Bypassing Senate Committees: Rule XIV and Unanimous Consent
Released: 2017-02-08T00:00:00

Introduction

When a Senator introduces a bill or joint resolution, the measure is usually referred to committee, pursuant to provisions of Senate Rules XIV, XVII, and XXV. When the House informs the Senate that it ha s passed a bill or joint resolution that was introduced in the House, and the Senate receives the measure, the measure is also often referred to a Senate committee.

Senate Rule XIV, paragraph 2 requires that bills and joint resolutions have three readings before passage, and that they be read twice before being referred to committee. Although a Senator may demand (under paragraph 2) that the readings occur on three different legislative days, bills and joint resolutions may be read twice on the same day "for reference" (referral) if there is no objection (under paragraph 3). Most bills and joint resolutions are read twice "without any comment whatsoever from the floor" and referred to committee on the same day that they are introduced by a Senator or received from the House.

Senate Rule XVII, paragraph 1 states that a measure should be referred to the committee "which has jurisdiction over the subject matter which predominates.... " Rule XXV contains the jurisdictions of the Senate's standing committees. These rules and the precedents from referral decisions based on them guide the referral of measures. There also exist agreements between committees that might govern the referral of certain bills and joint resolutions.

Under Rule XVII, paragraph 1, the presiding officer formally refers bills and joint resolutions; in practice, the parliamentarian refers measures in behalf of the presiding officer. The introduction and referral of bills and joint resolutions, and the referral of House-passed bills and joint resolutions, occurs as "morning business," pursuant to Senate Rule VII, paragraph 1.

The Senate may, however, use provisions of Senate Rule XIV or unanimous consent to bypass referral of a bill or joint resolution to a committee. The Senate might also hold a measure in abeyance at the desk (of the presiding officer), at least temporarily not referring it to committee or proceeding on it. The Senate might also agree by unanimous consent to truncate a committee's consideration of a measure that had been referred to it. Reasons for bypassing a committee's consideration of a bill or joint resolution include wishing to place the measure directly on the Senate's Calendar of Business, which under General Orders lists measures eligible for floor consideration, or wanting to immediately call up and consider the measure.

Senators might also convert introduced bills and resolutions into an amendment form and offer their proposal as a germane, relevant, or nongermane amendment, including amendments in the nature of a substitute and managers' amendments, to a measure being considered on the Senate floor. They might also choose not to introduce a bill or resolution at all, but only seek to amend another measure. This report does not examine the use of the amendment process as a way to bypass Senate committees.

This report examines alternative procedures and actions that the Senate uses to bypass committee consideration of bills and joint resolutions. It also provides examples of how the Senate uses these alternative procedures and actions to facilitate consideration and passage of some bills and joint resolutions.

In the remainder of this report, bill or bills and measure or measures will be used to refer to bills and joint resolutions.

Using Rule XIV to Bypass a Senate Committee

Senate Rule XIV, paragraph 4, states: "... every bill and joint resolution introduced on leave, and every bill and joint resolution of the House of Representatives which shall have received a first and second reading without being referred to a committee, shall, if objection be made to further proceeding thereon, be placed on the Calendar ." ( Emphasis added .)

Therefore, through objection, a bill after two readings is prevented from being referred to committee and is placed directly on the Senate's Calendar of Business. It is usually the majority leader (or a Senator acting in the majority leader's stead), acting on his own or at the request of any other Senator, who objects to "further proceeding"—committee referral—on a measure.

For example, this procedure was used to place S. 1035 directly on the calendar. On April 21, 2015, the presiding officer recognized Majority Leader McConnell for this colloquy with the chair:

Mr. McCONNELL. Mr. President, I understand that there is a bill at the desk, and I ask for its first reading.

The PRESIDING OFFICER. The clerk will read the bill by title for the first time.

The senior assistant legislative clerk read as follows:

A bill ( S. 1035 ) to extend authority relating to roving surveillance, access to business records, and individual terrorists as agents of foreign powers under the Foreign Intelligence Surveillance Act of 1978 and for other purposes.

Mr. McCONNELL. I now ask for a second reading and, in order to place the bill on the calendar under the provisions of rule XIV, I object to my own request.

The PRESIDING OFFICER. Objection having been heard, the bill will be read for the second time on the next legislative day.

In the next edition of the Senate's Calendar of Business on April 22, this action was recorded in the section Bills and Joint Resolutions Read the First Time. The measure was pending at the desk (of the presiding officer).

Since objection had been heard to the second reading, the presiding officer recognized Majority Leader McConnell the next legislative day, April 22:

Mr. McCONNELL. Mr. President, I understand there is a bill at the desk due for a second reading.

The PRESIDING OFFICER. The clerk will read the bill by title for the second time.

The legislative clerk read as follows:

A bill ( S. 1035 ) to extend authority relating to roving surveillance, access to business records, and individual terrorists as agents of foreign powers under the Foreign Intelligence Surveillance Act of 1978 and for other purposes.

Mr. McCONNELL. In order to place the bill on the calendar under the provisions of rule XIV, I object to further proceedings.

The PRESIDENT pro tempore. Objection having been heard, the bill will be placed on the calendar.

S. 1035 had received its second reading, but there was objection to further proceeding on referral of the bill to committee. The presiding officer, under Rule XIV, ordered that the bill be placed on the Senate Calendar. In the calendar beginning April 23, S. 1035 appeared as Calendar Order No. 60 in the section General Orders, with other measures eligible for floor consideration.

This same procedure is followed to have House-passed bills and joint resolutions placed directly on the Senate calendar.

Broadly, the two purposes of preventing referral of a bill to a committee by placing it on the Senate Calendar are (1) to facilitate the full Senate's opportunity to consider the measure; or (2) to bypass a committee's potential inaction or, to a bill's sponsor, potential hostile action. Although placing a bill directly on the calendar does not guarantee that the full Senate will ever consider it, the measure is available for floor consideration and certain procedural steps, like committee reporting or discharging a committee from a bill's consideration, and procedural requirements, like the two-day availability of a committee report, may be obviated.

In the 114 th Congress, at least 82 bills were placed directly on the calendar using the Rule XIV procedure. For example, S. 1 , to approve the construction of the Keystone XL pipeline, was a priority for many Republican Senators and a group of Democratic Senators. A reason that it might have been placed directly on the calendar was that the issue had been discussed in the second session of the 113 th Congress and a related bill ( S. 2280 ) had been debated and voted on in the 113 th Congress's lame-duck session. On January 6, 2015, in the 114 th Congress, Senator John Hoeven introduced S. 1 . It was read a first time that day, and, on January 7, it was read the second time and placed on the calendar, thereby enabling the majority leader to expeditiously call up the bill in the Senate.

Although no measure on the Senate Calendar is assured rapid or any consideration, the majority leader moved to proceed to the consideration of S. 1 on January 8 and immediately presented a motion to invoke cloture. The Senate on January 12 by a 63-32 vote invoked cloture on the motion to proceed. The Senate subsequently agreed to the motion to proceed on a voice vote on January 13, whereupon debate and the consideration of amendments began. Upon a second attempt to invoke cloture on the measure , cloture was invoked by a vote of 62-35 on January 29. The Senate voted 62-36 the same day to pass the bill.

As mentioned, House-passed bills might also be placed directly on the calendar using the Rule XIV procedure. The Senate might choose this option when—

a related Senate measure is already on the calendar; a Senate committee is in the process of completing consideration of Senate companion legislation; an amendment to the House measure is already in discussion among interested Senators and the House-passed measure will be the Senate's legislative vehicle; Senators of the committee of jurisdiction support for the House-passed measure is stronger in the full Senate than in the committee to which it would be referred; the House-passed measure includes tax or appropriations provisions, which must originate in the House, requiring the use of a House-passed legislative vehicle; or for another reason.

House-passed measures placed on the calendar in this way in the 114 th Congress included H.R. 4465 , the Federal Assets Sale and Transfer Act, where the Senate Homeland Security and Governmental Affairs committee had earlier ordered reported a companion bill, and H.R. 2666 , the No Rate Regulation of Internet Broadnet Access Act, where the Senate Commerce, Science, and Transportation Committee subsequently reported a companion bill.

The procedure under Rule XIV is also used by minority-party Senators, or by a majority-party Senator with a viewpoint different on an issue from that of other Senators of his or her party, to give added visibility to specific bills and to avoid potential inaction or hostility in a Senate committee. A Democratic Senator in the 114 th Congress, for example, used this procedure to put directly on the calendar S. 3348 , a bill to require major-party presidential candidates to disclose tax return information.

Measures Placed on the Senate Calendar by Unanimous Consent

By unanimous consent, bills may also be read the first and second times and placed directly on the calendar. This procedure was used in the 114 th Congress for bills such as H.R. 5687 , the GAO Mandates Revision Act. The Senate companion measure, S. 2964 , had been reported earlier from the Senate Homeland Security and Governmental Affairs Committee and was pending on the Senate Calendar.

Even major legislation might be placed directly on the calendar by unanimous consent. For example, in the 113 th Congress, Majority Leader Reid anticipated that the Senate would soon receive from the House H.J.Res. 59 , the fiscal year 2014 continuing appropriations resolution. To ensure that he could quickly call up the measure, the majority leader made this unanimous consent request on September 19, 2013:

Mr. President, I ask unanimous consent that[,] when the Senate receives H.J.Res. 59 from the House, the measure be placed on the calendar with a motion to proceed not in order until Monday, September 23.

When the majority leader obtained the Senate's unanimous consent, the House was still one day from voting to proceed to the consideration of H.J.Res. 59 .

Using Unanimous Consent to Bypass Committees for Floor Consideration

Senate floor consideration of a bill could be characterized as a two-step process. There is first debate and a decision by the Senate whether to consider a measure: a vote on, invoking cloture on, or unanimous consent to a motion to proceed to consideration of the measure. There is then debate, possible amendment, and a vote on final passage of the measure itself.

On many pieces of noncontroversial legislation, Senate leaders might use one of two informal processes called clearance and hotlining to determine the feasibility of expeditious or immediate consideration of a measure. Senators are notified of pending noncontroversial bills to determine if any Senator would object to proceeding to consider and then passing a specific measure by unanimous consent—with little or no debate, no motion or amendment unless it is sought as part of clearance, and, likely, no recorded votes. The process of passing noncontroversial measures may include bypassing a Senate committee or truncating committee action, although a committee might well have played a key role in the development of the noncontroversial measure sought to be passed or in the measure's clearance.

On major legislation, the majority leader also attempts through clearance to obtain unanimous consent to proceed to consideration of a measure. The majority leader might seek unanimous consent even if the measure was not referred to or reported by a committee. If successful in negotiating unanimous consent to proceed to the consideration of a measure, or perhaps to discharge a committee from further proceedings on a measure and then to proceed to its consideration, the majority leader propounds a unanimous consent request on the Senate floor to proceed to the consideration of the specified measure.

This section of the report illustrates the use of unanimous consent to bypass or truncate committee consideration of legislation and, particularly for noncontroversial legislation, to expeditiously pass such bills on the Senate floor.

Same-Day Consideration

The Senate may pass some noncontroversial bills the day they are introduced, for example, in the 113 th Congress, S. 1568 , to facilitate the replacement of a Veterans Administration medical center in Denver:

Mr. GARDNER. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. 1568 , introduced earlier today.

The PRESIDING OFFICER. The clerk will report the bill by title.

The bill clerk read as follows:

A bill ( S. 1568 ) to extend the authorization to carry out the replacement of the existing medical center of the Department of Veterans Affairs in Denver, Colorado, to authorize transfers of amounts to carry out the replacement of such medical center, and for other purposes.

There being no objection, the Senate proceeded to consider the bill.

Mr. GARDNER. Mr. President ... I ask unanimous consent that the bill be read a third time and passed, and the motion to reconsider be laid upon the table.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senate may also pass some House-passed bills when they are received. For example, the Senate received a message from the House July 14, 2016, regarding H.R. 5722 , establishing the John F. Kennedy Centennial Commission, and passed the bill that day:

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the Senate proceed to immediate consideration of H.R. 5722 , which was received from the House and is at the desk.

The PRESIDING OFFICER. The clerk will report the bill by title.

The senior assistant legislative clerk read as follows:

A bill ( H.R. 5722 ) to establish the John F. Kennedy Centennial Commission.

There being no objection, the Senate proceeded to consider the bill.

Ms. MURKOWSKI. Mr. President, I further ask unanimous consent that the bill be read three times and passed and the motion to reconsider be considered made and laid upon the table with no intervening action or debate.

The PRESIDING OFFICER. Without objection, it is so ordered.

If the measure is a joint resolution rather than a bill, and the joint resolution has a preamble, the unanimous consent request on passage must encompass the preamble. So, for example, Majority Leader Reid made this request pertaining to S.J.Res. 22 (112 th Congress), to grant congressional consent to a change in a compact between the states of Missouri and Illinois:

I ask unanimous consent the joint resolution be passed, the preamble be agreed to , the motion to reconsider be made and laid upon the table, there be no intervening action or debate, and any statements be printed in the Record. ( Emphasis added .)

Measures at the Desk or Held at the Desk

House bills might be received by the Senate, or Senate bills might be introduced, with no immediate further proceedings on them. They may be held at the desk or ordered to be held at the desk, sometimes pending a decision on referring them to committee, passing them without committee consideration, or obtaining clearance from all Senators. For example, H.R. 5936 , the West Los Angeles Leasing Act of 2016 (dealing with local Veterans Administration leases), was received in the Senate on September 13, 2016. Although several other bills received from the House that day were referred, no proceedings occurred on H.R. 5936 . On September 19, the Senate took up and passed H.R. 5936 by unanimous consent. To proceed to consideration, Majority Leader McConnell simply stated,

I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 5936 , which was received from the House and is at the desk.

The bill was passed without debate by voice vote.

The Senate might even amend a bill that is taken from the desk and considered, as it did with H.R. 6302 , the Overtime Pay for Secret Service Agents Act of 2016. The pertinent words spoken after there was no objection to the Senate's proceeding to consider the bill were:

I ask unanimous consent that the Johnson substitute amendment be agreed to; the bill, as amended, be considered read a third time and passed; the title amendment be agreed to; and the motion to reconsider be considered made and laid upon the table.

H.R. 6302 , as amended, was passed by unanimous consent.

Anticipating House Action

The Senate might anticipate passage of a measure by the House, and agree by unanimous consent to Senate passage. For example, the Senate in the 113 th Congress anticipated House passage of a bill that would provide a short-term extension for special Iraqi immigrant visas:

Mr. REID. Mr. President, I ask unanimous consent that if the Senate receives a bill from the House which is identical to S. 1566 , a bill providing a short-term extension of Iraq special immigrant visas, as passed by the Senate, then the bill be read three times and passed and the motion to reconsider be laid on the table with no intervening action or debate.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senate might even anticipate House action on major legislation and, in response to exigent circumstances, agree by unanimous consent to its automatic consideration and passage. This happened, for example, when Hurricane Katrina decimated the Gulf Coast during the August 2005 congressional recess. Speaker Dennis Hastert and Majority Leader Bill Frist called Congress back into session on September 1, 2005 (the Senate) and September 2 (the House). With only a handful of Members present, the House on September 2 passed H.R. 3645 , emergency supplemental appropriations to deal with the immediate consequences of Hurricane Katrina. On September 1, anticipating House action, Senator Thad Cochran, chair of the Appropriations Committee, made this unanimous consent request, which was agreed to:

Mr. President, at this point, I ask unanimous consent that notwithstanding the recess or adjournment of the Senate, the Senate may receive from the House an emergency supplemental appropriations bill for relief of the victims of Hurricane Katrina, the text of which is at the desk, and that the measure be considered read three times and passed and a motion to reconsider laid on the table; provided that the text of the House bill is identical to that which is at the desk.

The House and Senate passed the supplemental appropriations bill September 2 and President George W. Bush signed it into law the same day ( P.L. 109-61 ).

Truncating Committee Action

Noncontroversial Senate bills and House-passed measures are often referred to committee. A committee might later be discharged by unanimous consent of the Senate from a measure's consideration. (If unanimous consent cannot be obtained, a motion to discharge could be made. ) For example, H.R. 1168 , an amendment to the Social Security Act to preserve access to rehabilitation innovation centers under the Medicare program, was introduced on April 30, 2015. On December 9, 2016, the measure was discharged by unanimous consent from the Senate Finance Committee. With an amendment included in the unanimous consent request on reading and passage, the Senate passed the bill:

Mr. PORTMAN. Mr. President, I ask unanimous consent that the Committee on Finance be discharged from further consideration of S. 1168 and the Senate proceed to its immediate consideration.

The PRESIDING OFFICER. Without objection, it is so ordered.

The clerk will report the bill by title.

The senior assistant legislative clerk read as follows:

A bill ( S. 1168 ) to amend title XVIII of the Social Security Act to preserve access to rehabilitation innovation centers under the Medicare program.

There being no objection, the Senate proceeded to consider the bill.

Mr. PORTMAN. Mr. President, I ask unanimous consent that the Kirk amendment at the desk be agreed to; that the bill, as amended, be read a third time and passed; and that the motion to reconsider be considered made and laid upon the table.

The PRESIDING OFFICER. Without objection, it is so ordered.

Although legislation might be discharged from a committee that has taken no formal action on a measure, legislation might also be discharged following formal committee action. For example, the Veterans' Affairs Committee held hearings on S. 3021 , the Veterans Education Improvement Act of 2016. The committee was subsequently discharged from further consideration of S. 3021 . Similarly, the Veterans' Affairs Committee was discharged following committee hearings from further consideration of S. 3055 , the Department of Veterans Administration Dental Insurance Reauthorization Act of 2016. In the 112 th Congress, the Judiciary Committee was discharged from further consideration of S. 3250 , the Sexual Assault Forensic Evidence Reporting Act of 2012 (the SAFER Act), after the committee had ordered the bill to be favorably reported.

Measures might also be discharged and considered en bloc.