Basic Training: Senate Rules from a House Perspective
Intended by the Founders to serve as a “check” on the popularly elected House of Representatives, process and procedure in the Senate is often very different than in the House. For instance, while the main rule in the House is “whoever has 218 votes wins,” the rule in the Senate is different: “There’s nothing you can do without 60 votes.” While the House is designed as a majoritarian institution, the Senate is structurally designed to protect the rights of the Minority. In any Senate whose Majority has less than a 10% margin, the role of the Minority is greatly enhanced.
The Senate and Unanimous Consent
The Senate operates largely by unanimous consent agreements for day-to-day business. While making an agreement is difficult, once it is made the institution can operate efficiently. For instance, on non-controversial bills, once there is a unanimous consent agreement for passage, the Majority Leader of the Senate will often pass many bills at once at the end of the day in a matter of minutes. Similarly, if the Senate is waiting on a House bill, they can deem the bill as passed, without taking any action on the bill when it arrives in the Senate.
The Senate has largely institutionalized its unanimous consent process. On major pieces of legislation, the Majority or Minority leader may force a Senator from the other party to object to a bill’s consideration in the absence of a unanimous consent agreement. Similarly, the Senate will hotline a bill when it is ready to be considered under a unanimous consent agreement. Under the hotline process, the Senate cloakrooms notify Senators of upcoming bills that may be considered under unanimous consent to provide them with a final opportunity to object.
If Senators are unable to come to a unanimous consent agreement for the consideration of a bill or amendments, they may try to invoke cloture to bring about a close to debate.
When the Senate invokes cloture, several rules come into play for the further consideration of a bill or amendment:
- 30-Hour Debate Cap. Once cloture is invoked, there is a 30-hour total time cap on debate. That debate can include roll call votes, amendments, and other activities, so the ultimate amount of debate time under the cap is often far less than 30 hours.
- 1-Hour Per Senator Cap. The cloture rule limits each Senator to no more than 1-hour of debate, on a “first-come, first-served” basis.
- Amendment pre-filing. Only amendments that have been filed before the cloture vote may be considered once cloture is invoked. First-degree amendments must be filed by 1:00 p.m. on the day after the filing of the cloture petition; second-degree amendments may be filed until at least one hour prior to the start of the cloture vote.
- Germaneness. The Senate does not have a general rule of germaneness for amendments. However, once cloture is invoked, all amendments (and debate) are to be germane to the clotured proposal. Similarly, the Chair is given additional powers under cloture. For example, on his or her initiative, the presiding officer may rule out-of-order dilatory motions or amendments, including quorum calls. The chair also has the authority to determine the presence of a quorum.
In order to begin the cloture process, at least 16 Senators must sign a cloture motion which states “We, the undersigned Senators, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, hereby move to bring to a close the debate upon [the matter in question].” A cloture motion is of high enough privilege that a Senator may interrupt another Senator to present the cloture motion.
The Senate votes on the cloture motion one hour after it convenes on the second calendar day after the cloture motion was filed, and after a quorum call has established the presence of a quorum. The time for the cloture vote may be changed by unanimous consent, and the required quorum call often is waived by the same means.
The cloture rule requires three-fifths of the Senators duly chosen and sworn to vote in favor of the motion, or 60 votes if there are no vacancies in the Senate’s membership. However, invoking cloture on a measure or motion to amend the Senate’s rules requires the votes of two-thirds of the Senators present and voting, or 67 votes if all 100 Senators vote.
Key Differences Between the House and Senate
- The Senate has no previous question, meaning there is no easy way to cut off debate.
- The Senate has no consistent germaneness rule.
- There is no time limit on debate absent cloture or a unanimous consent agreement.
- The Senate Rules Committee does not establish the terms of debate.