Inside Congress

A Guide for Navigating the Politics of the House and Senate Floors

Trevor Corning, Reema Dodin, Kyle W. Nevins

• Publisher: Brookings Institution Press
• Year: 2017
• ISBN:
  9780815727347
• Topic: Politique et relations internationales
• Subtopic: Gouvernement américain

Required reading for anyone who wants to understand how to work within Congress.

The House and Senate have unique rules and procedures to determine how legislation moves from a policy idea to law. Evolved over the last 200 years, the rules of both chambers are designed to act as the engine for that process. Each legislative body has its own leadership positions to oversee this legislative process.

To the novice, whether a newly elected representative, a lawmaker’s staff on her first day at work, or a constituent visiting Washington, the entire process can seem incomprehensible. What is an open rule for a House Appropriations bill and how does it affect consideration? Why are unanimous consent agreements needed in the Senate?

The authors of Inside Congress, all congressional veterans, have written the definitive guide to how Congress really works. It is the accessible and necessary resource to understanding and interpreting procedural tools, arcane precedents, and the role of party politics in the making of legislation in Congress.

THREE

The Senate

Where Debate and Deals Rule

The Senate is a significantly different body from the House. The founders designed the system to have House members serve two years, a president serve four years, and senators serve six years. Having two-thirds of the membership of the Senate remain unchanged after an election allows for some stability and institutional knowledge across the government. This creates specific life cycles of time and pressure for each chamber, impacting how each works. There is considerable literature and discussion on the continuous nature of the Senate, the ways that affect potential rules changes, and the living nature of the Senate in general. For Senate lovers, we urge you to seek out these writings as they are an important part of the discussions about the evolving Senate.

The election pattern for Senate seats, whereby just one-third of the seats are open in any election year, ensures that even if the presidency and the House change parties in an election, at least two-thirds of the previous senators will still be serving, even if under different leadership. In contrast to the House, where the party in the majority holds clear sway over almost everything, the Senate is a forum for extended debate, and political minorities can find ways to exercise considerable power. In addition to the structural differences between the chambers (election cycles, term length, two senators per state regardless of size), the Senate—while having the same oversight and legislative tasks as the House—is also tasked with “Executive Calendar” items that the House is not. The Senate, for instance, has an advise-and-consent role over nominations and treaties sent by the president. This is an additional factor when thinking through floor time and planning for the Senate calendar.

The majority sets the agenda for the Senate but the minority power is a hallmark of the institution. Minority in the Senate context can mean a few different things. The usual meaning of “the minority” is the political party that controls fewer seats in the chamber. The minority on any given issue may mean not the minority party but, rather, a group of senators from both sides of the aisle who, for parochial or philosophical reasons, disagree with what a majority is attempting to move forward and seek to debate the issue further, or indefinitely. The Senate is often seen as a place of long-standing traditions with a rich debate history, insulated from some of the passions and political winds or daily changes and news cycle that can drive some of the House’s energy. But the extent to which it is impacted by the crisis or debates of the day is growing and also the subject of much discussion of the modern Senate.

Since the Senate is a long-run operation, where members will have six years, and often more, to work, seniority and constant negotiations are especially important in the management and running of the chamber. For example, members’ seniority, work, and geography are all taken into consideration in fulfilling their respective requests. The time that a senator has served can impact many things: earlier choice of office space, better desk selection, and, potentially, committee assignments, chair or ranking memberships, leadership, or other caucus assignments. With only 100 members, the personal promises, personalities, negotiations, and actions of each member make a big difference—especially as senators navigate deals within the parties and across the full chamber.

At its core, the Senate is a place of constant dance between majority and minority. Each member has power and thus the leadership teams of both parties create strategy with their members’ views in mind, and must balance many conflicting demands with the demands of a functioning Senate. The Senate is also defined by being a place of relatively few rules compared to the House—designed for open debate and open amendments, and for deal making among members. The members guide the body, as each leadership team must gauge what the needs and wants of their membership are, and then frame their cross-party negotiations, as by their nature negotiations are a pain-and-gain trade-off. For party leaderships, that calculation is based on their members and the goal of any given discourse. For example, if a nomination is highly controversial, one party may decide to use all of its available tools to protest. Or, for example, if a bill is a must-pass emergency item, each party will factor that into its thinking about how to approach the floor. Context always matters. The majority and minority each have different tools to express their vision of governance and what they seek to convey to their constituents.

Each caucus (party) must discuss and find what the needs are within their own membership, and then negotiate between parties. In this way, all 100 members, and all 50 states, have sway over Senate happenings. This dynamic is a main driver of the Senate. It must also be viewed more broadly within the context of who controls the White House and House of Representatives, and who holds majority in the Senate. These dynamics also impact negotiations and Senate work flows. For example, the majority party in the Senate controls the chairmanships of committees, and decisions as to what will be marked up, in addition to having the first say in what comes to the floor. These majority-minority dynamics also help decode what is happening on the Senate floor at any given time.

BASICS OF LEGISLATION IN THE SENATE

The Senate floor is fluid, and members often have to stay flexible since negotiations are ongoing. What follows offers the basics in an academic sense, to enable the reader to track and understand the daily Senate flow. From here, we encourage you to seek out the many wonderful primary and secondary sources that provide the full range of Senate background, rules, and explanation. The Senate website itself is a wealth of information about the Senate standing rules, floor, desks, history, procedure, and proceedings, and there are seminal works such as Martin B. Gold’s Senate Procedure and Practice, in addition to a myriad of writings and lectures from all ends of the spectrum on the Senate and its ways. For procedural sources, see rules.senate.gov or read Riddick’s Rules of Procedure.

The Senate is meant to be open—open debate, open amendments. But the reality is more complex as much has to be considered. Two terms are in constant use in discussions of paths whereby bills move through the Senate: “cloture” and “unanimous consent.” These two terms are the mechanisms that enable legislation before the Senate to move—swiftly if there is cooperation or slowly if not. Some combination of the two is often used.

Unanimous consent, often referred to simply as consent, is a term in the Senate used to describe the process by which items are passed or confirmed without objection from any senator—a shorthand for deals, large and small. It may also refer to a process by which a deal has actively been made on the floor to move an item forward with some structure for debate and specific timing. For example, a bill can be finished with a consent agreement or by the filing of cloture. (See samples in appendix C of a “hotline” asking for every member to agree to a proposed resolution.)

Cloture is a mechanism by which debate is ended on a bill with a three-fifths vote of the Senate, and any further debate must be limited to just thirty hours. It is the key procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter. As such it is a brake on both filibusters (a tactic explained later but generally used to obstruct progress on an item) and also the unfettered debate that is a hallmark of the way business is done in the Senate.

In the Senate most bills are passed through the unanimous consent system rather than needing lengthy floor debate time, and this greatly impacts how bills are drafted and negotiated. Senators are aware that the best chance for a bill is to clear by consent, or to have enough consensus to be able to be included in a package of bills. To petition the majority leader for valuable floor time is a gamble, as he or she will always have several competing pressures. The bills and nominations that do get processed through formal floor consideration typically follow a few routes discussed in later sections. It can take a week for a bill to die in the Senate, let alone for a bill to survive and pass. The majority leader must juggle these time factors if the Senate is to get all of its planned work done.

THE SENATE CALENDAR AND CONSIDERATIONS OF TIME

In the Senate, bills can often take a week or more to be debated on the floor, and procedural maneuvers can potentially burn up floor debate time without producing substantive legislative advancements. In addition to the basic bill, there are several types of items which need time for consideration such as Senate and House bills, House messages, and resolutions: joint resolutions, concurrent resolutions, and run-of-the-mill resolutions. In congressional jargon all of the aforementioned actions are called “vehicles” which can be broadly defined as a legislative tool. In addition to the time requirements of the floor, senators themselves are pressed for time. Essentially, to envision the pressures on each senator, think of them as the center of a wheel with several spokes—the spokes being their state and constituents and their desire to serve them through the tools of the Senate, their floor obligations, their committee assignments, their caucus assignments, their fundraisers, their families, and their personal stories or interests (for example, a senator may be very interested in foreign policy after living abroad, or in climate due to his or her state’s geography). Giving the appropriate amount of time or energy to each activity and interest can be an additional challenge for senators and their staffs.

In addition to all of that, the majority party members have the added obligation of presiding over the Senate. Technically the vice president is the presiding officer of the Senate (and the intersection between the executive and legislative branches), but the vice president is busy and cannot be on the floor all the time. He or she chiefly appears on the floor to break tied votes, sometimes preside over high-profile votes, and swear in new senators. The most senior member of the majority party then stands in as the president of the Senate and is called the president pro tempore, but because that senator likely chairs a committee and has many other obligations, the presiding chair is typically filled with younger members of the majority. In this way younger members get training on the workings of the Senate floor and parliamentary procedure. But most important, filling the presiding chair is one of the ways that the majority exerts its control over the Senate floor, as there is always a member of the majority party present on the floor.

Often, new Senate watchers or staff are frustrated as they attempt to follow what is happening in the Senate purely on the basis of reading the Senate rules. In reality, the Senate is meant to be a place of open debate, and it is run very much by the 100 senators. Consequently, what usually happens is a combination of rules and deals—the rules are used to create pressure points, and then deals are done, so consent agreements end up ruling the day and can make almost anything happen. If you read and apply the rules while accounting for context, you will usually be able to accurately track Senate happenings, though not always. In a fluid body, 20 percent of the material covers 80 percent of the time, but sometimes there will see a fancy and rare maneuver or sometimes the context will surprise.

In addition to the procedural importance of the maneuver, the history of cloture and the filibuster in the Senate is fascinating—in particular, the pressure points in great debates of the last century where the cloture thresholds saw creation and then change. Senate.gov documents the change in frequency of use of the filibuster and cloture filings over the years and has background on the maneuver. There are also extensive academic articles on the Senate and the filibuster. No conversation about the Senate is complete without a contemplation of the filibuster and its implications.

The Use of Cloture

The best way to illustrate the complexity and time necessary to complete cloture is to run through examples. If a bill is to be considered on Monday with a consent agreement and some senators do not like it, they tell the leaders that they cannot give a consent agreement for its speedy consideration at that time. The leaders will communicate this to each other directly or through their floor staffs. Knowing that, the majority leader will begin the process “by the book”—with cloture. This gives the leader the most options: a by-the-book timeline or the possibility of deals later in the process.

This process begins by filing cloture on the motion to proceed. Once the motion to proceed has been adopted—or in some cases where the motion to proceed is not debatable—cloture may be filed on the vehicle itself. The cloture timeline can be a source of some confusion. Three common samples are below, for substitute amendments, privileged vehicles, and nominations.

Cloture timeline with a substitute amendment Often, there is a more complicated process for cloture when there is also a substitute amendment drafted with some changes to the policy that help garner more votes. This can mean that the substitute amendment is not germane to the original underlying bill text because the scope is usually expanded in deal making. This creates the following timeline:

Day 1: Cloture filed on both the substitute amendment and on the underlying bill that it will amend.

Day 2: The intervening day on both cloture petitions.

Day 3: Cloture ripens (meaning a vote is now allowed) on the first petition (on the substitute amendment), one hour after the Senate convenes. If cloture is invoked by garnering sixty votes (or three-fifths of the Senate) or more, there may be up to thirty hours of debate prior to an adoption vote on the substitute amendment with a simple majority threshold. Immediately after that adoption vote, the cloture vote on the underlying bill (now as amended by the substitute amendment) ripens for a vote (at a 60-vote threshold). If cloture is invoked, there is again up to thirty hours post-cloture debate prior to a passage vote. If cloture is not invoked on the first petition (on the substitute amendment), the second cloture petition (on the original bill) immediately ripens for a vote and the normal process continues. Note that in the case of failed cloture votes, motions to reconsider can be entered so the votes can happen again, in case there is future progress.

Cloture on a privileged vehicle (message vehicles or conference reports).

Day 1: Cloture filed on a conference report.

Day 2: The intervening day on that cloture petition.

Day 3: One hour after the Senate convenes, the cloture petition ripens for a vote. If cloture is invoked, there may be up to thirty hours post-cloture prior to an adoption by simple majority vote on the conference report.

Cloture on nominations.

Day 1: Cloture petitions filed on, for example, three nominations.

Day 2: Intervening day on all three cloture petitions.

Day 3: Cloture ripens on petition no. 1, one hour after the Senate convenes (requiring majority vote for all nominations). If cloture is invoked, it is subject to up to thirty hours of post-cloture debate prior to a confirmation vote (majority threshold). Once the first cloture petition is complete or cloture is not invoked on it, the next cloture petition immediately ripens for a vote and the process repeats.

Note that the Senate can conduct other business on days 1 and 2 of the cloture process. Once the Senate invokes cloture and is in post-cloture debate on a matter, it cannot consider other items except by consent. Cloture is designed to focus the Senate on a m...