The Committee Markup Process in the Senate

The Committee Markup Process in the Senate

The Committee Markup Process in the Senate

December 10, 2024

Congressional Research Service

https://crsreports.congress.gov

R48298

Congressional Research Service

SUMMARY

The Committee Markup Process in the Senate

One of the primary functions of committees is to assess and recommend legislation to the Senate for floor consideration. Committees accomplish this task through formal meetings, called markups, where Senators debate legislation and propose changes to it in the form of amendments. When conducting markups, committees are subject to the rules of the Senate and any committee rules they have adopted. In practice, committees routinely conduct their markups informally, taking many actions by unanimous consent.

The committee’s chair has primary decisionmaking authority about which measures will be marked up. Committee staff routinely circulate advance notice of the agenda for a markup and the precise legislative text to which members should draft their amendments. Many committees, by rule or practice, require their members to pre-file certain amendments they intend to offer at markup. Staff should consult their committee rules and markup notices for more specific information on any pre-filing deadlines that may apply.

To begin a markup, the committee’s chair will call the meeting to order, usually noting the presence of a quorum. Senate rules require the attendance of no less than one-third of the committee’s membership in order to transact business. It is at this time that the chair often explains the meeting’s agenda, including what business will be taken up for consideration. The chair typically gives opening remarks and will then recognize the ranking member for the same purpose. Sometimes, other committee members will have the opportunity to give opening remarks as well.

The consideration of business begins when the chair or another member calls up a measure to make it pending before the committee. An amendment in the nature of a substitute (ANS) to the text of the measure is commonly offered first. The ANS strikes all text in the measure and inserts new language. The inserted language could include the text of multiple discrete amendments proposed by individual committee members prior to the start of markup (often those that have bipartisan support). The chair recognizes individual committee members, often alternating between party and by seniority, to offer further amendments. Amendments are not subject to any debate limit, and committee members may be recognized to speak for as long as they wish. Once debate has concluded, the committee votes on whether to approve the amendment. Debating and voting on amendments often makes up the bulk of a committee markup.

Once there is no desire to further offer amendments or debate on the measure, the committee moves to order the measure reported favorably as amended, if amended. Committees do not have the ability to directly amend legislation that has been referred to them. Instead, they report any committee-adopted amendments along with the measure to the Senate, where they will become pending automatically when the measure is called up on the floor. In contrast, if a committee marks up and reports draft legislation that has not yet been introduced, all amendments that were agreed to will be directly incorporated into the legislative text when it is reported to the Senate by the committee’s chair. Senate rules require that a majority of the committee’s membership be physically present to vote to order a measure reported. Under Senate precedents, the number of Senators voting yes in person must outnumber all no votes, whether those no votes are cast in person or by proxy. Complying with this rule guarantees that no valid point of order can be raised in relation to the committee’s consideration of the legislation when it is taken up on the floor.

Whenever possible, committees will negotiate consideration of agenda items prior to the markup. This often leads to committees calling up multiple measures at once, adopting amendments to each of those measures, and agreeing to favorably report each item of business to the Senate by unanimous consent. This allows the committee to spend its time deliberating on the agenda items that do not necessarily have broad bipartisan support without spending time on amendments and measures that do. In some cases, a committee may reach unanimous consent to favorably report every item on its agenda at the very outset of the markup and spend the duration of the meeting allowing committee members to give remarks on those items of business. Depending on the committee’s agenda and whether consensus can be reached, markups can result in multiple amended pieces of legislation being approved within minutes or, alternatively, a committee spending several days to report one measure. Ultimately, Senate rules protect and empower individual committee members but also incentivize reaching bipartisan consensus to quickly and efficiently report legislation.

R48298

December 10, 2024

Michael Greene Analyst on Congress and the Legislative Process

The Committee Markup Process in the Senate

Congressional Research Service

Contents

Introduction ..................................................................................................................................... 1

Theory Versus Practice .............................................................................................................. 1

Scheduling and Notice of Markup ................................................................................................... 2

Notice of Text to Be Marked Up ............................................................................................... 2

Selecting the Base Text for Amendment ......................................................................................... 3

Referred Measure as Markup Text ............................................................................................ 3 Draft Measure as Markup Text .................................................................................................. 4

Amendment in the Nature of a Substitute as Markup Text ....................................................... 5

Beginning a Markup ........................................................................................................................ 6

Matter Held Over ................................................................................................................ 7

Opening Statements .................................................................................................................. 7 Calling Up and Considering Legislation ................................................................................... 7

En Bloc Consideration ........................................................................................................ 7

Considering Amendments ............................................................................................................... 8

Pre-Filing Requirements ........................................................................................................... 8 Managers’ Package .................................................................................................................... 9

Offering and Debating Amendments ......................................................................................... 9

Ending Debate (Including the Motion to Table) ............................................................... 10

Two Degrees of Amendment ................................................................................................... 10

Modification ............................................................................................................................. 11

Withdrawal ............................................................................................................................... 11

Germaneness ........................................................................................................................... 12

Quorums ........................................................................................................................................ 12 Motions, Points of Order, and Parliamentary Inquiries ................................................................. 13

Points of Order and Appeals ................................................................................................... 13 Parliamentary Inquiry .............................................................................................................. 13

Motions to Recess or Adjourn ................................................................................................. 14

Closed Session ........................................................................................................................ 14

Voting ............................................................................................................................................ 14

Proxies ..................................................................................................................................... 15

Polling ..................................................................................................................................... 15

Reporting Legislation .................................................................................................................... 16

The “Cleansing Clause” or “Cleanup Provision” .................................................................... 17

Concluding a Markup .................................................................................................................... 18

Contacts

Author Information ........................................................................................................................ 18

The Committee Markup Process in the Senate

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Introduction

Thousands of measures are introduced in the Senate or messaged over by the House during each two-year session of Congress, in addition to other matters for which the chamber has responsibility. In order to address this workload, the Senate uses a committee system whereby legislation is referred to committees based on the subject matter within their respective jurisdictions.¹ The Senate relies on its committees to make recommendations on which legislation most warrants floor consideration. Committees fulfill this role, in part, by holding meetings where their members deliberate on the merits of legislation and propose changes in the form of amendments. This report examines the procedures and practices used at these meetings, called committee markups, because Senators quite literally “mark up” legislation as they offer and vote on amendments that propose changes to the legislative text pending before them.²

Theory Versus Practice

When examining the processes by which committees conduct legislative markups, two perspectives should be considered. The rules and precedents of the Senate, as well as those of individual committees, formally provide for how, in theory, markups should be conducted in a procedurally compliant way. In practice, however, committees often choose to set aside the formalities of these rules in order to accommodate the interests of their members. Committees do this by reaching unanimous consent to process legislation more quickly than otherwise might be possible under the rules. Generally speaking, the formal procedures of the Senate tend to protect individual Senators’ rights when consensus cannot be reached, whereas informal practices empower committees to act quickly and efficiently where they can. Understanding both frameworks can be helpful when preparing and planning for a committee markup.

This report primarily focuses on Senate rules that apply to committee markups generally. Committee rules are also acknowledged when relevant, and specific examples are highlighted at times to help further distinguish these concepts. Readers are encouraged to review specific committee rules for the precise requirements applicable to their own situations.³ In addition to these written rules, many committees routinely observe informal practices that shape the proceedings of markups. There is no authoritative or comprehensive way to catalogue these various practices. Instead, this report describes specific procedural situations where committees rely on unanimous consent—the mechanism by which an informal practice is usually conducted. The following analysis is an effort to inform the reader of what is required during the markup process and what can be achieved when consensus is reached about setting certain requirements aside.

1 For more on the referral process, see CRS Report R46815, Committee Jurisdiction and Referral in the Senate, by Mark J. Oleszek.

2 The congressional distribution memorandum Parliamentary Phraseology for Presiding Over a Senate Committee Markup, by Valerie Heitshusen and Elizabeth Rybicki, is an additional useful resource providing examples of phrasing and script language for routine actions at markup. Copies are available to congressional offices upon request from the listed authors.

3 Senate committee rules for the 118th Congress are available in U.S. Congress, Senate Rules and Administration Committee, Authority and Rules of Senate Committees, 2023-2024, 118th Cong., 1st sess., 118-4 (Washington: GPO, 2023), https://www.govinfo.gov/content/pkg/CDOC-118sdoc4/pdf/CDOC-118sdoc4.pdf.

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Scheduling and Notice of Markup

There are few restrictions regarding when Senate committees are allowed to meet. Per Senate Rule XXVI, paragraph 1, committees are authorized to meet when the Senate is in session, in recess, or adjourned. However, committees cannot meet if the Senate has been in session for two hours or after 2:00 p.m., except when given consent of the majority and minority leaders.⁴ Any action taken by a committee during markup while in violation of this “two-hour rule” is considered to be “null, void, and of no effect.”⁵

Senate rules do not require that committees provide advance notice of a meeting to mark up legislation. However, by standing order of the Senate, committees are required to notify the Office of the Daily Digest about the time, location, and purpose of any meetings “immediately” upon their scheduling.⁶ This information is published in the Congressional Record and made available on the Senate’s website.⁷

Most committees routinely provide advance notice of markups to committee members for several practical reasons. Senate rules require a minimum quorum of one-third of the committee to transact business and a majority physically present to vote to report legislation.⁸ Sufficient notice encourages Senators to prioritize attending and participating in the markup. Keeping committee members informed of impending markups also allows Senators and their staff time to consider and draft amendments to the legislation on the agenda. In some cases, committees have adopted rules requiring notice of markup to members and sometimes to the public as well.

Notice of Text to Be Marked Up

Beyond giving notice that a markup will be held and what legislation will be on the agenda for that day, committees also routinely provide their members with advance notice of the precise text of legislation that will be under consideration in advance. (Some have rules requiring this.) This allows committee members and their staff to draft or “key” their amendments to conform with the text that will be called up by the chair. This, in turn, may create an opportunity for committee members and their staff to pre-negotiate a “managers’ package” of amendments that can potentially be adopted at the outset of a markup.⁹ Advance notice of the text to be marked up also empowers the committee to set restrictions on which amendments will be allowed to be offered at the markup. Many committees, by rule or by practice, prohibit the consideration of first-degree amendments unless they are pre-filed with the committee by an established deadline.¹⁰

4 Senate Rule XXVI, paragraph 5(a). This rule does not apply to the Committee on Appropriations or the Committee on the Budget. For more discussion of the two-hour rule and its applications, see CRS Report R45170, The Senate “Two- Hour Rule” Governing Committee Meeting Times, by Christopher M. Davis and Michael Greene.

5 Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure: Precedents and Practices, 101st Cong., 1st sess., S.Doc. 101-28 (Washington: GPO, 1992), p.406.

6 S.Res. 4, §401(b), 95th Congress (1977-1978). The text of this provision can be found in Section 86.2 of the Senate Manual at https://www.govinfo.gov/content/pkg/SMAN-117/pdf/SMAN-117-pg101.pdf.

7 The current issue of the Congressional Record can be found at https://www.congress.gov/congressional-record. The Office of the Daily Digest also posts meeting information on the Senate website at https://www.senate.gov/committees/ hearings_meetings.htm.

8 Senate Rule XXVI, paragraph 7(a)(1). See also, the “Quorums” section for further details.

9 More detail on this concept can be found in the “Amendment in the Nature of a Substitute as Markup Text” section.

10 See the “Pre-Filing Requirements” section for additional discussion of the topic.

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Selecting the Base Text for Amendment

In scheduling a markup, the committee chair decides what legislation will be considered and marked up.¹¹ The chair also has the opportunity to determine what markup text will serve as the baseline for further amendment by members of the committee. There are a number of options for a committee to consider using as the starting point for its markup, including:

• the text of a measure as introduced and referred to the committee,

• a draft measure that has not yet been introduced in the Senate, or

• an amendment in the nature of a substitute to a referred measure or a draft measure.

The text for amendment called up at markup represents the legislative vehicle, possibly as further amended, that a majority of the committee will presumably vote to send to the Senate. Committee members usually seek to draft and offer amendments to the markup text in whatever form it is being considered. For example, if the committee intends to use an amendment in the nature of a substitute as markup text, committee members will primarily draft their own amendments to that substitute.

Decisions on the text for markup can have procedural implications during consideration, both in committee and on the Senate floor. As just mentioned, an amendment in the nature of a substitute can affect how committee members draft their own amendments and when they are offered. Furthermore, committees do not have the ability to directly amend legislation that has been introduced and referred to them.¹² Amendments agreed to by a committee during markup are sent to the Senate as recommendations for the full chamber to act upon. If the Senate agrees to the amendments, only then will those changes be incorporated into the legislative text.

The next several sections explore the options committees have for selecting markup text, potential considerations for usage of each, and the amending process that can result on the floor, depending on what the committee sends to the Senate.

Referred Measure as Markup Text

In what could be considered the default markup option, a committee may take up the text of legislation as introduced and referred to the committee as the starting point for further amendment. This is a common option for measures that are likely to be taken up on the Senate floor by unanimous consent, which is often the case for legislation that is narrow in scope and enjoys bipartisan support. When such factors are present, the committee might anticipate that there will be few, if any, amendments offered during markup.

11 Senate Rule XXVI, paragraph 3, empowers the committee chair to call meetings “as he may deem necessary.” The rule allows other committee members to petition for a meeting to be held when at least three file a written request with the committee. Per the rule, if the chair does not call the meeting within three calendar days of the request being filed, a majority of the committee may file written notice that a special meeting will be held. However, the committee chair retains the right to preside over any such special meeting and holds the authority to grant recognition to other members at the meeting as he or she sees fit. For a historical example, see U.S. Congress, Senate Foreign Relations Committee, Special Meeting: History of Presidential Nominees Not Receiving Confirmation Hearings, 105th Cong., 1st sess., September 12, 1997, S.Hrg. 105-207 (Washington: GPO, 1997).

12 In contrast, when committees consider draft legislation that has not been introduced in the Senate, any amendments agreed to during markup are directly incorporated into the draft text. After final approval by the committee, the draft text (incorporating any approved amendments) is formally produced in the Senate for the first time.

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Example: Floor Consideration of Legislation Reported by Committee with

Amendments

A Senate committee meets for a markup of a bill, S.123. During the markup the committee approves two amendments to the measure and then votes that S.123 be ordered favorably reported to the Senate, with amendments. The amendments approved in committee are recommendations by the committee for the Senate to consider. The committee cannot directly amend legislation that has been referred to it. Only if the Senate agrees to the reported amendment(s) will the underlying text of the measure be changed. On behalf of the committee, the chair will report the bill, with its amendments, to the Senate. When the Senate proceeds to consider S.123, absent any unanimous consent agreement, each of the committee’s reported amendments automatically become pending before the chamber, sequentially, in the order that they were reported. Each amendment is debatable and may require a cloture process to reach a vote on final disposition. After voting on the committee amendments and any amendments offered by Senators during floor consideration, the Senate will vote on passage of the bill as amended, if amended.

Conversely, using a referred measure as markup text may not be well suited for legislation that is particularly complex or the subject of partisan disagreement. In such cases, committee members are likely to be more interested in offering amendments and engaging in debate. Using the referred measure as markup text in these cases could potentially prolong the markup if committee members desire many changes. To avoid delay, Senators and staff might instead negotiate the incorporation of multiple amendments intended to be offered by committee members into a single amendment in the nature of a substitute as markup text for further amendment. This has the effect of reducing the number of amendments needed to be called up and voted on during the markup, potentially streamlining consideration and focusing debate on a smaller number of amendments.

Draft Measure as Markup Text

All standing Senate committees have the authority to originate legislation. This means that a committee can hold a markup of draft text that has not yet been introduced in the Senate. If the committee orders the draft measure reported at the conclusion of the markup, the text formally becomes legislation in the Senate for the first time when the chair or his or her designee reports the measure.

Committees might choose to mark up draft legislation for a number of reasons. Committee members and staff typically play a significant role in drafting major legislation within their jurisdictions, and it can be faster to take up text as a draft bill instead of formally introducing the legislation.¹³ Originating legislation also allows, in theory, a committee to propose language that would otherwise be outside of its jurisdiction. Senate Rule XV, paragraph 5, prohibits committees from reporting amendments containing “any significant matter” not within their jurisdictions. Because original bills are not reported with amendments (as any amendments voted on during markup are directly incorporated into the final text), Senate Rule XV, paragraph 5, does not apply.¹⁴ However, reporting language outside of the committee’s jurisdiction may have political ramifications. Other committees may be unwilling to support legislation containing matter in their

13 In order to hold a markup of referred legislation, a committee must first be in possession of the official measure as printed by the Government Publishing Office (GPO). Availability of the measure can potentially be delayed depending on the workload of the Senate and GPO at any given time.

14 If a committee did report an amendment with significant matter outside of its jurisdiction, any Senator could raise a point of order against that amendment on the floor. If the point of order were sustained, the amendment would fall— meaning it would no longer be pending before the Senate and would not receive further consideration or a vote. The same amendment, however, could be offered from the floor. For this reason, if a Rule XV point of order is threatened, the committee might withdraw the committee-reported amendment, and the majority leader or committee chair could offer the same text as a floor amendment.

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jurisdictions on which they were not consulted, making it difficult to garner enough support for floor consideration and passage.

Example: Senate Consideration of Legislation Originated by Committee

A Senate committee meets to mark up an unnumbered and unintroduced draft bill, S. ___. Several amendments are offered and agreed to during the markup. The text of each of these amendments is directly incorporated into the final version of the draft that the committee votes to report to the Senate. The committee chair, on behalf of the committee, reports the draft to the Senate as an original bill. This moment effectively serves as the bill’s introduction in the Senate, and the bill is numbered at this time (e.g., S.456) and placed on the Calendar of Business. If called up for consideration on the Senate floor, no amendments are pending as they were already incorporated in the measure after being approved during markup. Senators may offer amendments to the original bill during floor consideration.

One consideration when choosing to mark up a draft text is that the final text reported to the Senate technically does not have any sponsors. Co-sponsorship of legislation, particularly when bipartisan in nature, can be used to demonstrate support for a measure. When a committee originates legislation, the chair is usually the one who reports the measure to the Senate on behalf of the committee. In turn, it is the chair’s name alone (or the name of whichever Senator reported the measure on behalf of the committee) that is identified as the “sponsor” in the Congress.gov database.¹⁵

Amendment in the Nature of a Substitute as Markup Text

In preparing for the markup of referred legislation or draft text, a committee can instead use a new version of the legislation as the starting point for consideration and further amendment. After a bill is introduced and referred, committee staff often solicit or receive feedback from executive agencies that will be implementing the legislation, as well as other stakeholders—such as interest groups, local government officials, or constituents—that may be affected by the proposed policies. Formally known as an amendment in the nature of a substitute, this type of amendment strikes all language after the enacting/resolving clause of the measure and inserts new text.¹⁶ An amendment in the nature of a substitute has a number of informal names, including:

• its acronym, “ANS,”¹⁷

• committee substitute,

• substitute amendment, or

• chair’s mark.

Regardless of how it is being referenced or the extent to which changes are being made, an ANS will always be drafted to strike and replace all text in the measure. The changes in an ANS could be as minor as a handful of technical edits while the vast majority of the measure’s text is reinserted without further change. Alternatively, an ANS could consist of entirely new bill text. In this way, an ANS is primarily a drafting consideration rather than a policy one. At the start of a

15 The Congress.gov legislative database assigns the reporting Senator’s name as the sponsor for an original measure reported out of committee. The printed text of an originally reported bill will state “[Senator’s name] from the [committee name], reported the following original bill.” For further reading on sponsorship of legislation in the Senate, see CRS Report 98-279, Sponsorship and Cosponsorship of Senate Bills, by Mark J. Oleszek.

16 All bills begin with the enacting clause, “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.” Joint resolutions begin with the resolving clause, “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled” (1 U.S.C §§101-102).

17 ANS is the shorthand used throughout much of the remainder of this report to reference an amendment in the nature of a substitute.

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markup, the chair will first recognize himself or herself or a designee to offer the ANS to the (referred or draft) measure being considered. The ANS itself is subject to further amendment by members of the committee.¹⁸

An ANS may be desirable to a committee as the starting point of a markup because, as previously described, it often reflects a series of discrete changes in a single package that allows for more efficient consideration than calling up and voting on multiple amendments individually. Reporting legislation with an ANS can also streamline floor consideration. Amendments are generally subject to no debate limit on the Senate floor, meaning each committee-reported amendment may need a cloture process to reach a vote. When the committee reports a single ANS, only one cloture process may be necessary.

Example: Senate Consideration of Legislation Reported by Committee with an

Amendment in the Nature of a Substitute (ANS)

A Senate committee meets for a markup of a bill, S.789. At the start of the markup, the chair calls up an ANS, which was circulated in advance to all committee members. Senators offer first-degree amendments to the ANS. In total the committee agrees to 12 amendments to the ANS. The committee then votes to approve the ANS, as amended (by the 12 adopted amendments). Finally, the committee votes to order S.789 favorably reported to the Senate with an ANS. The committee chair will report S.789 with an amendment on the Senate floor. If the Senate takes up the bill, the ANS is automatically pending. The amendment is debatable and may require a cloture process in order to reach a vote on final disposition. If the committee had not used an ANS and, instead, adopted and reported 12 individual amendments to the Senate, each amendment might require a separate cloture process to end debate. After the Senate votes on the committee’s ANS (as amended by any amendments to it that were offered by Senators during floor consideration), the Senate votes on passage of the bill, as amended.

One potential drawback of using an ANS is that it can be difficult to readily identify all changes proposed by the committee to the text of the measure reported by the committee. As previously mentioned, an ANS strikes all language after the enacting clause and inserts new language. Such a substitute could consist of many individual changes across the text of the measure. These are not readily identifiable due to the way the ANS is printed. In contrast, when a committee reports multiple individual amendments, the text of the reported measure shows removed language in strikethrough and added language in italics at only the places where amendments were agreed to (e.g., U.S. military U.S. Armed Forces).

Beginning a Markup

A markup usually commences with the committee chair calling the meeting to order, possibly announcing that a sufficient quorum is present to conduct business, and then detailing the agenda of business items intended to be considered. At this time, the chair might also inform committee members of any structural decisions on how the meeting will be conducted as agreed upon by the chair and ranking minority member. For example, the chair might indicate an intent to hold votes on items of business immediately (while a quorum is present) and that Senators will be recognized for their remarks afterwards. Alternatively, if communicated and arranged in advance with the ranking member, the chair might signal the intention to postpone roll call votes, when possible, to the end of the markup to better accommodate committee members’ schedules.

In general, markups operate informally for the convenience of committee members and to facilitate the expeditious consideration of legislation. Specifically, committees often rely on

18 See also the “Two Degrees of Amendment” section.

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negotiating what they can by unanimous consent, balancing what the chair wants to do— representing the will of Senators from the majority party—with what the ranking minority member will allow to happen—representing the will of Senators from the minority party. Ultimately, the specifics of how a markup operates will vary from committee to committee and meeting to meeting.

Matter Held Over

Committees sometimes observe the practice of allowing their members to request that a measure or matter on the agenda be held over until the next meeting of the committee.¹⁹ Members of the committee might request an item of business be held over because they desire more time to deliberate on their vote positions, to further develop amendments, or to simply delay the consideration of contentious legislation. If an item of business has been requested to be held over, the chair will usually announce this at some point near the outset of the markup, usually while discussing the day’s agenda. Any items held over will not be considered during the markup but will presumably be placed on the agenda for the next markup meeting the committee holds.

Opening Statements

The committee chair will usually recognize himself or herself first to speak on the substance of the measure or measures being considered in markup. Oftentimes, the ranking minority member will be recognized next for opening remarks on the day’s agenda as well. If other committee members are recognized for opening statements, the chair will usually alternate recognition by party and in order of seniority on the committee. Alternatively, the chair may ask for unanimous consent that members be permitted to submit their statements for the record.

Calling Up and Considering Legislation

The purpose of a markup is to take up and debate legislation; allow committee members to offer, debate, and vote on amendments; and, ultimately, vote on reporting the legislation to the Senate with its recommendations. Committees routinely consider multiple measures at one markup, often along with other business—such as nominations.

Under Senate rules, only one measure can be called up and considered at a time. Once the measure is pending before the committee, its text is amendable at any point.²⁰ Members of the committee can seek recognition from the chair to offer their amendments and speak on them. The bulk of the time spent during most markups is accorded to debate by members of the committee.

En Bloc Consideration

In practice, committees negotiate much of the agenda in advance of the markup whenever possible. This can lead to committees calling up legislation and amendments “en bloc” whereby several items of business are taken up and considered all together at the same time. En bloc consideration is not provided for in Senate rules and can occur only by the unanimous consent of the committee. In other words, absent the agreement of all Senators on the committee, it is not in order to make a motion to consider items of business en bloc.

19 The Committee on the Judiciary formally provides its members with the ability to hold over “a bill, matter, or nomination on the agenda … until the next meeting of the Committee or for one week, whichever occurs later” (Committee Rule 1, clause 3).

20 See also the “Two Degrees of Amendment” section.

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En bloc adoption of portions of the markup agenda enables a committee to efficiently process business that enjoys broad support and spend more time deliberating those items that do not. It is not uncommon to see most or all of a markup agenda—multiple bills with multiple amendments each—called up, agreed to as amended, and reported en bloc in a single unanimous consent request at the outset of the meeting. This rapid processing of business reflects the negotiating efforts of committee staff in the days leading up to the actual markup itself and is cleared with all members of the committee beforehand. As a result, consideration of the remainder of the agenda can be handled quickly at the start of the meeting when a sufficient quorum is present. This approach can be beneficial for Senators, who often have conflicting schedules and may need to attend multiple committee meetings in the same window of time.

Considering Amendments

The Senate rules that shape the amending process on the floor also apply to the amending process in committee markup.²¹ For example, Senate rules require that committee amendments be submitted in writing and read aloud when offered at markup. In practice, however, most committees operate more informally to accommodate the schedules and interests of committee members. For instance, amendments are usually not read aloud in committee, as this requirement is routinely waived by unanimous consent.

Although most committees operate informally much of the time, Senate rules and procedure remain relevant to protecting the individual rights of all Senators and serve to resolve situations where consensus cannot be reached. The sections that follow address, by topic, the routine parliamentary procedures used by committees to process amendments under the rules and in practice.

Pre-Filing Requirements

Many committees, by rule or practice, prohibit the consideration of first-degree amendments unless they have been submitted (or “pre-filed”) in advance of the markups at which they would be proposed. To establish a pre-filing requirement for a markup, committee leadership will circulate a notice with the legislative text to be considered, along with a deadline by which amendments must be submitted to the committee. Amendments must still be formally offered during the markup in order for them to receive consideration (unless the language has been incorporated into the text of an amendment in the nature of a substitute).²² First-degree amendments not filed in compliance with the committee’s deadline are not allowed to be called up at the markup unless the requirement is waived—usually by unanimous consent or by agreement of the chair and ranking member.²³

21 Readers seeking more detail on the Senate amending process should consult CRS Report 98-853, The Amending Process in the Senate, by Christopher M. Davis.

22 See also the “Amendment in the Nature of a Substitute as Markup Text” section.

23 An amendment in the form of a motion to strike is generally exempt from any pre-filing requirements in committee rules, meaning it would be in order to make such a motion without providing prior notice. One of the purposes of a pre- filing requirement is to allow all committee members sufficient time to read and understand changes being proposed in advance of a markup, particularly when it comes to adding new legislative language. In contrast, a motion to strike proposes only to remove language without adding anything new.

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Example: Committee on Banking, Housing, and Urban Affairs, Pre-Filing

Amendments

“It shall not be in order for the Committee or a Subcommittee to consider any amendment in the first degree proposed to any measure under consideration by the Committee or Subcommittee unless fifty written copies of such amendment have been delivered to the office of the Committee at least 2 business days prior to the meeting. It shall be in order, without prior notice, for a Senator to offer a motion to strike a single section of any measure under consideration. Such a motion to strike a section of the measure under consideration by the Committee or Subcommittee shall not be amendable. This section may be waived by a majority of the members of the Committee or Subcommittee voting, or by agreement of the Chairman and Ranking Member. This subsection shall apply only when the conditions of subsection [e][1] have been met” (Committee Rule 2(f)).

Managers’ Package

Particularly for markups of major legislation, it is common for the first amendment offered to be what is called a “managers’ package.” Managers’ package does not have a parliamentary definition, but the phrase is usually applied to a bipartisan group of amendments that have been negotiated in advance and will be agreed to swiftly, en bloc, by unanimous consent. Committees might impose pre-filing requirements on amendments, in part, to have the flexibility to negotiate a managers’ package prior to the markup. When the managers’ package is offered at the markup, it is often announced as having the support of the chair and ranking member or possibly that it has been cleared in advance by both the majority and minority parties. Frequently, the contents of a managers’ package are specified (e.g., “this amendment includes Smith number 3, Jones number 1, and Davis number 7”) to clarify what precisely the committee is voting on. Unlike an amendment in the nature of a substitute (ANS), which is a single amendment—potentially containing policy ideas from multiple Senators—a managers’ package, in this context, is typically multiple discrete amendments that are acted on together at the same time. As a result, a managers’ package benefits from creating a record of what policy proposals were submitted by individual Senators, whereas an ANS does not.

Offering and Debating Amendments

Once a measure has been called up and is pending before the committee, it is open to amendment at any point.²⁴ Senators may seek recognition from the chair to offer amendments and speak on them. The chair will typically alternate recognition of committee members by party and in order of seniority on the committee—both for purposes of offering amendments and for debate. Senators desiring to offer amendments should be prepared to have sufficient copies of each for distribution to all other committee members or, if the amendment was pre-filed with the committee, to call up the amendment by its designated number.²⁵ Amendments are to be read aloud by the committee’s clerk, but this requirement is rarely enforced.

There is generally no limit on debate in committee on a pending amendment or on the underlying measure being considered. When an amendment has been offered, its sponsor is recognized first

24 Committees can, by unanimous consent, choose to structure their amending processes in some other way. For example, a committee may choose to consider amendments section by section, where it is in order to offer an amendment to language only in the section pending before the committee at any given time. A more structured process may be useful in situations where legislation that is particularly complex or sprawling in subject matter is before the committee and Senators would prefer to focus debate on one topic at a time.

25 When multiple amendments from one Senator are pre-filed with the committee, they are typically designated in numerical order (e.g., Jones Amendment 1, Jones Amendment 2, etc.). This allows sponsors to distinguish which particular amendment they are calling up and other committee staff and members to quickly identify and review the text of the pending language.

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to speak on the proposal. Other Senators may then seek recognition for further debate. Only the Senator who has been recognized by the chair is permitted to speak, though other committee members may ask that they yield for a question or comment. The Senator with recognition decides whether or not to yield for any purpose. During uncontentious markups, Senators routinely engage with one another during debate in a more informal manner.

Ending Debate (Including the Motion to Table)

As mentioned previously, in most circumstances there is no limit on debating an amendment. Debate ends primarily when no Senator desires to speak further. The chair will ask if there is any further debate and, if there is no response, put the question on agreeing to the amendment to the committee. Alternatively, it is in order for any Senator to offer a motion to table a pending amendment. The motion is non-debatable, meaning the committee immediately proceeds to a vote on it. If a majority agrees to the motion to table, the pending amendment is disposed of permanently and adversely. The underlying measure remains pending before the committee and is open to further amendment. If the motion to table is not agreed to, debate resumes until no further Senator seeks recognition. A motion to table is in order only in relation to the item of business pending before the committee. In other words, the motion cannot be used to table amendments that have not yet been called up or that have already received a vote.

Two committees have rules that provide an additional mechanism for ending debate on a pending question. The Committee on the Judiciary’s Rule IV allows any member to make a non-debatable motion to bring a matter before the committee to a vote. If there is objection to the motion, the committee proceeds with a roll call vote, and debate is ended if supported by a majority.²⁶ The Committee on Finance’s Rule 8 allows the chair to decide to proceed to a vote on the pending question unless a majority votes on a non-debatable motion in favor of continuing debate.

Two Degrees of Amendment

Legislation being marked up in committee is amendable in two degrees. A first-degree amendment proposes changes to the bill being considered. A second-degree amendment proposes a change to a first-degree amendment. An amendment in the nature of a substitute is also subject to two degrees of amendment. While only two degrees of amendments may be pending at one time, once the committee votes on an amendment, any member may then offer another amendment to that “branch” of the “amendment tree.”²⁷

In practice, second-degree amendments are relatively uncommon in committee markup. Much of the time, Senators seek to offer their policy proposals as first-degree amendments, speak to the merits of their ideas, and receive votes on them. Committee members might alternatively seek to modify their amendments as a less formal way of incorporating changes that could otherwise be offered as second-degree amendments.

26 Committee Rule IV specifies that the vote to end debate requires the support of at least one member of the minority party. In practice, a majority of the committee has, at times, agreed to end debate without minority support.

27 Although amendments can be offered in only two degrees, Senate precedents allow other types and forms of amendment to be offered in relation to a first-degree amendment. See CRS Report 98-853, The Amending Process in the Senate, by Christopher M. Davis. In particular, see Figures 1-7 in the report for images of the amendment trees— graphical depictions of how many amendments can be pending to a measure at one time.

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Voting Order on Amendments and Concluding the Markup

The following voting order assumes two degrees of amendments pending to an amendment in the nature of a substitute (ANS) to a bill being marked up. After the committee votes on a first- or second-degree amendment, any other member of the committee may then offer another amendment on that branch of the amendment tree. In practice, some committees will first vote to approve the ANS and then consider further amendments. Under Senate precedents, once an ANS is agreed to, there is no further legislative text available for amendment, but a committee can override this precedent by agreeing to treat the adopted substitute as original text for purposes of further amendment by unanimous consent—either explicitly or tacitly. While committees usually mark up legislation in the way they find most convenient and familiar, the list below provides the order in which committees can vote on pending amendments that complies with Senate rules and precedents:

• The committee votes on the pending second-degree amendment. If no Senator offers another second-degree amendment or otherwise seeks recognition, then—

• The committee votes on the pending first-degree amendment (as amended, if amended, by any second- degree changes). If no Senator offers another first-degree amendment or otherwise seeks recognition, then—

• The committee votes on the pending ANS (as amended, if amended, by any first-degree changes).

• If a majority supports the ANS, there is no further amendable text, and no additional amendments are in order.

• If a majority rejects the ANS, the bill remains before the committee for amendment.

• The committee votes on a motion to order the measure reported with (or without) an amendment.

Modification

Pursuant to Senate precedents, Senators have the right to modify, or change, their own amendments before action has been taken on them. Once an amendment is further amended, is voted on by the committee, or is subject to certain unanimous consent agreements, a Senator can no longer make a modification unilaterally. Committee practice varies on whether and when Senators can modify their amendments when a pre-filing requirement has been imposed.²⁸

Senators might modify their own amendments during markup for a number of reasons. During debate, changes might be proposed by other committee members that the sponsor agrees with and is willing to incorporate into the amendment. Alternatively, a modification might allow for a simple correction to a technical or drafting error. Modifications are often an easy way for committees to process changes during markup without resorting to the formalities of using a second-degree amendment. Sometimes, committees notice an amendment in the nature of a substitute as the markup text for further amendment but then incorporate, by unanimous consent, other “pre-filed” amendments from individual members as a modification at the outset of a markup.

Withdrawal

After an amendment has been offered but before the committee has acted on it, the sponsor maintains the right to withdraw the amendment. The sponsor cannot unilaterally withdraw the amendment if the amendment is further amended, is voted on by the committee, or has been subjected to certain unanimous consent agreements. In these cases, an amendment can be withdrawn only by unanimous consent. A Senator may withdraw an amendment while a second- degree amendment is pending to it. In such cases, a withdrawn amendment disposes of any amendments pending to it.²⁹

28 See also, the “Pre-Filing Requirements” section.

29 Riddick and Frumin, Riddick’s Senate Procedure, pp.119-123.

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Offering and withdrawing amendments is a strategy that committee members can use to secure time to speak on policy issues relevant to their agendas and/or constituents but may not have support from a majority of the committee at that moment in time. Oftentimes a Senator will attempt to secure commitments from committee leadership to find opportunities to get such amendment language into the bill at a later stage of consideration or into another legislative vehicle. Withdrawing such an amendment both saves the time of the committee, by avoiding the need for a vote, and protects the agenda of the sponsoring Senator from potential rejection by the committee if the amendment is voted down.

Germaneness

In theory, Senators have few restrictions on the content they can propose as amendments during committee markup. There is no general germaneness requirement for amendments under Senate rules. However, Senate Rule XV prohibits committees from reporting amendments containing “significant matter” outside of their jurisdictions.

In practice, committees may impose a germaneness standard during markup. The committee could agree to a germaneness standard by unanimous consent, or the chair and ranking minority member could announce their agreement not to support nongermane amendments. Some committees have rules or long-standing practices prohibiting nongermane amendments. Committees might choose to adhere to a germaneness standard to keep debate focused on the subject matters before them and to avoid the possibility of a Rule XV point of order being raised on the floor against any reported amendments.

Example: Committee on Finance, Germaneness Requirement

As part of its rule regarding committee meetings, the Committee on Finance effectively imposes a germaneness standard on amendments at all of its markups. Committee Rule 2(a) states, in part: “After the agenda for a committee meeting is published and distributed, no nongermane items may be brought up during that meeting unless at least two-thirds of the members present agree to consider those items.” Amendments have been ruled nongermane during Finance Committee markups pursuant to Rule 2(a).

Quorums

Senate rules establish the minimum number of Senators that must be present at a markup in order to conduct certain actions. Some committees have also adopted quorum rules that are stricter than those under the standing rules of the Senate—namely, requiring minority party participation or establishing a higher minimum threshold than would otherwise be required by Senate rules.

Example: Committee on Armed Services, Quorum Required to Transact Business

“Except as provided in subsections (a) and (c), and other than for the conduct of hearings, nine members of the Committee, including one member of the minority party; or a majority of the members of the Committee, shall constitute a quorum for the transaction of such business as may be considered by the Committee” (Committee Rule 6(b)).

Two quorum requirements are established by Senate Rule XXVI, paragraph 7(a)(1)—one for the transaction of business and another to report a measure or matter. Under the rule, committees must have no less than one-third of their memberships present in order to transact business, such as voting on amendments or motions offered during markup. The rule also requires a majority of

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the committee be “physically present” to vote on a motion to report legislation or other matters to the Senate, such as a nomination.³⁰

Failure to meet the minimum quorum requirement on a motion to report may result in a point of order being raised on the Senate floor. If a point of order is raised and subsequently sustained by the presiding officer, the improperly reported measure or matter is considered never to have left committee.³¹ The committee may meet again to vote on reporting the measure or matter with a proper quorum present.

Motions, Points of Order, and Parliamentary Inquiries

While the primary motions made during a markup focus on amending pending text and reporting measures or matters to the Senate, committee members may offer other parliamentary actions. These concepts are explored in the sections that follow.

Points of Order and Appeals³²

If a member of the committee perceives that a rule has been (or is about to be) violated, a Senator may announce a point of order. The chair will then recognize the Senator to explain what rule or rules are being violated and by what action. Any further debate on the point of order by other Senators is at the discretion of the chair. Following debate, if any has been allowed, the chair will rule on whether the point of order is well taken (upheld) or not.

Regardless of how the chair rules on a point of order, any member of the committee may challenge the ruling by making an appeal. The appeal is debatable, and Senators may seek recognition to speak on the question. When no Senator seeks to further debate the appeal, the chair will put the question to the committee for a vote: “shall the decision of the chair stand as the judgment of the committee?” If a majority of the committee votes in favor of the question, the chair’s ruling is upheld. Conversely, if a majority votes against the question, the ruling of the chair is overturned. An appeal is also subject to a non-debatable motion to table, whereby a majority can preempt discussion on the appeal and immediately vote to dispose of it. Tabling an appeal has the effect of upholding the ruling of the chair.

Parliamentary Inquiry

A member of the committee may seek clarity on the pending procedural situation by announcing to the chair that he or she has a parliamentary inquiry, which is less formal than a point of order. The chair has discretion in responding to a question posed as a parliamentary inquiry. If the chair provides an answer to a parliamentary inquiry, the response is not subject to an appeal, as the chair is merely advising on a question and not making a ruling.³³

30 Senators can vote by proxy in committees that allow the practice (see the “Proxies” section), but such votes cannot be used to establish a quorum, because, by definition, those voting by proxy are not present.

31 Riddick and Frumin, Riddick’s Senate Procedure, p. 1198; Congressional Record, vol. 109 (July 31, 1963), pp. 13791-13794.

32 For additional reading on the topic, see CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate, by Valerie Heitshusen.

33 Riddick and Frumin, Riddick’s Senate Procedure, p. 977.

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Motions to Recess or Adjourn

Typically, the chair of the committee will recess or adjourn markups “without objection.” If objection is heard, the chair can instead formally make a non-debatable motion to that effect. Although it is uncommon, other members of the committee could also make a motion to recess or adjourn. These motions are not debatable, meaning the committee immediately votes on the question, and it requires majority support to prevail.

Closed Session

Under Senate rules, by default, committee meetings are open to the public. However, committees may close certain meetings to the public if deemed necessary by a majority of the committee. Senate Rule XXVI, paragraph 5(b), enumerates specific criteria by which a committee could close its meeting to the public and includes situations such as the disclosure of confidential or secret national security matters, charges of criminal misconduct against an individual, disclosure of law enforcement information, disclosure of commercial secrets, or matters relating to committee staff.

In order to enter a closed session, Senate Rule XXVI provides that any member of the committee may make a motion to do so while it is in public session. If the motion is seconded, the committee will proceed to closed door session to debate the question and determine whether any of the criteria listed in Senate Rule XXVI, paragraph 5(b), have been met. Once the committee has concluded discussion, it is to return to public session and proceed to a recorded vote on whether to close the meeting to the public. If the motion is agreed to, members of the public are directed to vacate the room, and the committee continues its business behind closed doors.³⁴

Voting

After no Senators seek further recognition to debate a question (e.g., agreeing to an amendment, going into closed session, ordering a measure reported), the committee votes on its disposition. By default, votes are conducted by voice vote, with the chair asking all those in favor to say “aye” and those opposed to say “no.” The chair will then announce his or her opinion on the result of the vote (e.g., “in the opinion of the chair, the ‘ayes’ have it”) before formally announcing the final result (e.g., “the ayes have it and the amendment is agreed to”). Any member of the committee may request a roll call vote at any point prior to the final announcement of the voice vote result by the chair. During a roll call vote, each Senator’s name is called out by the committee’s clerk, who records the Senators’ positions.

Committees routinely grant roll call votes on any vote when requested by any individual Senator, though practices vary from committee to committee. Some committees’ rules formally allow any individual Senator to request a recorded vote on any question, such as the Indian Affairs Committee Rule 7(a). Others, such as the Committee on Rules and Administration, set out requirements for a sufficient second to order a roll call vote be taken.³⁵ The constitutional

34 Senate Rule XXVI, paragraph 5(e)(1) requires committees to maintain a complete transcript or recording of meetings even when operating in closed session unless a majority of the committee votes to waive the requirement. However, transcripts or recordings of closed meetings are not required to be shared with the public (per Rule XXVI, paragraph 5(e)(2)(A)).

35 The Rules and Administration Committee’s Rule 13 requires that a roll call vote be ordered on demand by one-third of committee members present.

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requirement for a sufficient second to secure a roll call vote is one-fifth of those present (with a minimum quorum assumed to be present), but this is rarely insisted upon.³⁶

A question must receive the support of a majority of committee members in order to be agreed to. A majority voting in opposition to a question defeats the motion. Similarly, a tie vote also results in defeat of the question.

Proxies

Proxy voting occurs when a Senator present at markup casts a vote on behalf of another Senator who is absent. Senate rules permit committees to allow votes by proxy when the committee member has been informed of the matter being voted on and has affirmatively requested to have a vote cast in his or her absence.³⁷ Most committees’ rules address when and how proxies are allowed to be used. Assuming a committee has provided sufficiently detailed notice of its markup agenda in advance, a Senator could, in theory, cast a vote by proxy on most questions when absent (e.g., adoption of pre-filed first-degree amendments, adoption of the legislative text as amended, and motions to report). When a Senator desires to be recorded by proxy and committee rules permit it, staff should be sure the request is properly submitted to the committee prior to the vote.

Example: Committee on Energy and Natural Resources, Proxy Voting

“Proxy voting shall be permitted on all matters, except that proxies may not be counted for the purpose of determining the presence of a quorum. Unless further limited, a proxy shall be exercised only upon the date for which it is given and upon the items published in the agenda for that date” (Committee Rule 7(b)).

There are limits on how proxies can be applied during markup. In no case can proxies be used to establish a quorum for a meeting of the committee. Additionally, Senate rules require a quorum of a majority physically present in order to vote on a motion to report. While some committees allow proxy votes to be cast on the motion to report a measure or matter, only proxies voting against the motion to report can count toward the final outcome. In other words, all “yes” votes from committee members physically present must outnumber all no votes, whether cast in person or by proxy. “Yes” proxy votes on the motion to report never count toward the motion prevailing but may still be used for purposes of recording an absent Senator’s position for the record.

Polling

Polling occurs when a committee’s chair—possibly in consultation with the ranking minority member—surveys members of the committee on a question outside of a formal meeting. Although it is not addressed in Senate rules, some committees allow polling by rule or by practice. For example, committee leadership might poll members on whether to seek unanimous consent on the Senate floor to discharge the committee from further consideration of a certain measure in lieu of conducting a formal markup.

36 U.S. Constitution, Article 1, Section 5, states in part that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” For further reading, see CRS Report 96-452, Voting and Quorum Procedures in the Senate, coordinated by Elizabeth Rybicki.

37 Senate Rule XXVI, paragraph 7(a)(3).

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Example: Committee on Agriculture, Forestry, and Nutrition, Polling

“The committee may poll any matters of committee business, other than a vote on reporting to the Senate any measures, matters or recommendations or a vote on closing a meeting or hearing to the public, provided that every member is polled and every poll consists of the following two questions: (1) Do you agree or disagree to poll the proposal; and (2) Do you favor or oppose the proposal. If any member requests, any matter to be polled shall be held for meeting rather than being polled. The chief clerk of the committee shall keep a record of all polls” (Committee Rule 6.3).

Committee rules on polling vary. Some committees require unanimous approval from a poll in order to take action on a question. Others allow any single committee member to request a polled matter be formally taken up at a meeting of the committee instead. Committees may also limit what may be the subject of a poll.

Reporting Legislation

When no member of the committee seeks to offer further amendment or debate the pending measure, a markup concludes with the chair moving that the measure be ordered reported.³⁸ This motion is, in effect, asking if the committee will agree to send the legislation, along with any amendments and its recommendations, to the Senate. The step of actually reporting the measure takes place when paperwork—including the reported version of the bill—is physically delivered to the full Senate. (In modern practice, this usually means submitting it at the Clerk’s desk.) If the motion is not agreed to, which is unusual, the measure remains in committee and may be taken up again.

When ordering a measure reported, the motion is made to report favorably, unfavorably, or without recommendation. Committees routinely order legislation reported favorably to indicate that the Senate should take up and pass the measure along with any amendments agreed to during the markup. It is rare in modern practice for a committee to order legislation reported unfavorably or without recommendation. Rather, if the committee is opposed to a measure, it is unlikely to take any action that would facilitate floor consideration.

Committees have several options regarding the form in which they will report a measure to the Senate. If the committee does not agree to any changes during markup, the measure is reported without amendment (in the same form that it was initially introduced). Alternatively, if the committee agrees to any changes during the markup, the measure is reported with an amendment (or amendments) to be considered by the Senate when the bill is taken up on the floor. If a committee intends to report multiple discrete changes to the Senate, it will most commonly do so with one amendment in the nature of a substitute (ANS). A committee will often start a markup with an ANS (to a referred or draft bill) as the text for further amendment. In such cases, the ANS—possibly as further amended—is what the committee reports. Even when a markup does not begin with an ANS and multiple discrete amendments are adopted, committees will often reach unanimous consent to package and report these individual amendments together as a single ANS.

As noted earlier, reporting one ANS versus several individual amendments affects how these amendments will be considered on the Senate floor. Under the rules, when legislation that has been reported by committee is called up for floor consideration, any committee amendments

38 When an ANS is used as the markup text, the committee votes on adopting the ANS (as amended, if amended) prior to voting to order the measure reported as amended by the ANS. See the “Voting Order on Amendments and Concluding the Markup” text box in the “Two Degrees of Amendment” section.

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would automatically become pending. Each amendment is a debatable question that may require a cloture process (and supermajority support) in order to reach a vote on final disposition. Committees can avoid the potential need for multiple cloture processes on multiple amendments by reporting a single ANS that will require, at most, a single cloture process.³⁹

Committees also have the option of marking up and reporting original measures. Instead of taking up legislation reported to it, the committee could mark up a draft measure. Amendments agreed to during markup are directly incorporated into the final legislative text that is reported to the Senate. This is in contrast with committee amendments agreed to during markup of referred legislation. In this case, as discussed in the previous paragraphs, amendments are instead reported to the Senate for consideration by the full chamber.

In addition to ordering a measure reported and then physically reporting it to the Senate, committees may also produce a written report to accompany legislation. Senate rules do not require committee reports, though if a committee chooses to produce one, there are requirements on its content.⁴⁰ At the time a measure is ordered reported, any committee member may give notice of an intention to submit views for inclusion in a report filed by the committee.⁴¹

The “Cleansing Clause” or “Cleanup Provision”

Senate Rule XXVI, paragraph 7(a)(3), lays out requirements for how a committee should properly report legislation. The rule further provides that if legislation is properly reported, then no point of order can be made against the measure on the grounds that some procedural flaw occurred during the committee’s consideration. As a result of the protection provided by the rule, this language is sometimes colloquially referred to as the “cleansing clause” or “cleanup provision.”

Senate Rule XXVI, Paragraph 7(a)(3)

“The vote of any committee to report a measure or matter shall require the concurrence of a majority of the members of the committee who are present. No vote of any member of any committee to report a measure or matter may be cast by proxy if rules adopted by such committee forbid the casting of votes for that purpose by proxy; however, proxies may not be voted when the absent committee member has not been informed of the matter on which he is being recorded and has not affirmatively requested that he be so recorded. Action by any committee in reporting any measure or matter in accordance with the requirements of this subparagraph shall constitute the ratification by the committee of all action theretofore taken by the committee with respect to that measure or matter, including votes taken upon the measure or matter or any amendment thereto, and no point of order shall lie with respect to that measure or matter on the ground that such previous action with respect thereto by such committee was not taken in compliance with such requirements.”

In order to properly order a measure reported, a committee must meet two requirements: First, Rule XXVI, paragraph 7(a)(1), requires a majority of the committee to be physically present during the vote on the motion to report. Second, committee members physically present and voting in favor of the motion must outnumber all no votes (including noes by proxy). Said

39 If a committee reports a measure with multiple amendments and cannot secure unanimous consent for their approval on the Senate floor, another option is for the chair, with the authority of the committee, to withdraw the committee amendments and offer an ANS consisting of those amendments instead.

40 For more information, see CRS Report 98-305, Senate Committee Reports: Required Contents, by Elizabeth Rybicki. See also U.S. Congress, Senate Commerce, Science, and Transportation Committee, Guide for Preparation of Committee Reports, committee print, 111th Cong., 1st sess., November 9, 2009, S. Prt. 111-33 (Washington: GPO, 2009).

41 Senate Rule XXVI, paragraph 10(c), provides committee members with “not less than three calendar days in which to file such views” if the request to do so is made at the time a measure or matter is approved by the committee.

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another way, favorable proxy votes do not count toward approving the motion, but proxy votes opposed do count toward defeating the motion (if permitted by committee rules).

Concluding a Markup

After the committee has considered all items of business on its agenda, the chair may take some optional final steps before formally concluding the markup. If any measures have been ordered reported with amendments, the chair may ask unanimous consent that committee staff be allowed to make any necessary technical and conforming changes to the legislative text(s) that will be reported to the Senate. The chair may also make some closing remarks and potentially offer to recognize other committee members for the same. To formally end the meeting, the chair will announce that the committee stands adjourned.

Author Information

Michael Greene Analyst on Congress and the Legislative Process

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