Rules of the Senate

As part of trying to pack in as many experiences and learning opportunities as possible into a single year, I recently took a two day course offered by the Congressional Research Service as part of their Legislative Process Institute.  This course is intended to give staffers a moderate-level understanding of the rules by which Congress functions.

When I arrived for the class, I learned that we were divided into two different groups, one for Senate staff and one for the House staff, since the rules in the two chambers differ significantly.  I was gratified that two of my fellow Fellows were part of the Senate group, and there were three other Fellows in the House group.  There may be something to this whole Fellows mafia business considering how often we turn up in groups!

As a veteran of many faculty meetings, I have a reasonably good grasp of Robert’s Rules of Order.  It turns out that they bear only a passing resemblance to the rules by which the Senate runs.  Our first session of the day, which was an overview of “Considering Measures in the Senate” turned out to be incredibly intense.  No one even dreamed of checking email or phone messages during this session.  I found that even after my brain checked out only for a few seconds, when I refocused, the speaker seemed to be saying, “Jargon jargon term jargon term term jargon jargon…”  What?  With laser-like concentration, I could just about keep up.

The second session was an hour all about Unanimous Consent.  This is one of the most important rules of the Senate, and it is the reason that individual Senators hold so much power, regardless of their seniority.  With Unanimous Consent (often known as UC),a vote can be called, a bill can be passed, a nomination can be confirmed, and the color of the sky may be declared to be green.  If just one Senator objects, then it is obviously not unanimous, and this type of action is cut off.  UC is by far the speediest way to move actions along on the floor, but it requires getting everyone on board in advance.

It helped me to keep in mind that passing a bill requires two steps.  The first is that everyone must agree to vote on the bill.  The second is actually having the vote.  One key difference between Senate rules and Robert’s rules is that in Robert’s rules, you can move the question, which can potentially precipitate the vote.  There is no such parallel action in the Senate.  In general, you either get UC to have a vote, or people all stop talking.  I’m sure you can guess how likely that second is.

The third way to bring a vote is to file for cloture, and that requires 3/5 of the Senators, so 60 votes in favor of the cloture motion.  There are, however, some extra rules involved.  Once cloture has been filed, it is not voted on until two days of Senate session later.  So if you file on Monday, you aren’t even going to vote on cloture till Wednesday.  If your cloture motion passes with 60 votes, then you still can debate for up to 30 more hours of floor time.  You may still have amendments if they were filed prior to the cloture vote and if they are germane (relevant) to the central motion.  It’s also possible that you may need a sequence of cloture votes if you are dealing with amendments to the central question.  So although cloture works, it tends to chew up large amounts of floor time, which is one of the most precious commodities in the Senate.  This is why even the threat of a filibuster is effective; filibusters essentially stop all action on the floor and prevent much of anything from getting done.

The other interesting Senate departure from Robert’s rules involves the creation of Amendment trees.  An amendment may be offered to a central bill, then that amendment can be amended (1st level) and an additional amendment can be offered, so you have an amendment to the amendment to the amendment (2nd level.)  Thankfully, we are spared from higher complexity because Thomas Jefferson stated that 3rd level amendments would just be embarrassing.  The Parliamentarian keeps track of these machinations through a diagram called an amendment tree, and because of the level limits, there is a point at which the amendment tree is full, and no other amendments are in order.  Filling the amendment tree is often a defensive strategy to prevent people from gumming up the works with stray amendments.  Just to make things more interesting, you can still get Unanimous Consent to set aside a current amendment and introduce new ones, so there can be dozens of amendments all flying around simultaneously, even if they aren’t considered all at the same time.

So, having been taught all of these strange rules, we had a chance to put them to work.  Our scenario was that we were part of a new Senate Committee, and we would be using the formal Senate procedure to establish rules for the committee.  The organizers divided us somewhat randomly into majority and minority caucuses and we were ranked by seniority within the caucus based on how much time we had actually been on the Hill.  Thus the Fellows ended up about two-thirds of the way down the pecking order.  The two caucuses met independently, and then after dinner, we got to try out our new skills.

We had a blast!  There is definitely no better way to learn than to actually have to put the words together and figure out how to match up the appropriate procedure for the outcome you want.  I was a member of the minority party in the exercise, and since we had no actual power, we had to rely on our powers of persuasion to have a bipartisan committee that worked across the aisle.  My information later from the majority caucus was that they were originally planning to use their superior numbers to slant all the power in their favor.  Thus our minority party was actually quite effective since we achieved good compromises on nearly all of our major issues.  A few majority party members prevented their team from giving away *all* of their advantages, but we certainly set a very good example for how to work together.

In the House, funds for Committees are usually divided about 2/3 for the majority party and 1/3 for the minority party.  In the Senate, the funds are often divided up according to the ratio of members from each party.  Thus when our Ranking Member, the minority caucus leader, calmly offered an amendment that the funding be split evenly between the two parties, I thought our facilitator was going to fall out of her chair.  We did, as planned, fall back to accept the funding ratio corresponding to the ratio of our members, but it was fun to be that audacious.  The whole Senate group was superb with having nearly all of the members participate and with trying to stretch the boundaries of strategies that we had encountered.  One amendment was offered simply because we hadn’t seen one type of amendment tree yet and we wanted to see how that worked.  We had a ball, we left ten minutes after the target end time, and our facilitator said we were the best group she’d had in years.  That was not an empty platitude because one of our speakers the following day said that our facilitator had raved about us and how energized and creative we were.

The following day, we learned about the Congressional Record and how to follow a case through the written report, and then we learned a bit about the House Rules, which were quite different and therefore quite bewildering compared to what we’d learned about the Senate.

After a bill makes its way through the House and the Senate, it often looks different because of different amendments.  To make a law, the House and Senate must pass the same version.  Thus the most effective way to reconcile the two versions is through a conference to figure out what that same version will be.  Our final exercise of the class assigned us each a role on a conference committee, and we learned how deals are made and how to ensure that the bills will be passable when they go back to the chambers for the final votes.  The folks from the Senate exercise remained strong participants, and if the second exercise wasn’t quite as fun as the first, we still had a good time.

When the Senate is in session, most offices will have a TV on tuned to C-Span so they can watch the action on the Senate floor.  I’m looking forward to post-Thanksgiving action when I’ll have at least some understanding of what is happening.

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