Senate Committee Rules in the 112th Congress: A Comparison of Key Provisions
Released: 2012-02-17T00:00:00

Introduction

Senate Rule XXVI spells out specific requirements for Senate committee procedures. In addition, each Senate committee is required to adopt rules that govern its organization and operation. Those committee rules then elaborate, within Senate rules, how the committee will handle questions of order and procedure. A committee's rules may "not be inconsistent with the Rules of the Senate." Committees may add to the basic rules, but they may not add anything that is in conflict with Senate rules.

Examining the rules for each committee can show how each approaches issues of comity and fairness in the conduct of its business. The rules also serve to illustrate how each committee handles the division of power and the allocation of responsibility within its membership. Several committees, for example, require that if the committee is conducting business with a quorum that is less than a majority of its members, a member from the minority party must be present. When issuing subpoenas or starting investigations, committees may take different approaches on how to give authority to the chair of the committee while still allowing the ranking minority member a role in the process. Some committees require the agreement of the ranking minority member, others require that he or she be notified before the subpoena is issued.

The requirement that each committee must adopt its own set of rules dates back to the 1970 Legislative Reorganization Act (P.L. 91-510). That law built on the 1946 Legislative Reorganization Act (P.L. 79-601), which created a framework for most Senate committees by setting out some basic requirements that most committees must adhere to. Under the provisions of the 1970 law, Senate committees must adopt their rules and have them printed in the Congressional Record not later than March 1 of the first year of a Congress. Typically, the Senate also publishes a compilation of the rules of all the committees each Congress, and some individual committees also publish their rules as a committee print.

Although committee rules govern the actions of Senators in committee proceedings, there is no means for the Senate to enforce rules on committee conduct if the requirement that a physical majority be present for reporting a measure or matter is met. There also is no means for the Senate to enforce committee rules that go beyond those set out in the Senate's standing rules. For example, if a committee's rules contain a provision requiring that a member of the minority party be present for a quorum, but the committee acts without regard to that provision, the minority could register their disapproval with the committee's actions, but there is no point of order that could be raised on the Senate floor.

Other factors may come into play when studying a committee's procedural profile. Along with the formal rules of the Senate and the individual rules for each committee, many committees have traditions or precedents they follow in practice that can affect their procedures. One committee, for example, does not allow Senators to offer second degree amendments during committee markups. This restriction is not contained in either the Senate or the committee's rules, it is a tradition. It is a tradition, however, the committee follows closely.

This report analyzes the different approaches Senate committees have taken with their rules, focusing on additions to the overall Senate committee rules structure or unique provisions. A committee's rules can be extensive and detailed or general and short. The tables that conclude this report compare key features of the rules by committee. The tables, however, represent only a portion of each committee's rules. Provisions of the rules that are substantially similar to or that are essentially restatements of the Senate's standing rules are not included.

This report reviews the requirements contained in Senate rules for committees, then explores how each Senate committee handles 11 specific procedural issues: meeting day, hearing and meeting notice requirements, scheduling of witnesses, hearing quorum, business quorum, amendment requirements, proxy voting, polling, nominations, investigations, and subpoenas. Also, the report looks at unique provisions some committees have included in their rules in a "miscellaneous" category.

Standing Rules and Standing Orders of the Senate and Committees

Although there is some latitude for committees to set their own rules, the standing rules of the Senate set out the specific requirements that each committee must follow. The following provisions are taken from Rule XXVI of the Standing Rules of the Senate. Some committees reiterate these rules in their own rules, but even for those committees that do not, these restrictions apply. This is not an exhaustive explanation of Senate Rules and their impact on committees, rather this summary is intended to provide a background against which to understand each committee's individual rules.

Rules. Each committee must adopt rules; those rules must be published in the Congressional Record not later than March 1 of the first year of each Congress. If a committee adopts an amendment to its rules, that change only becomes effective when it is published in the Record . (Rule XXVI, paragraph 2). Meetings. Committees and subcommittees are authorized to meet and to hold hearings when the Senate is in session and when it has recessed or adjourned. A committee may not meet on any day (1) after the Senate has been in session for two hours, or (2) after 2:00 p.m. when the Senate is in session. Each committee must designate a regular day on which to meet weekly, biweekly or monthly (this requirement does not apply to the Appropriations Committee). A committee is to announce the date, place, and subject of each hearing at least one week in advance, though any committee may waive this requirement for "good cause." (Rule XXVI, paragraph 5(a); Rule XXVI, paragraph 3). Special meeting. Three members of a committee may make a written request to the chair to call a special meeting. The chair then has three calendar days in which to schedule the meeting, which is to take place within the next seven calendar days. If the chair fails to do so, a majority of the committee members can file a written motion to hold the meeting at a certain date and hour. (Rule XXVI, paragraph 3). Open meetings. Unless closed for reasons specified in Senate rules, such as a need to protect national security information, committee and subcommittee meetings, including hearings, are open to the public. When a committee or subcommittee schedules or cancels a meeting, it is required to provide that information, including the time, place, and purpose of the meeting, for inclusion in the Senate's computerized schedule information system. Any hearing that is open to the public also may be open to radio and television broadcasting, at the committee's discretion. Committees and subcommittees may adopt rules to govern how the media may broadcast the event. A vote by the committee in open session is required to close a meeting. (Rule XXVI, paragraph 5(b)). Quorums. Committees may set a quorum for doing business that is not less than one-third of the membership. A majority of a committee must be physically present when the committee votes to order the reporting of any measure, matter, or recommendation. The motion to order the reporting of a measure or matter requires the support of a majority of the members who are present and, in turn, the members who are physically present must constitute a majority of the committee. Proxies cannot be used to constitute a quorum. (Rule XXVI paragraph 7(a)(1)). Meeting Record . All committees must make public a video, transcript or audio recording of each open hearing of the committee within 21 days of the hearing. These shall be made available to the public via the Internet (Rule XXVI, paragraph 5(2)(A)). Proxy voting. A committee may adopt rules permitting proxy voting. A committee may not permit a proxy vote to be cast unless the absent Senator has been notified about the question to be decided and has requested that his or her vote be cast by proxy. A committee may prohibit the use of proxy votes on votes to report. (Rule XXVI, paragraph 7(a)(3)). Investigations and subpoenas. Each standing committee and its subcommittees is empowered to investigate matters within its jurisdiction and to issue subpoenas for persons and papers. (Rule XXVI, paragraph 1). Witnesses selected by the minority. During hearings on any measure or matter, the minority shall be allowed to select witnesses to testify on at least one day, when the chair receives such a request from a majority of the minority party members. This provision does not apply to the Appropriations Committee. (Rule XXVI, paragraph 4(d)). Reporting. Senate committees may report original bills and resolutions, in addition to those that have been referred to the panel. As stated in the quorum requirement, a majority of the committee must be physically present for a measure or matter to be reported. Also, a majority of those present are required to order a measure or matter reported. A Senate Committee is not required to issue a written report to accompany a measure or matter it reports; if the committee does write such a report, Senate rules specify a series of required elements that must be included in the report. (Rule XXVI, paragraph 7(a)(3); Rule XXVI, paragraph 10(c) .

A Comparison of Select Committee Rules

Regular Meeting Day

In their rules for the 112 th Congress, no Senate Committee uses either Monday or Friday for its regular meeting day, and the committees are relatively evenly spread over the remaining three days: six committees chose Tuesdays, seven committees selected Wednesdays, and six committees picked Thursdays as their regular meeting days (see Table 1 ). The Armed Services Committee chose both Tuesday and Thursday. Two committees, Appropriations and Select Aging, meet at the call of the chair. Within those categories, some committees, including the Armed Services; Foreign Relations; Indian Affairs; and Judiciary provide for meeting at least once a week. The other committees set the meetings at once or twice a month.

Hearing Notice Requirements

Committees must, according to Senate Rules, provide one week's notice of their hearings. The rule, however, allows shorter notice, if "the committee determines there is good cause" to schedule a hearing with less notice. When it comes to the determination of what "good cause" is, Senate committees allocate the task of making that decision differently (see Table 1 ). The rules of the Armed Services Committee, for example, say it is the decision of the committee as a whole.

Three committees, Agriculture, Nutrition, and Forestry; Banking, Housing, and Urban Affairs; and Finance give the chair of the panel the authority to schedule a hearing with less than a week's notice.

Six committees require some type of cooperation between the chair and ranking member of the committee to meet with less than a week's notice. Four of those committees, Budget; Environment and Public Works; Judiciary; and Special Aging, require the chair to obtain the agreement of the ranking member to make the decision to hold a hearing with less than usual notice. The Energy and Natural Resources Committee gives the responsibility to the chair and the committee together, while the Foreign Relations Committee chair must consult with the ranking minority member on the committee.

Scheduling of Witnesses

Several committees go beyond Senate requirements in their rules regarding scheduling of witnesses, giving greater opportunity to the minority to include witnesses of their choosing during a hearing (see Table 1 ). The Finance Committee calls on its staff to ensure there is a "balance of views" early on in a hearing, and allows each member of the committee to designate individuals to testify. The Foreign Relations Committee minority may request an equal number of witnesses as the majority, and the Small Business and Entrepreneurship Committee allows for an equal number of witnesses for the majority and minority unless there is to be just one administration witness. Similarly, if the Senate is evenly divided, the Budget Committee provides for equal numbers of witnesses for the majority and minority, with the same exception for a single administration witness.

The Ethics and Select Intelligence committees' rules have provisions according an opportunity for an individual to testify before the committee if that person believes his or her reputation is at issue or if his or her name came up in previous testimony.

Hearing Quorum

For receiving testimony at hearings, most Senate committees reduce their quorum requirement to one or sometimes two Senators. One panel, the Armed Services Committee, requires that a member of the minority be present, unless the full committee stipulates otherwise.

Business Quorum

The "conduct of business" at a committee meeting typically refers to actions such as debating and voting on amendments, that allow the committee to proceed on measures up to the point of reporting the measure to the full Senate. For the conduct of business, the requirement that a member of the minority be present is a common feature of committee quorum rules. In order to report out a measure, Senate rules require that a majority of the committee be physically present. A dozen committees feature some kind of minority attendance requirement for the conduct of business during a committee business meeting (see Table 2 ). The Environment and Public Works Committee's business quorum requires two members of the minority and one-third of the committee in total. The Homeland Security and Governmental Affairs, and Small Business and Entrepreneurship committees require the presence of one member of the minority, as do the Veterans' Affairs and Special Aging committees. The Veterans' Affairs Committee rules also contain a provision designed to make sure that the lack of a minority member cannot indefinitely delay action on a measure or matter.

The Finance Committee requires one member from the majority and one member of the minority for its business quorum as do the Agriculture, Nutrition, and Forestry; Foreign Relations and Ethics committees. The Health, Education, Labor, and Pensions Committee requires that any business quorum that is less than a majority of the committee include a member of the minority. The Armed Services Committee sets a business quorum at nine members, which must include a member of the minority party, but the committee may bypass the minority representation requirement if a simple majority of the committee is present. The Judiciary Committee also specifies a quorum of eight, with two members of the minority present.

The Indian Affairs Committee has a rule stating that a quorum is presumed to be present unless the absence of a quorum is noted by a Senator.

Amendment Filing Requirements

Several committees require that Senators file any first degree amendments they may offer during a committee markup before the committee meets (see Table 2 ). This provision allows the chair and ranking member of the committee to see what kind of issues may come up at the markup, and also may allow them the opportunity to try to negotiate agreements with amendment sponsors before the formal markup session begins. It also provides an opportunity to Senators to draft second degree amendments to possible first degree amendments before the markup begins.

The Banking, Housing, and Urban Affairs and Small Business and Entrepreneurship committees call for submitting such amendments two business days before the markup, if sufficient notice of the markup has been given.

The Appropriations; Environment and Public Works; Health, Education, Labor, and Pensions; Homeland Security and Governmental Affairs; and Veterans' Affairs committees require 24 hours notice of first degree amendments. The Judiciary Committee requires that first degree amendments be filed with the committee by 5 p.m. of the day before the markup. All of these committees allow the full committee to waive this filing requirement and, in some cases, it is waived automatically if Senators were not given sufficient notice of the markup.

Proxy Voting

All Senate committees except Special Aging permit some form of proxy voting, where a Senator does not have to be physically present to record his or her position on a measure or matter before the committee (see Table 3 ). The Armed Services; Foreign Relations; Homeland Security and Governmental Affairs; Select Intelligence; Veterans' Affairs and Ethics committees require that proxies be executed in writing. The Small Business and Entrepreneurship Committee requires that the responsibility for voting the proxy be assigned to a Senator or staffer who is present at the markup.

The Commerce, Science and Transportation; Environment and Public Works; Judiciary and Small Business and Entrepreneurship committees allow several other methods of transmitting a Senator's proxy intentions, including telephone or personal instructions to another Member of the committee.

Proxies cannot be used in any committee to count toward a quorum for reporting a measure or matter. The Budget Committee prohibits proxy voting during its annual markup of the budget resolution, and the Ethics Committee does not permit a Senator to vote by proxy on a motion to initiate an investigation.

Polling of Committee

Polling is a method of taking a "vote" of the committee on a matter without the committee physically coming together. As such, it cannot be used to report out measure or matters (that would violate Senate rules that require a physical majority to be present to report a measure or matter). Polling can be used, however, for internal housekeeping matters before the committee, such as questions concerning staffing or perhaps how the committee ought to proceed on a measure or matter (see Table 3 ). Five committees have general provisions for polling in their rules: Agriculture, Nutrition, and Forestry; Budget; Health, Education, Labor, and Pensions; Homeland Security and Government Affairs; and Aging. Of those, all the committees except the Health, Education, Labor, and Pensions Committee, allow a member to request that the matter being polled be formally voted on by the committee at the next business meeting. The Health, Education, Labor, and Pensions Committee only permits polling if there is unanimous consent from the committee to do so.

Nominations

Many committees set out timetables in their rules for action on presidential nominations, and most committees also contain provisions allowing the timetables to be waived (see Table 3 ). The Banking, Housing, and Urban Affairs; Health, Education, Labor, and Pensions; and Veterans' Affairs committees require a five-day layover between receipt of the nomination and committee action on it. The Foreign Relations Committee requires a six-day delay, the Armed Services Committee a seven-day delay and the Intelligence Committee calls for a fourteen-day waiting period before action on a nomination. In addition, the Intelligence panel rules require that the committee not act until seven days after the committee receives background and financial information on the nominee.

The Agriculture, Nutrition, and Forestry; Banking, Housing, and Urban Affairs; Budget; Homeland Security and Governmental Affairs; and Small Business committees require that nominees testify before their committees under oath. The Energy and Natural Resources; Indian Affairs; and Veterans' Affairs committees have provisions requiring the nominee and, if requested, anyone testifying at a nomination hearing to testify under oath. The Finance Committee allows any member to request that the testimony from witnesses be taken under oath.

Investigations

Several committees require advance permission for staff or a Senator to launch an investigation (see Table 4 ). The Select Intelligence Committee, for example, prohibits investigations unless five committee members request it. The Banking, Housing, and Urban Affairs Committee requires that either the full Senate, the full committee, or the chair and ranking member jointly authorize an investigation before it may begin. The Select Aging Committee authorizes its staff to initiate an investigation with the approval of the chair and ranking minority member and requires that all investigations be conducted in a bipartisan basis. The Energy and Natural Resources Committee requires that the full committee authorize any formal investigation. The Agriculture, Nutrition, and Forestry Committee requires full committee approval for any investigation involving subpoenas and depositions, and the Health, Education, Labor, and Pensions Committee requires majority approval for any investigation involving a subpoena.

Subpoenas

Five Senate committees do not have specific rules that set out how the panel will decide to issue subpoenas (see Table 4 ). The lack of a subpoena provision does not mean the committees cannot issue subpoenas, just that the process for doing so is not specified in the committee's written rules.

Of the committees that do have rules on subpoenas, one, the Special Committee on Aging, grants the authority to issue the subpoena to the chair alone. Nine other committees, Agriculture, Nutrition, and Forestry; Banking; Commerce; Energy and Natural Resources; Finance; Homeland Security and Governmental Affairs; Indian Affairs; Small Business and Entrepreneurship; and Veterans' Affairs, require that the chair seek the agreement, approval, concurrence, or consent of the ranking member before issuing a subpoena. In all instances, however, the chair also may gain approval for a subpoena from a majority of the committee.

Three committees—Foreign Relations; Health, Education, Labor, and Pensions; and Select Intelligence—give the decision as to whether to issue a subpoena to the full committee as a whole, while Ethics allows the chair and ranking minority member acting jointly or a majority of the committee to approve a subpoena. It is not clear how the Members would communicate their support to the chair, either by polling or through a committee vote.

Miscellaneous

Some committees have unique provisions that are not included in other committee rules.

The Budget Committee's rules limit the size and number of charts a Senator can display during debate on a subject. The Commerce, Science and Transportation Committee permits broadcasting of its proceedings only upon agreement by the chair and ranking member. The chair and ranking member of the Rules and Administration Committee are authorized to approve any rule or regulation that the committee must approve, and the Small Business and Entrepreneurship Committee allows any member to administer the oath to any witness testifying "as to fact."

Both the Finance and the Judiciary committees allow the chair to call a vote on whether to end debate on a pending measure or matter. This ability to end debate on a measure or matter does not appear in any other committees' rules and may allow these committees to move controversial measure through their panels.

The Foreign Relations Committee includes in its rules a provision stating that, as much as possible, the committee not "resort" to formal parliamentary procedure. That would seem to suggest a committee where Senators attempt to resolve controversial issues before the committee markup, rather than relying on parliamentary tools to push legislation or nominations through.

Both the Veterans' Affairs and the Environment and Public Works committees are charged with naming certain federal facilities, so their rules provide guidance on how those names may be chosen. The rules of the Banking, Housing, and Urban Affairs Committee require that any measure seeking to give out the Congressional Gold Medal have 67 cosponsors to be considered.

The Select Intelligence Committee gives direction to its staff director to ensure that covert programs are reviewed at least once per quarter.

The Appropriations Committee rules empower any member of the committee who is managing an appropriations bill on the floor to make points of order against amendments being offered that would seem to violate Senate rules.

The Armed Services Committee's rules reach out to the executive branch and call on the committee to obtain executive branch response to any measure referred to the committee. The Homeland Security and Governmental Affairs Committee requires that any report on a measure also include an evaluation of the regulatory impact of the measure. The Select Committee on Aging requires that investigative reports containing findings or recommendations may be published only with the approval of a majority of committee members.

The Indian Affairs Committee urges its Members to disclose their finances in the same way in which they require nominees to presidentially appointed positions to do.

The Energy and Natural Resources Committee appears to allow any Member to place a measure or matter on the committee's agenda, if the Member does so at least one week in advance of the business meeting at which it will be considered. The Judiciary Committee allows any member to delay consideration for one week any item on its agenda. The Select Committee on Ethics also allows any member of the committee to postpone discussion of a pending matter until a majority of the committee is present.