Fast-Track Procedures and the Senate's Rules
Yesterday’s post examined the fast-track procedures pursuant to which Congress is likely to consider NAFTA 2.0.
In short, Congress reauthorized a set of special fast-track procedures pursuant to which the House and Senate consider trade agreements (or changes to existing agreements) when it passed the Bipartisan Congressional Trade Priorities and Accountability Act (Title I of Public Law 114-26) in 2015. The fast-track procedures block members of Congress from amending legislation that implements a trade agreement. They also set an overall cap on debate time. Congress created these special fast-track procedures to facilitate passage of trade agreements in the House and Senate. To that end, the procedures are especially important in the Senate because they limit the ability of a minority of the institution’s members to obstruct implementing legislation. Yet in doing so, fast-track procedures technically violate the Senate’s Standing Rules.
Rule XXII requires an affirmative vote of
three-fifths of the senators duly chosen and sworn…[to invoke cloture, or end debate, on any] measure, motion, or other matter pending before the Senate…except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting…
However, section 151(g)(1) of the Trade Act of 1974, which first established the fast-track procedures, stipulates,
A motion in the Senate to proceed to the consideration of an implementing bill or approval resolution shall be privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to (pp. 40-41 in the linked legislative text).
And sec. 151(g)(2) stipulates,
Debate in the Senate on an implementing bill or approval resolution, and all debatable motions and appeals in connection therewith, shall be limited to not more than 20 hours (p. 41 in the linked legislative text).
Juxtaposing these two rules illustrates the multiple sources from which the Senate derives the legislative procedures by which its members conduct business.
The Constitution contains several provisions regarding the internal operation of the Senate. Of these constitutional provisions, the Rules and Expulsion Clause (Article I, section 5, clause 2) is the most important because it gives the Senate plenary power over its legislative procedures. The clause explicitly stipulates, “Each House [of Congress] may determine the Rules of its Proceedings.” With this authority, the Senate establishes the legislative procedures that govern its proceedings. Because the Constitution’s Qualifications and Quorum clause (Article I, section 5, clause 1) stipulates, “a Majority of each [chamber] shall constitute a Quorum to do business,” the effect of the Rules and Expulsion clause is to empower a simple-majority of senators to change the rules whenever they choose to do so.
The Senate established its Standing Rules pursuant to the Constitution’s stipulation that a majority of its members are empowered to determine how they will conduct business in the institution. For 100 years, those rules included a provision requiring a supermajority to end debate (i.e., a filibuster) on legislation. For much of that time, the Senate’s Standing Rules required an even greater supermajority to end debate on proposals to change those rules. These rules remain in effect from one Congress to the next according to the concept that the Senate is a continuing body. Rule V stipulates, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” There are currently forty-four Standing Rules of the Senate totaling 70 pages in length.
Senate procedures may also be established pursuant to statutory rules created by bills passed by Congress and signed into law by the president. A super-majority vote is effectively required to create statutory rules because the legislation creating them may be filibustered (thus requiring a super-majority vote to end debate on such legislation pursuant to Rule XXII). The fast-track procedures by which Congress considers trade agreements are one example of a statutory rule.
As with its Standing Rules, the Senate derives its power to establish new procedures via statutory rules from the Constitution. This authority is often specifically cited in the statute establishing a new procedure. For example, sec. 151(a)(1) and (2) of the Trade Reform Act of 1974 clarifies that the fast-track procedures established by the legislation are enacted,
(1) As an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of implementing bill…and they supersede other rules only to the extent that they are inconsistent therewith; and (p. 37 of linked legislative text)
(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House (italics added for emphasis; pp. 37-38 of linked legislative text).
The Senate may create new legislative procedures by standing orders. (They have the same effect as the Standing Rules and statutory rules discussed above.) There are two kinds of standing orders. Permanent standing orders are created by a simple resolution and remain in effect until repealed by the Senate unless otherwise noted in the text of the order itself. Examples of permanent standing orders include the oft-ignored requirement that senators vote from their desks during recorded votes instead of while milling about on the floor, and the authorization of gavel-to-gavel coverage of the Senate’s proceedings on radio and television. The permanent select committees on Ethics and Intelligence were also created by permanent standing orders.
Standing orders are also utilized on a more routine basis whenever the Senate enters into unanimous consent agreements. Such orders remain in effect for the period of time specified and are listed in the Congressional Record on the day they are adopted. The Senate adopts several routine standing orders by unanimous consent at the beginning of each Congress that remain in effect for the duration of that Congress. An example of a temporary, or routine, standing order is the provision for “leader time” on each day that is under the control of the majority and minority leaders for the discussion of routine legislative business. Such standing orders are also utilized to structure decision-making on the Senate floor.
Taken together, the Senate’s rules (broadly defined to include the above procedural authorities) allow significant interpretation of their meaning and application in the legislative process. Consequently, senators operate day-to-day according to informal rules established pursuant to a collection of precedents. Robert C. Byrd, D-WV, best defined precedents as “the application of the Constitution, statutes, the Senate rules, and common sense reasoning to specific past parliamentary situations.” Former Senate Parliamentarian Floyd M. Riddick similarly observed that precedents embody the practices of the Senate pursuant to the Constitution, its Standing Rules, and any relevant rule-making statutes. These practices serve to “fill in the gaps” contained in these procedural authorities when they fail to address specific parliamentary situations.
More information on the Senate’s procedural architecture can be found in the following report.
Wallner, James. 2017. “A Beginner’s Guide to the Senate’s Rules.” R Street Policy Study, No. 107 (September).