2, p. 792. Privilege is defined thus: “An attribute of a motion, measure, report, question, or
proposition that gives it priority status for consideration. That status may come from provisions of the Constitution,
standing rules, precedents, or statutory rules.” Walter Kravitz,
Congressional Quarterly’s American Congressional
Dictionary, 3rd ed. (Washington, DC: CQ Press, 2001), p. 188. (Hereinafter
Congressional Quarterly’s American
Congressional Dictionary.)
19 This same subparagraph allows a subcommittee of the Ethics Committee to issue a subpoena only by a vote of a
(continued...)
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The House Office of the General Counsel maintains standard forms related to subpoenas to assist
committees, although some committees, such as Oversight and Government Reform, have
extensive experience with subpoenaing government and nongovernment witnesses and
documents. If a committee meets to consider a subpoena, it meets in a markup session, and
members may offer amendments and motions, make points of order, and engage the procedures
and procedural strategy that could occur in a markup of legislation.
Many committees’ rules delegate authority to the chair to issue subpoenas, with limitations that
vary from committee to committee on a chair’s exercise of this authority. Some chairs may issue
subpoenas only if the House is in recess for more than a certain number of days. Some chairs may
issue subpoenas only after consulting or notifying the ranking minority member. In some
committees, subcommittees may issue subpoenas only with the approval of the full committee
chair. Other limitations appear in committees’ rules.
3.9. Committee Records
Rule XI, clause 2(e)(1) requires committees to keep records of all committee actions, including
“substantially verbatim” accounts of hearings and meetings, including markups, and records of all
roll-call votes. With exceptions, these records must be available for inspection by Members, staff,
and the general public in the committee offices.20 Public availability does not necessarily allow a
Member or other person reviewing a record to photocopy it or make notes.21 Clause 2(e)(4)
recommends that committee publications be made available in electronic form “to the maximum
extent feasible.”
Pursuant to Rule VII, each committee chair is responsible for transferring noncurrent records of
the committee to the clerk of the House, who is then responsible for transmitting those records to
the National Archives.22
4. Procedural Restrictions in Law on
Certain Markups
The Constitution gives the House and Senate authority to make their own rules of proceedings.23
In addition to making rules for the House by the adoption of a simple House resolution or for the
Senate by the adoption of a simple Senate resolution, the House and Senate regularly exercise
their constitutional rulemaking authority by including rules in statutes. Congress thereby might
make rules applicable in one or both chambers. The Legislative Reorganization Acts of 1946 and
1970 made numerous changes to the rules of each chamber.24
(...continued)
majority of its members.
20 Rule XI, cl. 2(e)(1)(B)(ii) exempts the Committee of Ethics and states that a majority of the committee members
must vote to make records available. In addition, Rule X, cl. 11(c) and 11(g)(3) allows the Intelligence Committee to
restrict access to classified information in its possession. Rule XI, cl. 2(k)(7), applicable to most committees, allows a
committee that has conducted a meeting in executive session to vote to make those proceedings publicly available, “a
majority being present.”
21
House Rules and Manual, § 796, pp. 566-567.
22 For a discussion of committee record keeping, see
House Practice, ch. 11, § 16, pp. 276-279.
23 U.S. Const., art. I, § 5, cl. 2.
24 60 Stat. 812 (1946) and 84 Stat. 1140 (1970), respectively.
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Congress might also include rules in statutes to establish a specific set of procedures in one
chamber or both chambers for one piece of legislation or for all measures on a specific subject.
The purpose of such rules may be to expedite the consideration of certain measures in Congress,
to ensure up-or-down votes are reached on the House and Senate floors within a certain time
frame, to establish a process for Congress to make a decision in which it has been unable to do so
by normal legislative procedures, to balance the potential need for decisive executive action
against the deliberative processes of Congress, or for other reasons.
These kinds of statutory rules might be referred to colloquially as “fast-track” or “expedited”
procedures. They might apply to committee consideration of one piece of legislation or of
measures on a specific subject, determining—
whether a measure is referred to committee,
the duration of the referral, and
whether the measure may be reported with amendments.
The Trade Act of 1974, for example, provides for the introduction of an implementing bill for a
trade agreement and its referral to committee. It disallows committee amendments, and
discharges the bill from committee after 45 days if it has not been reported.25 Under the
Congressional Budget Act, as another example, if reconciliation instructions are included in an
annual budget resolution, the committees named decide how to implement the instructions and
then submit their recommendations to the House and Senate Budget Committees, “which upon
receiving all such recommendations, shall report to its House reconciliation legislation carrying
out all such recommendations without any substantive revision.”26 The Budget Committees’ only
markup authority is to assemble the work of the other committees into a measure called
reconciliation legislation and to report that legislation to their parent chamber.
House Rules and Manual contains excerpts from the Congressional Budget Act, the Budget
Enforcement Act of 1990, and the Statutory Pay-As-You-Go Act of 201027 and from statutes
containing rules pertaining to House consideration of specific legislation.28
The Ways and Means Committee (and the Senate Finance Committee) has in addition developed
its own supplementary procedures under the Trade Act to allow it to bring its expertise to bear on
draft bills implementing trade agreements. The Ways and Means Committee may hold a “mock
markup” on a draft bill prior to the President’s submitting the measure to Congress. This
procedure allows the committee to react to draft legislation and for the President to consider the
committee’s views before formally submitting a bill to Congress pursuant to the expedited
procedures in the Trade Act.29
Because rules in statutes are created pursuant to the constitutional authority of each house to
make its own rules, either chamber can change whether or how these rules of procedure are
followed. For example, the House on April 10, 2008, adopted H.Res. 1092 to make expedited
25 19 U.S.C. § 2191.
26 2 U.S.C. § 641(b).
27
House Rules and Manual, §§ 1127 and 1129, pp. 1053-1137.
28 Ibid., § 1130, pp. 1141-1321. For an introduction to expedited procedures,
see CRS Report RS20234,
Expedited or
“Fast-Track” Legislative Procedures, by (name redacted)
.
29 See, for example, Stephen J. Norton, “CAFTA Inches Forward in Both Chambers,”
CQ Weekly, vol. 63, no. 25, June
20, 2005, p. 1656; and Charlene Carter, “House Ways and Means Committee Business Meeting: House Panel Backs
Trade Agreements,”
CQ Committee Meetings, July 7, 2011, available at http://plus.cq.com/doc/committees-
2011070700289279?10.
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committee and floor procedures under the Trade Act of 1974
inapplicable to H.R. 5724, the
measure introduced to implement the United States-Colombia trade agreement submitted to
Congress by President Bush.30
5. Referral of Legislation in the House
When a measure is introduced, it is assigned to one or more committees for their consideration.
This action is called referral or reference.31 Under Rule XII, the Speaker is directed to refer
measures and other matters to committees, pursuant to the committees’ jurisdictional statements
contained in Rule X. In practice, the House parliamentarian refers nearly all measures in behalf of
the Speaker.
Markup procedures and strategy for a measure are affected by its referral. How many committees
received a referral, in what order the referral was made, what limitations the Speaker imposed in
the referral—these referral decisions affect a committee’s decisions on what to mark up, when to
mark up, what amendments to consider, what and when to report, and other markup issues. The
following discussion examines referral in the House, with the repercussions explored in other
parts of this manual. Implications of referral decisions for a markup are discussed specifically at
“7.5. Markup Based on Sole, Primary, Additional Initial, or Sequential Referral,” and
“15.4.
Report with Parts—Measures Referred to More Than One Committee.”
5.1. House Rules on Referral
Committee jurisdiction is determined by a variety of factors. Paramount is Rule X, which lists
subject matter within the jurisdiction of each standing committee.32 Rule X, however, largely uses
broad, general terms and is the product of an era in which governmental activity was less
extensive and the relationships among policies were less intertwined than now. Most of the text of
Rule X was drawn from precedents from the 19th century and first half of the 20th century; it was
codified in the Legislative Reorganization Act of 1946.33 Although the rule underwent modest
revisions in 1974 and 1980, as well as more extensive changes in 1995 and 2005, topic omissions,
unclear or arguable jurisdictional boundaries, shared jurisdiction over programs or agencies, and
overlaps in jurisdiction exist.34 Accordingly, the formal provisions of the rule are supplemented
by an intricate series of precedents and informal agreements governing the referral of legislation.
30 “Relating to the Consideration of H.R. 5724, United States-Colombia Trade Promotion Agreement Implementation
Act,”
Congressional Record, daily edition, vol. 154, part 4 (April 10, 2008), pp. 5640-5654. As another example, see
the temporary suspension of a provision of the War Powers Resolution in H.Res. 242 (115th Cong.): “Sec. 4. Each day
during the period addressed by section 2 of this resolution shall not constitute a calendar day for purposes of section 7
of the War Powers Resolution (50 U.S.C. 1546).”
31
Congressional Quarterly’s American Congressional Dictionary, p. 210.
32 The jurisdictional statements of the standing committees appear in Rule X, cl. 1. The jurisdiction of the Permanent
Select Committee on Intelligence appears in Rule X, cl. 11(b). While a jurisdictional statement for the Committee on
Ethics appears in Rule X, cl. 1, additional authority appears in Rule XI, cl. 3(a). The House might also create a select
committee and vest it with specific
legislative jurisdiction, exclusive or not exclusive of standing committees. See
CRS
Report R40233,
House Ad Hoc Select Committees with Legislative Authority: An Analysis, by (name redacted)
.
33 60 Stat. 812 (1946).
34 Walter Oleszek et al.,
Congressional Procedures and the Policy Process, 10th ed. (Thousand Oaks, CA: CQ Press,
2016), pp. 106-116. (Hereinafter
Congressional Procedures and the Policy Process.) More detail appears in Walter
Oleszek,
Congressional Procedures and the Policy Process, 7th ed. (Washington, DC: CQ Press, 2007), pp. 81-89.
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A distinction needs to be made between legislative jurisdiction and oversight jurisdiction. The
former denotes the authority to report measures to the House; the latter, to review or investigate.
Oversight jurisdiction may be the product of a specific legislative enactment; it also accrues from
committees’ responsibilities over broad topical areas. Hence, there are frequent overlaps in
oversight jurisdiction. Legislative jurisdiction, however, occasions the majority of open conflicts
between committees.35
Based on precedent, if a measure is referred to a committee, like measures in the future will also
be referred to that committee. If the measure is enacted into law, amendments to that law are
presumed to be within the same committee’s jurisdiction. In contrast, legislation that is more
comprehensive than the law it amends, or supersedes, is generally within the jurisdiction of the
committee reporting the more comprehensive measure. These precedents result in an accretion of
subject-matter responsibility within a committee’s jurisdiction.36
Informal agreements, drafted among committees to stipulate their understanding of jurisdictional
boundaries, have been used in recent years. House parliamentarians, in advising the Speaker, have
generally considered themselves bound by such agreements when they are supported by all the
committees concerned and when the House, usually by unanimous consent, has given its assent to
such agreements.37 (See
“5.4. Protecting a Committee’s Jurisdiction.”)
In the event of an erroneous referral, a measure may be referred to the appropriate committee,
pursuant to Rule XII, clause 7(a
). However, erroneous referrals are most commonly corrected
today by unanimous consent, with a colloquy occurring on the House floor between the chairs of
the affected committees. An erroneous referral of a public bill or resolution that remains
uncorrected confers jurisdiction; erroneous referral of a private bill, left uncorrected, does not
confer jurisdiction.38
5.2. Speaker’s Authority
The Speaker is vested with authority to refer legislation to committees. Pursuant to Rule XII, the
Speaker must refer legislation and other matters, based on the subject listings in Rule X, clause 1.
He or she must refer “in such manner as to ensure to the maximum extent feasible that each
committee that has jurisdiction under clause 1 of rule X over the subject matter of a provision
thereof may consider such provision and report to the House thereon.”39
35 For a discussion of the introduction and referral of legislation, see
House Practice, ch. 6, §§ 6-8, pp. 170-173, and ch.
11, §§ 8-11, pp. 250-260. In addition, House rules proscribe the introduction and referral or consideration of legislation
on certain topics: private bills or resolutions for payment for property damage, personal injury, or death for which a suit
is allowed under the Federal Tort Claims Act; for a pension, except in very limited circumstances; for construction of a
bridge over a navigable stream; or for correction of a military or naval record. Rule XII, cl. 4. A private bill “may be
generally defined as a bill for the benefit or relief of one or several specified persons or entities.”
House Practice, ch. 6,
§ 14, p. 177. Commemorative bills and resolutions are also barred. Rule XII, cl. 5.
36 A measure might amend an existing statute or be freestanding, that is, not amending an existing statute. A committee
seeking to expand its jurisdiction often drafts legislation to amend laws within its jurisdiction. See, for example, the
instances presented in
Congressional Procedures and the Policy Process, pp. 109-110. Additional drafting strategies
are discussed below in
“5.3. Drafting Strategy and the Referral of Legislation.” 37
House Practice, ch. 11, § 8, p. 251. The House itself may also refer a measure, regardless of committee jurisdiction.
House Rules and Manual, §714, p. 442; and
House Practice, ch. 6, § 7, p. 172, and ch. 11, § 8, p. 250.
38
House Rules and Manual, § 714, p. 443.
39 Rule XII, cl. 2(b). See also
Jefferson’s Manual, § XXXIII in
House Rules and Manual, § 446, p. 235. Additional
provisions apply to the referral of private measures (Rule XII, cl. 2(d); cl. 3; and cl. 6), petitions and memorials (Rule
XII, cl. 3 and cl. 6), and executive communications (Rule XII, cl. 8). See also Rule X, cl. 1 in
House Rules and Manual,
(continued...)
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The House first authorized the Speaker to refer measures to more than one committee in the
Committee Reform Amendments of 1974.40 The Speaker was given three new choices. First, the
Speaker could refer a measure to more than one committee—a joint referral—which essentially
gave all committees receiving a referral an equal voice in moving or stopping legislation. Second,
different parts of a measure could be sent to different committees—a split referral. Third, a
measure could be referred to one committee and then to another committee or other committees—
a sequential referral. As initially drafted, the Committee Reform Amendments also proposed
extensive changes to committees’ jurisdiction, the purpose of which was to reduce overlapping
jurisdictions. Those changes were deleted from the Committee Reform Amendments as passed.
These so-called multiple referrals were used frequently in the 20 years after they were authorized,
oftentimes to acknowledge overlapping jurisdictional issues and oftentimes to avoid choosing
among committees’ jurisdictional claims. Two consequences of multiple referrals in the absence
of jurisdictional reform were the further broadening of jurisdictions and the further fragmenting
of responsibility over policies and programs.41
In 1995, the House adopted rules changes that amended the Speaker’s authority to multiply refer
measures, with the change expected to better hold committees more accountable for action on
legislation. Under the change, the Speaker could no longer refer measures jointly; instead, he was
authorized to designate a committee of primary jurisdiction when referring a measure to more
than one committee, with the other committees receiving in the words of one congressional
scholar an “additional initial referral” to the committee of primary jurisdiction.42 Although
narrowly drafted measures that may be referred to just one committee are the most common,
referral of legislation to two or more committees, with one committee designated as primary, is
commonplace. Split and sequential referrals were still allowed. The Speaker could impose time
limitations on any committee receiving a referral.43
In 2003, with the rules changes adopted in the 108th Congress, the Speaker was authorized to refer
measures to more than one committee without designation of a primary committee under
“exceptional circumstances.”44 The purpose of the change was to give the Speaker flexibility not
to choose a primary committee, although the Speaker has rarely exercised this authority.
5.3. Drafting Strategy and the Referral of Legislation
Members may use the ambiguities in jurisdictional statements to influence the referral of
legislation by carefully drafting measures and previewing drafts with the parliamentarians. If a
parliamentarian indicates a draft will go to one committee or to a committee designated as
primary and that referral suits the Member, the Member might introduce the measure as drafted.
If a parliamentarian indicates a referral that the Member dislikes, the Member can use the
information to try to redraft the measure to change the jurisdictional subject matter to trigger
(...continued)
§ 714, pp. 441-444.
40 Sec. 101 of H.Res. 988, agreed to in the House October 8, 1974.
41
Congressional Procedures and the Policy Process, pp. 112-116.
42 Ibid., pp. 113-114.
43 Rule XII, cl. 2(c). This clause also authorizes the Speaker to refer a measure to a select committee, the creation of
which was approved by the House, and to “make such other provision [regarding referral] as may be considered
appropriate.” Clauses 2(c)(4) and 2(c)(6), respectively.
44 Rule XII, cl. 2(c)(1).
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another committee’s jurisdiction or to change the emphasis of the jurisdictional subject matter so
that another committee is designated as primary.
A sponsor of legislation often considers how to draft a measure so that it will be referred to a
committee favorably disposed to the measure and therefore likely to act, especially if it is a
committee on which the sponsor serves. If, however, a sponsor is introducing legislation at the
behest of a group or an individual and is not favorably disposed to the support the measure, the
Member might draft it so that it will be referred to a committee presumed to be less sympathetic
to the measure, possibly dooming its fate by its mere referral to an unfriendly committee. A
member might choose to address aspects of an issue within the jurisdiction of just one or two
committees to increase the chances of action. Another alternative that a sponsor might choose is
to draft a measure so that it is extensive in scope or ambiguous, resulting in the measure’s referral
to numerous committees with little expectation that all the committees would take action.
Members frequently choose to introduce measures that amend laws within the jurisdiction of
committees on which they serve in order to increase their opportunities to promote committee
action. For example, a Member interested in introducing a health-related measure might choose to
draft a bill amending the Employee Retirement Income Security Act if he or she serves on the
Education and Labor Committee, the Public Health Service Act if he or she serves on the Energy
and Commerce Committee, or Medicare Part A if he or she serves on the Ways and Means
Committee. Other committees have jurisdiction over health care for specific populations, such as
the Armed Services Committee for members of the Armed Forces and Veterans’ Affairs for
veterans. Similarly, all revenue measures are referred to the Ways and Means Committee. So, a
Member might propose a fee rather than a tax in a measure he or she introduces so that another
committee’s jurisdiction might be relevant.
Other factors that could influence referral may be considered in drafting, although these factors
are neither formal nor acknowledged in rules or precedents:
First, the committee assignment and generally acknowledged issue expertise of a measure’s
sponsor could influence the appropriate referral of a measure. Sponsorship by a committee or
subcommittee chair or ranking minority member could increase the relevance of this factor.
Second, the timing of a measure’s introduction might affect committee referral. For example, if a
Member introduces legislation following hearings on, or press coverage of, a subject in which the
Member was very involved, the Member presumably wishes to have the measure referred to a
committee on which the Member serves in order to legislate on what has recently been studied.
Third, even if a committee did not initially consider a measure, representation from its
membership on a House-Senate conference on the measure could be used to argue that the
committee has a claim to the measure’s subject matter.
Fourth, jurisdiction over specific authorizing legislation can be influenced or, arguably,
determined by which Appropriations Committee subcommittee has considered appropriations
requests for a program or activity. For example, although House rules generally forbid legislating
in a general appropriations bill or appropriating for unauthorized activities, the Appropriations
Committee regularly establishes legislative policy in annual, supplemental, or continuing
appropriations measures. When an authorization bill is subsequently introduced, referral to a
legislative committee could be made after considering which Appropriations subcommittee had
handled the program or activity. Similarly, reconciliation instructions in a budget resolution
naming a committee could subsequently influence the referral of legislation to legislative
committees.
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5.4. Protecting a Committee’s Jurisdiction
Committees are generally very protective of their jurisdictional prerogatives. They monitor the
introduction of legislation to protect their jurisdiction by ensuring appropriate referrals. If a panel
believes that it should have received a referral of a measure, it can seek unanimous consent to
have a measure re-referred. On occasion, but rarely in recent years, jurisdictional unanimous
consent requests have been promoted by the Speaker after receipt of a letter from an aggrieved
committee claiming an erroneous reference of a measure. A committee chair could also draft a
letter to the Speaker requesting a re-referral or sequential referral.
Similarly, committees monitor measures reported from other committees to determine whether a
sequential referral should be sought, especially if another committee adopted provisions
presumably outside its jurisdiction and within the jurisdiction of the committee monitoring
reported measures. In either case, the Speaker is authorized to sequentially refer a measure in its
entirety or for “such provisions as fall within the jurisdiction” of other committees and to impose
a time limit on such a referral.
The House has historically recognized the importance of cross-committee agreements pertaining
to shared or overlapping jurisdictional subjects. Most recently, these agreements delineating the
jurisdictional boundaries of panels have taken the form of written, publicly available memoranda
endorsed by the chairs of affected committees. They might deal with a single piece of legislation
or with all legislation involving a specified subject matter. These memoranda of understanding
(MOUs) serve to guide the House parliamentarian in making referrals of legislation on the
Speaker’s behalf. Typically, such MOUs are printed in the
Congressional Record. 45
The
parliamentarian’s notes in
House Rules and Manual include, among historical and precedent
explanations, formal reference to these memoranda, acknowledging their binding character.46
If an MOU cannot be negotiated, committees often engage in scripted colloquies on the House
floor to highlight each committee’s view about its respective jurisdictional boundaries. However,
these discussions are generally perceived to have somewhat less weight in making referrals than
would formal memoranda.
Alternatively, a committee may arguably authorize its chair to offer a motion to re-refer a
measure. The Speaker inquires if the chair is acting on the direction of his or her committee, and,
if so, will put the question on the motion to the House without debate. This motion has not been
used, however, since the 82nd Congress (1951-1953).47
Sometimes committees have agreed to relinquish their rights to a formal referral (or to
consideration following a referral) on a complex issue in order to facilitate House floor action on
a measure. Committees typically do so, either in a floor statement or in a letter to the Speaker,
with the explicit understanding that failure to demand a referral or agreement to be discharged
does not affect the formal jurisdiction of the panel and its future right to referral on that or related
45 See, for example, Rep. Louise M. Slaughter, remarks in the House, “Memorandum of Understanding between the
Committee on Transportation and Infrastructure and the Committee on Homeland Security” (concerning the Federal
Emergency Management Agency), in “Rules of the House,”
Congressional Record, vol. 153, part 1 (January 4, 2007),
p. 16.
46
House Rules and Manual, § 722, p. 461.
47 Lewis Deschler,
Deschler’s Precedents of the United States House of Representatives, vol. 4, 94th Cong., 2nd sess.,
H.Doc. 94-661, ch. 17, § 28.4 (Washington, DC: GPO, 1977), pp. 514-516. Available online from GPO at
https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=GPO&browsePath=Precedents+of+the+U.S.+Ho
use+of+Representatives&isCollapsed=false&leafLevelBrowse=false&ycord=0; and
House Practice, ch. 6, § 7, pp.
172-173.
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subjects. On occasion, such voluntary action has also been coupled with a demand for
representation at the conference stage.48
6. Considerations Prior to a Markup
The importance of committee markups is perhaps indicated by the commitment that committee
members make to attending. Chairs fully exercise their committee leadership role in planning for
a markup, and they preside at it. If a chair delegates chairing to another majority-party member, it
is likely to be for only a brief period. Committee members are largely present throughout a
markup. If they must be absent during a markup, they are able to return quickly when notified
that their presence is needed.49 Although all Members’ opportunities to offer amendments on the
House floor are normally circumscribed, the amendment process in committee is typically bound
only by House and committee rules and precedents and unanimous consent agreements among
committee members. This opportunity to participate fully and in detail in the legislative process is
a key inducement to members to fully engage in a markup. In addition, the conduct of a markup is
relatively formal, and chairs and members adhere to and employ House and committee rules and
precedents.50
A markup culminates what is often a long period of preparation. That preparation may begin prior
to convening the first hearing on a public policy issue or the introduction of the legislation on that
issue. A chair, majority-party committee members, and majority staff often plan legislative
strategy around the congressional calendar. They look to the end of a Congress, or a session of
Congress, and plot a legislative strategy for the intervening months. This kind of planning can—
clearly indicate the legislative goal;
empower a chair in leading his or her committee and working with party leaders
by having a clear goal on which to focus attention;
identify different routes to that goal and anticipate potential political or
procedural roadblocks;
encompass possible actions in the Senate;
save time by having a larger strategy that can be adjusted, rather than having to
work out strategy for the next stage as the previous stage is completed; and
take advantage of momentum that one stage of the legislative process builds for
the next stage.
48 See, for example, letters exchanged between various committee chairs and the chair of the Homeland Security
Committee concerning the referral of the H.R. 2825, Department of Homeland Security Authorization Act. These
letters were printed in the
Congressional Record: Rep. Michael McCaul, “Department of Homeland Security
Authorization Act,” House debate,
Congressional Record, daily edition, vol. 163 (July 20, 2017), pp. H6110-H6111.
49 Members sometimes work in committee anterooms, where they can monitor committee proceedings while doing
other work. Many committee meetings are live streamed and appear on House and C-SPAN channels, allowing another
means for Members and their staff to stay abreast. Committee staff also monitor events in other committees to notify
committee members serving on committees with concurrent meetings to return to a meeting when needed.
50 In contrast, at committee hearings, chairs may delegate chairing to a vice chair or another majority-party member,
and few committee members tend to be present at any one time. Although House or committee rules and precedents
apply at a hearing, few are likely to be invoked. A reason for these differences between hearings and markups may be
that hearings are designed to some degree to generate public and congressional attention for a public policy issue—
perhaps even relying on celebrity witnesses to draw media and public attention—whereas markups are designed to draft
solutions for the issue.
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Explanation of the staff role appears below at
“18. Role of Committee and Personal Staff” and in
Appendix B, House Committee Markups: Administrative Preparation.
Chairs normally plan markups when the House will be in session to facilitate members’
attendance. Members are almost certain to be in Washington, DC, when the House is meeting,
unless they are ill or attending to a family emergency.51 Knowing committee members are
available when conducting a markup, a chair is able to quickly assemble all majority-party
members for recorded votes and, presumably, outvote the minority on amendments and
procedural motions.
The following are some of the key considerations for committees as they plan markups.
6.1. Timing
In consultation with their party’s leaders and committee members, chairs determine when to
convene a markup and what to put on the agenda. A chair may decide when and what based on a
number of factors, but this decision is foremost a political decision about winning support for a
legislative change of public policy. As a Brookings Institution scholar noted, timing is critical in
politics:
Timing is to politics what location is to real estate. Good policy ideas are useless if the
time is not right. In a democracy, leaders must focus—and be seen to focus—on
problems the public cares about the most. If the political agenda is not aligned with the
public agenda, the likely result is frustration and anger. Conversely, if leaders work hard
on the public’s problems, the public response is likely to be favorable, even if the results
are not immediate.52
If a chair has the option of contemplating the advantageous timing of a markup, he or she might
consider a variety of factors:
momentum behind an issue—events driving public interest, the completion of
hearings that generated publicity for the issue, media coverage of the issue
(public and media interest is discussed below), or other bases for momentum;
pending state primaries and caucuses where committee members are seeking
renomination, general election politics, and presidential election-year politics;
enthusiasm for the issue and legislation to address it among majority-party
committee members, leaders, and caucus or conference;
possibility of some minority-party committee members’ support;
the Administration’s priority for the issue and its efforts to generate public and
congressional support;
majority-party leadership’s assignment of priority to the issue, instructions
conveyed to the committee chair, and plans for scheduling floor time for
legislation to address the issue (discussed below);
51 In these instances, a party leader normally notifies the House in behalf of the Member, and a “leave of absence” is
granted by unanimous consent on the House floor.
52 William A. Galston, “Obama Has a Problem Prioritizing His Agenda,” December 8, 2009, available at
https://newrepublic.com/article/71760/matter-priorities. See also William A. Galston, “Trump’s Supporters Are
Worried About His Priorities, and Tired of His Tweets,” FixGov blog, The Brookings Institution, August 9, 2017,
available at https://www.brookings.edu/blog/fixgov/2017/08/09/trumps-supporters-worried-about-his-priorities-tired-
of-tweets.
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markup plans in other committees with jurisdiction over the issue and potential
legislative vehicles (discussed at
“7.5. Markup Based on Sole, Primary,
Additional Initial, or Sequential Referral”);
action taken or anticipated by a Senate committee or the Senate; and
impending long recess or end of a congressional session, which can add pressure
to act.
Any of these factors might contribute to favorable political timing for winning support for a
legislative change of public policy. A chair can harness this momentum, enthusiasm, commitment,
pressure, and support to create a winning strategy in committee and to generate momentum and
enthusiasm in anticipation of House floor action.
6.2. Party Leadership Planning
Although the most senior majority-party leaders rarely serve on committees, they are intimately
involved in working with each committee’s chair to determine a panel’s agenda and the proposed
floor schedule for considering legislation favored by the chamber’s and committee’s
leaderships.53
The majority-party leadership must coordinate the substantive work products and schedules of
committees to plan the floor schedule for an entire Congress and for its two sessions. It must
determine what legislation to consider during the first session and what to defer to the second
session. It must also factor in presidential initiatives, those announced separately and as part of
events such as inaugural and State of the Union addresses. The potential for a tumultuous election
cycle, whether in a presidential year or a midterm year, factors into decisions on important
legislation. Events such as hurricanes and snowstorms or the death of a former President can lead
to the unexpected cancellation of House and committee meetings. District work periods also
affect committee scheduling and subsequent floor time, and the duration of the House’s weekly
sessions and the number of votes that occur during a week can affect the scheduling and pace of
committee action.
Majority-party leaders might want to move the highest-priority legislation in the first session, and
might, for example, ask committee chairs with jurisdiction over that legislation to hold hearings
early in the first session, to mark up after the August break, and be prepared for floor
consideration in the fall. The second session can then carry a lighter legislative load and provide
time to complete bicameral negotiations with the Senate over pending legislation. Conversely, the
party leadership might prefer an agenda of popular, targeted bills and resolutions in the first
session, with major legislation defining party differences receiving floor action in the second
session, closer to election day. In any year, leaders must anticipate work on unfinished
appropriations legislation in September and at other times after the start of the new fiscal year.54
53 Both parties’ leaders might or might not have committee assignments. Some leaders give up previous assignments to
serve in their leadership posts, others take a leave of absence and continue to accrue seniority, and others continue their
committee service. In some instances, leaders serve ex officio on committees, as the Speaker and minority leader do on
the Intelligence Committee (Rule X, clause 11(a)(2)). Leaders might also be appointed to committees, as the majority
and minority leaders and other leaders were appointed to the temporary Select Committee on Homeland Security in
2002.
54 Leaders might also consider the timing of authorization legislation vis-à-vis appropriations legislation. For example,
Congress each year attempts to coordinate its consideration of the defense authorization bill with its consideration of
the defense appropriations bill so that decisions on authorizations can inform decisions to be made on appropriations.
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Majority-party House leaders also work with committee leaders to coordinate work with the
Senate, especially when the Senate is controlled by the same party. The decision of whether the
House or Senate will act first on a specific legislative initiative—a decision made by party
leaders—affects House committee schedules. The decision could require one or more committees
in each chamber to work simultaneously, for one chamber to finish its work on the legislation
before committee or committees of jurisdiction in the second chamber complete hearings or begin
markup, or impose another arrangement. Sometimes simultaneous work in the two chambers’
committees is promoted as a sign of momentum behind a legislative initiative, such as when
committees in each chamber mark up simultaneously. At other times, simultaneous work is
thought to be a distraction or as confusing public and media attention, such as when committee
hearings are occurring in one chamber while committee markup is occurring in the other
chamber.
6.3. Public and Media Attention
Chairs use hearings and markups to publicize issues and legislation and to attempt to generate
public interest. Many committee meetings are now available for viewing in full on the internet or
on C-SPAN, in addition to excerpts shown on news programs or reports appearing in all forms of
media. Chairs and other committee members also speak before groups in Washington, DC, and
around the country to generate interest and support by opinion leaders, stakeholders, and the
public. Members speak on the House floor in legislative and nonlegislative debate to reach both
the public and media who view the House in session. Reporters accredited by the congressional
press galleries circulate throughout the Capitol and congressional office buildings; the press
galleries in the Capitol and the ubiquitous presence of reporters provide committees and members
with ready access to a vast number of news outlets. Committees and individual members employ
media assistants to ensure a flow of information to the media and to develop and deploy a social
media strategy.55 Chairs and other members speak to individual reporters and boards of editors
and conduct press conferences. If a chair is successful, public and media interest contributes
momentum to legislation in markup and to its consideration by the House.
In contrast, local, national, or international events or public or media interest might precede
committee interest, and public and media interest can reinforce each other. These events or
interest might force an issue onto a committee’s agenda and shape the way in which the
committee responds. The 2007
Washington Post series on the experiences of the Armed Forces
wounded members and their families at Walter Reed Army Medical Center transformed
congressional interest in wounded veterans, spurred committees of jurisdiction to action, and
arguably continue to still resonate in Members’ perspectives on veterans’ medical needs. Many
years of public and media interest in missing, abducted, abused, and murdered children has
continued to generate committee action resulting in new laws and appropriations to combat
crimes against children. A presidential demand for action can prompt committee action, such as
House committees’ 2017 reporting of legislation in support of President Trump’s initiatives on
health care, regulatory changes, and taxes.
55 See CRS Report R44509,
Social Media in Congress: The Impact of Electronic Media on Member Communications,
by (name redacted) and (name redacted)
; and CRS In Focus IF10299,
Linking with Constituents: Presentation of
Social Media on Member of Congress Websites, by (name redacted) and (name redacted)
.
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6.4. Should Subcommittee Markup Precede Committee Markup?
Committees differ in their rules and practice regarding the role of subcommittees, as explained
above. (See
“3.1. Subcommittees.”) When legislation is referred to a committee, some
committees’ rules require their chairs to refer it to a subcommittee, in some instances within a
certain period of time and in some instances after consultation with the ranking minority member
or subcommittee chairs. Some committee’s rules disallow a referral until after a certain period of
time has elapsed. Other committees’ rules leave the decision to refer to legislation to
subcommittee to the chair’s discretion or provide a role for the full committee’s decision. Some
committees’ rules specifically allow a chair to refer legislation to more than one subcommittee, to
designate a primary subcommittee, and to set time limits on subcommittee consideration.56
In addition, there are motions to refer, commit, and recommit that might be made during
committee markup, the effect of which if approved is to send the measure being marked up to
subcommittee. These motions are explored at
“12.2. To Commit or Recommit to a
Subcommittee.”
If a measure has been referred to subcommittee, many committees’ rules provide a mechanism to
discharge subcommittees from further consideration of a measure. Some rules allow a chair to
discharge a measure from subcommittee, whereas others place that power in the committee or in
the chair acting after authorization by the committee. Other committees’ rules allow a chair to
discharge a measure from a subcommittee after a certain period of time or, as mentioned, by
setting a time limit on a subcommittee’s consideration. A motion to discharge is also available, as
discussed below at
“12.3. To Discharge a Subcommittee.”
When planning a markup, a committee chair must decide whether subcommittee markup will
precede committee markup. Some committees’ rules allow subcommittees to act only after
consultation with the chair; some committees’ rules allow subcommittees to act only with the
permission of the chair. The chair might weigh a number of factors in deciding whether to have a
subcommittee mark up a measure, including the following:
Alignment of subcommittee on the public policy issue compared with full
committee. If the alignment is favorable, the chair might choose to have the
subcommittee mark up first and generate momentum for the legislation
addressing the issue. If the alignment is unfavorable, for example, if some
majority-party members oppose key aspects of the committee chair’s favored
legislation, the chair might forgo subcommittee markup rather than suffer
potential defeat on key votes.57
Subcommittee chair and members. A committee chair might be influenced by the
makeup of a subcommittee in his or her decision to hold a markup in a
subcommittee. If the subcommittee chair or members are strongly identified with
the public policy issue or legislative solution, that factor might favor
subcommittee markup. If the subcommittee chair or members are forceful
advocates or adept in their use of procedure, that factor might favor
56 Committees’ requirements for their subcommittees are examined in CRS Report R41605,
House Standing
Committees’ Rules on Legislative Activities: Analysis of Rules in Effect in the 114th Congress, by (name redacted)
and (name redacted).
57 See, for example, the discussion of the policy views on a subcommittee in Avery Palmer, “House Democrats Mum
on Energy Bill Details, but Markup Could Come Soon,”
CQ Today, vol. 45, no. 74, May 12, 2009, p. 3; and Avery
Palmer, “Waxman Reaches Deal on Emissions,”
CQ Today, vol. 45, no. 75, May 13, 2009, pp. 1, 30.
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subcommittee markup. If the full committee chair anticipates a need to play a
mediating role between members of the majority party or with minority party
members in the subsequent course of committee consideration of the legislation,
that factor might favor having a subcommittee mark up legislation before the full
committee does.
A test of sentiment. A committee chair might have questions about political
support for a legislative solution to the public policy issue and want to test
sentiment in the narrow setting of a subcommittee before taking up legislation in
the full committee. In subcommittee, the chair could learn how the legislative
solution is viewed, what support and opposition exists among each party’s
members, the basis for that support and opposition, what arguments are made in
debate, and what amendments are offered.
Test votes. Similar to a test of sentiment, a committee chair might want to have
test votes taken in the narrow setting of a subcommittee before taking up
legislation in the full committee. The chair could plan majority-party
amendments with the subcommittee chair or other majority-party members of the
subcommittee, including amendments that test support for provisions that the
chair might want to include in a measure to be marked up at the full committee
and amendments that are anticipated to have bipartisan appeal. The chair could
also learn what support there is for minority-party amendments.
Committee review of subcommittee decisions. Although a chair might be
inclined to have subcommittee markup precede committee markup for one or
more of these reasons, he or she also considers support for the legislation at the
committee level. If the chair anticipates that the subcommittee might adopt
amendments inimical to majority-party policy goals, he or she might forgo
subcommittee markup or, if the chair is confident of having the votes at the
committee level to reverse the subcommittee’s decisions, he or she might still
proceed with a subcommittee markup.
Markup procedures described throughout this manual are the same whether a markup is
conducted by a committee or a subcommittee. However, when a subcommittee completes a
markup, it does not report its recommendations to the House but to its parent committee. Practice
differs among committees on what mechanism a subcommittee uses to report its
recommendations to its parent committee. Some committees require their subcommittees to
provide legislative language and a document explaining subcommittee action, including recorded
votes and possibly minority or other views. (See
“14.4.3. Minority and Other Views.”) Other
committees require only a letter or email notification to the full committee chair that the
subcommittee has finished its work. Some post-subcommittee actions might be dictated by the
exigencies of the issue or a chair’s plans for full committee markup. For example, a member, such
as the subcommittee chair, might be asked to introduce the subcommittee’s legislation as reported
as a new bill or resolution. (See
“14.3. Subcommittee Reporting,” and
Appendix O, Sample
Script for Subcommittee Reporting.)
6.5. Legislative Vehicle
What to mark up is a key consideration in planning a markup. The options available to a
committee are discussed extensively below at
“7. Procedural Strategy and the Choice of a
Markup Vehicle.”
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6.6. Chair Responsibilities: Markup and Floor
A decision to mark up legislation is concurrently a committee chair’s commitment of a substantial
amount of the chair’s time to see that legislation through to enactment. The time the chair gives to
this legislation is time he or she is forgoing in working for the enactment of other legislation or
the possible conduct of oversight or investigations. The chair is committing to
communicating substantively with his or her party’s committee members,
leadership, and, possibly, other Members on scheduling the markup and selecting
the markup vehicle;
communicating substantively with the ranking minority member on all aspects of
the markup;
planning the administrative details of the markup (se
e Appendix B); conducting the markup, which may take more than one day;
seeking to win at least some minority-party support;
writing the committee report;
dealing with, mediating between, or advocating to White House officials, other
executive branch officials, lobbyists, and others;
working with the majority-party leadership on scheduling and the elements of
floor consideration;
planning a procedural strategy and testifying before the Rules Committee when
the legislation is to be considered pursuant to a special rule;
planning a legislative strategy and building support for the legislation;
managing the legislation for the majority on the House floor;
interacting with the Senate to encourage its action, and strategizing over which
committee or chamber should act first (see
“17. Considerations in a Two-House
Strategy”); and
working to reconcile differences between House- and Senate-passed legislation
through amendments between the houses or conference.
Pursuant to House and committee rules and precedents, committee chairs have authority to
schedule markups, select markup vehicles, and conduct markups. Committee chairs exercise this
authority within limits imposed by their knowledge that their decisions can be overridden if those
decisions thwart the will of a committee’s majority-party members, and that chairs’ service
depends on retaining the support of their party’s leadership and caucus or conference. Chairs,
therefore, exercise their leadership and authority not only through decisionmaking but also by
communicating regularly and substantively with their party’s committee members, leadership,
and other Members. A chair communicates with others before scheduling a specific markup and
selecting a specific markup vehicle. (See
“7. Procedural Strategy and the Choice of a
Markup Vehicle.”)
In chairing a markup, a chair not only makes decisions as discussed below but also often serves as
the chief advocate for his or her party’s position in debate on the markup vehicle and
amendments. The customary role of the presiding officer in the House is to preside, neither
offering amendments nor participating in debate. A committee chair, however, typically
participates in debate and offers amendments. He or she regularly serves as the primary
spokesman for or against amendments that are offered in a markup. (See also the assignment of
roles to committee members at
“6.6.1.1. Pre-Meeting Party Caucuses.”)
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The presiding officer of the House votes on amendments, motions and other matters, and final
passage, and votes are taken electronically. In committees, chairs vote on amendments, motions
and other matters, and reporting measures to the House, but votes in committees are taken by oral
roll call. A committee chair may, therefore, make a tactical choice, either for all markups or on
individual votes, of whether to vote first or last on recorded (roll-call) votes. (See the explanation
of this choice at
“13.1. Forms of Voting.”)
In the immediately following four subsections of Considerations prior to a Markup, the role of a
chair in scheduling and conducting markups and in House scheduling and consideration of
legislation is highlighted: what the chair is committing his or her time to in marking up and
seeking the subsequent enactment of a specific measure. Specific procedural actions that a chair
might take or act on are introduced here, but they are examined in detail in the succeeding
sections of the manual. These subsections contain cross references to the appropriate sections.
6.6.1. Scheduling Meetings and Setting an Agenda
Pursuant to Rule XI, clause 2(b), each committee establishes a regular meeting day, which must
be not less frequent than monthly. The rule also allows committees to provide in their rules a
method not to meet on a regular meeting day, and most committees authorize a chair to dispense
with any meeting, including a regular meeting. Rule XI, clause 2(c)(1) authorizes chairs to call
and convene additional or special meetings as a chair deems necessary. Most committees’ rules
grant this authority to the chair; some committees’ rules require the chair to consult the ranking
minority member in scheduling or cancelling a meeting. Most business in committees is
conducted on days other than a regular meeting day, and, pursuant to authority included in clause
2(c)(1), committees’ rules detail notice requirements for meetings. (See
“3.2. Meetings,”
and
“8.1. Notice.”)
Rule XI, clause 2(b) is silent on the matter of who decides what business a committee conducts
on its regular meeting day. Clause 2(c)(1), concerning additional and special meetings, strongly
suggests that the decision is in the hands of the chair: a chair’s authority to set an agenda is
apparently derived from the chair’s authority to call meetings. Clause 2(c)(1) also allows
committees to adopt rules related to additional and special meetings, and many committees have a
rule delegating meeting agendas to their chair.
Rule XI, clause 2(c)(2) provides a mechanism for a committee’s members to call a meeting and
determine its business. This allowance may be employed as a tactic of the minority, or of
members having a minority policy viewpoint, in seeking action on an issue or measure. Even
unsuccessful action in accord with this rule may prove suasive in obtaining an assurance from a
chair to schedule the desired business at a future date. (See
“3.2.2. Members’ Initiative to Hold a
Markup.”)
In planning a markup, a chair considers the potential duration of debate and the amendment
process, considering whether the markup can be completed in a part of one meeting or in one or
more meetings. The chair considers the degree of agreement or disagreement between the
majority and minority. An expectation of a short or single meeting based on a good degree of
agreement might allow the chair to schedule a Thursday markup, anticipating that the committee
will be able to meet with fewer competing committee markups and hearings and to finish its
markup well before potential House floor votes conclude and members start leaving Washington
for their districts. A chair might also expect a short or single meeting in the absence of agreement
if the chair anticipates moving the previous question to bring the meeting to an early conclusion.
An expectation that a markup might last late into the night or require more than one meeting
might lead the chair to schedule a Tuesday or Wednesday markup.
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For more contentious markups, a chair must also be concerned with the availability of the
committee’s majority-party members. Majority members serve on numerous committees, chair
subcommittees of other committees, manage legislation on the House floor for other committees,
and have duties to perform for the party leadership. If there are few other committees meeting or
if other committees’ meetings concern noncontentious matters, a chair might be confident that
committee members will be available for the duration of a markup. Too few majority members
present at a markup places a heavy load for debate on majority members who are present. The
absence of majority members from a markup also leaves a vacuum that minority members could
fill by offering amendments, and invites demands for votes, motions, and other actions by the
minority that can disrupt the chair’s plans for the markup.
In its procedural strategy related to debate and amendments in a markup, the minority might
consider whether to cooperate with the chair’s time frame. In that case, it might offer few
amendments and keep debate short; could offer a number of amendments but keep debate to a
minimum; or could choose to focus on just a few amendments but debate each one at length.
Where the minority strongly dissents from the policy issue or the majority’s legislative solution, it
could still agree to a relatively short committee meeting, saving its debate and amendments for
future House floor action. Or, the minority could use a strategy of numerous amendments or few
amendments coupled with extensive debate to ensure its arguments are heard and to prolong a
markup. It might choose numerous amendments when there are majority members who disfavor
some or all of the chair’s proposed legislative solution, potentially attracting votes for a policy
majority different from a majority-party position. It might choose prolonged debate where it
anticipates the majority-party leadership has a legislative solution different from what might
emerge from committee, thus fully airing minority-party positions in committee where there is
likely more time for debate than will be available on the House floor and more opportunity for
influencing other members’ and public views.
Each side might also adopt a strategy of wearing down the other side through amendments,
debate, motions, and other action. A chair in this situation must lead a disciplined majority. The
minority must decide when it has gained as much as it can politically or procedurally in policy
debate and amendments.
Members in both parties might also consider how their debate and amendment strategy relates to
anticipated floor action. Members of both parties know that the majority leadership, through the
Rules Committee, will determine what legislative vehicle will come to the floor and what
amendments will be allowed. A chair likely has in mind a “bottom line” on what to report from
committee and when to report it. The minority in markup, where it disagrees, can probe to disrupt
the chair’s wishes. In contrast, the minority may have its own legislative solution. It likely hopes
in that case to publicize and generate positive comment on its own approach. The majority will
want to ensure that the minority’s position is made known in markup and seek to rebut it in
debate and votes on amendments.
6.6.1.1. Pre-Meeting Party Caucuses
Many committee chairs caucus with their party’s committee members prior to a markup to
discuss strategy. These discussions might cover amendment strategy; the assignment of roles in
leading debate on certain issues; the assignment of parliamentary roles, such as which majority-
party member will consistently reserve a point of order against any minority amendments; and so
on. The minority conducts similar strategy meetings. Unless it can persuade a sufficient number
of majority-party members to join in, however, a committee’s minority-party members have little
effective recourse when they object to what a chair has or has not scheduled for markup. The
minority does have available motions, points of order, objections to unanimous consent requests,
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parliamentary inquiries, amendment proposals, and debate in the course of a markup that still
might further its goals for a markup. (See, for example,
“8. Beginning a Markup.”)
6.6.2. Maintaining Order and Decorum
Chairs are responsible for maintaining order and decorum in committee markups. The chair has
authority to recognize members to debate, to offer amendments, to make motions and requests, or,
as discussed immediately below, to make parliamentary inquiries or points of order.58 A chair may
determine that a member seeks to take an action that is not in order or that is improper or dilatory
(“made with intent to delay”).59 The chair has authority to admonish members generally, or one
member specifically, about maintaining decorum.60 In exercising the authority and prerogatives
available to a chair, the chair seeks to strike a balance between the responsibility of the majority
to reach a conclusion and the right of the minority to be heard in the course of decisionmaking.
(See also
“9.9. Debate on Amendments.”)
A chair is also empowered and required to maintain order on the dais and in the meeting room,
including among the public and press, and to act on or punish breaches of order and decorum.
Committees typically alert the Capitol Police to their meetings should their presence or assistance
be needed.
6.6.2.1. Parliamentary Inquiries
A chair may recognize a member to make a parliamentary inquiry—a question about procedure
on the pending matter. An inquiry might concern the order in which amendments are being
offered, the schedule for voting on pending amendments, whether a specific motion is in order, or
other specific procedural concerns. An inquiry may not concern a hypothetical situation or the
interpretation or consistency of amendments. The chair has discretion to recognize members to
pose a parliamentary inquiry, including declining to entertain an inquiry if the chair believes it is
improper or repetitive. Responses to parliamentary inquiries are not rulings of the chair and are
therefore not subject to appeal.61 (See also
“10. Parliamentary Inquiries.”)
6.6.2.2. Points of Order, Dilatory Motions, and Appeals
Committee members might make points of order—a claim that a rule is being violated. A chair
rules on a point of order and, subject to his or her discretion, first allows debate on it. If a chair is
prepared to rule immediately on a point of order, debate on it need not take place because the
purpose of debate is information for the chair. (See
“11. Points of Order.”)
In its applicability in committee, Rule XVI, clause 1 disallows a chair from entertaining a dilatory
motion—one “made with intent to delay”—and by precedent leaves the determination of what is
dilatory to the discretion of the chair. A chair might act on his or her own initiative or in response
to a point of order.62 (See
“12. Motions.”)
In many instances, a chair’s decision may be appealed—a request that the committee vote to
overturn the chair’s decision. An appeal is debatable but subject to a motion to table, which is not
58
House Practice, ch. 46, §§ 1-4, pp. 798-801.
59 Ibid., § 3, p. 800, and ch. 32, § 4, p. 647, respectively.
60 Ibid., ch. 16, § 26, p. 414.
61 Ibid., ch. 37, §§ 13-14, pp. 690-692.
62 Ibid., ch. 32, § 4, p. 647.
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debatable. If a motion to table is agreed to, the motion adversely disposes of the appeal. Certain
decisions of the chair, such as ruling actions out of order as dilatory, counting for a quorum,
recognizing members, or indicating whether an action was timely, are not subject to appeal. The
chair advises members of this fact if they inappropriately seek to appeal a decision.63 (See
“11.4.
Appeal of the Chair’s Ruling.”)
6.6.3. Reporting Legislation
The final vote taken in a markup is often a vote to report (submit) a measure with the committee’s
recommended amendments to the House for the House’s consideration. At this point, a measure’s
status is “ordered reported” by a committee. House Rule XIII, clause 2(a)(1) requires a written
report to accompany legislation, and Rule XIII, clauses 2, 3, and 4 spell out the contents of
reports on legislation. It is a chair’s duty to have reports prepared and to file them with the House.
Pursuant to Rule XIII, clause 2(b), a chair must report “promptly” to the House and take steps
necessary to secure the reported measure’s consideration.
Rule XIII, clause 2(b) further provides that, if a chair has not filed the report promptly, a majority
of members of the committee may place a request with the committee’s clerk. The chair then has
seven days, excluding days when the House is not in session, to file the report in the House. (See
“14. Reporting a Measure.”)
6.6.4. Floor Consideration
After a committee votes to report a measure and before the chair adjourns the markup meeting,
the chair often indicates to the committee what form of floor consideration he or she will be
seeking. The committee chair has probably already begun consultations with the majority-party
leadership about floor scheduling and the appropriate route to the floor, and he or she continues
these discussions when a measure has been ordered reported. A measure might qualify to be
considered under the suspension of the rules procedure. (See
“16.1.2. Suspension of the Rules.”)
If the House will desire more time for debate than available under suspension of the rules and the
possibility of considering floor amendments, which is not possible under suspension of the rules,
then the chair will seek a special rule for the reported measure from the Rules Committee. In that
case, with the leadership’s support, the chair writes to the Rules Committee, perhaps with the
support or co-signature of the ranking minority member, asking for a hearing on a special rule for
the measure.
The committee chair is traditionally the first witness at a Rules Committee hearing, explaining the
measure, the type of special rule desired concerning debate and amendments, a request for waiver
of any points of order, and other components of the special rule. He or she may be accompanied
by the ranking minority member, who might support the chair’s request or testify on his or her
own preferences for a special rule. At the hearing, the chair and ranking minority member answer
questions from the Rules Committee members. (See
“16.1.3. Special Rules.”)
Once the Rules Committee reports a special rule, in the form of a simple House resolution, House
consideration of the special rule and the legislation identified in it typically soon follow. The
House must adopt the special rule before it can begin consideration of the legislation named in it
pursuant to the ad hoc procedures contained in the special rule. The chair and ranking minority
member may speak on the special rule, but the majority and minority floor managers from the
Rules Committee control time.
63 Ibid., ch. 3, pp. 66-69.
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When the House takes up consideration of the measure, a committee or subcommittee chair
serves as floor manager. A committee chair is likely to serve as floor manager of a measure being
considered pursuant to a special rule. An Appropriations Committee subcommittee chair is likely
to serve as floor manager of an appropriations bill that was marked up in his or her subcommittee.
Subcommittee chairs, or even the original sponsor of a specific measure, are likely to serve as
floor managers of legislation being considered pursuant to the suspension of the rules procedure.
As floor manager, a chair determines which majority-party members speak on the measure during
the period set aside for general debate, for how long, and in what order; which members will
speak in support of or in opposition to amendments that are offered on the floor; which members
reserve, make, and speak on points of order; and members to whom the chair might delegate
control of time on specific amendments. He or she manages the majority party’s time. The chair
is also usually responsible for determining which amendments will be decided by a recorded
votes and which can be decided by voice vote, unless the minority asks for a recorded vote. The
committee or subcommittee ranking minority member serves with the same responsibilities as
floor manager for the minority party.
If a House-passed measure must be reconciled with a Senate-passed measure, the committee chair
works with the party leadership to plan a process of amendments between the houses or a
conference. The committee ranking minority member performs the same role for the minority
leadership. A committee chair serves as chair of House conferees and may chair a conference.
Post-passage actions are not explored in this manual.64
7. Procedural Strategy and the Choice of a
Markup Vehicle
Perhaps the most important decision a chair makes in planning a markup is choosing what text the
committee will mark up. The chair consults on policy goals and procedural means of achieving
them with majority-party committee members, majority-party leadership, perhaps other Members
of his or her party, possibly minority-party committee members who might support at least some
of the majority’s policy goals, and possibly others outside of Congress, such as Administration
representatives and interest-group representatives. With policy and political considerations in
mind, the chair plans procedural strategy, including a decision on the so-called markup vehicle.65
The vehicles examined in this part are normally available as options to a chair when a committee
marks up legislation, subpoenas, resolutions of inquiry, committee orders or resolutions,
committee rules, or other matters that a committee might consider in a markup meeting.
Three items need to be distinguished at this point:
1. the measure and other words appearing on the notice of the markup meeting
provided to committee members;
2. the measure or other text called up (laid before the committee) once opening
statements are completed at the markup; and
64 For an examination of amendments between the houses and conference, see CRS Report 98-696,
Resolving
Legislative Differences in Congress: Conference Committees and Amendments Between the Houses, by (name reda
cted)
.
65 A
vehicle in Congress is “another term for a legislative measure, in the sense that it is the means for conveying
legislation through the legislative process.”
Congressional Quarterly’s American Congressional Dictionary, p. 272.
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3. the markup vehicle, which could be the same measure noticed, the same measure
noticed and called up, or another text.
Notice was introduced above (see
“3.2.3. Notice and Documents”) and is examined more fully
below (see
“8.1. Notice”). Pursuant to authority contained in Rule XI, clause 2(c)(1), committees
adopt a notice rule that states how far in advance of a markup meeting committee members will
be notified of its occurrence and what will be the agenda at that meeting. (For an example of a
notice, see
Figure 1.)
As an agenda item, a notice might list an introduced measure: “To consider H.R. 123, a bill to…,
and for other purposes.” It could list a draft that has not yet been introduced: “To consider H.R.
_____, a draft bill to…, and for other purposes.” A notice could list an introduced measure but
indicate that another measure could take its place: “To consider H.R. 123, a bill to…, or a related
measure, and for other purposes.”
When the markup meeting convenes and after opening statements are completed, the chair
normally
calls up (
lays before the committee) as the committee’s business the first measure listed
on the agenda.66 Words such as “and for other purposes” used in the notice, however, provide the
chair with some flexibility. If H.R. 123 had been marked up in subcommittee, the chair could call
up H.R. 123 as introduced or as reported to the full committee by the subcommittee. If the notice
listed “or a related measure,” the chair might call up H.R. 123 or a subsequent draft, perhaps the
version of H.R. 123 reported from subcommittee but then introduced in the House. Pursuant to
Rule XI, clause 2(g)(4), the chair must make the text to be marked up publicly available in
electronic form at least 24 hours prior to the markup meeting.67
If the chair plans that members will mark up (offer amendments to) the measure he or she has
called up, then this measure is in congressional argot the
markup vehicle. From a policy
perspective, the measure needs to address the policy issues that the chair wants the committee to
consider—it is neither too narrow nor too broad in legislative scope; does not address matters
beyond the aspects the chair wishes to address; and contains the desirable legislative solution to
the policy issues. From a procedural perspective, the measure must address only subject matter
within the committee’s jurisdiction.
In contemporary House committee practice, however, the words “and for other purposes” usually
indicate that a chair will first call up the named vehicle. At the next step of the markup process,
when the measure is open for amendment, the chair, or another majority-party member with
recognition by the chair, may immediately offer a full-text amendment, known procedurally as an
amendment in the nature of a substitute. It strikes all of the text of the measure called up and
inserts the text of the amendment. The number of the measure does not change.68
66 Some chairs call up a measure first and then proceed with opening statements.
67 The section-by-section summary accompanying H.Res. 5 in the 112th Congress contained this explanation of text
added to Rule XI, clause 2(g): “[I]f the committee is considering a committee print, or the chair of a committee intends
to use an amendment in the nature of a substitute as the base text for purposes of further amendment, circulation of that
text will satisfy this requirement.” Rep. David Dreier, “Rules of the House,” insert,
Congressional Record, vol. 157,
part 1 (January 5, 2011), p. 86.
68 An amendment in the nature of a substitute begins with the words “strike all after the enacting clause and insert….”
The enacting clause gives legal force and effect to a measure if passed by Congress and signed by the President or
passed over his veto. It appears in italicized type before the text of a bill begins:
Be it enacted by the Senate and House
of Representatives of the United States of America in Congress assembled[.] In a joint resolution, it is a resolving
clause and reads:
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled[.]
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The markup vehicle in this instance is the amendment in the nature of a substitute. It almost
completely blocks amendments from being offered to the underlying bill until the amendment in
the nature of a substitute is disposed of, and, typically, once amendments to an amendment in the
nature of a substitute are disposed of, a committee approves it. Because the underlying measure is
now fully amended by the amendment in the nature of a substitute, no other amendments are in
order. An amendment in the nature of a substitute as a markup vehicle is examined below in this
section at
“7.4. Amendment in the Nature of a Substitute” and more fully at
“9.7. Amendment in
the Nature of a Substitute.”
The reader should keep in mind that the legislation noticed must be sufficiently comprehensive
for the preferred amendment in the nature of a substitute to be germane so that the policy issues
that the chair wishes to address may be addressed. Germaneness is explored in detail below at
“11.5. Germaneness.”
This section of the manual discusses four possible forms of markup vehicles: an introduced
measure; a subcommittee-reported version of a measure, also often referred to as a committee
print; a staff draft or chairman’s mark; and an amendment in the nature of a substitute. This
section examines each form and why it might be chosen as a markup vehicle. Each of these forms
has a default amendment procedure, which is also introduced in this section. The amendment
process, including alternatives to a default amendment procedure, is fully examined below in
“9.
Reading a Measure for Amendment.”
The selection of a form of markup vehicle also has consequences for the steps to be taken in
reporting a committee’s recommendations to the House and the form those recommendations
might take. The steps and options are introduced here, with reporting fully examined below in
“14. Reporting a Measure.”
The referral of a measure (sole, primary, initial additional, or sequential) might also influence the
choice of a markup vehicle. That influence is examined below, at
“7.5. Markup Based on Sole,
Primary, Additional Initial, or Sequential Referral.”
7.1. Introduced Measure
A chair may choose to mark up a measure as introduced by a committee member or by another
House Member. From a policy perspective, the measure needs to address the policy issues that the
chair wants the committee to consider.69 In addition, the chair is likely to anticipate a high level of
committee agreement over the legislation and anticipate few amendments, probably only ones on
which there is likely to be broad agreement.
Using an introduced measure as both the legislation scheduled for consideration and the markup
vehicle requires no special motion or unanimous consent. The chair notifies committee members
that the vehicle for the markup will be the introduced measure, identifying the measure number;
perhaps its popular name, official title, or subject matter; and, often, its original sponsor.
At the markup meeting, the chair calls up the measure. Once the measure is read or its reading
dispensed with, the measure is again read for amendment. When a measure as introduced is
selected as the markup vehicle, it is read for amendment by section (or, if so organized, by
paragraph). Unanimous consent must be obtained to read the measure for amendment by another
unit, such as title, or to make it open for amendment at any point. Each section can be amended in
69 Markup when a measure has been referred to more than one committee is discussed at
“7.5. Markup Based on Sole,
Primary, Additional Initial, or Sequential Referral.”
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two degrees. If the measure is read by section, paragraph, or another unit, the amendment process
may not be terminated until the last section, paragraph, or other unit has been read for
amendment. (See
“9.2. Options for Reading for Amendment.”)
The measure would be reported to the House “with amendments” if amended.70 (See
“14.2.
Options for Reporting Recommended Changes to the House.”)
7.2. Subcommittee Version—Committee Print
A chair may choose for committee markup a measure or a legislative draft that has already been
marked up by one of the committee’s subcommittees. If a previously introduced measure is
marked up, its principal sponsor may be the committee or subcommittee chair, a committee
member, or another House Member. From a policy perspective, the measure as introduced, and
likely as it will be marked up, addresses the policy issues and legislative solutions in the manner
desired by the committee chair.
If a draft is marked up, it could be that a number of measures had been introduced, and the
committee chair (or committee staff at the direction of the chair) prepared a draft drawing
concepts and provisions from the introduced measures, the suggestions of other Members, and
any earlier hearings that may have been held.71 From a policy perspective, the draft as laid before
the subcommittee, and likely as it will be marked up, addresses the policy issues and legislative
solutions in the manner desired by the committee chair. This kind of draft is a staff draft or
chairman’s mark (discussed below). If first marked up in subcommittee, a draft could be handled
in committee markup in the same manner as the subcommittee-reported version of a previously
introduced measure.
When a subcommittee approves its version of a measure or draft and sends it to the full
committee, the product is often printed and referred to as a “committee print.”72 The
subcommittee’s approval could take the form of formally reporting the measure or draft without
change or with an amendment in the nature of a substitute or with amendments. The
subcommittee could also informally recommend the actions taken in subcommittee or informally
list the actions taken in subcommittee without formally reporting the measure or draft with
amendments. (See
“14.3. Subcommittee Reporting.”)
7.2.1. Options for Action on Committee Print
A chair has options for committee consideration of the committee print. The chair could ignore it.
If the chair has other priorities for the committee or learned from subcommittee markup that he or
she does not want to pursue these policy issues, the chair does not need to take any action.
Alternatively, the chair could schedule committee consideration of a different measure or draft.
70 Alternately, the committee could choose to report a “clean bill,” if a procedural advantage is perceived, incorporating
the changes made to the measure in markup into a new measure that would be introduced, referred to the committee
that conducted the markup, and automatically reported without change by that committee to the House. See
“14.2.3.
Clean Bill or Resolution.”
71 Lawyers in the Office of Legislative Counsel assigned to the committee or subject matter likely take the lead in
drafting, working under the guidance of committee staff.
72 There is not a uniform manner for a subcommittee to report to its parent committee. While some committees seek to
have uniformity within their committee, reporting by subcommittees has taken the form of a letter, a committee print, a
reprinted measure, and other documents. See
“14.3. Subcommittee Reporting.”
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The chair could schedule the committee print for consideration, as discussed immediately below.
If the chair wants the committee to consider the policy issues addressed in the committee print,
but not with the policy decisions included in the committee print, he or she likely preserves this
option by having the subcommittee make recommendations or list its actions rather than formally
report the measure or draft. In that case, the chair could schedule consideration of the same
measure or draft as it existed before subcommittee consideration.
When a subcommittee approves a measure or draft, the committee chair often asks that the
subcommittee chair introduce that version as a new measure, which will then be referred to the
committee. The committee chair then has the option of scheduling this new measure for
committee markup. If the chair makes this decision, then the choice of a markup vehicle will be
the introduced measure (discussed above) or an amendment in the nature of a substitute
(discussed below).
7.2.2. Committee Print as Markup Vehicle
Assuming the committee print addresses the policy issues that the chair wishes to be addressed
with legislative solutions the chair desires, and its subject matter is within the committee’s
jurisdiction, the chair may have the committee consider the committee print. No special motion or
unanimous consent is required to schedule it for markup or use it as the markup vehicle. The chair
notifies committee members that the committee print is to be marked up.
At the markup, the chair calls up the committee print. Once the committee print is read or its
reading is dispensed with, the committee print is again read for amendment. A committee print is
read for amendment by section (or, if so organized, by paragraph). Unanimous consent must be
obtained to read it for amendment by another unit, such as title, or to make it open for amendment
at any point. Each section can be amended in two degrees. If the committee print is read by
section, paragraph, or another unit, the amendment process may not be terminated until the last
section, paragraph, or other unit has been read for amendment. (See
“9.2. Options for Reading for
Amendment.”)
If the subcommittee reported the measure or draft with an amendment in the nature of a substitute
or with amendments, the amendments are pending in the full committee. The chair could have the
committee vote on the amendments one-by-one, or vote on them en bloc after obtaining
unanimous consent for en bloc consideration. Most often, however, the chair asks unanimous
consent that the committee print “be considered as an original bill [or text] for the purpose of
amendment,” which incorporates the subcommittee’s amendments into the measure or draft and
allows all parts of the text to be amended in two degrees.73 (See
“9.8. Additional Procedural
Considerations for Amendments.”)
If a chair plans to make any unanimous consent request on treatment of the subcommittee’s
recommended amendments, he or she has obtained assurance in advance of the markup that no
committee member will object to the request. If the chair is unable to obtain that assurance, he or
she will probably pursue another route for considering the committee print in the form of one of
the other markup vehicles.
73 Sometimes, the phrase
base bill or
base text is used instead of the phrase
original bill or
original text. The important
matters to understand are whether the individual using any of these terms intends that the text be amendable in two
degrees; how the measure will be read for amendment; and when the previous question will be in order. See the House
amendment tree at
Figure 3. In this context, the phrase original bill or original text must be distinguished from a
committee
originating a measure. See
“7.3.1. Original Measure.”
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Once the amendment process is completed, the committee could vote to report a measure “with
an amendment” (for an amendment in the nature of a substitute, as discussed just below) or “with
amendments” (for cut-and-bite amendments, see
“14.2.2. Cut and Bite Amendments”). If a draft
was marked up, it could be offered as an amendment in the nature of a substitute to a previously
introduced bill, and the bill reported “with an amendment.”74 (See
“14.2. Options for Reporting
Recommended Changes to the House.”)
7.2.3. Committee Print as Amendment in the Nature of a Substitute
If a chair anticipates being unable to obtain the unanimous consent that he or she desires or, more
likely, wishes to have the committee consider the subcommittee’s amendments with changes to
them, the chair could schedule the measure as introduced (or draft as laid before the
subcommittee), a new measure with changes approved in subcommittee introduced in the House
by the subcommittee chair, or another introduced measure or draft for markup. After the measure
is called up and opened for amendment, the subcommittee chair, or another member, could
immediately offer the subcommittee-reported version with the committee chair’s changes as an
amendment in the nature of a substitute (as discussed below).
Once the amendment process is completed, the committee could vote to report the measure “with
an amendment,” in this instance the amendment in the nature of a substitute, or to report a clean
bill.75 (See
“14.2. Options for Reporting Recommended Changes to the House.”)
7.3 Staff Draft—Chairman’s Mark
A chair may choose to mark up a draft of a measure. One option is for the full committee to mark
up a draft that incorporates both changes made in subcommittee markup and additional changes
negotiated by the chair or committee proponents after subcommittee markup but before full
committee markup.76 Committee members not on the subcommittee that marked up the measure
are often consulted in these negotiations; party leaders and interested Members not serving on the
committee may also be consulted. The product resulting from these negotiations is incorporated
into a
committee print, which might also be referred to as a
staff draft or even a “discussion
draft.”
A variation of this process occurs when the chair prepares his or her own markup draft, typically
with collaboration of majority members of the committee and perhaps with that of party leaders
and interested majority Members not serving on the committee. This type of draft might be
referred to as a
chairman’s mark, which the chair could schedule for markup and lay before the
committee.
Proponents of legislative provisions that might be attached to a draft—whether inserting a new
provision, keeping out or deleting a provision, or changing a provision—normally work to have
the draft reflect the desired text because Members and staff generally believe that it is an easier
legislative path than having to offer an amendment, defend it, and get majority support on a vote
74 In either instance, the committee alternately could choose to report a
clean bill, if a procedural advantage is
perceived, incorporating the changes made to the measure in markup into a new measure that would be introduced,
referred to the committee that conducted the markup, and automatically reported without change by that committee to
the House. See
“14.2.3. Clean Bill or Resolution.”
75 Ibid.
76 Negotiations could be partisan or bipartisan. They could seek a balance or compromise between competing interests
that cut across party lines. They could seek selective bipartisan buy-in.
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on it in markup. Points of order may also be obviated. It is also usually easier to defend a
provision included in a draft from an amendment to change or delete it.
Staff draft and chairman’s mark are not precisely defined terms or concepts, except that they refer
to a draft rather than to an introduced bill or resolution. They might be used interchangeably, or a
document might be referred to first as a staff draft and later in the process of developing the draft
as the chairman’s mark. The number of participants in the preparation of either text might be
large or small, depending on the judgment and decision of the chair. An amendment in the nature
of a substitute might occasionally be referred to informally as a chairman’s mark, but such a
reference could confuse committee members and staff in their understanding of the chair’s plans
for markup and the procedures to be followed.
Staff drafts and chairmen’s marks are usually circulated among majority-party committee
members or all committee members.
The procedures for considering a staff draft or chairman’s mark were described above, in
“7.2.
Subcommittee Version—Committee Print.”
7.3.1. Original Measure
An original measure is one drafted in committee and introduced by the committee chair or
another committee member
after being reported. There are limited instances in which House
committees may originate a measure, which are enumerated in Rule XIII, clause 5.77 The limited
instances include general appropriations bills reported by the Appropriations Committee, budget
resolutions and reconciliation bills reported by the Budget Committee, committee funding
resolutions reported by the House Administration Committee, and special rules reported by the
Rules Committee.
Although the term chairman’s mark is associated most strongly with the Budget Committee, the
chairs of committees with authority to originate measures, or the chairs of Appropriations
subcommittees, are typically the principal draftsmen of these original measures. An original
measure may begin its development in a committee as a staff draft or chairman’s mark, or be
labeled a committee print or discussion draft.78
7.3.2. Managers’ Amendment
Sometimes, a chairman’s mark is confused with a
managers’ amendment, another procedural term
that is not formally defined. A managers’ amendment normally refers to an amendment to a
markup vehicle; it is not typically the markup vehicle.
In one form of a managers’ amendment, a committee’s chair and ranking minority member might
negotiate a package of amendments to the markup vehicle prior to or during a markup,
comprising amendments accepted by both parties from members of both parties. In another form,
the chair, alone or perhaps with named supporters, might offer a package of amendments.
77 “Unlike a clean bill, [an original measure] is not referred back to the committee after introduction.”
Congressional
Quarterly’s American Congressional Dictionary, p. 167. For an explanation of reporting a “clean bill,” see
“14.2.3.
Clean Bill or Resolution.”
78 The procedure of originating a measure or of reporting an original bill must be distinguished from amendment
procedure where text is considered an original bill or original text for purpose of further amendment. See the footnote
at “7.2.2. Committee Print as Markup Vehicle.”
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Such a package will presumably be agreed to by unanimous consent, although a vote is possible.
If offered at the beginning of a markup, the chair normally asks unanimous consent that the
changes included in a managers’ amendment be considered as “original text” for the purpose of
amendment or be made “part of the markup vehicle” for the purpose of amendment. Proceeding
in this way allows other committee members to offer amendments to already amended text, a
procedure that would otherwise be subject to a point of order.79 A managers’ amendment might
also be offered by unanimous consent later in the amendment process. A managers’ amendment
could take the form of an amendment in the nature of a substitute.
7.4. Amendment in the Nature of a Substitute
In the contemporary House, an amendment in the nature of a substitute has become the preferred
markup vehicle in committees when members want to offer, debate, and vote on amendments.80
Procedurally, this choice of a markup vehicle provides a chair with more control over a markup
than do the other options. By offering it, a chair precludes amendments to the underlying measure
until the amendment in the nature of a substitute is disposed of. If any debate has occurred, it is in
order to move the previous question at any time, the effect of which, if agreed to, is to end the
amendment process and terminate debate. Agreeing to the motion brings the committee to a vote
on the amendment in the nature of a substitute. If no debate has occurred, it is still in order to
move the previous question. If it is agreed to under this circumstance, debate must first be
allowed before the vote on the amendment in the nature of a substitute, but debate is limited to 40
minutes. (See
“12.4. Previous Question.”) Like any amendment, however, an amendment in the
nature of a substitute must be read in full, unless reading is dispensed with by unanimous
consent—no motion is available to dispense with the reading.
The procedural authority available to the chair and the ability of the minority to force the
amendment’s reading tend to bring the majority and minority to an agreement on an amendment
process in a markup. The amendment in the nature of a substitute is examined in detail later in
this manual (see
“9.7. Amendment in the Nature of a Substitute”).
An amendment in the nature of a substitute is normally prepared and offered by a committee
chair. When an amendment in the nature of a substitute will serve as the markup text, the
amendment must be made publicly available in electronic format at least 24 hours prior to the
markup meeting.81 As an amendment, an amendment in the nature of a substitute must be read
before consideration, or its reading must be dispensed with by unanimous consent.
Proponents of legislative provisions that might be attached to the amendment—whether inserting
a new provision, excluding or deleting a provision, or changing a provision—normally work to
convince the chair to have the amendment reflect their desired text. Members and staff generally
79 See
“9.8.3. Amending Amended Text.” 80 An amendment in the nature of a substitute begins with the words “strike all after the enacting clause and insert….”
The enacting clause gives legal force and effect to a measure if passed by Congress and signed by the President or
passed over his veto. It appears in italicized type before the text of a bill begins:
Be it enacted by the Senate and House
of Representatives of the United States of America in Congress assembled[.] In a joint resolution, it is a resolving
clause and reads:
Resolved by the Senate and House of Representatives of the United States of America in Congress
assembled[.]
81 The section-by-section summary accompanying H.Res. 5 in the 112th Congress contained this explanation of text
added to Rule XI, clause 2(g): “[I]f the committee is considering a committee print, or the chair of a committee intends
to use an amendment in the nature of a substitute as the base text for purposes of further amendment, circulation of that
text will satisfy this requirement.” Rep. David Dreier, “Rules of the House,” insert,
Congressional Record, vol. 157,
part 1 (January 5, 2011), p. 86.
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believe that it is an easier legislative path to get text into an amendment in the nature of a
substitute before it is offered than having to offer an amendment, defend it, and get majority
support on a vote on it in markup. Points of order may also be obviated. It is also usually easier to
defend a provision included in a draft from an amendment to change or delete it.82
When offered, the amendment in the nature of a substitute must be germane to the measure it
seeks to amend. Therefore, a chair must take care that the measure noticed and called up
accommodates the policy issues and legislative solutions he or she wishes to include in the
amendment. Likewise, the chair must be certain that the amendment in the nature of a substitute
as drafted is germane to the measure noticed and called up. (See
“11.5. Germaneness.”)
To employ an amendment in the nature of a substitute as the markup vehicle, a chair schedules an
introduced bill or a draft for markup. Once the noticed measure (or draft) has been called up and
read, or its reading dispensed with, the measure is read for amendment by section or paragraph.
The clerk at the direction of the chair reports Section 1 as open for amendment, and the chair
immediately offers the amendment in the nature of a substitute. It must be offered once the first
section is open for amendment. (An amendment in the nature of a substitute may also be offered
at the end of the amendment process, but that is uncommon.) The chair then asks unanimous
consent to dispose of the amendment’s reading. If unanimous consent is objected to, the
amendment must be read, but the chair may renew the request to dispense with the reading. (See
“9.3. Reading an Amendment.”)
An amendment in the nature of a substitute is open for amendment at any point, although a
committee could agree by unanimous consent to another procedure such as considering
amendments on an amendment roster. (See
“9.2.5. Amendment Roster.”) An amendment in the
nature of a substitute may be amended in only one degree, unless unanimous consent is granted to
consider it as “original text” for the purpose of further amendment.83 If an amendment in the
nature of a substitute is not made original text for the purpose of amendment, only a perfecting
amendment to it, a substitute amendment for it, and a perfecting amendment to the substitute
amendment could be pending at one time. (Under House rules, a substitute is considered as if it
were a first-degree amendment, see
“9.5. Form, Scope, and Degree of Amendments.”) Once an
amendment is disposed of, another amendment may be offered. (See the House amendment tree
at Figure 3).
Debate and proposed amending of the amendment in the nature of a substitute can continue until
committee members have offered as many amendments as allowed by House rules and
precedents. Alternatively, as explained, the amendment process may be terminated. At any time
after debate has begun, the chair could entertain a motion for the previous question. If the motion
is agreed to, debate and further amendment ends because an amendment in the nature of a
substitute amends all parts of the measure being marked up.
After members have offered all their amendments and finished debate, or the motion for the
previous question has been agreed to, a vote occurs on agreeing to the amendment in the nature of
a substitute, as amended, if amended.
82 Committee members nonetheless may forgo the advantages of having an amendment included in an amendment in
the nature of a substitute in order to seek closer identification with a provision by offering it as an amendment during
the markup.
83 Sometimes, the phrase base bill or base text is used instead of the phrase original bill or original text. The important
matters to understand are whether the individual using any of these terms intends that the text be amendable in two
degrees; how the measure will be read for amendment; and when the previous question will be in order.
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In contrast, if an amendment in the nature of a substitute has been made original text, then the
measure so amended is by practice read by section, unless another procedure is agreed to by
unanimous consent. With the amendment in the nature of a substitute made original text,
members may then offer an amendment, a perfecting amendment to that amendment, a substitute
for that amendment, and a perfecting amendment to the substitute amendment. (See
“9.5. Form,
Scope, and Degree of Amendments” and
, at Figure 3, the House amendment tree.) The previous
question is not available until the full measure has been read for amendment. After members have
offered all their amendments and finished debate, a vote occurs on the measure as amended, if
amendments in addition to the amendment in the nature of substitute were agreed to. (See
“9.7.
Amendment in the Nature of a Substitute.”)
At the reporting stage, the committee may report the introduced bill with an amendment, in this
instance an amendment in the nature of a substitute (a so-called committee substitute).84 (See
“14.2. Options for Reporting Recommended Changes to the House.”)
7.5. Markup Based on Sole, Primary, Additional Initial, or
Sequential Referral
One of the key issues facing a committee in determining the text to serve as the markup vehicle
concerns a measure’s referral to the committee: whether the panel received a sole referral,
whether the panel received a primary referral with one or more panels receiving an additional
initial or sequential referral, or whether the committee received an additional initial or sequential
referral. (See
“5. Referral of Legislation in the House.”) If the committee received a sole referral
of legislation, all of the options discussed above are available to the panel, and the suitability of
each option can be weighed without consideration of other committees’ jurisdiction or referral.
If a measure was referred to more than one committee, however, not all of the options above
might be suitable for political or procedural reasons or both. A committee may be the primary
committee, with it and other panels receiving a referral of matters within their jurisdiction,
although these matters are not normally delineated in the referral language.85 Although the
primary panel could arguably consider all the issues within the legislation, the explicit language
of the referral indicates that there are provisions that either are not within its jurisdiction or are
overlapping with other committees. Accordingly, a primary panel rarely uses an introduced
measure as the markup vehicle. Instead, the committee most often uses as the markup vehicle an
amendment in the nature of a substitute that comprehends only those matters within the panel’s
jurisdiction.86 It often makes this choice to preempt possible points of order based on committee
jurisdiction or germaneness.87
84 Alternately, the committee could choose to report a clean bill, if a procedural advantage is perceived, incorporating
the changes made to the measure in markup into a new measure that would be introduced, referred to the committee
that conducted the markup, and automatically reported without change by that committee to the House. See
“14.2.3.
Clean Bill or Resolution.”
85 A split referral would designate the component portions of a measure, with each portion referred being identified.
Such referrals have been used but are not common.
House Practice, ch. 6, § 8, p. 173.
86 A chair typically explains this purpose in opening remarks or in beginning debate on the amendment in the nature of
a substitute.
87 For example, measures addressing the Highway Trust Fund are referred primarily to the Committee on
Transportation and Infrastructure and sequentially to the Committee on Ways and Means. The Transportation and
Infrastructure Committee addresses policy issues, whereas the Ways and Means Committee considers revenue issues.
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A different scenario presents itself for a committee that receives an additional initial referral or a
sequential referral. These kinds of referral normally indicate that the committee’s jurisdiction
over a measure is limited in scope, compared with the jurisdiction of the committee designated as
primary. A committee receiving one of these kinds of referral could mark up the introduced
measure if there will be no or few amendments and if those amendments do not raise policy or
jurisdictional concerns in other committees.88
A panel receiving one of these referrals, however, could choose to mark up an amendment in the
nature of a substitute. It might make this choice to avoid jurisdictional issues, to give prominence
to its jurisdiction or its contribution to the legislation, or for another reason. Even if the
committee has few or noncontroversial amendments, it might choose an amendment in the nature
of a substitute to assert its role in the policy area. For the same reasons, a committee might choose
one of the other options for markup, ultimately converting that choice into an amendment in the
nature of a substitute to the measure referred to the committee. Any of these choices would
comprehend only those matters within the committee’s jurisdiction.
Additional considerations might affect the choice of a markup vehicle by a committee receiving a
sequential referral. If time was very limited and the primary committee’s work product was not
yet available, the committee receiving a sequential referral might choose to mark up the measure
as introduced. Or, it could mark up an amendment in the nature of a substitute that amended just
its portion of the measure. On occasion, a committee receiving a sequential referral has reported a
clean bill limited to the portions of the measure over which it had jurisdiction. It could make this
choice to ward off claims by other committees to overlapping jurisdiction to provisions in a
comprehensive measure.
Alternatively, if the work product reported from the primary committee was available, the
committee receiving a sequential referral could choose to mark up that version of the measure.
The chair of the committee with a sequential referral could call up the measure as introduced and
then offer an amendment in the nature of a substitute that consists of what the primary committee
reported. The amendment in the nature of a substitute offered by the chair might also include
additions favored by his or her committee, or the committee could add to the amendment in
nature of a substitute with cut-and-bite amendments. The committee with a sequential referral is
still limited to acting on only those items within its jurisdiction. This committee could then report
an amendment in the nature of a substitute to the introduced measure, albeit different from what
was reported by the primary committee.
The committee receiving a sequential referral might choose this approach to strengthen its role as
the legislative process unfolds and its claim to referrals in the future. By integrating its changes
into the work product of the primary committee, the committee with a sequential referral has
better ensured that its views and jurisdiction will be considered as the reporting committees, the
88 A committee receiving an additional initial or sequential referral could also be discharged without having taken
action. A committee in this instance might choose in a letter to the chair of the primary committee to waive its
consideration of the specific measure but indicate that this action does not constitute a waiver of its jurisdiction or its
desire to be represented on any conference committee with the Senate. In a circumstance like this, the terms of the
referral likely provide that a measure is referred to a committee for a set period of time or until a specific date, pursuant
to the Speaker’s authority in Rule XII, clause 2 to set a time limit. Once the time has expired, the committee is
automatically discharged from further consideration of the measure.
(An automatic discharge occurring as a consequence of a time limit for consideration imposed in the referral by the
Speaker must be distinguished from the discharge process where a discharge petition is filed with the clerk of the
House and proponents seek to collect a sufficient number of signatures to take a measure away from a committee and
bring it directly to the House floor. See “Discharge a Committee” in
Congressional Quarterly’s American
Congressional Dictionary.)
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Rules Committee, party leadership, or a combination of these actors seek to reconcile differences
among committees and plan floor procedure for the markup vehicle and reported amendments. It
also strengthens the committee’s claim to representation on a conference committee or in other
negotiations with the Senate subsequent to House floor action. If the measure is a comprehensive
one addressing a policy area and becomes law, jurisdictional questions are likely to arise in the
future in referring measures amending the law, and the committee that received a sequential
referral can use its role and amendments to argue for primary, additional initial, or sequential
referral of legislation proposed to amend the law.
If the primary committee does not report legislation that was referred in addition to other
committees, and it is not discharged from further consideration (usually by the imposition of a
time limit), the panels that received an additional initial referral may act but do not by practice
report their versions of the measure. A committee with an additional initial referral could act,
going so far as to order the reporting of a measure, attempt to influence the committee designated
as primary, or expedite the stage of committee action by addressing the provisions in its
jurisdiction. It will not, however, seek to its report the measure and its recommendations to the
House.89 Alternately, it could report a measure that addressed the issues in the referred measure
over which it has jurisdiction.90
8. Beginning a Markup
Careful planning enhances the likelihood of a smooth commencement to a markup. Yet, chairs
and committee members need to be attentive to the procedural opportunities that are available as
a markup begins. A chair may seek with use of unanimous consent to move quickly through this
element of a markup and could then get to the amendment process within a matter of minutes.
Members whose purpose is to influence the course of a markup could object to unanimous
consent requests and also make certain motions. Consensus in a committee over a policy issue
and a legislative solution may obviate members’ exercise of procedural options. Agreements
between the majority and minority may preclude the invocation of some or many procedural
options. A lack of agreement may indicate that majority and minority members will not only
debate policy but also exercise procedural options. If there are strong policy differences within
the majority, a chair might delay scheduling a markup to allow time to design a unifying strategy
so as not to lose control of the markup.
89 For example, H.R. 3200, America’s Affordable Health Choices Act, was referred in the 111th Congress to the Energy
and Commerce Committee and in addition to the Committees on Ways and Means, Education and Labor, Oversight
and Government Reform, and Budget. Both the Ways and Means and Education and Labor Committees ordered H.R.
3200 reported on July 17, 2009. The Energy and Commerce Committee ordered H.R. 3200 reported July 31. On
October 14, 2009, all three committees reported (H.Rept. 111-299, Parts 1, 2, and 3), and the Oversight and
Government Reform and Budget Committees were discharged from further consideration of the measure. (Automatic
discharge was distinguished from the discharge procedure in the preceding footnote.)
90 In contrast to procedures in the 111th Congress, the House in the 115th Congress directed the Energy and Commerce
and Ways and Means Committees to independently report health care legislation. The House and Senate agreed to
reconciliation instructions in S.Con.Res. 3, the fiscal year 2017 concurrent resolution on the budget. These instructions
directed the two House committees to each report changes to laws within their jurisdictions that would reduce the
deficit by not less than $1 billion. The committees marked up separate draft bills, which they approved on March 9,
2017. They submitted their recommendations to the House Budget Committee, the procedure under the Congressional
Budget Act (P.L. 93-344; 88 Stat. 297). The Budget Committee then combined the two drafts, without change, as
required by the Budget Act, and reported an original bill, H.R. 1628 (H.Rept. 115-52), on March 16, 2017. For a
succinct explanation of reconciliation, see CRS Report 98-814,
Budget Reconciliation Legislation: Development and
Consideration, by (name redacted)
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8.1. Notice
A committee or subcommittee meets pursuant to the notice sent to its members. Committee rules
are adopted at the beginning of a Congress and normally indicate how far in advance notice must
be given; such rules might have a longer notice under circumstances listed therein. For a
committee with a typical three-day notice requirement in its rules that is planning a markup for 10
a.m. on a Wednesday, assuming the House is in session, committee members would need to
receive notice of the meeting before the stroke of midnight on Monday.
A notice identifies the time and place of the markup and the measure or measures to be marked
up. The notice might list one or more measures—bills, joint resolutions, concurrent resolutions,
simple resolutions, or other versions of measures such as committee prints—in any order and in
any combination. A notice might also list other matters that a committee marks up, including
subpoenas, resolutions of inquiry, committee rules, and committee orders or resolutions. Some
committees’ rules call for more than the date and agenda, requiring, for example, distribution of
amendments in the nature of a substitute, as now directed by House rule. (See
“3.2.3. Notice and
Documents.”) Committees are normally scrupulous about adhering to their rules’ notice
requirements, and notice is not then a procedural issue as a markup commences.
If notice is not timely as provided in a committee’s rules, members could challenge the meeting
or specific agenda items. For example, a member could raise a point of order against the meeting
as a violation of the committee’s rules. (See
“11. Points of Order.”) Or, when the chair calls up a
measure, a member could make one or more motions, such as to postpone or a question of
consideration, or may seek to force the measure’s reading (both of which are discussed just
below). Although the majority with its votes may be able to defeat or deflect such challenges, the
consequence could be a protracted meeting and possibly collateral challenges. (See
“15.7.
Consequences of Rules Violations in Markups and Committee Reports.”)
Even if a chair has been vigilant in preparation for a markup, the chair could still preside over a
protracted meeting if an extended markup meeting is part of the minority’s strategy. If the
minority wishes to tie up the committee or its members for as long as possible, the minority can
object to unanimous consent, offer motions, and engage in other parliamentary delaying-tactics
despite the knowledge that it will lose on votes.
Each measure to be considered at a markup should be identified in a notice. (See
Figure 1,
Sample Committee Markup Notice.) A notice might list an introduced measure: “To consider
H.R. 123, a bill to…, and for other purposes.” It could list a draft that has not yet been introduced:
“To consider H.R. _____, a draft bill to…, and for other purposes.” A notice could list an
introduced measure but indicate that another measure could take its place: “To consider H.R. 123,
a bill to…, or a related measure, and for other purposes.”
Words such as “and for other purposes” used in a notice provide the chair with some flexibility. If
H.R. 123 had been marked up in subcommittee, the chair could call up H.R. 123 as introduced or
as reported to the full committee by the subcommittee. If the notice listed “or a related measure,”
the chair might call up H.R. 123 or a subsequent draft, perhaps the version of H.R. 123 reported
from subcommittee but then introduced in the House and referred to the committee.
In contemporary House committee practice, the words “and for other purposes” most often
indicate that a chair plans to offer an amendment in the nature of a substitute, which strikes all of
the text of the measure called up and inserts the text of the amendment. Amendments in the nature
of a substitute are examined at
“9.7. Amendment in the Nature of a Substitute.” Their use as a
markup vehicle was discussed above, at
“7.4. Amendment in the Nature of a Substitute.”
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The same procedural options that exist for a member objecting to a committee’s failure to be
timely in its notice exist when a chair attempts to call up a measure not listed on a notice.
Concerning the medium for notice, a number of committees have formally or informally changed
to using electronic, rather than written, notice and have discontinued distributing copies of the
bill(s) or resolution(s) being noticed. In the absence of a clear committee rule or a common
understanding of what constitutes notice, and of a way of including an appropriate, agreed-on
electronic link to legislation named in the notice, an informal procedure or an informal change in
procedures could lead to procedural challenges as a chair seeks to begin a markup.
8.1.1. Unfinished Markup
Some markups are not completed in a day, and committees continue them the next day or days or
at a later time. Some markups are begun, but chairs, on their own or in consultation with party
leadership, decide to discontinue a markup.
First, a committee might not have concluded markup on the day the committee’s consideration of
a measure began. By long-standing tradition and pursuant to the chair’s authority to recess a
committee contained in Rule XI, clause 1(a)(2)(A)(i), committees may recess a day’s session and
continue on a succeeding or future day. Formal notice required by committee rules does not seem
to be triggered under these circumstances. (Recess is discussed below at
“12.5. To Recess.”)
Under current practice, a chair oftentimes indicates before calling a recess the day and time on
which a markup will resume. If a chair does not know when the markup will resume, he or she
oftentimes indicates before calling a recess how many days or hours of notice will be given.
Whether or not a chair makes a specific announcement at a markup meeting, the chair provides
notice by email pursuant to what announcement he or she made before recessing. As with all or
nearly all committee meetings, committee websites indicate whether a committee is in recess and
when the next meeting will occur. Upon reconvening, the committee needs to establish a quorum.
A broader question on the authority of a committee to continue a markup concerns a markup that
begins in one session of a Congress that a chair wishes to continue in the second session. Pursuant
to Rule XI, clause 6, congressional business not concluded at the end of the first session of
Congress may be resumed in the second session as if no adjournment had occurred. In addition,
Rule XI, clause 2(m)(1)(A) authorizes committees to meet whether the House is in session, has
recessed, or has adjourned.91
Second, a chair may wish to discontinue a markup. If a committee has not completed a markup, a
committee member at the next meeting of the committee could arguably make a demand for
regular order in an attempt to have the committee return to the markup. A committee could use a
motion, such as a motion to table or a question of consideration, to terminate or defer further the
markup.
91 See also
Jefferson’s Manual, § LI, in
House Rules and Manual, § 589, pp. 311-312.
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Figure 1. Sample Committee Markup Notice
Source: House Committee on Small Business.
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8.2. Quorum and Call to Order
Before calling the committee or subcommittee to order, a chair on his or her own or on the advice
of majority staff ensures (a) that a quorum is present and (b) that the number of majority members
present exceeds the number of minority members present. So, for example, if a meeting is
scheduled for 10:00 a.m., the chair might wait 10, 15, or more minutes while committee staff
contacts majority members and the members arrive to ensure a quorum and that majority
members outnumber minority members present. The quorum required to conduct business
appears in the committee’s rules adopted at the beginning of a Congress. (See
“3.5. Quorum
Requirements.”)
If a quorum is not present, a member could raise a point of order against the meeting as a
violation of House or committee rules. (See
“11. Points of Order.”) If minority members
outnumber majority members when the chair calls the meeting to order, procedural motions
requiring only a majority vote for adoption are available to members to stop, delay, or change the
committee’s or subcommittee’s agenda. These motions are discussed just below.
Committee members seeking to delay or prolong committee proceedings, to take test votes, or to
pursue another objective might still make motions that are in order, even if a quorum is present
and majority members present outnumber minority members present. Proceedings might then be
prolonged, but the majority should be able to win procedural motions.
Assuming a chair takes cognizance of these quorum issues, the chair may call the committee or
subcommittee to order at any time after the time noticed for the meeting arrives. The chair
normally taps a gavel on the dais and states, “The committee [subcommittee] shall come to
order.”
8.3. Opening Statements
Once a chair calls a committee to order, he or she might first specifically announce the purpose of
the meeting or might start immediately to deliver an opening statement.92 Upon finishing, the
chair recognizes the ranking minority member for his or her opening statement. A chair’s opening
statement is often part explanation of the legislation to be marked up and part advocacy for the
committee’s ultimate approval of the legislation. A chair might also anticipate some of the
contentious issues, if there are any, and express a perspective on them. The ranking minority
member might express support for the legislation, highlight some aspects of the legislation he or
she supports or does not support, succinctly explain one or more principal amendments the
minority supports, discuss the minority’s disagreement with the committee’s consideration of the
issue or the particular legislation, or advocate his or her perspective on the legislation; the ranking
minority member might use an opening statement for more than one of these purposes. Once the
ranking minority member concludes, a chair normally says something to the effect: “All other
members of the committee [subcommittee] may submit written statements for the record.”
A committee’s rules adopted at the beginning of a Congress may restrict oral opening statements,
often to those of only the chair and ranking minority member of the committee or subcommittee.
Some committees’ rules or practices might also allow oral opening statements for the relevant
subcommittee chair and ranking minority member at a full-committee markup or for a full-
committee chair and ranking minority member serving ex officio on a subcommittee. By rule,
92 In some committees, chairs call up a measure to be marked up before opening statements begin. Discussion of the
order in which opening statements occur and legislation is called up appear just below.
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practice, or unanimous consent, other committee members are allowed to submit opening
statements in writing for the record, but by unanimous consent some or all other members may be
allowed to make oral opening statements. Thus, the sponsor of a measure to be marked up, who is
a committee member, and a committee member of other party might each be recognized for an
opening statement. Committees’ rules may restrict oral opening statements to five minutes,
although committees that allow more members than the chair and ranking minority member to
make oral opening statements may restrict opening statements to less time, for example, three
minutes. (See
“3.3. Opening Statements.”)
To maintain control of proceedings at this point, a chair may recognize himself or herself and the
ranking minority member for opening statements
before calling up a measure, or the first
measure, to be marked up. Before a measure is called up, there is no debatable business before the
committee or subcommittee, so that it is easy for the chair to enforce a committee rule restricting
opening statements. Once a measure is called up, debate is in order. Therefore, if the chair and
ranking member make their opening statements after a measure is called up, other members may
seek recognition for debate and make the equivalent of an opening statement.
To call a committee (or subcommittee) to order and to begin with opening statements, a chair
might proceed as follows:
Chair: A quorum being present, the committee [subcommittee] shall come to order. We
are meeting today to consider [bill number(s) and short or official title(s)].
Chair makes opening statement subject to any provisions in committee rules.
Chair: I now recognize the ranking minority member for his [her] opening statement.
Ranking minority member makes opening statement subject to any provisions in
committee rules.
Chair: Pursuant to committee rules, members of the committee [subcommittee] may
submit opening statements for the record.
Other committee members deliver or submit opening statements, pursuant to committee
rules and any unanimous consent agreements or committee practices.
(See also
Appendix C, Sample Script for Opening Statements.)
8.4. Calling Up and Reading the Measure
After opening statements are completed, the chair calls up the measure or draft, or the first
measure or draft, to be marked up.93 If more than one measure was listed on the notice, the chair
may proceed in an order he or she determines, although it is normally practical and a matter of
comity for committee members to know in advance the order in which the committee will
consider an agenda of two or more pieces of legislation. The chair calls up the measure and
directs the clerk to report it.
House rules and precedent require a measure to be read in full, its first reading in committee.94
House rules also allow a privileged, nondebatable motion to dispense with the first (full) reading
93 Some chairs call up a measure first and then proceed with opening statements, as discussed immediately above.
94 Rule XVIII, cl. 5(a) requires two readings in the Committee of the Whole, a first, full reading of a measure and a
second reading of the measure for amendment. Rule XVI, cl. 8. Section XXVI of
Jefferson’s Manual requires two
readings in committee, the second reading for amendment.
House Rules and Manual, §§ 412-414, pp. 214-217, and §
792, pp. 560-561.
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of a bill or resolution “if printed copies are available.”95 It has generally been understood that the
copy of the measure distributed with the meeting notice satisfies the availability requirement.
In practice, once a clerk at the chair’s direction has reported a measure—reading the measure’s
number and official title—the chair might say, “The bill [resolution] shall be considered as read.”
This statement is implicitly a request for unanimous consent to dispense with the required
reading. Therefore, a member may object or reserve a right to object. (Unanimous consent is
discussed just below.) If there is objection and printed copies of the measure are available, a
member, presumably a majority-party member, may then make the privileged, nondebatable
motion allowed by House rules to dispense with the first reading. A majority vote, a quorum
being present, is required to adopt the motion if a member requests a recorded vote.
This procedure calls up the bill, resolution, or draft to be marked up by a committee. If a
committee will use an amendment in the nature of a substitute as its markup vehicle, that
amendment is called up after the bill or resolution has been called up, reading has occurred or
been dispensed with, and any motions and requests have been decided. (See above
“7. Procedural
Strategy and the Choice of a Markup Vehicle” and below
“9. Reading a Measure for
Amendment.”)
To call up a measure and deal with an objection to dispense with its reading, a chair might
proceed as follows:
Chair: I call up [bill number]. The clerk shall report.
The clerk reads the bill number and official title.
Chair: The bill was circulated in advance, pursuant to committee rules. Without
objection, the first reading is dispensed with.
Member: I object.
Another Member: I move to dispense with the reading of the bill.
Chair: The gentleman’s motion is in order. The bill was available in advance pursuant to
committee rules. The motion is not debatable. The question is: Shall the committee
[subcommittee] dispense with the reading of [bill number]? All those in favor, say “aye.”
(Listens for response.) All those opposed, say “no.”
(Listens for response.) In the opinion
of the chair, the ayes have it, and the motion to dispense with the reading is agreed to.
A member may call for a division vote or recorded vote, or a division vote and then a
recorded vote, a sufficient second having been obtained for any recorded vote. If a
member demands a division vote, another member may preempt it by requesting a
recorded vote before the chair begins counting.
Had the motion failed, or had unanimous consent not been obtained when the motion was not in
order, the chair would direct the clerk to read the measure, and the clerk would read the measure
in full. However, the chair or another member could repeatedly renew the request for unanimous
consent to dispense with the reading at any time during the reading. If unanimous consent was not
obtained, the chair would direct the clerk to continue to read the measure. If unanimous consent
was obtained, the clerk would discontinue reading the measure, and debate on the measure could
begin. (See also
Appendix D, Sample Scripts for Calling Up and Reading a Measure.)
95 Rule XI, cl. 1(a)(2)(A)(ii) and cl. 1(a)(2)(B).
Privilege is defined thus: “An attribute of a motion, measure, report,
question, or proposition that gives it priority status for consideration. That status may come from provisions of the
Constitution, standing rules, precedents, or statutory rules.”
Congressional Quarterly’s American Congressional
Dictionary, p. 188.
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8.5. Potential Motions as a Measure Is Called Up
When a measure has been called up by a chair and reported at the chair’s direction by the clerk, a
committee or subcommittee normally proceeds directly to reading the measure for amendment.
(See
“9. Reading a Measure for Amendment.”) It is possible, however, for committee members to
make one or more motions or points of order to attempt to stop, delay, or defer a markup, to test
committee members’ sentiment on the measure to be marked up, or for another purpose. Several
potential points of order have been mentioned so far in this part, Beginning a Markup. A number
of motions available at the beginning of or during a markup are discussed below, at
“12.
Motions.” Members might also use parliamentary inquiries and objections to unanimous consent
requests to extend the time consumed to begin a markup. (See
“10. Parliamentary Inquiries,” and
the discussion immediately below of unanimous consent.)
Although committees or subcommittees normally proceed directly to reading a measure for
amendment after the measure has been reported, committee members periodically make a motion
to postpone to a day certain or to raise a question of consideration after the measure has been
reported. Members might make other motions as well.96 Although the majority with its votes may
be able to defeat or deflect such challenges, the consequence could still be a protracted meeting.
(See also Appendix E, Sample Scripts When Motions Are Made as a Markup Begins.)
8.5.1. Question of Consideration
Rule XVI, clause 3 allows a member to demand a question of consideration “[w]hen a motion or
proposition is entertained.” The question of consideration allows a member to discern whether a
majority of the committee wishes to consider a measure at that time.
A member must raise a question of consideration immediately after the initial reading of a
measure. It may be raised only once. The motion is not debatable. A point of order against
consideration of the measure, such as for insufficient notice of the markup meeting under
committee rules, or a challenge to dispensing with the reading of the measure would be raised
before a demand for a question of consideration.97 A member might raise a question of
consideration as follows:
Chair: I call up [bill or resolution number]. The clerk shall report [the title of] the
legislation.
Committee clerk reads the number and official title of the legislation.
Chair: The bill [resolution] was circulated in advance, pursuant to committee rules, and
shall be considered as read.
Member: I raise a question of consideration.
Chair: The gentlelady raises a question of consideration, which is not debatable. The
question is: Does the committee [subcommittee] wish to consider [bill or resolution
number]? All those in favor, say “aye.”
(Listens for response.) All those opposed, say
“no.”
(Listens for response.) In the opinion of the chair, the ayes have it, and the question
of consideration is agreed to.
96 In the notes to Rule XI, cl. 2(a), the parliamentarian commented: “Committees generally conduct their business under
the five-minute rule but may employ the ordinary motions that are in order in the House, such as under clause 4 of rule
XVI.”
House Rules and Manual, § 792, p. 561.
97
House Practice, ch. 41, § 1, pp. 723-724.
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A member may call for a division vote or recorded vote, or a division vote and then a
recorded vote, a sufficient second having been obtained for any recorded vote. If a
member demands a division vote, another member may preempt it by requesting a
recorded vote before the chair begins counting.
Disagreeing to a question of consideration is not an adverse disposition of a measure; a
committee, pursuant to notice under the committee’s rules, could again schedule a markup of the
legislation. An affirmative vote on a question of consideration is also subject to a motion to
reconsider; a negative vote is not.98 (See
“13.3. Motion to Reconsider.”)
8.5.2. Motion to Postpone
The motion to postpone may take one of two forms: to postpone indefinitely or to postpone to a
day certain. The motions are listed under the precedence of motions in Rule XVI, clause 4. A
member may move to postpone immediately after the initial reading of a measure.99
A motion to postpone indefinitely, if agreed to, constitutes the final adverse disposition of a
measure. The motion is debatable but not amendable, and debate may include a discussion of the
legislation in addition to arguments about postponement. It is subject to a motion to table and a
motion for the previous question, both of which are nondebatable motions of a higher precedence.
If agreed to, a motion to table adversely disposes of a motion to postpone. (See
“12. Motions.”) A
motion to postpone to a day certain is also of a higher precedence to a motion to postpone
indefinitely. It may, therefore, also be offered while a motion to postpone indefinitely is pending.
Because a motion to postpone indefinitely is lowest among the precedence of motions, it is little
used.100
A motion to postpone to a day certain, if agreed to, suspends consideration and establishes the day
on which a committee will mark up the legislation to which the motion applies. The motion is
debatable, and debate is confined to discussion of postponement. The motion is also amendable.
Although the motion names a day, it may not name an hour. It is subject to a motion to table and
the motion for the previous question, nondebatable motions of a higher order of precedence. If
agreed to, a motion to table adversely disposes of the motion to postpone to a day certain. (See
“12. Motions.”) A vote on a motion to postpone to a day certain is also subject to a motion to
reconsider.101 (See
“13.3. Motion to Reconsider.”)
A member might make a motion to postpone as follows, with a proponent of the legislation before
the committee likely to immediately move to table that motion:
Chair: I call up [bill or resolution number]. The bill [resolution] was circulated in
advance, pursuant to committee rules, and shall be considered as read. The clerk shall
report the title of the legislation.
The clerk reads the bill number and official title.
Member: I move that consideration of [bill or resolution number] be postponed until a
week from today.
Another Member: I move to table the gentlelady’s motion.
98 Ibid., p. 724.
99 Ibid., ch. 38, § 2, p. 696
100 Ibid., §§ 6-8, pp. 699-700.
101 Ibid., §§ 2-5, pp. 696-698.
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Chair: The motion to table is in order and is not debatable. The question is: Shall the
committee [subcommittee] table the motion to postpone? All those in favor, say “aye.”
(Listens for response.) All those opposed, say “no.”
(Listens for response.) In the opinion
of the chair, the ayes have it, and the motion to table is agreed to.
A member may call for a division vote or recorded vote, or a division vote and then a
recorded vote, a sufficient second having been obtained for any recorded vote. If a
member demands a division vote, another member may preempt it by requesting a
recorded vote before the chair begins counting. By offering and agreeing to a motion to
table, the committee [subcommittee] cuts off the possibility of amendment and of debate
on a motion to postpone to a day certain, and adversely disposes of the motion to
postpone.
8.6. Unanimous Consent
Throughout a markup, the chair and members will likely seek unanimous consent on numerous
occasions to set aside House rules and precedents and committee rules. For example, House rules
require that amendments be read. Members often ask unanimous consent that the reading of their
amendment be dispensed with. A committee might also agree by unanimous consent to undo or
redo an action it has taken, such as to modify an amendment previously agreed to. Unanimous
consent may be employed to govern the consideration of a measure, customize the amendment
process, approve a measure with recommended amendments, or take other actions that set aside
House rules and precedents and committee rules.102 In contrast to procedure on the House floor,
however, a member does not typically need unanimous consent in committee to withdraw an
amendment (see
“9.8.7. Withdrawing an Amendment”).
If a member asks unanimous consent that some action be taken, there are three possible
outcomes. Another member or the chair may object, another member or the chair may reserve the
right to object, or no member might object or reserve the right to object. Silence in response to a
request for unanimous consent—the last option—is approval of the request.
First, if just one member objects to a unanimous consent request, unanimous consent is denied
and the desired action is not allowed. (If unanimous consent cannot be obtained, a motion may be
available in some instances to accomplish the same end—if the motion is agreed to.) Objection or
a reservation is too late when the chair has asked if there is an objection and announced that he or
she has heard none. A unanimous consent request may be withdrawn before action on it, and,
once approved, may be modified or terminated only by agreeing to another unanimous consent
request.103
Second, if a member reserves the right to object, that member may then pose a query or make a
statement. For example, a member offering an amendment may ask unanimous consent to
dispense with the reading. Another member might not be able to identify the amendment and
reserve the right to object to obtain a clarification, for example, as follows:
Member: I have an amendment.
Chair: The clerk shall report the gentleman’s amendment.
Clerk begins to read.
Member: I ask unanimous consent to dispense with the reading.
102 Ibid., ch. 54, §§ 7-8, pp. 911-915.
103 Ibid., §§ 1, 3-5, and 10, pp. 907-908, 909-911, and 917.
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Another Member: Reserving the right to object, Madam Chairman, would the
gentleman please identify which of his amendments he is now offering? I yield to the
gentleman.
Member: It is the amendment labeled Smith No. 5.
The Other Member: Further reserving the right to object, is this the amendment that the
gentleman offered and then withdrew during the subcommittee’s markup? I yield to the
gentleman.
Member: It is similar to that amendment, which I withdrew so that I could address some
of the concerns raised during subcommittee discussion of the earlier amendment.
The Other Member: I thank the gentleman. I withdraw my reservation.
Chair: Is there objection to the gentleman’s request to dispense with the reading of his
amendment? Hearing none, the reading is dispensed with. The gentleman is recognized
for five minutes on his amendment.
In this example, the member who reserved the right to object withdrew his reservation, and no
member objected when the chair asked if there was an objection to the unanimous consent
request. The member who reserved the right to object could have objected rather than withdraw
the reservation, in which case the clerk would have continued to read the amendment. After the
member withdrew his reservation, another member could have reserved the right to object or
could have objected. As shown, members may yield to each other for discussion under a
reservation.
Debate or discussion under a reservation occurs at the discretion of the chair,104 or at the
sufferance of a committee’s other members. If a committee member wishes to return to the
business that was suspended by a reservation of the right to object, the member can demand
“regular order.” If such a demand is made, the member who had reserved the right to object must
immediately either withdraw the reservation or object, and the unanimous consent request must
be disposed of immediately.105 Proceedings might unfold as follows if a member demands the
regular order:
Member: I have an amendment.
Chair: The clerk shall report the gentlelady’s amendment.
Clerk begins to read.
Member: I ask unanimous consent to dispense with the reading.
Another Member: Reserving the right to object, Madam Chairman, would be gentlelady
please identify which of her amendments she is now offering? I yield to the gentlelady.
Member: It is the amendment labeled Jones No. 4.
The Other Member: Further reserving the right to object....
Third Member: I demand regular order.
Chair: Regular order is demanded. Does the member make an objection or withdraw his
reservation?
The Other Member: I withdraw my reservation.
104 Ibid., § 6, p. 911.
105 Ibid., § 5, pp. 910-911.
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Chair: Is there objection to the request to dispense with the reading? Hearing none, the
reading is dispensed with. The gentlelady is recognized for five minutes on her
amendment.
The third possible outcome is that no member objects to a unanimous consent request. In that
event, the chair acknowledges the fact with words such as, “Without objection....” or “Hearing no
objection….” The committee proceeds as proposed by the unanimous consent request.
8.6.1. Unanimous Consent Implied
In seeking to conduct a markup expeditiously, a chair might not specifically seek unanimous
consent, but rather make statements in which unanimous consent is implied. For example,
unanimous consent can be used to dispense with the reading of a bill and is required to dispense
with the reading of a bill for amendment. It is also required to open a bill for amendment other
than by section or by paragraph. A chair might say, “The bill shall be considered as read and as
open for amendment at any point. Is there discussion of the bill?”
The chair did not specifically ask unanimous consent. A member wishing to object or wishing to
reserve the right to object would need to be alert to recognize the implied unanimous consent
request and make a timely response. To be timely in the instance of the example, a member would
most likely need to talk over the chair when the chair begins to ask if there is discussion of the
bill, saying “I object” or “Reserving the right to object....” The proceedings might unfold as
follows:
Chair: The bill shall be considered as read and open for amendment at any point. Is
there....
Member: Reserving the right to object, Madam Chairman.
Chair: The gentlelady is recognized on her reservation.
9. Reading a Measure for Amendment
A principal purpose of a committee’s or subcommittee’s markup of a measure (or draft) is to
consider potential amendments to the measure—adding, deleting, or changing provisions or even
substituting a different text for the measure or draft being marked up.
As already explained, measures are read twice in committee. The first reading occurs at the time
the chair calls up a measure. This reading is normally dispensed with by unanimous consent, and,
if unanimous consent cannot be obtained, it is normally in order to dispense with this reading by
motion. (See
“8.4. Calling Up and Reading the Measure.”) The second reading commences when
the chair directs the clerk to report Section 1 or otherwise directs the clerk at the start of the
amendment process.
Unless another procedure is agreed to by unanimous consent, a measure is read verbatim, one
section at a time (or, if so organized, one paragraph at a time). Under this procedure, once
members have finished offering amendments to the first section, or the section has been
completely amended, the chair directs the clerk to report the second section, and members offer
amendments to it. This section-by-section process continues until the last section of the measure
has been reported and members have had the opportunity to offer amendments.106
106 Rule XVIII, cl. 5(a) requires two readings in the Committee of the Whole, a first, full reading of a measure and a
second reading of the measure for amendment. See also Rule XVI, cl. 8. In the notes to Rule XI, cl. 2(a), the
(continued...)
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An amendment or the amendments agreed to in a committee markup, if the marked-up measure is
reported to the House, constitute a
recommendation to the House. To amend a measure as
recommended by a committee (including the Committee of the Whole), the House sitting as the
House must agree to the committee’s amendments.
As noted, how a committee or subcommittee conducts the amendment process largely reflects
procedures used in the House as in the Committee of the Whole. (See
“2. Introduction to House
Committee Markup Procedures.”) A committee’s rules might contain additional markup
procedures, and individual committees often develop other informal or customary markup
practices. Not all procedures or practices are employed at every markup. The sense among
Members, staff, and persons who follow and interact with Congress is that the level of formality
and exercise of parliamentary options in a specific markup tends to reflect the level of contention
over the measure being marked up and the issue or issues it concerns.
With the absence of the special-rule procedure available in the House that can limit debate and
amendments, a committee markup bestows more power on minority committee members than
minority Members typically exercise on the House floor. The majority committee members can
presumably out-vote minority committee members on amendments and procedural motions, but
the majority may be limited, by the specific markup procedures used and agreements made, in its
ability to curtail debate, amendments, the duration of a markup, or the ability to expeditiously
reach a conclusion. House rules and precedents that committees follow tend to favor the
methodical consideration of a measure and of all amendments offered that comply with House
rules. This circumstance can result in some cooperation between the majority and the minority in
planning a markup, because each side may perceive having something to gain through
cooperation or to lose where there is no agreement.
An amendment in the nature of a substitute is an amendment of broad procedural impact, the
offering of which can alter the amendment process in a markup. Its offering preempts further
reading of the measure or draft for amendment until the amendment in the nature of a substitute is
disposed of. If an amendment in the nature of a substitute is adopted, the amendment process is
ended because all parts of the measure or draft have been amended. (See
“9.7. Amendment in the
Nature of a Substitute.”)
9.1. General Debate
No period of general debate automatically occurs before a measure is read for amendment. A
member may seek recognition to debate or discuss a measure for five minutes as soon as it has
been read, but a chair may exercise his or her discretion to recognize the member. General debate
is a feature of the Committee of the Whole but not of the House as in the Committee of the
Whole, the set of procedures that generally pertain to committee markups.107 (See also
“9.9.
Debate on Amendments.”) To the extent, however, that committee rules or an ad hoc agreement
allow members’ opening statements, those statements could serve as a type of general debate.
(...continued)
parliamentarian comments: “A measure before a committee for consideration must be read for amendment by section
as in the House....” (This note cross references
Jefferson’s Manual at §§ 412-414.)
House Rules and Manual, § 792, p.
561. Section XXVI of
Jefferson’s Manual requires two readings in committee, the second reading for amendment.
House Rules and Manual, §§ 412-414, pp. 214-217. If a measure is organized by paragraphs rather than sections, then
the measure will be read for amendment by paragraph. Ibid.
107
Jefferson’s Manual, § XXX, in
House Rules and Manual, § 424, pp. 223-224; and
House Practice, ch. 12, § 1, p.
307; ch. 16, § 8, p. 393; and ch. 16, § 47, p. 435.
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9.2. Options for Reading for Amendment
Once a measure or draft has been read (first reading), or its reading has been dispensed with, the
amendment process may begin. Unless a committee or subcommittee agrees by unanimous
consent to read a measure for amendment (second reading) under a different procedure, a
committee must read the measure (1) verbatim and (2), depending on its organization, by section
or by paragraph.
Committees often dispense with the verbatim reading of each section of a measure by unanimous
consent. As a committee completes the amending process for one section, the chair directs the
clerk to report or designate the next section, which indicates to the committee that next section is
now open to amendment. The clerk reports only the section number. (The differences between
reporting, reading, and designating are discussed immediately below.)
If the chair obtains unanimous consent to use an amendment process other than reading for
amendment by section or paragraph, the committee then follows that amendment process. Other
amendment processes include amendment by title if there are titles (or by another unit of the
measure), amendment at any point, and an amendment roster. A committee by unanimous consent
could also agree to other amendment processes, such as considering titles in an order other than
numerically. There is no motion to permit a different process. (See also
Appendix F, Sample
Scripts for Options for Reading a Measure for Amendment.)
However a committee agrees to read a measure for amendment, if an amendment in the nature of
a substitute is offered first, it becomes the markup vehicle, is open for amendment at any point,
and, if agreed to, terminates the amendment process, as explained below. (See
“9.7. Amendment
in the Nature of a Substitute” and also
“7.4. Amendment in the Nature of a Substitute.”)
9.2.1. Reporting, Reading, or Designating a Section or Other Unit
When reading a measure for amendment, a committee or subcommittee usually decides whether
to read each section or other unit verbatim, which is required, or whether by unanimous consent
to dispense with that verbatim reading. A chair could, after the measure has been read the first
time or the reading dispensed with, ask unanimous consent that the reading of the measure for
amendment or the reading of one or more sections (or other unit) for amendment be waived. The
chair would then direct the clerk to report or designate each section or unit before the committee
begins debate and consideration of amendments to the section. The clerk would not read a
section, but only say, for example, “Section 2.”
The terms used by a chair to have a clerk report a section or other unit can differ between
committees, but the purpose and outcome are the same with the words the chair uses. A chair may
direct a clerk to “report” a section. If a committee
has not agreed to dispense with the reading of
sections or units for amendment, then the clerk reads the section or unit in its entirety. If a
committee
has agreed to dispense with the reading of sections or units, then the clerk reads only
the section or unit designation, such as “Section 2” or “Title III.”
In some committees, the chair might be specific in directing the clerk, saying, “The clerk shall
read the next section,” when reading has
not been dispensed with. Or, the chair might say, “The
clerk shall designate the next section,” when reading has been dispensed with.
9.2.2. Reading for Amendment by Section
As just explained, a measure in a committee markup is read for amendment by section or
paragraph, unless another process is agreed to by unanimous consent. This form of reading for
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amendment applies to markup vehicles that are introduced bills and resolutions, committee prints,
and chairman’s marks or staff drafts. (See
“7. Procedural Strategy and the Choice of a
Markup Vehicle.”) Into the 1990s, reading by section was the favored practice, and the markup of
an important bill or of a set of bills could occur over the course of several days during several
weeks. Today, reading for amendment by section has fallen out of favor, and markups are
regularly conducted within the course of a single meeting. Therefore, for an important bill or for
several bills on an agenda, this meeting can run many hours, even overnight.108 (See
“9.7.
Amendment in the Nature of a Substitute,” which in the contemporary House is the favored
markup vehicle.)
A committee might still read a measure for amendment by section if the measure is just a few
pages in length and widely supported in committee; amendments are few, noncontroversial,
discrete, or technical; issues dividing committee members are confined to a single section or
small number of closely related sections; and debate is likely to be succinct. A chair is likely to
choose another alternative if a measure is lengthy, amendments are potentially numerous, and
debate could be protracted. The procedural disadvantage for the majority of reading for
amendment by section is that the markup cannot be ended without unanimous consent until every
section has been read for amendment; this might be a procedural advantage for the minority.109
When a measure or draft is read by section or paragraph, a chair directs the clerk to read the first
section verbatim. When the committee completes the amendment process for the first section, the
chair directs the clerk to read the second section verbatim.
Alternatively, as the clerk begins to read a section, a chair could ask unanimous consent that the
section be considered as read. If there is not unanimous consent to dispense with the reading, the
clerk will be directed to read the section verbatim before members may offer amendments. Before
a chair directs the clerk to read the first section or paragraph for amendment, he or she could
alternatively ask unanimous consent that reading of the measure for amendment be dispensed
with. If unanimous consent is obtained, the clerk would designate the first section when directed
and, when directed, each succeeding section. Or, before or after the clerk is directed to read any
section or paragraph, a chair could ask unanimous consent to dispense with reading of that section
and some number of succeeding sections. If unanimous consent is obtained, the clerk would
designate each section when directed by the chair to report a section.
(See Appendix I. Sample
Scripts for Selected Motions and Requests in the Amendment Process.)
Once a section is read verbatim or designated, members offer, debate, and vote on amendments to
it. A section remains open for amendment until debate ends; members stop offering amendments;
the section has been amended in its entirely, in which event further amendments are not in order
under House precedents; or the committee is in the process of offering amendments to a
subsequent section, in which instance a member would need unanimous consent to offer an
amendment to the earlier section. The amendment process continues until all sections of the
measure have been read.
A committee or subcommittee could also adopt a motion to limit debate on an amendment or on a
section open for amendment. Adoption of this motion does not end the amendment process
108 Nonetheless, for lengthy or complex legislation, a markup might run past midnight or even overnight and into the
next day. See, for example, Joe Williams, “Panel Completes Marathon Markup of Health Care Bill,”
CQ Roll Call,
March 8, 2017, available at http://www.cq.com/doc/committees-20170308364628?5&search=ZshWtsDv.
109 When an amendment in the nature of a substitute is offered as the first amendment, the amendment process at a
markup takes place in relation to it. For procedures when an amendment in the nature of a substitute is offered, see
bel
ow “9.7. Amendment in the Nature of a Substitute.”
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related to an amendment or to a section—amendments may continue to be offered—but adoption
of the motion to limit debate curtails any debate on an amendment offered after the agreed-on
time limit has been reached. (See
“9.9.3. Limiting or Closing Debate.”)
Only amendments to a section open to amendment are timely. Members may not, in the absence
of a specific grant of unanimous consent for that purpose, offer an amendment to a section that
was previously open to amendment or to a section that has not yet been reported.110 A member
might seek to offer an amendment to a section open to amendment and to one or more subsequent
sections by obtaining unanimous consent to offer amendments en bloc. (See
“9.8.5. En Bloc
Amendments.”)
To initiate a section-by-section amendment process, a chair might proceed as follows:
Chair: The bill [resolution] is now open for amendment. The clerk shall read [or report]
Section 1 of the bill [resolution].
Committee clerk begins to read Section 1 in its entirety. Unanimous consent is needed to
dispense with reading a section, several sections, or all sections of a measure.
or
Chair: The bill [resolution] is now open for amendment. Without objection, the bill
[resolution] shall be considered as read for amendment. The clerk shall designate [or
report] Section 1.
Clerk designates Section 1.
Chair: Is there an amendment to Section 1? [or, Is there discussion of Section 1?]
As said, if a committee is reading for amendment by section, the amendment process may not be
terminated until the last section of the measure has been read for amendment. Although a
committee could expedite its proceedings through unanimous consent or the adoption of motions
to limit debate, it is not in order for a member to offer a motion for the previous question on the
measure until the last section has been read for amendment. The previous question, if agreed to,
would terminate further debate and amendment. (See
“12.4. Previous Question.” An amendment
in the nature of a substitute, once agreed to, also precludes the section-by-section amendment
process. See
“9.7. Amendment in the Nature of a Substitute.”)
9.2.3. Reading for Amendment by Title or Another Unit
If a measure is organized by title (or contains other units), then opening the measure to
amendment by title (or by another unit) is an option.111 The chair might choose this option
because of the length and structure of the measure; the number and form of amendments
anticipated; the structure, coherence, or subject matter of the units; or for other reasons, such as
expediting the amendment process. A procedural advantage in more readily completing a markup
possibly exists in tackling larger portions of a measure than individual sections. A procedural
110
House Practice, ch. 2, §§ 15-17, pp. 32-34.
111 Sections or, in measures such as appropriations bills, paragraphs are basic organizational units for legislation.
Superior headings—those units in which sections or paragraphs are clustered—are title, subtitle, part, subpart, chapter,
and subchapter. Inferior headings—subunits of sections and paragraphs—are subsection, subparagraph, clause, and
subclause. In a measure with sections, paragraph and subparagraph are also inferior headings to the section. See
Lawrence E. Filson and Sandra L. Strokoff,
The Legislative Drafter’s Desk Reference, 2nd ed. (Washington, DC: CQ
Press, 2008), pp. 480-495; and Tobias A. Dorsey,
Legislative Drafter’s Deskbook: A Practical Guide (Alexandria, VA:
TheCapitol.Net, 2006), pp. 207-220. (Hereinafter Filson and Strokoff,
The Legislative Drafter’s Desk Reference; and
Dorsey,
Legislative Drafter’s Deskbook.)
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disadvantage for the majority is that the markup cannot be ended without unanimous consent until
every title has been read for amendment; this might be a procedural advantage for the minority.
As already mentioned, opening a markup vehicle in the form of an introduced bill or resolution,
committee print, or chairman’s mark or staff draft for amendment by title or another unit requires
unanimous consent.
On occasion, a committee might agree by unanimous consent to read a bill for amendment by
title, but in addition agree to read one title by section. Such as decision might have to do with the
legislative topics included in the title, the law or laws to be amended by the title, the complexity
of the subject matter of the title, the number of amendments committee members wish to offer, or
other reasons.
When a measure or draft is read by title, a chair directs the clerk to read the first title verbatim.
When the committee completes the amendment process for the first title, the chair directs the
clerk to read the second title verbatim. It is more likely, however, that a chair would seek
unanimous consent to dispense with reading each title, in the same manner for dispensing with
reading as described immediately above in
“9.2.2. Reading for Amendment by Section.”
Once a title is read verbatim or designated, members offer and vote on amendments to it. A title
remains open for amendment until members quit debating; stop offering amendments; the title
has been amended in its entirely, in which event further amendments are not in order under House
precedents; or the committee is in the process of offering amendments to a subsequent title, in
which instance a member would need unanimous consent to offer an amendment to an earlier
title. The amendment process continues until all titles of the measure have been read or reported.
A committee or subcommittee could also adopt a motion to limit debate on an amendment or on a
title open for amendment. Adoption of this motion does not end the amendment process related to
an amendment or to a section—amendments may continue to be offered—but adoption of the
motion to limit debate curtails any debate on an amendment offered after the agreed-on time limit
has been reached. (See
“9.9.3. Limiting or Closing Debate.”)
Only amendments to the title open to amendment are timely. Members may not, in the absence of
a specific grant of unanimous consent for that purpose, offer an amendment to a title that was
previously open to amendment or to a title that has not yet been reported.112 A member might seek
to offer an amendment to a title open to amendment and to one or more subsequent titles by
obtaining unanimous consent to offer amendments en bloc. (See
“9.8.5. En Bloc Amendments.”)
To initiate the amendment process for reading by title, a chair might proceed as follows:
Chair: The bill is now open for amendment. Without objection, the bill shall be open for
amendment by title.
Unless there is objection, the bill will now be read by title rather than by section.
Chair: The clerk shall read title I of the bill.
Committee clerk begins to read title I in its entirety. Unanimous consent is needed to
dispense with reading a title, several title, or all titles.
Chair: Is there an amendment to title I? [or, Is there discussion of title I?]
Alternatively, the chair might proceed as follows:
112
House Practice, ch. 2, §§ 15-17, pp. 32-34
.
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Chair: The bill is now open for amendment. Without objection, the bill shall be open for
amendment by title and each title shall be considered as read. The clerk shall designate
[or report] title I of the bill.
Committee clerk designates title I.
Chair: Is there an amendment to title I? [or, Is there discussion of title I?]
As said, if a committee is proceeding by title, the amendment process may not be terminated until
the last title of the measure has been read for amendment. While a committee could expedite its
proceedings through unanimous consent or adoption of motions to limit debate, it is not in order
for a member to offer a motion for the previous question on the measure until the last title has
been read for amendment. The previous question, if agreed to, would terminate further debate and
amendment. (See
“12.4. Previous Question.” An amendment in the nature of a substitute, once
agreed to, also ends a title-by-title amendment process. See
“9.7. Amendment in the Nature of a
Substitute.”)
9.2.4. Open to Amendment at Any Point
A chair might want to dispense with reading a measure and open it to amendment at any point. If
a committee agrees to open a measure to amendment at any point, amendments may be offered in
any order, with, for example, an amendment to Section 7 being offered before an amendment to
Section 3 is offered, which might be followed by an amendment being offered to any other
section. Again, unanimous consent is needed to read a markup vehicle in the form of an
introduced bill or resolution, committee print, or chairman’s mark or staff draft as open to
amendment at any point.
A chair might choose this amendment process if a measure is relatively short, if few amendments
are anticipated, or, as is often the case, if an amendment roster to be used lists amendments in an
order other than by a measure’s section, title, or other unit. (Amendment rosters are explained
immediately below.) A chair might also use this procedure if a measure is noncontroversial. A
committee could also agree by unanimous consent to an amendment process to accompany
opening the measure to amendment at any point, such as one limiting amendments but
considering them in a different order from how the measure is organized.
On occasion, a committee might begin considering amendments section-by-section. Once major
amendments have been debated and voted on, the committee might agree by unanimous consent
to open the measure or the remainder of the measure to amendment at any point.
A procedural advantage for the majority, and potentially a procedural disadvantage for the
minority, when a measure is open to amendment at any point is that debate and the amendment
process, after the briefest period of debate, can be terminated at any time and the committee
brought to a vote on the measure. A chair might choose to open a measure to amendment at any
point if he or she wants to be able to move the previous question without having to read every
section of a measure before the previous question can be moved. If a committee is considering a
measure open to amendment at any point, it is in order for a member to offer a motion for the
previous question at any point after debate has begun because the whole measure has been read
for amendment.113 If agreed to, the previous question terminates further debate and amendment.
The chair in this instance might wish to be able to speed up a markup, preempt amendments, or
achieve another purpose. (See
“12.4. Previous Question.”)
113 If a motion for the previous question is made and ordered before debate begins, 40 minutes of debate must be
allowed. Rule XIX, cl. 1(a). See also
“12.4. Previous Question.”
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Individual committee members could also be disadvantaged where a measure is open for
amendment at any point. Adoption of a motion to strike a section or adoption of a motion to
completely amend a second could preclude a member, not present at the time such an amendment
was adopted, from later offering an amendment to one of those sections. (See, for example,
“9.6.4.1. Motion to Strike an Entire Section” and
“9.8.3. Amending Amended Text.”)
A committee could also expedite its proceedings through unanimous consent or adoption of
motions to limit debate. A member could offer a motion to limit debate on an amendment or on
the entire measure. Adoption of this motion does not end the amendment process related to an
amendment or to a section—amendments may continue to be offered—but adoption of the
motion to limit debate curtails any debate on an amendment offered after the agreed-on time limit
has been reached. (See
“9.9.3. Limiting or Closing Debate.”)
If a committee has agreed by unanimous consent to open a measure to amendment at any point
and has also agreed to use an amendment roster, the unanimous consent agreement normally
limits or curtails use of a motion to close debate on the measure or to offer the previous question
motion, as explained immediately below.
To initiate opening a measure to amendment at any point, a chair might proceed as follows:
Chair: The bill is now open for amendment. Without objection, the bill shall be
considered as read for amendment and be open for amendment at any point.
Chair: Is there an amendment to the bill? [or, Is there discussion of the bill?]
9.2.4.1. Single-Section Bill or Resolution
By its drafting, a single-section bill or resolution is open for amendment at any point, unless the
committee agrees by unanimous consent to another procedure. A single-section measure could be
short. Alternately, it could be long—many pages, subsections, or paragraphs. It could be
noncontroversial or embody important changes in law that could be vigorously debated.
Committees sometimes use a single-section measure that contains important changes because it
will be open for amendment at any point, allowing the committee to conclude the amendment
process at a point or time desired by the chair and a majority of the committee.
9.2.5. Amendment Roster
Some committees occasionally or even regularly use an
amendment roster to govern the
amendment process. Such a roster is typically a list of first-degree amendments that may be
offered during a markup, usually in the order listed. A roster allows all committee members to
have notice of all or most first-degree amendments that might be offered in a markup. (See
“9.5.3.
Degree.”) For both the majority and minority, an amendment roster introduces a degree of
predictability into a markup, but, if comprehensive, curtails any desired element of surprise that a
member might wish to have in offering an amendment or spontaneity in offering as an
amendment a proposal that occurred to a member in the course of the markup.
A chair must obtain unanimous consent for an amendment roster’s use. An amendment roster may
be used with an introduced measure, a committee print, or a chairman’s mark or staff draft. It may
also be used for amendments to an amendment in the nature of a substitute. (See
“9.7.
Amendment in the Nature of a Substitute.”) An amendment roster may operate with the choices
above for how a measure is read for amendment. Because it may be structured to allow
amendments to be offered in an order different from section-by-section, some chairs formally ask
unanimous consent for a measure to be considered as read and open to amendment at any point,
thereby obviating potential procedural questions related to reading the measure for amendment.
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The agreement that a committee will use an amendment roster for its markup precedes a meeting.
In planning a markup, a chair and ranking minority member agree to use a roster and on the
procedures governing it, following consultation with their party’s committee members.
Unanimous consent must still be obtained once the markup meeting has convened and prior to
reading the measure to be marked up for amendment. The chair will also typically explain the
procedural features of the agreement in a colloquy with the ranking minority member, with that
explanation incorporated into committee members’ assent to the chair’s unanimous consent
request.
When committee members commit to use of an amendment roster, they are typically expected to
submit most or all first-degree amendments in advance of the markup so that the amendments
might be listed on the roster. Agreements normally require members to submit the text of their
amendments on the roster at a specified time prior to the markup meeting, although a committee
could allow placeholders for amendments to be submitted at the markup. Depending on the
agreed-on procedure, listing on the roster may give amendments precedence over first-degree
amendments not on the roster. The agreement might preclude first-degree amendments not on the
roster or allow them to be offered only after all amendments on the roster have been considered.
The agreement might also cover a situation in which a committee member was not present to
offer an amendment in the position it was listed on the roster but wishes to offer the amendment
upon arriving at the markup. The agreement might also preclude a motion to end debate on the
measure and a motion for the previous question on the measure if those motions would be in
order while members still desire to offer amendments on or off the roster. (See
“9.9.3. Limiting or
Closing Debate,” and
“12.4. Previous Question.”) Any desired changes to the agreement
governing the amendment roster during the course of the markup may be made only by further
unanimous consent.
To initiate the amendment process using an amendment roster, a chair might proceed as follows:
Chair: By agreement between the ranking minority member and myself, the committee
[subcommittee] today shall use an amendment roster, and the bill shall be considered as
read for amendment and be open for amendment at any point.
At this point, the ranking minority member may reserve the right to object to allow an
explanation of the procedures that have been agreed to between the majority and
minority governing the amendment roster. It is not a requirement of the unanimous
consent request, but is a prudent, practical action.
Ranking Minority Member: Reserving the right to object, and I will not object, would
the chair please explain our agreement concerning the amendment roster? I yield to the
chair.
Chair: I thank the gentleman and all of the committee members for their agreeing to the
use of an amendment roster. We have agreed....
Ranking Minority Member: I thank the chair for this explanation and withdraw my
reservation.
The chair then implements use of the committee roster after the reservation is withdrawn.
Chair: Without objection, the committee [subcommittee] shall use an amendment roster,
as just explained. An amendment by the gentleman [gentlelady] from [state] is listed first
on the roster.
Committees that regularly use amendment rosters tend to develop a number of understandings
related to this procedure over time and through experience. Some matters that these
understandings might encompass include the following:
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In what order will amendments be listed on the roster and considered?
May amendments be considered at the markup in a different order than that in
which they are listed?
If a member is not present to offer his or her amendment when it is reached on
the roster, may the amendment be offered later? If it may be offered later, will
that be when the member is next present or after all other amendments on the
roster? What if House rules or precedents, such as those pertaining to already
amended text, would preclude offering the amendment?
May amendments not listed on the roster be offered? At what time?
May a place be reserved on the roster, with the text of the amendment not
available until the markup begins or until the amendment is offered?
How far in advance must amendments be made available to be listed on the
roster?
If an amendment is listed on the roster, is its reading automatically dispensed
with?
Are perfecting amendments to or substitute amendments for an amendment listed
on the roster allowed?
If an amendment is listed on the roster, what points of order against it, if any, are
waived?
May a member who has more than one amendment listed on the roster seek
unanimous consent to offer the amendments en bloc?
May amendments by different members be offered en bloc?
9.3. Reading an Amendment
An amendment must be read in full unless by unanimous consent reading is dispensed with.114
Once offered, the chair directs the clerk to report the amendment, and the clerk begins to read the
amendment in full.115 There is no motion to dispense with the reading of an amendment, but the
sponsor or another member may seek unanimous consent to dispense with the reading. Unless
that unanimous consent is obtained, the clerk must continue reading all of the text of the
amendment.116 If unanimous consent to dispense with the reading of the amendment is not
obtained the first time it is requested, the request may be repeatedly renewed.
To dispense with the reading of an amendment, the amendment’s sponsor might proceed as
follows:
Chair: Is there discussion of Section 1?
Member: I have an amendment.
Chair: The clerk shall report the amendment.
114 An amendment is “a formal proposal to alter the text of a bill, resolution, amendment, motion, treaty, or some other
text. Technically, an amendment is a motion.”
Congressional Quarterly’s American Congressional Dictionary, p. 6. As
any motion, an amendment must be read aloud before it is debated. Rule XVI, cl. 2, and House Practice, ch. 32, § 2, p.
646.
115 When a member offers an amendment, staff ensure all committee or subcommittee members have a copy.
116
House Practice, ch. 2, § 27, pp. 41-42.
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Clerk begins to read the amendment in its entirety.
Member: I ask unanimous consent that further reading of the amendment be dispensed
with.
Chair: Without objection. The gentlelady is recognized for five minutes on her
amendment.
As mentioned earlier, the terms used by a chair to have a clerk report a section or other unit as
open for amendment can differ between committees. A chair may direct a clerk to “report” a
section. If a committee has
not agreed to dispense with the reading of sections or units for
amendment, then the clerk reads the section or unit in its entirety. If a committee has agreed to
dispense with the reading of sections or units, then the clerk reads only the section or unit
designation, such as “Section 2” or “Title III.” In some committees, the chair might be precise in
directing the clerk, saying, “The clerk shall read the next section,” when reading has
not been
dispensed with. Or, the chair might say, “The clerk shall designate the next section,” when
reading has been dispensed with.
(See Appendix I. Sample Scripts for Selected Motions and
Requests in the Amendment Process.)
9.4. Drafting Amendments and Amendment Strategy
Rules, practices, and ad hoc agreements vary among committees in requirements for submitting
amendments prior to or in the course of a markup. A committee, for example, may require by
committee rule the prefilling of an amendment in the nature of a substitute, other than such an
amendment that the chair has designated as the markup vehicle. Some committees by practice
often use an amendment roster, typically agreeing that first-degree amendments submitted in
advance of the markup will have priority at the markup. (See
“9.2.5. Amendment Roster,” and
“9.5.3. Degree.”) A committee may by ad hoc unanimous consent impose a prefilling agreement
for markup of a complex piece of legislation, requiring, for example, first-degree amendments to
be submitted some minimal amount of time before they are in order to be offered. On occasion,
however, a member or group of members favors an element of surprise in their amendment
strategy and submits amendments only when they are offered.
What members agree to or do for a particular markup may depend on a number of factors,
including the degree of agreement or controversy surrounding the policy issue and markup
vehicle, the procedural strategy each side intends to employ, the relationship between the chair
and ranking minority member, and the expected duration of the markup.
Members are normally encouraged to draft amendments before a markup with the assistance of
attorneys from the Office of Legislative Counsel, but that is not a requirement. These attorneys,
who are assigned to work with specific committees or on specific issues, are present at markups
to assist committee members during a markup and to ensure that their office has the amendments
and information necessary to prepare the bill or resolution as reported and portions of the
committee report, such as the Ramseyer. (See
“15.1. Preparing and Filing a Committee Report.”) As a markup approaches, these attorneys and their law assistants can be very busy
accommodating committee members’ drafting needs. Legislative counsel seek to ensure that
amendments substantively achieve members’ desired policy objectives and that they do not result
in either unintended consequences or ambiguities allowing numerous interpretations.
It is also advantageous to have the Office of the Parliamentarian review amendment drafts to
avoid potential points of order. (See
“11. Points of Order” and
“9.8. Additional Procedural
Considerations for Amendments.”) Members and staff often consult broadly on policy issues in
anticipation of drafting key amendments for markup, including consultations with experts who
appeared at hearings, interest-group representatives, executive officials, and Congressional
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Research Service (CRS) analysts and attorneys. CRS congressional procedures analysts may
assist members and staff concerning questions on procedures and procedural strategy.
Office of Legislative Counsel attorneys also ensure that amendments are properly drafted to the
markup vehicle. Although a committee may be lenient in overlooking instructions to the clerk
(keying) in amendments drafted impromptu during a markup, or drafted to an earlier version of
the measure being marked up,117 an amendment should be sufficiently clear in indicating what
language is to be stricken from a measure or an amendment, what language is to be inserted, and
where, and what changes, if any, are to be made in the organization of the measure or amendment,
punctuation, and other features of the measure or amendment.118
At the end of a markup, a chair normally seeks unanimous consent for committee staff to make
technical corrections to a measure ordered reported. This permission allows the staff to redraft
instructions to the clerk in an amendment that may have been keyed to an introduced measure
rather than to the markup vehicle, to correct errors in spelling and punctuation, and to make other
technical, nonsubstantive changes.
Committees often have standardized forms that members use to submit their amendment. These
amendment forms allow committee clerks to organize paperwork for the smooth conduct of a
markup and to compile amendments submitted before or during a markup in a manner that, at the
chair’s direction, they can readily identify and report. (See
Figure 2 for an example of a
committee’s amendment form.) It is a responsibility of a member’s staff to ensure their party’s
professional committee staff is aware of the member’s amendments for a markup.
What amendments are drafted, how many, their form and scope, and other considerations depend
on a party’s, group of members’, or individual member’s amendment strategy and goals. (See
“9.5. Form, Scope, and Degree of Amendments.”) A desire for bipartisanship might mean
amendments with a number of announced supporters, compromise substitute amendments, or
narrow perfecting amendments to the other party’s amendments. A desire to delay, vigorously
debate, weaken, or stop a measure might mean many amendments; fully developed amendment
trees; votes on controversial propositions; many recorded votes; numerous motions, points of
order, and parliamentary inquiries; and objections to unanimous consent requests. (See
“9.6.2.
The Amendment Tree,” “12. Motions,” “11. Points of Order,” and
“10. Parliamentary Inquiries.”)
If a chair has the votes to blunt or deflect strategy meant to prolong a markup, he or she might use
the threat of the previous question motion to cut off debate and the amendment process, if that
motion is available; the possibility of bypassing committee markup; meetings of long duration to
wear down the opposition; or exercising the chair’s discretion to rule motions and inquiries out of
order or as dilatory or improper. (See
“6.6.2. Maintaining Order and Decorum.)
To alert a committee to an issue related to the legislation being marked up, members might also
offer amendments but then withdraw them. (See below
“9.8.7. Withdrawing an Amendment.”)
This action allows a member an opportunity to speak on a topic related to the measure being
marked up without subjecting the proposition to a vote or a potential point of order. An
amendment might be withdrawn because the member intends to offer it later in the legislative
process, the proposition is still under discussion among committee members and the possibility of
agreement exists, it is nongermane and a later possibility of overcoming procedural violations
117 A point of order may lie against an improperly drafted amendment, for example, a substitute amendment drafted as
a perfecting amendment.
House Practice, ch. 2, § 1, p. 18.
118
See, for example, Filson and Strokoff,
The Legislative Drafter’s Desk Reference, §§ 14.6 and 32.7, pp. 193-194 and
441-444; and Dorsey,
Legislative Drafter’s Deskbook, ch. 9, pp. 241-268.
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exists, the chair has promised consideration at another time, the proponent intends to offer the
amendment in markup of another measure, or the proponent is motivated by other reasons. (See
“11.5. Germaneness.)
An amendment may be withdrawn with the understanding that the sponsor and the chair or other
committee members will work to redraft it to win the committee’s support. The sponsor will then
offer the redrafted amendment later in the markup. Upon an amendment’s withdrawal in such
circumstances, the chair might indicate that the amendment is withdrawn
without prejudice to a
redrafted amendment being offered. It is not necessarily clear what this phrase means, but its
meaning can be clarified with a parliamentary inquiry. For example, it could mean that, while the
section to which the amendment was offered will have been closed for further amendment, the
section will be automatically reopened for the redrafted amendment to be offered.
If a chair plans to use an amendment in the nature of a substitute, members normally find it
advantageous to have provisions they favor included in it rather than needing to offer and
advocate for amendments. This strategy is discussed above in
“7.4. Amendment in the Nature of a
Substitute. (See also
“9.7. Amendment in the Nature of a Substitute.”)
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Figure 2. Sample Committee Amendment Form
Source: House Committee on Homeland Security.
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9.5. Form, Scope, and Degree of Amendments
In offering an amendment, a committee member is making a
motion to amend a measure (or
draft) or a pending amendment. A motion to amend is a “formal proposal to alter the text of a bill,
resolution, amendment, motion, treaty, or some other text.”119
An amendment can be categorized or described in three ways—by its form, scope, and degree.
Form describes what an amendment does to the text it proposes to change. Scope describes the
extent of the amendment. Degree describes the relationship of an amendment to a measure’s
text.120
A section below
(“9.6.4. Precedence of Amendments When Their Form Is To Strike, or To Strike
and Insert, an Entire Section of Base Text”) expands on procedural matters related to the
examination of amendments in this section.
9.5.1. Form
A motion to amend takes one of three “forms,” a description of the manner in which an
amendment affects base text or another amendment:
1. motion to strike—a motion to remove text from base text121 or a pending
amendment, from as little as one word to a complete section to a large portion of
text;
2. motion to insert—a motion to add text to base text or a pending amendment, but
not delete text or amend text, which might add as little as a word, words, or
sentence to a section or add a new section or add even more text; and
3. motion to strike and insert—a motion to both remove text from and add text to
base text or a pending amendment, which might range from as little as replacing
one word to replacing one section to the replacing the whole of the base text (the
scope of which has its own name—an amendment in the nature of a substitute).
9.5.2. Scope
The “scope” of a motion to amend is also one of three types, a description of the extent to which
an amendment amends base text or another amendment:
1. perfecting amendment—a change to base text (typically, to a section or
paragraph) or to a pending amendment that may but probably does not change all
of the text being amended, which may be in the form of an amendment to strike,
insert, or strike and insert;122
2. substitute amendment—an alternative to the pending amendment that replaces
the text of the amendment entirely, is an amendment to the base text rather than
119
Congressional Quarterly’s American Congressional Dictionary, p. 6.
120
House Practice uses a different scheme of categorizing amendments than generally used by CRS, although the two
analyses lead to the same procedural ends.
House Practice, ch. 2, § 1, p. 17.
See
CRS Report 98-995,
The Amending
Process in the House of Representatives, by (name redacted)
.
121 Base text is used here to cover the several texts that a committee might be considering for amendment. See
“7.
Procedural Strategy and the Choice of a Markup Vehicle.” See explanations of “base text” at footnotes 67 and 73.
122
House Practice, § 2, p. 19.
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to the pending amendment, and is in the form of an amendment to strike and
insert;123 and
3. amendment in the nature of a substitute—an amendment that replaces the entire
base text, in the form of an amendment to strike out and insert (discussed in
detail at
“9.7. Amendment in the Nature of a Substitute”).
9.5.3. Degree
A motion to amend may be in the first or second degree, as permitted by House rule. Degree is a
description of the relationship of an amendment to base text:124
a first-degree amendment is an amendment to the base text;
a substitute for the amendment to the base text is also a first-degree amendment;
a second-degree perfecting amendment is permitted to be offered to the
amendment;
a second-degree perfecting amendment is permitted to be offered to the
substitute;125 but
no third-degree amendment (an amendment to a second-degree amendment) is
generally permitted.
No third-degree amendment (an amendment to a second-degree amendment) is permitted.
Therefore, up to four amendments could be pending at one time. However, if a motion to strike an
entire section or paragraph is the first amendment offered, then more than four amendments could
be pending at once. (See
“9.6.4. Precedence of Amendments When Their Form Is To Strike, or To
Strike and Insert, an Entire Section of Base Text.”) More than four amendments could also be
pending at one time in other specific circumstances. For example, where an amendment in the
nature of a substitute is offered when the first section of a measure is read for amendment,
perfecting amendments may still be offered to the first section.126 (See
“9.7. Amendment in the
Nature of a Substitute.”)
9.6. Relationship Among Amendments
As just explained, up to four amendments might sometimes be pending at one time. Only a few
critical procedural restrictions exist on the order of offering substitute and second-degree
perfecting amendments, but the House has recognized a specific order of offering amendments
where an amendment is to strike an entire section or paragraph, or to strike an entire section or
paragraph and insert new text. Pending amendments must always be voted on, however, in a
specific sequence.
123 “The amendatory instructions contained in a substitute direct changes to be made in the original language rather than
to the pending amendment.…[T]he substitute must be germane [however] to the pending amendment”
House Practice,
ch. 2, § 6, p. 21. See also ch. 2, § 24, pp. 39-40.
124 Rule XVI, cl. 6.
125 See also
Jefferson’s Manual,
§ XXXIII, in
House Rules and Manual, § 454, p. 241; and
House Practice, ch. 2, § 14,
pp. 29-32.
126
House Practice, ch. 2, § 1, p. 18.
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9.6.1. Order of Offering Amendments Based on Their Scope
The first-degree amendment to the base text may be referred to as
the amendment. Until it is
disposed of (or temporarily set aside), further amendments are both offered and described in
relation to it. As explained in
Deschler’s Precedents, “Only one perfecting amendment to the
original text may be pending at a time.”127
The next amendment offered may be a substitute amendment for the amendment, or it may be a
second-degree perfecting amendment to the amendment. Either or both of these amendments may
be offered, first the substitute amendment and then the perfecting amendment, or vice versa.
A substitute amendment is in the form of a motion to strike the text of the amendment first
offered and insert a different text. The substitute amendment, like the amendment first offered, is
an amendment to the base text. It is not an amendment of the text of the first amendment
offered.128 A substitute amendment must be germane to the amendment first offered. (See
“11.5.
Germaneness.”) Under House rule and precedents, a substitute amendment is a first-degree
amendment.129
A perfecting amendment to the first-degree perfecting amendment is a second-degree amendment.
It may be in the form of an amendment to strike a portion of the first-degree amendment, to insert
text in the first-degree amendment, or to strike text from the first-degree amendment and insert
other text. It must be germane to the first-degree amendment.
If a substitute amendment is offered, a second-degree perfecting amendment may be offered to it.
It may be in the form of an amendment to strike a portion of the substitute amendment, to insert
text in the substitute amendment, or to strike text from the substitute amendment and insert other
text. It must be germane to the substitute amendment.
A second-degree perfecting amendment to the amendment first offered may be offered before or
after a second-degree perfecting amendment has been offered to the substitute amendment.
Indeed, an amendment in an appropriate form and of an appropriate scope may be offered when
one of the four amendments described here is not pending, subject to any point of order alleging a
violation of a rule or precedent of the House. (See
“9.8. Additional Procedural Considerations for
Amendments,” and
“11. Points of Order.”)
These four amendments that may be pending simultaneously—the amendment, a substitute
amendment, and a perfecting amendment to the amendment and another perfecting amendment to
the substitute amendment—compose the four branches on the House “amendment tree,” an
illustration that shows the scope and degree of the four amendments. (See
Figure 3, Basic
Amendment Tree.)
9.6.2. The Amendment Tree
This illustration summarizes the relationship of one amendment to another and to the measure’s
text, with four amendments pending. It also shows the sequence of voting on amendments. (See
127 Lewis Deschler,
Deschler’s Precedents of the United States House of Representatives, vol. 9, ch. 27, § 5.1, 94th
Cong., 2nd sess., H.Doc. 94-661 (Washington, DC: GPO, 1990), pp. 206-207. (Hereinafter
Deschler’s Precedents, vol.
9.) Available online from GPO at https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=GPO&
browsePath=Precedents+of+the+U.S.+House+of+Representatives%2F010-Deschler%27s+Precedents&isCollapsed=
false&leafLevelBrowse=false&isDocumentResults=true&ycord=0.
128
House Practice, ch. 2, § 6, p. 21.
129 Rule XVI, cl. 6; and
House Practice,
ch. 2, § 14, pp. 29-32.
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“9.6.5. Order of Voting on Amendments.”) This illustration of the House amendment tree reflects
diagrams appearing in
House Practice.130
Figure 3. House Amendment Tree
Source: Congressional Research Service.
Note: Bracketed numbers indicate voting order.
9.6.3. Who May Offer an Amendment
A member must be recognized by the chair to offer an amendment. A member may not yield to
another member to offer an amendment.131
A member may offer an amendment in his or her own name and on his or her own time. A
member may also offer an amendment in his or her own name at the request or as designee of
another member. A member may not offer an amendment in another member’s name.132
A member may not offer an amendment to another amendment that he or she offered.133 If the
member is the author of an amendment to the original text, however, he or she could offer a
perfecting amendment to a substitute amendment if the substitute is offered. Likewise, if the
member is the author of a substitute amendment, he or she could also offer a perfecting
amendment to the first-degree perfecting amendment. Alternatively, a member could seek
unanimous consent to modify an amendment that he or she has offered, presumably before any
130
House Practice, ch. 2, §§ 13 and 14, pp. 27 and 30.
131
House Rules and Manual, § 946, p. 762.
See also House Practice, ch. 16, § 16, pp. 402-403.
132
House Practice, ch. 2, § 1, p. 17.
133 Ibid., and § 6, p. 21.
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action is taken on it, or could withdraw his or her amendment, change it, and seek to offer the
new amendment.
A committee chair will likely alternate recognition to offer amendments between the majority and
minority, also probably recognizing a more senior member of a party before a more junior one.
9.6.4. Precedence of Amendments When Their Form Is To Strike, or To Strike
and Insert, an Entire Section of Base Text
Certain forms of an amendment offered to the base text can dictate the amendment options then
available. This situation is explained most succinctly and cogently in
Deschler’s Precedents:
…where a paragraph (or section) of a bill is under consideration, there may be pending at
one time the following separate motions to amend
if offered in the order indicated:
(1) to strike out the paragraph (or section) in its entirety;
(2) to strike out the paragraph (or section) and insert;
(3) to insert, strike out and insert, or strike out a portion of the paragraph (or section)—a
perfecting amendment to the paragraph or section.
However, if the perfecting amendment (3) is offered first, the motions to strike out the
paragraph and insert new language (2) or to strike out the paragraph (1) may not be
offered until the perfecting amendments are disposed of. …With the exception that (2)
above may be amended by a perfecting amendment before it is voted upon, it is generally
the rule that the above motions may not be offered as amendments to or substitutes for
one another.134
(Emphasis added.)
The balance of this section is an explication of this excerpt. First, the reader will learn that an
amendment to strike an entire section is held in abeyance (and does not appear on a branch of the
amendment tree) until perfecting amendments to the section offered subsequently are disposed of.
A motion to strike may not be offered while an amendment to strike the entire section and insert
new text is pending or while motions to strike a portion of the section, to strike a portion of the
section and insert new text, or insert new text is pending. If a section is amended in its entirety by
perfecting amendments, the motion to strike the section in its entirety falls and is not voted on.
Second, the reader will learn that an amendment to strike an entire section and insert new text is
subject to a second-degree perfecting amendment. A substitute amendment is also in order. A
motion to strike the entire section is not in order until the amendment to strike the entire section
and insert new text is disposed of, but adoption of the motion to strike the entire section and insert
new text precludes the subsequent offering of a motion to strike to entire section.
Third, the reader will learn that one or more first-degree perfecting amendments in the form of an
amendment to strike a portion of the section, strike a portion of the section and insert new text, or
insert new text in the section
prevent the offering of a motion to strike the entire section, or to
strike the entire section and insert new text, until the first-degree perfecting amendments are
disposed of. If perfecting amendments amend the entire text of a section, then a subsequent
motion to strike the entire section, or to strike the entire section and insert new text, is precluded.
134
Deschler’s Precedents, vol. 9, ch. 27, § 15, pp. 400-401.
See also House Practice, ch. 2, §§ 2, 22-23, and 40, pp. 19,
38-39, and 54-55.
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9.6.4.1. Motion to Strike an Entire Section
If the first amendment offered to the base text is a motion to strike an
entire section or paragraph,
House precedents hold that amendment in abeyance and allow consecutive first-degree perfecting
amendments to the section (and procedurally related amendments to the perfecting amendments)
to be offered, considered, and voted on first. This motion to strike does not occupy a branch of the
amendment tree. A perfecting amendment may be an amendment to insert new text in the section,
to strike some or all text in the section and insert new text, or to strike a lesser portion of the text
than the entire section or paragraph. The principle at work is one expressed in
Jefferson’s Manual that the House should consider amendments to perfect a text before voting to strike a section or
paragraph or to agree to a section or paragraph.135
Although a motion to strike an entire section or paragraph may be offered
after perfecting
amendments to that section have been disposed of, it may not be offered
while a perfecting
amendment is pending. As indicated above in the excerpt from
Deschler’s Precedents, a motion
to strike an entire section or paragraph may not be offered as a perfecting or substitute
amendment to another amendment.
If a committee agrees to one or more perfecting amendments that amend a section or paragraph in
its entirety, then the motion to strike held in abeyance falls and is not voted on because all of the
text has been amended.136
9.6.4.2. Motion to Strike Out an Entire Section and Insert New Text
If the first amendment offered to the base text is a motion to strike an
entire section or paragraph
and insert new text for that section or paragraph, a perfecting amendment to that amendment, a
substitute amendment for that amendment, and a perfecting amendment to the substitute
amendment may be offered. In addition, as soon as a branch of the amendment tree is empty,
another appropriate amendment may be offered that fills that branch of the tree.
As related above in the excerpt from
Deschler’s Precedents, a motion to strike an entire section is
not in order as a perfecting or substitute amendment to an amendment to strike an entire section
and insert new text, and may not be offered while such an amendment is pending. If a committee
agrees to an amendment to strike an entire section and insert new text, it is not in order to offer a
motion to strike the entire section since all of the text has been amended.
9.6.4.3. Motion to Amend a Portion of a Section
A first-degree perfecting amendment may be the first amendment offered to the base text in the
form of a motion to insert new text in a section or paragraph, strike out a
portion of text in the
section or paragraph and insert new text, or strike out
a portion of a section or paragraph.
As indicated above in the excerpt from
Deschler’s Precedents, neither a motion to strike the
entire section or paragraph nor a motion to strike the entire section or paragraph and insert new
text may be offered as a perfecting or substitute amendment to an amendment relating to a portion
of text or while perfecting amendments are pending. If a committee amends with perfecting
amendments a section in its entirety, it is not in order to offer a motion to strike the entire section
or to offer a motion to strike the entire section and insert new text.
135
Jefferson’s Manual, § XXXIII, in
House Rules and Manual, § 456, p. 243. See also
House Practice, ch. 2, § 2, p.
19; § 21, pp. 36-38; § 22, p. 38; and § 31, p. 47.
136
House Practice, ch. 2, § 2, p. 19, and § 22, p. 38. See also § 21, pp. 36-38.
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9.6.5. Order of Voting on Amendments
If amendments to an amendment are pending, there is a specific order for voting on the
amendments.137 (See
Figure 3, The Basic Amendment Tree.) The order of voting, if an
amendment is pending on each branch of the amendment tree, is as follows:
the second-degree perfecting amendment to the amendment;
the second-degree perfecting amendment to the substitute amendment;
the substitute amendment, as amended if amended; and
the amendment, as amended if amended.
Once an amendment is disposed of, another appropriate amendment may be offered to fill that
branch on the amendment tree, subject to any point of order alleging a violation of a rule or
precedent of the House. So, for example, after a vote is taken on a perfecting amendment to the
amendment, another appropriate perfecting amendment to the amendment may be offered. The
committee would vote on that amendment before proceeding to vote on other pending
amendments.138
If a substitute amendment is agreed to, however, the chair immediately puts the question on the
amendment as amended by the substitute.139 (See also
Appendix K, Sample Script for Voting on
Amendments, an
d Appendix L, Sample Scripts for Parliamentary Inquiry on Voting Order on
Amendments, with Votes on Amendments to an Amendment in the Nature of a Substitute Made
Base Text.)
9.7. Amendment in the Nature of a Substitute
An amendment in the nature of a substitute replaces the entire text of the bill or resolution,
committee print, or chairman’s mark or staff draft called up by the chair. Its scope is such that it is
examined separately here, allowing the procedures of its consideration to be explained coherently.
(See also
“7.4. Amendment in the Nature of a Substitute.”) In the contemporary House, an
amendment in the nature of a substitute appears to be the favored committee markup vehicle.
An amendment in the nature of a substitute is in the form of a motion to strike and insert, and
begins with the words “strike all after the enacting clause [resolving clause] and insert….” The
enacting clause appears in italicized type before the text of a bill begins:
Be it enacted by the
Senate and House of Representatives of the United States of America in Congress assembled[.] In
a joint resolution, it is a resolving clause and reads:
Resolved by the Senate and House of
Representatives of the United States of America in Congress assembled[.] This clause
gives legal
force and effect to a measure if passed by Congress and signed by the President or passed over his
veto. Again, an amendment in the nature of a substitute deletes everything after the enacting
clause or resolving clause and inserts a new text.
If an amendment in the nature of a substitute will be the markup text, it must be made publicly
available in electronic form 24 hours prior to the markup meeting, or earlier if committee rules
require availability for more time than 24 hours. (See
“3.2.3. Notice and Documents.”)
137 Rule XVI, cl. 6; and
House Practice, ch. 2, § 28, p. 43.
138
House Practice, ch. 2, § 2, p. 19; § 13, p. 28; and § 21, pp. 36-38.
139 Ibid., § 28, p. 43, and § 32, p. 47.
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9.7.1. Offering
Once a chair has called up an introduced measure, a committee print, or a chairman’s mark or
staff draft, and it has been read or its reading dispensed with, the chair directs the clerk to begin
reading the measure for amendment. Unless another process is agreed to by unanimous consent,
the measure is read for amendment by section. (See
“9.2. Options for Reading for Amendment.”)
The chair directs the clerk to report Section 1.
If a chair decides to use an amendment in the nature of a substitute as the markup vehicle, the
amendment must be offered at the beginning of the amendment process.140 Normally, it is offered
as soon as the amendment process begins.141 Once the clerk reports Section 1, the chair or another
majority-party member offers an amendment in the nature of a substitute. It is a first-degree
amendment.
An amendment in the nature of a substitute strikes all text after the enacting clause in a bill or
draft bill or resolving clause in a resolution or draft resolution, and inserts other text. Once
offered, an amendment in the nature of a substitute becomes the markup vehicle since it is
pending until it is disposed of.142 As the majority’s preferred legislative solution to the policy
issues it comprehends, an amendment in the nature of a substitute is normally approved once
amendments to it are considered. Once approved, further amendments are no longer in order
because the underlying measure has been amended in its entirety.143 (See
“7.4. Amendment in the
Nature of a Substitute.”)
If a chair or another member offers an amendment in the nature of a substitute, the chair might
proceed as follows:
Chair: The bill is now open for amendment. The clerk shall report Section 1 of the bill.
Committee clerk reads Section 1 in its entirety, unless its reading is dispensed with by
unanimous consent.
Chair: I have an amendment in the nature of a substitute. The clerk shall report the
amendment.
Committee clerk begins reading the amendment in the nature of a substitute.
Chair: Without objection, the amendment in the nature of a substitute shall be considered
as read for purpose of amendment.
A member could object to this unanimous consent request, forcing the amendment in the
nature of a substitute to be read in full. There is no motion to dispense with the reading of
any amendment, unlike the motion available to dispense with the reading of a properly
noticed measure or draft. The request for unanimous consent to dispense with the reading
140 An amendment in the nature of a substitute may also be offered at the end of the amendment process, but that rarely
occurs.
141
House Practice, ch. 2,
§ 19, pp. 34-35.
142 While an amendment in the nature of a substitute is pending, amendments to the underlying measure are not in
order, except for perfecting amendments to Section 1. These perfecting amendments must be voted on before the
amendment in the nature of a substitute is voted on. This kind of amendment is rare today.
143 Ibid.,
§ 7, pp. 21-22; § 13, p. 29; § 21, p. 38; § 32, pp. 47-48; and § 41, pp. 55-56. Should an amendment in the
nature of a substitute be rejected, the committee could continue the markup, going section-by-section through the
underlying measure (or, by unanimous consent, opening the measure for amendment in another manner). Because an
amendment in the nature of a substitute is normally the majority party’s preferred alternative, rejection is unusual and
continuation of a markup after its rejection would be exceptional.
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could, however, be renewed numerous times until successful or until the proponent
abandons the request.
(See also
Appendix G, Sample Script for Offering an Amendment in the Nature of a Substitute.)
9.7.2. Reading
As with other amendments, an amendment in the nature of a substitute must be read, and its
reading may be dispensed with only by unanimous consent, as might be discerned from the script
immediately above. There is no motion to dispense with the reading of any amendment, including
an amendment in the nature of a substitute.144 Because an amendment in the nature of a substitute
for a long or complex measure is likely also to be long and complex, a committee’s or
subcommittee’s inability to obtain unanimous consent to dispense with the reading may result in
many hours of a markup being consumed with reading.
However, there is an incentive for members opposed to an amendment in the nature of a
substitute as a legislative solution or as drafted to force its reading. Once an amendment in the
nature of a substitute is read, or its reading is dispensed with, it is in order for the chair or another
member to immediately move the previous question. If agreed to, the previous question
terminates debate and the amendment process—before debate begins or an amendment is
proposed if the motion is offered and adopted immediately. In this situation, Rule XIX, clause
1(a) requires, however, 40 minutes of debate to be allowed. If there is the briefest debate after the
amendment is read or its reading is dispensed with, no additional debate needs to be allowed if
the motion is then offered and adopted. With the threat of no substantive opportunity to debate or
offer amendments to the amendment in the nature of a substitute, members might object to
dispensing with its reading to delay the committee’s approval of the amendment.
These two conditions related to an amendment in the nature of a substitute—it must be read, as
must any amendment, and the previous question is immediately in order—sometimes lead to a
procedural or political understanding between the majority and minority members of a
committee. If a chair wishes to mark up an amendment in the nature of a substitute, the minority
may desire the opportunity to offer amendments to it. If the minority suspects that the chair might
avail himself or herself of moving the previous question early in the markup, a minority member
could object to dispensing with the reading of an amendment in the nature of a substitute,
extending the duration of the markup and disrupting the majority’s logistics in having its
members present for recorded votes and concluding the markup. In contrast, minority members
probably want to avoid the majority moving the previous question early in the markup process
and might agree not to use some procedural tools available to them in exchange for an
amendment process.
9.7.3. Amending
An amendment in the nature of a substitute is a first-degree amendment. A perfecting amendment
to it, a substitute amendment for that amendment, and a perfecting amendment to the substitute
may be pending at one time. Once a branch or all branches of the amendment tree are
unoccupied, except the branch occupied by the amendment in the nature of a substitute, another
amendment may be offered. Offering and voting on amendments occurs as explained earlier. (See
“9.6. Relationship Among Amendments.”) An amendment in the nature of a substitute is open to
144 The motion to dispense with the reading of a measure applies only to the measure, not to any amendment, including
an amendment in the nature of a substitute. (See
“8.4. Calling Up and Reading the Measure,” and
“9.3. Reading an
Amendment.”)
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amendment at any point. A committee by unanimous consent may agree to a structured
amendment process, such as reading the amendment in the nature of a substitute by section or
title or by using an amendment roster.
As just explained
(“9.7.2. Reading”), the previous question may be moved on an amendment in
the nature of a substitute at any time after the amendment is offered and the briefest period of
debate has occurred. Once the amendment process has been completed or the previous question
has been ordered, a committee votes on approval of the amendment in the nature of a substitute as
it may have been amended. (See
“9.7.4. Adopting.”)
A substitute amendment to the amendment in the nature of a substitute may be offered that strikes
the text of the amendment in the nature of a substitute and inserts new text. Even if perfecting
amendments to an amendment in the nature of a substitute have been adopted, a full-text
substitute for it is still in order. If the substitute amendment is agreed to, debate and the
amendment process ends because the amendment in the nature of a substitute has been
completely amended. A vote occurs immediately on the amendment in the nature of a substitute
as amended.145
Because, as explained immediately above, there may be advantages to both the majority and
minority in cooperation when a chair plans to offer an amendment in the nature of a substitute, it
might be possible for them to agree on aspects of the amendment process. An agreement might
include a markup schedule, a list of amendments, prefiling of amendments, the order in which
amendments will be offered, whether second-degree amendments are allowed, the duration of
debate on amendments, what amendments will be decided by voice or recorded vote, the handling
of postponed votes, whether en bloc amendments may be offered, what points of order are
anticipated and how they might be disposed of, and what motions are anticipated. (See
“11.
Points of Order,” “12. Motions,” and
“13. Voting.” See also
“6.6.1. Scheduling Meetings and
Setting an Agenda,” and
“7.5. Markup Based on Sole, Primary, Additional Initial, or Sequential
Referral.”)
The amendment process and amendment strategy also depends on whether an amendment in the
nature of a substitute is made original or base text for purposes of further amendment.146 The
amendments that may be offered and are pending at one time when an amendment in the nature
of a substitute has been offered depends on what position the amendment in the nature of a
substitute occupies on the amendment tree. When offered, the amendment in the nature of a
substitute is a first-degree amendment that occupies the amendment branch. The proponent might
then seek unanimous consent to make the amendment in the nature of a substitute original text for
the purpose of further amendment; no motion exists to do that. If unanimous consent is obtained,
the amendment in the nature of a substitute no longer occupies a branch on the amendment tree.
(See
“9.6.2. The Amendment Tree.”) The ramifications for the amendment process and
amendment strategy are examined next. (See also
“7.4. Ame