October 22, 2019

Post-Cloture Rules and Precedents


KEY TAKEAWAYS

  • In addition to the 30-hour cap on consideration of legislation, cloture under Rule XXII triggers many lesser-known rules and precedents governing debate, the amendment process, and floor procedure.
  • Knowledge of these rules is essential to avoiding mistakes on the floor and in formulating legislative strategy.
  • Most of these rules and precedents can be found in Rule XXII, Riddick’s and the parliamentarian’s database of Senate precedents.
  • Like most Senate rules, the constraints of cloture can be superseded by a unanimous consent agreement.

Most Senate staff know cloture under Rule XXII imposes a 30-hour limit on the consideration of legislation, but it also triggers lesser-known rules and precedents that, if ignored, could result in a legislative fumble or embarrassing floor situation for members and staff. To assist, the following is a summary of special conditions to keep in mind once cloture is invoked on legislation.

in general

  • The 30-hour cap is a limit on total consideration, not just debate. Time consumed by votes, quorum calls, parliamentary inquiries, procedural motions, and reading of amendments is also charged against the cloture clock. In general, if the Senate is in session and the clotured matter is pending, then that time counts. Time spent in recess or adjournment does not count, unless stipulated in a unanimous consent agreement.

  • Post-cloture time is not divided, so it cannot be yielded back. A common misperception is that one side can expedite a vote on final passage by yielding back its “half” of the 30-hour post-cloture time. Rule XXII does not assign this time to either side, so neither side has the authority to yield it back. The only way to truncate post-cloture time is by unanimous consent, or if senators choose not to exercise their right to debate (see “put the question” below.)

debate post-cloture

  • In general, each senator may speak for up to one hour. An exception is provided for the majority and minority leaders and the two bill managers, who may each receive up to two additional hours from other senators. The one-hour rule is not a one-speech rule. Senators may divide their time as they choose because the Senate’s two-speech rule under Rule XIX does not apply post-cloture. In addition:There are restrictions on yielding time between colleagues. The party leaders and bill managers can receive up to two hours from other senators and may yield some or all of that time to others. Senators cannot yield time to each other except to ask a question, unless granted unanimous consent. Under the rule, the maximum amount of time that can be yielded to any one senator is  13 hours, and that presumes both party leaders and bill managers yield their entire allotment to one member. A senator can yield back his time, but doing so does not reduce the 30-hour post-cloture cap.

    1. If a senator requests to speak “as in Morning Business,” the time consumed is charged against the one-hour limit and the overall 30-hour cap.

    2. The time used for a parliamentary inquiry is always charged to the senator making the request.

  • Members have a 10-minute speech guarantee. If post-cloture time expires and a senator seeks recognition to speak, he is guaranteed at least 10 minutes of debate as long as he has not previously used up to 10 minutes or yielded up to 10 minutes to someone else. For example, if a senator is on the floor when post-cloture time expires and has already used or yielded three minutes, he could seek up to an additional seven minutes to speak before the underlying vote commences.

  • Debate must be germane. In general, the Senate is a place of free and open debate, but once cloture is invoked, the body is required to remain focused on that issue “to the exclusion of all other business” until completed. If a senator is debating an unrelated topic and a point of order is made regarding the content of that speech, the senator will be interrupted by the presiding officer and reminded that debate must be germane. To avoid this, a senator wishing to speak off-topic in a post-cloture situation should ask unanimous consent to speak “as in Morning Business.” If there is no objection – and normally there isn’t – the senator may proceed. The time consumed will still count against the senator’s one-hour time limit and the 30-hour overall cap, but the speech will be in order.

  • If no one wishes to debate, the presiding officer will “put the question” before all post-cloture time has expired. If a senator states that he knows of no further debate on a matter and no one seeks recognition, the presiding officer will move directly to a vote on the underlying issue, even though time remains on the post-cloture clock.

amendments post-cloture

  • Cloture imposes amendment filing deadlines. Once a cloture motion is filed, all first-degree amendments must be submitted to the bill clerk no later than 1 p.m. on the layover day (even if the Hart train gets stuck). All second-degree amendments must be submitted no later than one hour before the cloture vote. Amendments that are not timely filed are vulnerable to a point of order.

Rule 22

  • All pending amendments must be germane to the matter on which cloture was invoked. For example, when cloture has been invoked on a complete substitute (Riddick’s amendment chart IV), cloture “pierces the veil” between the two sides of the amendment tree. All pending amendments, regardless of their position on the tree, must be germane to the complete substitute or to the underlying bill. Pending non-germane amendments are ruled out of order once a point of order is raised, usually by one of the bill managers.Once cloture has been filed and the relevant amendment filing deadline has passed, a senator can no longer modify a filed or pending amendment by right. After this point, a senator must ask unanimous consent to modify a pending amendment or to call up a filed amendment with a modification.

    1. Note: There is a difference between “filed” amendments and “pending” amendments. Pending amendments are those that have been called up for consideration by the Senate. Rule XXII germaneness affects only pending amendments.

  • Amendments cannot be divided post-cloture, except by unanimous consent.

floor procedures post-cloture

  • Motions to waive Budget Act points of order and appeals are not debatable post-cloture. Points of order are never debatable unless they are submitted to the Senate to decide, but appeals and motions to waive those violations are debatable except when the Senate is operating post-cloture. If, for example, a Budget Act violation is raised post-cloture and a motion to waive the violation is made, the motion remains pending until post-cloture time expires or the presiding officer determines there is no further debate. At that point, the Senate votes on the motion to waive before it votes on the underlying measure.

  • A motion to recommit or refer is not in order. A motion to recommit sends the underlying measure back to the committee of jurisdiction. Sometimes it includes instructions to report back with an amendment achieving a specific policy goal. When the majority leader fills the amendment tree, a motion to recommit is usually filed in tandem. Once cloture is invoked, however, the motion to recommit falls away on an order made by the presiding officer. This is because the motion to recommit – to send the bill back to committee for more work – is procedurally inconsistent with cloture, the Senate’s decision to remain focused on the matter until completed.

  • Dilatory motions and amendments are out of order. Whether a motion or amendment triggers this violation is determined by the presiding officer after a point of order is made (Riddick’s p. 311). The following have been found to be dilatory post-cloture:The presiding officer may, on his or her own initiative, rule out of order certain offending motions or amendments. Most points of order in the Senate are not self-enforcing: a senator must be recognized and state the violation. However, when operating post-cloture the presiding officer can take the initiative to rule out of order, without a point of order being made, any amendment or motion that is non-germane, dilatory, or drafted improperly. In practice this prerogative is exercised rarely and usually only when the offending amendment is not timely filed, since the amendment clerk, not the members, possess that information.

    1. A motion to suspend the rules,

    2. A motion to read an amendment in its entirety,

    3. A motion to postpone a matter indefinitely,  

    4. Most Sense of the Senate and Sense of the Congress amendments;

    5. A quorum call, when a quorum had already been established (e.g., after a roll call vote).

  • These rules and precedents can be temporarily overridden by unanimous consent. If the Senate agrees, the provisions of a unanimous consent agreement supercede any rule.

Issue Tag: Senate