Order Code RS22985
November 14, 2008
“Fast Track” Parliamentary Procedures of the
Emergency Economic Stabilization Act
Christopher M. Davis
Analyst on the Congress and Legislative Process
Government and Finance Division
The Emergency Economic Stabilization Act of 2008 (Division A of H.R. 1424,
P.L. 110-343) empowers the Secretary of the Treasury to purchase certain “troubled
assets” as a means to stabilize the economy. Should the Secretary wish to have more
than $350 billion outstanding under the troubled assets program, the President must
submit a written report to Congress detailing the Secretary’s request and his plan to
implement it. The receipt of this report triggers a 15-day period during which Congress
may reject the Secretary’s request by enacting a joint resolution of disapproval. This
disapproval resolution would be considered in the House and Senate under “fast track”
parliamentary procedures which are intended to ensure an opportunity to consider and
vote on the measure. This report examines these procedures and explains how they
differ from the regular parliamentary mechanisms of the House and Senate. It will be
updated as needed.1
Graduated Authorization to Purchase
The Emergency Economic Stabilization Act of 2008 (EESA)2 empowers the
Secretary of the Treasury to purchase and insure certain “troubled assets” as a means to
establish stability in the nation’s financial system, and authorizes funds on a graduated
scale that the Secretary may use for this purpose. The act immediately authorizes the
Secretary to have up to $250 billion outstanding at any one time under the troubled assets
purchase program. This authorized maximum will automatically increase to $350 billion
outstanding upon the President’s submission to Congress of a certification of need.
Should the Secretary of the Treasury wish to have in excess of $350 billion
outstanding at any one time under the troubled asset purchase program, the President must
For information on the policy questions relating to this law, see CRS Report RL34730, The
Emergency Economic Stabilization Act and Current Financial Turmoil: Issues and Analysis, by
Baird Webel and Edward V. Murphy.
P.L. 110-343. 122 Stat. 3831.
submit a written report to Congress detailing the Secretary’s plan to exercise this
additional authority. The submission of this report triggers a 15-calendar day period
during which Congress may enact a joint resolution disapproving the request. The act
further establishes special “fast track” parliamentary procedures for congressional
consideration of this joint resolution. Should Congress either choose not to, or be unable
to successfully, enact a disapproval resolution by the expiration of this 15-day period, the
Secretary’s authority would automatically increase up to $700 billion in outstanding
purchases at one time under the troubled assets program.
Expedited Parliamentary Procedures
Section 115(c) of EESA establishes a set of expedited parliamentary procedures by
which Congress may consider a joint resolution rejecting the Secretary’s plan. Statutes
that contain provisions establishing expedited procedures regulating the consideration of
particular legislation are frequently called “rulemaking statutes,” because their procedures
have the same force and effect of standing rules of the House or Senate.3 These expedited
legislative procedures were created by Congress to ensure that it could promptly consider
and act on the Secretary’s proposal within the 15-day time frame. The procedures
accomplish this goal by exempting the joint resolution of disapproval from many of the
ordinary time-consuming steps and legislative obstacles that apply to most other measures
Congress considers. In short, the resolution is considered not under the ordinary
parliamentary procedures of the House and Senate, which are, by design, slow and
uncertain, but on a special parliamentary “fast track.” These procedures address:
Reconvening Congress. Should Congress receive a report from the President
detailing the Secretary of the Treasury’s desire to have more than $350 billion outstanding
under the troubled assets purchase program, EESA directs the Speaker, if the House has
adjourned, to notify Members that the chamber will reconvene not later than the second
calendar day thereafter. Likewise, if the Senate has adjourned or recessed for more than
two days, the Senate majority leader, after consultation with the minority leader, is to
notify Senators that the body will reconvene.
Under modern practice, when one or both chambers adjourn for more than three
days, the adjournment resolution adopted by the House and Senate grants its leaders
discretionary authority to recall the chambers in the event of an emergency or if the public
interest warrants.4 Interestingly, EESA seems to make Congress’s reconvening mandatory
— even if one or both chambers does not wish to disapprove the plan.
Text of the Joint Resolution. Unlike bills, joint resolutions often include a
preamble.5 The joint resolution of disapproval under EESA, however, may not contain
a preamble. The title of the joint resolution is specified by the statute: “Joint resolution
CRS Report RS20234, Expedited or “Fast-Track” Legislative Procedures, by Christopher M.
William Holmes Brown, Charles W. Johnson, House Practice, A Guide to the Rules,
Precedents, and Procedures of the House, 108th Cong., 1st sess. (Washington: GPO, 2003), ch.1,
§10, pp. 9-10.
Ibid., ch.6, §5, p. 171.
relating to the disapproval of obligations under the Emergency Economic Stabilization
Act of 2008.” Its text is mandated as well: “That Congress disapproves the obligation of
any amount exceeding the amounts obligated as described in paragraphs (1) and (2) of
section 115(a) of the Emergency Economic Stabilization Act of 2008.” It is arguably
necessary for the statute to specify the precise text of the joint resolution because, unless
it is clear which measure Congress intends to be considered under expedited terms,
unrelated measures or provisions might “hitch a ride” on the special parliamentary
privilege that is afforded the joint resolution, shortcutting the regular legislative process
and the rights of all Members.
Introduction. In the regular order of business, a Member of Congress may
introduce legislation at any time their chamber is in session during the two-year Congress.
EESA, however, establishes a far narrower window in which Members may introduce a
qualifying joint resolution of disapproval. In order to qualify for the expedited procedures
outlined in the act, a joint disapproval resolution must be introduced not later than three
calendar days after the date on which the President’s report detailing the Secretary’s plan
is received by Congress. Although the statute is silent on the question, joint resolutions
may conceivably be introduced by any Member in either chamber. Because the
mandatory recall provisions described above, however, make it possible that the House
or Senate may not reconvene until two calendar days after the report’s submission, it is
possible (even likely) that Members will have only a single calendar day in which to
introduce a qualifying joint resolution of disapproval.
Referral to Committee. EESA is silent on the referral process for a joint
resolution of disapproval introduced in the House of Representatives, and the Speaker
would presumably refer the measure to committee in keeping with regular practice and
her authority under chamber rules. In the Senate, when a joint resolution is introduced,
under the terms of EESA, it is not referred to committee at all, but is instead placed
directly on the Senate Calendar of Business. Under normal Senate practice, when
legislation is introduced, it is referred to committee based on the subject matter that
predominates in it. Under Senate Rule XIV, a measure might be placed directly on the
Senate Calendar of Business upon introduction via a process of objecting to the first two
readings of the measure, which technically must occur on different legislative days.
Under EESA, referring the joint resolution to Senate committee, rather than placing it
directly on the calendar, would seem to require unanimous consent.
Committee Action in the House. With certain exceptions — for example, when
time limits are placed on the sequential referral of a bill by the Speaker of the House —
Congress generally does not mandate that a legislative committee act on legislation
referred to it within a specified time frame or at all. The EESA expedited procedure,
however, requires a committee of referral to act and creates parliamentary mechanisms
to take the resolution away from it should it fail to do so.
Under EESA, if a House committee has not reported the joint resolution of
disapproval within five days after Congress’s receipt of the President’s report, the
committee is automatically discharged from its further consideration and the measure is
placed directly on the appropriate calendar. These expediting provisions theoretically
make it impossible for a joint resolution of disapproval to be long delayed or killed
outright by the inaction of a legislative committee. The statute is silent on whether a
committee may amend the resolution, but because (as has been noted) the precise text of
the joint resolution is specified by the act, any attempt to alter it by amendment would
likely be interpreted as destroying the special parliamentary status it enjoys. Additionally,
because the procedure precludes the consideration of amendments to the joint resolution
on the House floor (discussed below), committee amendments would also be barred. A
House committee would presumably still have the option of reporting a measure to the
chamber favorably, adversely, or without recommendation.
Calling Up the Joint Resolution on the Floor. After each House committee
of referral has reported or been discharged from the further consideration of the joint
resolution, it is in order, not later than the sixth calendar day following the submission of
the President’s report, for any Member to make a non-debatable motion to proceed to its
consideration. Such a motion cannot be repeated after one has already been disposed of,
and the vote on the motion may not be reconsidered.
In the Senate, under most circumstances, a motion to proceed to the consideration
of a measure is fully debatable.6 The motion to proceed to the consideration of the joint
resolution of disapproval under EESA, however, is not debatable or amendable, and it
cannot be postponed. The motion is in order in the Senate at any time during the period
beginning on the fourth day after the date on which Congress receives the President’s
report and ending on the sixth day after receipt. In the Senate, the motion to proceed is
permitted even if a previous motion to the same effect has been defeated. If a motion to
proceed is agreed to, the chamber immediately proceeds to consider the joint resolution
without intervening motion, order, or business. Having chosen to take up the disapproval
resolution by adopting the motion to proceed, consideration of the measure is, in a sense,
“locked in.” The joint resolution remains the unfinished business of the chamber until the
chamber disposes of it.
Floor Debate. In the absence of a special rule dictating otherwise, the House of
Representatives ordinarily debates measures under the one hour rule or under other
procedures which establish specific periods for debate, such as the suspension of the rules
procedure. In keeping with its expediting nature, EESA limits the amount of time for
House floor consideration of the joint resolution of disapproval. Debate in the House on
the joint resolution, and all debatable motions and appeals connected with it, is limited
to not more than two hours, equally divided between a proponent and an opponent.
In the Senate, debate is ordinarily unlimited unless it has been structured by
unanimous consent or limited by the invocation of cloture under Senate Rule XXII.
Under EESA, however, Senate debate on the joint disapproval resolution, and on all
debatable motions and appeals in connection therewith, is limited to not more than 10
hours, divided equally between the majority and minority leaders or their designees. A
non-debatable motion to further limit debate is in order. Using this device, the Senate
could, by majority vote, reduce debate time below 10 hours.
Motions, Amendments, Voting. EESA includes provisions which make it
difficult to delay or set the joint resolution aside without a vote, for example, by returning
The motion to proceed to consider conference reports, nominations, treaties, and legislation
under certain rulemaking statutes is not debatable. The motion is also not debatable when made
during the Morning Hour.
it to legislative committee or the calendar. Amendments to the joint resolution of
disapproval are not in order in either chamber. In the House, all points of order against
the joint resolution and its consideration are waived, and the previous question is
considered to be ordered to its final passage without any intervening motion, including
a motion to recommit. Thus, at the conclusion of debate, the House would automatically
vote on adoption of the measure.
In the Senate, the joint resolution is not subject to a motion to postpone, to recommit,
or a motion to proceed to the consideration of other business. A motion to reconsider the
vote by which the joint resolution is agreed to or disagreed to is also not in order. After
the conclusion of debate and a single quorum call (if requested), the chamber immediately
would vote on final passage of the joint resolution. Appeals from the decision of the chair
relating to consideration of the joint resolution are to be decided without debate.
Automatic Legislative “Hookup.” The EESA also includes provisions to
facilitate the exchange of legislation between the House and Senate. If, before voting
upon its own joint resolution, a chamber receives a joint resolution passed by the other
chamber, that engrossed joint resolution is not referred to committee. The second
chamber will proceed to consider its own joint resolution in the fashion laid out in the
statute, until the point of final disposition, when the vote taken will be on the engrossed
resolution passed by the first chamber. The purpose of this provision is to avoid the need
to expend time choosing whether ultimately to act upon the House or Senate vehicle.
Additional Provisions. EESA includes a number of additional provisions
intended to expedite consideration of the joint resolution of disapproval. For example,
if one chamber fails to introduce or consider a joint resolution under EESA, the resolution
of the other House is entitled to “fast track” consideration in the other chamber. If,
following passage of the joint resolution in the Senate, it then receives a companion
measure from the House, that companion measure is not debatable.
EESA includes provisions stating that if Congress passes a joint resolution, the
period beginning on the date the President is presented with the enrolled joint resolution,
and ending on the date he takes action on it, is disregarded in computing the 15-calendar
day period before an increase in the Secretary’s authorization automatically goes into
effect. Likewise, if the President vetoes the measure, the period beginning on the date of
the veto, and ending on the date Congress receives the veto message, is not calculated.
These provisions are included to ensure that the President cannot simply “run out” the 15day time clock once the joint resolution is presented to him for signature.
Finally, in the event of a Presidential veto, debate on a veto message in the Senate
is limited to one hour equally divided between the majority and minority leaders or their
designees. Under ordinary circumstances, such a veto message would be fully debatable.
The act is silent on House consideration of a veto message.
Implications of Resolutions of Disapproval
Under the terms of EESA, a joint resolution must be enacted in order to disapprove
the Treasury Secretary’s plan. This means that not only would it have to pass both
chambers, but it must also be signed by the President, or enacted over his veto, to take
effect. For this reason, some Members have argued that resolutions of disapproval of this
type generally put Congress at an institutional disadvantage relative to the Executive, in
that a President is almost certain to veto the resolution. During debate over the enactment
of a different rulemaking statute which included a joint disapproval resolution, one
Member voiced this view of the power relationship between the branches, stating,
A veto would, of course, be likely since the resolution would be disapproving what
the executive has proposed. Then it would take two-thirds majorities in both Houses
of Congress to effectuate the Congress’ expression of disapproval. In other words, a
resolution of disapproval would allow as few as 34 Senators, working with one Chief
Executive, to block the will of ... Members of Congress.7
Conversely, others have argued that resolutions of disapproval give the President
necessary flexibility to act, while still reserving the prerogative of Congress to overrule
him and influence important policy questions.
Either Chamber May Alter the Expedited Procedure
The fact that an expedited procedure like that of EESA is contained in a rulemaking
statute does not mean that another law must be passed in order to alter it. It is sufficient
that a majority of Members of either chamber agree to ignore or alter the expedited
procedure in order to change the way in which its features apply in that chamber at a given
time. Because Article I, Section 5 of the Constitution gives each chamber of Congress
the power to determine the rules of its proceedings, expedited procedure statutes like
those contained in EESA can (like all rules of the House or Senate) be set aside, altered,
or amended by either chamber at any time.8 These changes can be accomplished by the
House through the adoption of a special rule reported by Committee on Rules, by
suspension of the rules, or by unanimous consent. In fact, prior practice suggests that the
House of Representatives routinely supplants the terms of rulemaking statutes by adopting
special rules by majority vote.
Although the same Constitutional authority to determine its own rules resides equally
in both houses of Congress, expedited procedures are, in a sense, more binding on the
Senate than they are on the House. The Senate operates largely under terms achieved by
the unanimous consent of all Senators. If that consent can not be achieved, altering an
established rulemaking statute would, in all likelihood, require either the 3/5ths of
Senators chosen and sworn (60 if there are no vacancies)9 necessary to invoke cloture or
the concurrence of two-thirds present and voting (67 if all Senators vote) necessary to
suspend the rules. Motions to suspend the rules also require written notice one calendar
day in advance, and are fully debatable.
Rep. Jack B. Brooks, remarks in the House, Congressional Record, vol. 134, July 7, 1988, p.
William Holmes Brown and Charles W. Johnson, House Practice, ch.50, §4, p. 826.
Under Senate precedents, amending a statutory rule does not trigger the prior notice or higher
threshold to invoke cloture required for amendments to the chamber’s standing rules. See
Congressional Record, vol. 131, July 25, 1985, pp. 20447-20448.