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Monday, April 8, 2013

Changes to Senate Procedures in the 113th Congress Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16)

Elizabeth Rybicki
Specialist on Congress and the Legislative Process

On January 25, 2013, the Senate approved two resolutions affecting the process for considering legislation and nominations. S.Res. 15 established two standing orders of the Senate that will apply only in the 113th Congress; S.Res. 16 made two changes to the standing rules of the Senate.

Section 1 of S.Res. 15 creates a special motion to proceed that could be approved by majority vote after four hours of debate. (Most motions to proceed are not subject to any limit on debate, and therefore a cloture process and three-fifths support may be required to reach a vote.) A bill brought before the Senate using this motion would be subject to an alternative amendment process intended to encourage the consideration of at least four amendments, two from each party. The four amendments would be considered sequentially (not simultaneously), alternating by party, beginning with the minority. With cloture, the opportunity to offer all four amendments is guaranteed if they are filed by times specified in the standing order. Unlike standard amendments, a non-germane priority amendment could be considered post-cloture, but would require 60 votes for approval. Without cloture, the amendments are not subject to any debate limit, and considering all four would therefore likely require unanimous consent.

S.Res. 15 also accelerates the consideration of many nominations when at least three-fifths of the Senate has agreed to invoke cloture. If this standing order was not in effect, then after the Senate agreed to invoke cloture on a nomination, it could be considered for a maximum of 30 hours before the Senate would vote on confirmation. The standing order reduces this 30 hour period to 8 hours for many nominations, and to 2 hours for U.S. district court nominations. It excludes some major executive and judicial nominations.

S.Res. 16 amends Senate Rule XXII to provide an expedited method by which three-fifths of the Senate can end debate on the question of taking up a bill (or other matter) on the initiative of both party leaders and a bipartisan group of 14 other Senators. More specifically, a cloture motion on a motion to proceed, signed by the two floor leaders as well as at least seven Senators from each party, will mature in one session day, instead of two. If such a cloture motion is successful, then the motion to proceed will not be subject to further debate, instead of being subject to a maximum of 30 hours of post-cloture consideration.

Finally, S.Res. 16 creates a motion that will consolidate the three steps necessary to authorize a conference committee with the House, and expedites the cloture process on that motion. Prior to this rules change, it effectively required unanimous consent to arrange for a conference committee, principally because of the time that might be required to take each step separately in the face of opposition. Under this new provision of Senate Rule XXVIII, a compound motion can be made to authorize a conference. If cloture is filed on this new motion, it would be subject to two hours of debate, after which the Senate would vote on cloture. If cloture is invoked by threefifths of the Senate, a simple majority could approve the motion to authorize a conference, and no further debate of the motion would be in order.

The Senate typically considers legislation and nominations under the terms of unanimous consent agreements, rather than by operating strictly in accordance with procedural authorities. The impact of procedural change is often realized not in identifiable actions on the Senate floor, but in negotiations about how or when to set aside the rules with the consent of all Senators.

Date of Report: March 19, 2013
Number of Pages: 28
Order Number: R42996
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