Germaneness of Debate in the Senate: The Pastore Rule
Released: 2018-03-20T00:00:00

The Pastore Rule

Under the rules and precedents of the Senate, debate on the Senate floor is largely unrestricted. In most cases, once recognized, a Senator may speak without time limit and on almost any subject of his or her choosing. Paragraph 1(b) of Senate Rule XIX, however—commonly known as the Pastore rule, after its author, former Rhode Island Senator John Pastore—requires Senate floor debate to be germane during specific periods of a Senate work day. The rule states

(b) At the conclusion of the morning hour at the beginning of a new legislative day or after the unfinished business or any pending business has first been laid before the Senate on any calendar day, and until after the duration of three hours of actual session after such business is laid down except as determined to the contrary by unanimous consent or on motion without debate, all debate shall be germane and confined to the specific question then pending before the Senate.

In practice, the Pastore rule rarely affects what Senators speak about on the floor. The presiding officer typically will not on his or her own initiative instruct a speaking Senator to keep remarks germane. Instead, another Senator would have to raise a point of order against the speech. For reasons discussed below, these points of order are infrequent in modern practice. The rule, nevertheless, remains in force, and this report discusses related precedents and past instances of enforcement on the floor.

Pursuant to the Pastore rule, all floor debate must be germane and confined to the specific question then pending before the Senate for the first three hours after (1) the conclusion of the Morning Hour occurring at the beginning of a new legislative day (in the rare event the Senate should hold a Morning Hour) or (2) after the unfinished business or any pending business has been laid before the Senate on any calendar day. The practical effect of the rule is to require Senators to remain on topic in debate for the first three hours after the Senate begins considering its daily business.

Three hours of actual Senate session must occur to fulfill the requirements of the Pastore rule. Recess periods taken prior to three hours of session elapsing are not counted toward the three-hour total. Once three hours of actual session have passed, Senators are no longer bound by the germaneness requirement.

The Pastore rule's germaneness requirement can be waived by unanimous consent (UC) or by nondebatable motion. Any Senator may request unanimous consent to speak out of order on a nongermane subject while the Pastore rule is in effect. A Senator might also request UC to waive the rule on behalf of another Senator or request a blanket waiver to allow all Senators to speak on nongermane topics. The Senate also frequently by UC establishes periods for "morning business," when Senators can speak on topics of their choice for a period of time set by the UC agreement (typically 10 minutes).

UC agreements can also structure the extent to which the Pastore rule will apply at any given time. For example, in one instance, by UC, the period during which the rule's germaneness of debate requirement applied was expanded from three hours to five hours.

Enforcing Germaneness in Debate

A Senator may be called to order during the three-hour window described in the Pastore rule if his or her remarks are not germane to the specific question then pending before the Senate. Chamber precedents permit the presiding officer to call a Senator to order under the rule on his or her own initiative. The precedents point out, however, that the rule is "not necessarily self-enforcing," and as such, the rule is customarily enforced only by a call to order from the floor. In current practice, the germaneness requirements of the Pastore rule are rarely formally invoked on the Senate floor.

If a Senator calls another Senator to order under the rule, enforcement first results in a reminder from the presiding officer that debate must be germane to the question then pending before the Senate. A Senator does not need to be recognized by the chair in order to call another Senator to order under the rule. The raising of this point of order does not remove speaking privileges from the offending Senator, although the Senator must suspend his or her remarks until the chair rules on the question. Depending on the ruling of the presiding officer on such a point of order, a Senator may either continue speaking (if his or her debate is ruled germane), pivot to a germane topic (if ruled not germane), or yield the floor (if ruled not germane).

History of the Pastore Rule

Before paragraph 1(b) of Rule XIX was adopted in 1964, there was no rule or precedent requiring the germaneness of debate during regular Senate proceedings.

What would become the present-day Pastore rule first appeared with the introduction of S.Res. 89 on February 19, 1963, by Senator Pastore for himself and 30 bipartisan cosponsors. The resolution, as submitted, included two key differences from what would ultimately be adopted: It called for four hours of germane debate (as opposed to three) and placed a germaneness requirement not just on debate but also on motions (except "amendments offered to the bill or resolution under consideration when reasonably related thereto").

During hearings held on S. Res. 89 by the Senate Rules Committee's Subcommittee on Standing Rules of the Senate, Senator Pastore expressed his view that the Senate was unable to sufficiently focus on debating important legislation

I am very much disturbed by such a situation as where a member is charged with the responsibility of managing a bill on the floor. He must be there prepared to assume his responsibilities and present the matter to the Senate. But time and time again what has been our experience?... You sit there as the manager of the bill, and someone comes down on the floor with an extraneous speech, which he has a perfect right to deliver, because he must meet a press deadline. All I am saying here is that a period of 4 hours from the time we conclude the morning hour, for those 4 hours we devote ourselves to the business at hand.

Senator Pastore argued that his proposed rule would increase attendance and allow the Senate to proceed in a more orderly fashion

First of all, [the proposed rule] would accomplish this: The Members of the Senate, knowing that the business at hand will be discussed, will be more readily available on a quorum call. It will not have to take 20 minutes or a half hour, and then probably get into live quorums. Members would know that for 4 hours, if they arrange their program, they would sit on the floor, that they could discuss the business at hand and conclude it, without interruption. I think it would help immensely.

The Senate Committee on Rules and Administration adopted three amendments to S.Res. 89 before reporting the resolution, as amended, favorably to the Senate on September 19, 1963. The first amendment inserted language clarifying that the germaneness period in the rule would occur just once each calendar day. By its second amendment, the committee struck language from the resolution that allowed only the introduction of amendments "reasonably related" to the pending business. This second amendment was adopted for the express purpose of continuing "the present practice of permitting legislative riders." The third and final amendment reported by the committee changed the germaneness period from four hours to three hours, as found in the current rule. Regarding this final change, the committee report accompanying S.Res. 89 noted

In the opinion of the committee, it is important that there be flexibility of debate in the Senate, but the committee believes it equally important that there be some reasonable limitation on that flexibility. The adjustment in Senate procedure involved in Senate Resolution 89 would probably result in a larger participation in meaningful and coordinated debate on vital and major bills on the floor of the Senate. At the same time adoption of the measure reserves ample opportunity for the discussion of general topics.

S.Res.89 was considered on the Senate floor over parts of eight days in January 1964. As noted above, at the time, no Senate rule or precedent existed that required a germaneness of debate during regular Senate session. As such, the resolution was viewed by some as proposing a significant change in chamber procedures. Minority Leader Everett Dirksen of Illinois, among others, took to the floor to express strong opposition to the idea of placing any limits on the rights of Senators in debate

Let us make no mistake about it. If I read my history correctly, past and present, whenever the freedom of a parliamentary body is impaired, we go down the road to tyranny. What was the first thing that Hitler did to Germany? He demeaned the Bundestag. He made them, its members, appear to be like a group of urchins who had no sense. What was the first thing Mussolini did to Italy? The Chamber of Deputies was made to appear as if it had no sense, no value, no usefulness. Show me any place in the world where a parliamentary body and its freedoms are impaired and I will show an instance of freedom in retreat.

On January 10, 1964, the Senate adopted a floor amendment to S.Res. 89 proposed by Senator Pastore himself to strike the resolution's germaneness requirement for motions and apply the requirement to debate only, as in the present rule. All other floor amendments to the resolution were rejected. Ultimately, S.Res. 89 was agreed to, as amended, in the Senate by a 57-25 vote on January 23, 1964.

The resolution, as passed, inserted the new germaneness requirement into Senate Rule VIII, relating to the Order of Business. The language would later be recodified without change as paragraph 1(b) of Rule XIX with the adoption of S.Res. 274 on November 14, 1979, in the 96 th Congress (1979-1980).

Use of the Pastore Rule

As noted above, the Pastore rule has seen sporadic enforcement since its adoption. In the decade or so after the rule's adoption, Senator Robert Byrd of West Virginia, who served as majority whip and later as both majority and minority leader, was a frequent observer of the rule, often seeking clarification on whether the Senate was operating within the three hours of required germaneness or seeking unanimous consent to waive the rule to allow him or others to speak without restriction. On occasion, Senators have taken to the floor to proclaim an expectation of adherence to the Pastore rule for the duration of the consideration of a particular bill.

Despite, or perhaps because of, the sporadic observance of the Pastore rule, a report issued in 1983 by the Study Group on Senate Practices and Procedures—an entity established to examine Senate procedures and recommend improvements to them—recommended that the Senate "require debate to be relevant at all times during the discussion of legislation and executive business." On May 9, 1983, the Senate Committee on Rules and Administration held a hearing on the study group report. The Senate took no further action on the proposal.

CRS identified several instances between 1964 and 2017 where a point of order or parliamentary inquiry was raised under the Pastore rule in relation to germaneness of debate or when other actions were taken that appeared to be efforts to enforce the rule, such as objections to unanimous consent requests to waive the germaneness requirement. The earliest instance identified occurred in 1968, four years after adoption of the rule; the most recent identified occurred in 2003. These instances are identified in Table 1 and were identified through full-text electronic searches of the Congressional Record in LIS.gov and the HeinOnline database as well as through a review of relevant chapters in Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure: Precedents and Practices, 101 st Cong., 1 st sess., S.Doc. 101-28 (Washington, DC: GPO, 1992). Not included in the table are simple references to the Pastore rule in debate (e.g., parliamentary inquiries as to whether the Senate was operating under the rule), instances when the requirement for germane debate would expire for the day, or Senators noting that they or others were in violation of the rule without an accompanying point of order made against the Senator holding the floor.