The Committee Markup Process in the House of Representatives
Released: 2018-12-10T00:00:00

Introduction

The primary legislative function of standing committees in the House of Representatives is to evaluate the thousands of bills and resolutions that Members introduce during each Congress. This evaluation process typically begins with an initial screening by which the majority party leaders and staff of each committee identify the relatively small percentage of measures referred to it that may merit more consideration. The committee or one of its subcommittees may conduct one or more days of public hearings to receive testimony about the issue and the merits of the legislation proposed to address it. If the committee decides that it may want to recommend that the House take legislative action, the hearings are followed by markup meetings at which committee members propose and vote on amendments to a bill (or the draft of a bill). These meetings are called markups because committee members mark up the legislation before them as they decide what amendments to propose to the House. Finally, the committee votes to order the bill reported back to the House for consideration on the floor.

This report focuses on the markup stage of the legislative process in committee. It discusses the selection of the text to be marked up, the procedures for proposing and debating amendments to that text, the voting and quorum procedures that govern markups, and the final stages of ordering the marked-up text reported to the House for its consideration.

Applicability of House Rules

In general, the markup process in House committees reflects many of the rules and practices that govern the amending process on the House floor. Clause 1(a)(1)(A) of House Rule XI states in part that "the Rules of the House are the rules of its committees and subcommittees so far as applicable." As this report will discuss, this clause is somewhat ambiguous in application because there is more than one House rule governing some aspects of the floor amendment process, such as the devices available to terminate debate or to preclude additional amendments from being offered.

Clause 2(a)(1) of Rule XI also empowers each standing committee to supplement and implement clause 1(a)(1)(A) by adopting its own written rules, which each committee does at one of its first meetings at the beginning of each Congress. According to clause 2(a)(1), these committee rules "may not be inconsistent with the Rules of the House or with those provisions of law having the force and effect of Rules of the House.... " This statement also is ambiguous in that a committee rule governing debate on amendments, for example, may be consistent with one House rule but inconsistent with another. As this report also will discuss, the House Parliamentarian has given committees some helpful guidance about how these provisions should be understood and applied during the conduct of markups and other committee meetings.

The combined effect of these two clauses, therefore, is to give the House's standing committees some clear direction about how to proceed during markups, but also to give them some discretion in setting their own committee rules, procedures, and customary practices.

Variations Among Committees

Committee markups tend to be less formal than the corresponding amending process on the House floor. Committees are much smaller bodies, so they do not always need elaborate rules that are strictly enforced in order for them to conduct their business. In fact, a more informal process sometimes contributes to efficient and collegial decision making in committee. Furthermore, most committee markups are somewhat less constrained by rules than House floor sessions because the House Parliamentarian and his assistants do not attend committee markups to advise chairs and other committee members on procedural questions. Although many committees designate a majority party staff member to provide procedural advice, committee chairs tend to rely much more on their own knowledge and judgment in conducting committee meetings than do the Speaker and other Representatives who preside over House floor sessions.

The rules of the House give its committees some discretion in how each of them conducts its markup meetings, and committees exercise this discretion in somewhat different ways—both in the formal rules they adopt to govern their meetings, and even more in the informal (and unrecorded) practices that different committees typically follow.

This report concentrates on the markup procedures that House committees are expected to employ, although not all committees follow these procedures in all respects and at all times. The report also discusses some informal practices and certain tactical alternatives that committee chairs and members sometimes employ. However, the discussion here could not possibly encompass every variation in markup procedure that may be observed in committee practices. Readers of this report should not be surprised if it does not accord in every respect with what they may have observed at certain markup meetings of the committees with which they are most familiar. References to committees in what follows should be understood to refer to subcommittees as well, unless the text specifically distinguishes between them.

Selecting the Text

A key initial decision that can shape the course and outcome of a markup is the selection of the text that the committee considers. Essentially, there are two choices. First, the committee may mark up the text of one of the bills that Members had introduced and that the House Parliamentarian, acting for the Speaker, had referred to the committee.

Second, the committee may mark up the draft of a bill that has not yet been formally introduced and referred to the committee. The chair can direct the committee's staff to prepare the draft of a bill, usually written with the assistance of attorneys in the House's Office of Legislative Counsel, that reflects the chair's policy preferences. The committee then may mark up this draft bill, which, in its printed form, may be called a staff draft , discussion draft , or chair's mark . This last phrase originated in committee consideration of budget resolutions, but it now is commonly used to denote any draft that constitutes the legislative starting point from which a committee chair thinks a markup should begin.

In either case, the text that a committee marks up already may have been marked up by one or more of the committee's subcommittees. If there has been a subcommittee markup, the subcommittee then makes its legislative recommendations to its parent committee. In turn, the committee most often uses the product of the subcommittee's markup as the starting point for its own markup.

The selection of the text—or the base text or vehicle , as Members sometimes call it—that the committee will mark up is important because it sets the framework within which the markup, and the policy debates it inspires, will take place. Each provision of the selected text will survive the markup and be recommended to the House for passage unless a committee member takes the initiative to propose an amendment to it that the committee adopts. The burden is on those who would change the provisions of the base text; it is up to them to devise alternatives to that text and convince a majority of their committee colleagues to vote for those alternatives. Clearly, then, it is advantageous to be able to select the vehicle from among the bills that were referred to the committee, or to devise the vehicle by drafting a new text that very well may draw on selected provisions of the introduced bills on which the committee held hearings.

Under House Rule XI, clause 2(g)(4), the text of the legislation to be marked up by a committee generally must be made publicly available in electronic form at least 24 hours prior to the meeting.

The Chair's Authority in Practice

Almost invariably, it is the committee chair who selects the text to be marked up. Yet there is nothing in the rules of the House that explicitly gives chairs this authority. Instead, this power would seem to derive from the authority of committee chairs to schedule committee meetings and set the agenda for them.

Clause 2(b) of House Rule XI directs each committee to establish regular monthly meeting days to conduct business, which can include marking up legislation. Committees interpret this rule as giving the chair the authority to decide what, if anything, the committee should consider at each of its regular meetings. Many committees also exercise the authority derived from clause 2(b) to allow their chairs to cancel regular meetings when the chair considers it appropriate to do so.

Clause 2(c)(1) of the same rule authorizes each standing committee chair to call "additional and special" committee meetings "for the consideration of a bill or resolution pending before the committee or for the conduct of other committee business, subject to such rules as the committee may adopt." Again, this clause is understood to allow the chair to decide what measure or what other committee business will be on the agenda of each such meeting.

House rules do require the chair to give prior notice before scheduling a meeting. Specifically, clause 2(g)(3) of House Rule XI states that a meeting "may not commence earlier than the third day on which members have had notice thereof." The chair in concurrence with the ranking member can waive this requirement for "good cause." In addition, a majority of the committee, a quorum being present, can vote to waive the requirement. The authority to schedule committee meetings, including markups, and to select matters for consideration at those meetings still rests effectively with the committee chair.

Recourse of Committee Members

Committee members have two different mechanisms they can use when they disagree with their chair's decisions about what legislation the committee will meet to mark up, and when. However, members very rarely resort to either of these devices.

If a committee member objects to the committee marking up a matter that the chair has placed on the agenda for a regular or additional committee meeting, the member may ask the committee to vote on whether it wants to consider that matter. To secure this vote, a member raises what is known as the question of consideration . Under clause 3 of House Rule XVI (which Rule XI, clause 1(a)(1)(A), makes applicable to committees),

When a motion or proposition is entertained, the question, "Will the House now consider it?" may not be put unless demanded by a Member, Delegate, or Resident Commissioner.

Put differently, whenever a bill or resolution, or the draft text of a measure, is called up for markup at a committee meeting (but before debate on it actually begins), any member may compel a vote on the question of consideration. If a majority of the committee votes "no" on this question of consideration, the committee does not proceed to act on the matter in question. In this way, a majority of a committee can prevent its chair from compelling them to mark up legislation that they prefer not to consider, at least at that time. However, the question of consideration rarely is raised, and, if raised, it is very unlikely that the committee will block consideration of a measure that the chair wishes the committee to mark up.

There are two primary, and related, reasons. First, in setting the committee's markup agenda, the chair usually is acting in support of the majority party's policy and political interests. Except in the most unusual cases, therefore, the chair's agenda decisions can be expected to enjoy the support of all, or almost all, of his or her fellow party members on the committee. Second, whether in committee or on the floor, control of the agenda is at the very heart of the powers and prerogatives of the majority party in the House. Therefore, majority party members in committee are inclined to (and normally are expected to) support their chair on procedural votes, such as votes on questions of consideration, when control of the committee's agenda is at stake.

Committee members have a different recourse if a committee chair fails to schedule a meeting to mark up legislation that a majority of the committee wants to consider. Under clause 2(c)(2) of Rule XI, any three committee members can request in writing that their chair call a special meeting for a specific purpose, such as to mark up a measure that is identified in the written request. If the chair fails to call the meeting within three days, and if the meeting does not take place within seven days, a majority of the committee may require that the committee meet for that purpose (and only that purpose) at a designated date and time.

In this way, a majority of committee members may take control of the agenda away from their chair and require the committee to mark up a measure that the chair has failed to schedule for consideration. However, this rule has rarely, if ever, been formally invoked since the House first adopted it as part of the Legislative Reorganization Act of 1970. The reasons are not surprising. In the contemporary House, we would rarely expect to encounter serious and open conflicts between a committee chair and many committee members of his or her own party. Therefore, we would expect this rule to be invoked by the committee's minority, joined by at least a few majority party members of the committee, who would have to be willing to undermine their party's control over the committee's agenda. On the other hand, the threat of invoking the clause 2(c)(2) procedure for calling a special meeting may have convinced chairs to schedule matters for markup that they would have preferred not to bring up, at least at that time.

The combined effect of these rules, and the political and institutional conditions affecting their use, generally is to give committee chairs effective control over what matters their committees mark up, when these markups take place, and precisely what text the committee considers. However, chairs exercise this control within limits imposed by their knowledge that a chair's decisions can be overridden if he or she thwarts the will of the committee's majority party members, and that the continuance of each chair in that office depends on retaining the support of the entire majority party's conference or caucus. In practice, the minority party members of a committee usually have little effective recourse when they object to what their chair has or has not scheduled for the committee to mark up.

The Markup Process in General

A general discussion of the markup process in House committees will provide a context for subsequent sections of this report that discuss the individual stages of the process.

As mentioned above, the rules of the House of Representatives are ambiguous with respect to the procedures that standing committees are to follow at markup meetings. Clause 1(a)(1)(A) of Rule XI generally provides that "the Rules of the House are the rules of its committees and subcommittees so far as applicable ... " (italics added). And clause 2(a)(1) of the same rule directs each standing committee to adopt written rules governing its procedures that " may not be inconsistent with the Rules of the House.... " (Italics added).

Two problems arise in interpreting these rules. First, they do not provide criteria to judge whether committee rules are not inconsistent with House rules. Second, they do not define which House rules are applicable to committees and subcommittees. The House's rules make available different sets of procedures that the House uses under different circumstances to consider various bills and resolutions on the floor. It would not be possible for all of these procedures to be applicable to committees at the same time. By the same token, it would not be possible for committees to adopt rules that avoid being inconsistent with any of these procedures.

The House Parliamentarian provides important guidance when he notes in the commentary accompanying Section XXX of Jefferson's Manual that "[t]he procedures applicable in the House as in the Committee of the Whole generally apply to proceedings in committees of the House of Representatives." He also points out several exceptions to this general statement that are discussed below.

The phrase "the House as in Committee of the Whole" refers to a distinctive set of procedures that the House may, but rarely does, use to consider measures on the floor. These procedures are not stated in the House's standing rules, but they are a matter of well-established precedent. As its name suggests, the procedures applicable in the House as in Committee of the Whole combine elements of the procedures that apply in the House and those that are followed in Committee of the Whole.

To summarize what is discussed in more detail below, when a standing committee begins a markup, the text to be considered first is to be read in full, although this reading usually can be waived by majority vote. The text then is considered for amendment, section by section. Each section is read, unless the reading of one or all sections is waived by unanimous consent. Committee members may offer amendments to each section after it is read but before the next section is read. Each amendment must be in writing and is to be read before debate on it begins. An amendment may be withdrawn without the need for unanimous consent (on the floor unanimous consent is needed) unless the committee has acted on it. Committee members may speak on the bill and amendments under a five-minute rule, meaning that each member may speak for five minutes on each amendment unless the committee votes to bring the debate to an end.

There are two motions available to end debate. Members may vote either to close the debate or to order the previous question on (1) a pending amendment or (2) the entire bill after the last section of the bill has been read or considered as read. However, members may move only to close the debate, not to order the previous question, on the pending section of the bill (and all amendments to it). Both motions are decided by simple majority vote. The difference lies in the fact that ordering the previous question ends the debate and precludes additional amendments, while the motion to close debate does only that—it ends the debate, but it does not prevent members from offering additional, non-debatable amendments that otherwise are in order.

It should be emphasized that the rules of the House do not specifically describe these procedures and require committees to follow them. However, the House's standing committees typically follow these procedures during markups, unless the committee agrees otherwise by unanimous consent.

Beginning the Markup

A committee markup meeting usually begins with the chair calling the committee to order and announcing the matters that the committee is expected to consider at that meeting. The chair also may announce that the requisite quorum of members is present. The chair begins the markup itself by announcing that the committee will proceed to the consideration of the bill, resolution, or draft that is scheduled for consideration. The chair also may note that the requirements in House rules for prior notification of the meeting and the availability of the base text have been satisfied.

First Reading

The committee clerk then is to read the entire text of the bill (or whatever text is being considered). However, this reading usually is waived by unanimous consent when all committee members already have had an opportunity to become familiar with the text. If unanimous consent cannot be obtained, a committee member may move to waive the first reading of a bill or resolution. Clause 1(a)(1)(B) of House Rule XI provides for a privileged and non-debatable motion to waive this first reading in committee or subcommittee if printed copies of the measure are available.

Opening Statements

Either before or after the chair formally presents the bill to the committee for consideration, he or she may entertain opening statements on the bill and the issues it raises. The chair typically makes the first statement and next recognizes the ranking minority party member. The chair then recognizes other members to speak, alternating between the parties. Members usually are recognized in the order of their seniority on the committee (to the extent that the party ratio permits). However, chairs sometimes recognize members in the order in which they arrived at the committee meeting, just as chairs sometimes follow this practice in recognizing members to question witnesses at committee hearings.

Members normally are recognized for no more than five minutes each to make their opening statements, though chairs may allot more time to themselves and to their ranking minority members. In principle, members who have been recognized may yield to colleagues or request unanimous consent for additional time, but they are much less likely to do so while making opening statements than when debating amendments.

House rules do not provide for opening statements (although they are somewhat akin to the period for general debate in Committee of the Whole on the House floor), nor do the rules of many House committees. In the absence of a committee rule guaranteeing members' rights to make opening statements, committee chairs typically reserve the right to limit the number or length of these statements. In the interest of time, for example, it is not unusual for a chair to recognize only himself or herself and the ranking minority member, and then to announce that other committee members may submit their opening statements in writing and have them included in the formal record of the committee's proceedings. If some members insist on actually making their opening statements, the chair may accommodate them. Committees rarely publish the transcripts of their markup meetings, so opening statements that are simply submitted for the record may receive little or no attention.

The chair's authority to permit or restrict opening statements is somewhat clearer when these statements take place before the chair actually calls up the bill for consideration, which constitutes the formal beginning of the markup. Before the markup formally begins, there is no business that is before the committee at that meeting, so the chair can justify exercising more discretion in recognizing members to speak. After the bill has been presented and its first reading has taken place or has been waived, opening statements can be construed to be debate on the bill under the five-minute rule, which the chair is better situated to constrain if he does so with the implicit consent of the committee.

Offering and Debating Amendments

After opening statements and after the first reading of the bill has been completed or dispensed with, the committee begins the markup process per se by entertaining, debating, and voting on amendments. Throughout this process, committee members often talk about how the committee is or is not amending the bill. In fact, the committee is not amending the bill. Instead, it is voting on what amendments, if any, the committee will recommend that the House adopt when it considers the bill on the floor. Only the House as a whole (meeting as the House, not in Committee of the Whole) actually has the authority to change the text of bills that Members have introduced.

Reading Bills for Amendment

The process of offering and debating amendments in committee closely resembles the amending process in Committee of the Whole on the House floor. In committee, members offer their amendments to each section of the bill in sequence unless the committee agrees otherwise by unanimous consent. The chair directs the clerk to read the first section of the bill. Members then may propose amendments to that section, but only to that section. After the committee has disposed of any and all amendments to the first section, or after it has been amended in its entirety, the chair directs the clerk to read the second section, which then is open to amendment. This process is repeated until the committee has voted on the last amendment to be offered to the last section of the bill. (Some committees may agree to use an informal system of giving priority consideration to amendments submitted in advance, often referred to as an "amendment roster.")

Except in the most contentious markups, committee members do not insist that the clerk actually read each section of the bill. When the chair first calls up the bill for consideration, he or she often asks unanimous consent that each section of the bill be considered as having been read. There usually is no objection because committee members already have been provided with copies of the bill in accordance with whatever markup notice requirements are in the committee's rules. One reason for requiring that each section be read is to delay the proceedings.

It requires unanimous consent for a committee to do anything but have each section read for amendment in sequence. Longer and more complex bills often are divided into titles, and each title is subdivided into sections. The largest bills even may be divided into chapters that are subdivided into titles and then into sections. In such cases, the chair may ask unanimous consent that the bill be open for amendment one title or one chapter at a time, so that members can propose amendments to any part of the title or chapter, not just to one section of it at a time. This arrangement normally saves some time, and also allows committee members to address at the same time all aspects of each title or chapter. If, for example, a committee member has an alternative for how a title of the bill deals with different dimensions of the same issue, the member may offer that alternative as a substitute for the entire title, rather than having to amend each section of the title as it is considered.

When the committee begins marking up a shorter bill, or one to which few amendments are expected, the chair may ask unanimous consent that the entire text of the bill be considered as read and open to amendment at any point. In that case, members can offer their amendments to any part of the bill in any order. This could be confusing when members plan to offer many amendments to a long and complex bill. When there are few amendments to consider, however, opening the bill for amendment in this way can conserve time without causing confusion.

Committees normally agree to such unanimous consent requests, especially because they usually are made by the committee chair. When any member objects, however, no motion is in order to open the bill for amendment by titles, chapters, or at any point. By the same token, it is not in order for a member to move to waive the reading of any section, title, or chapter of a bill, or to move that the entire bill be considered as having been read. As noted earlier, House rules do make in order a non-debatable motion in committee to dispense with the first reading of a bill at the very beginning of the markup. However, this rule does not make in order a motion to expedite or change the process of reading the bill for amendment.

Offering Amendments

If a full committee is marking up a bill that one of its subcommittees already has marked up, the chair is most likely to give priority consideration to any subcommittee-approved amendments to each section (or to whatever part of the text is open to amendment). To offer additional amendments to each section, the chair usually first recognizes a senior member of his or her party. After the committee disposes of that amendment (and any amendments to it), the chair normally recognizes a senior member of the minority party to offer another amendment to that section. Thereafter, the chair typically recognizes other members to offer amendments to the section in order of their seniority, alternating between members of the two parties. However, there is nothing in House rules that requires chairs to follow these recognition practices. Committee chairs sometimes offer amendments themselves (unlike Members who preside over the House's floor sessions).

The amendments that members can offer in committee are subject to essentially the same requirements that apply to amendments offered on the House floor. Each amendment must be germane, for example, and it may not propose only to amend something that already has been amended. Amendments also must meet certain other requirements, including those of the congressional budget process. The House's rules do not explicitly prohibit members from offering amendments on matters that are not within the committee's jurisdiction. However, such amendments are quite likely to violate the germaneness requirement, and chairs have refused to entertain amendments to portions of bills that were not referred to their committees. The process by which members can make points of order against amendments is discussed below.

The four kinds of amendments that House Rule XVI, clause 6, makes in order on the floor also may be offered in committee. These are (1) a first-degree amendment that proposes to change the text that is being marked up; (2) a second-degree perfecting amendment to that amendment; (3) a substitute that proposes to replace the entire text of the first-degree amendment; and (4) an amendment to the substitute. The same House rule also specifies the order in which members are to vote on these amendments, if two or more of them have been offered.

An amendment in the nature of a substitute—that is, an amendment that proposes to replace the entire text of the bill or resolution—is in order only at the beginning or the end of the amending process. Sometimes the chair, or a member acting at his behest, offers such a complete substitute immediately after the first section of the bill has been opened for amendment. The reason, which is discussed in the next section, often is tactical, and has to do with the majority's ability to conclude the markup process when it chooses to do so.

Each amendment must be in writing, with enough copies for all committee members (and often for committee staff, reporters, and other interested observers). Members usually draft their amendments in advance with the assistance of the House's Office of Legislative Counsel. They are not required to do so, however, and members sometimes write amendments in long-hand as the markup progresses. Committee staff usually have blank amendment forms available, but members need not use them. Chairs and committee staff much prefer (and sometimes request) that members provide copies of their amendments before the markup begins. However, members sometimes decide that it is in their interests not to do so.

As soon as any amendment is offered, the clerk must read it before debate on the amendment may begin. Typically, the sponsor of the amendment asks unanimous consent that this reading be dispensed with. If there is an objection, the amendment must be read in full. No motion is in order for the committee to dispense with the reading of an amendment. Members may insist that an amendment be read if they are unfamiliar with it or if they simply want to protract the proceedings. In the case of an amendment in the nature of a substitute, the reading can be time consuming. However, the chair may entertain a point of order against an amendment even before the amendment has been read in full.

Debating Amendments

Each amendment is debated under the five-minute rule, much as members debate amendments on the floor in Committee of the Whole. The chair first recognizes the amendment's sponsor for five minutes to explain and justify the amendment. Then the chair recognizes a member who opposes the amendment to speak for five minutes. Thereafter, each committee member may be recognized to speak for five minutes (unless the committee votes to stop the debate, as discussed below). Members who seek recognition sometimes will "move to strike the last word" (a pro forma amendment), as they do on the floor. In committee markups, however, it usually is sufficient for a member to attract the chair's attention and announce that he or she wishes to speak for or against the pending amendment (or even just to speak on the amendment). In principle, no member is to be recognized to speak more than once on the same amendment. After the initial 10 minutes of debate on an amendment, a member may seek recognition to offer an amendment to the pending amendment.

In recognizing members to debate amendments, chairs normally follow the conventional recognition practices: alternating between majority and minority party members, and giving preference to members in the order of their seniority on the committee. Sometimes, however, chairs depart from these practices in favor of giving junior members equitable opportunities to participate.

In most committees, there are green, yellow, and red lights (or digital clocks) at the witness table facing the members to indicate whether the member speaking has time remaining. The member who has been recognized for five minutes may ask unanimous consent to continue for additional time. While a member is speaking, another member may ask that member to yield. If the member who controls the time agrees, his or her time continues to run while the other member is speaking. For example, if Representative White has been recognized, Representative Black may interrupt him and ask, "Will the gentleman yield?" (Notice that the same rules of decorum in debate apply in committee as on the floor. All statements and questions are to be addressed to the chair, not directly to other committee members.)

Representative White is not required to yield, and may decide not to do so if, for example, he has much to say, or he does not expect to agree with what Representative Black would say, or if he thinks that Representative Black's request is disruptive or distracting. If Representative White does agree to yield to Representative Black, Representative Black then speaks on Representative White's time. Representative White may not yield to his colleague for a specific period of time; he only has the choice of yielding or declining to do so. If Representative White does yield to a colleague, however, he may reclaim his time whenever he wants. If Representative Black is speaking or if the two members are engaged in an exchange when the chair announces that Representative White's five minutes have expired, Representative Black may ask unanimous consent that Representative White be granted an additional few minutes.

Committees sometimes permit questions to be addressed to committee staff or executive branch officials during debates on amendments.

The sponsor of an amendment may withdraw it without the need for unanimous consent, unless the committee already has amended or agreed to it. On the other hand, it requires unanimous consent to modify the text of a pending amendment.

Two Motions to Conclude a Debate

During committee markups, chairs and amendment sponsors sometimes signal, by their words or demeanor, that they believe the committee should be ready to vote on the pending amendment or other question. If such signals prove ineffective, there are two different non-debatable motions that members can offer to conclude debates during markup. These are (1) the motion to order the previous question, and (2) the motion to close debate. The two motions are not in order under all circumstances, and they have somewhat different effects if adopted.

Ordering the Previous Question

The motion to order the previous question proposes to stop the debate and block amendments. During debate on an amendment, for example, a member may seek recognition to move the previous question on that amendment. The committee immediately votes on the motion and, if it is agreed to by majority vote, the committee proceeds to vote on the amendment. No further debate on the amendment is in order, nor can members offer any amendments to it. If the committee orders the previous question on an amendment while an amendment to it already is pending, the committee first votes on the amendment to the amendment, and then on the first-degree amendment.

The previous question may be moved on a pending amendment (and amendments to it), or it may be moved on the entire bill if the last section of the bill has been read or if the reading of the bill has been waived by unanimous consent so that the bill is open to amendment at any point. A member may not move the previous question on the section (title, chapter) of the bill that is open for amendment. This protects the rights of committee members, especially minority party members, to offer their amendments to each part of the bill when it becomes subject to amendment.

Thus, the majority cannot necessarily control the length of a markup by ordering the previous question on the bill as a whole at whatever time it chooses. If the committee agrees to a unanimous consent request that the bill be considered as read and open to amendment at any point, a majority can expedite completion of the markup by agreeing to order the previous question on the bill and any pending amendments thereto. If there is no such unanimous consent agreement, however, the previous question can be used only to force votes on each amendment that is offered, until the clerk has read the last section of the bill.

Moving to Close the Debate

The motion to close debate is in order under more circumstances, but its effect is more limited. A member may move to close the debate (1) on the pending amendment (and any pending amendments to it), or (2) on the section, title, or chapter (and any pending amendments to it) that is open for amendment, or (3) on the entire text of the bill (and any pending amendments to it), but only if the reading of the bill has been completed or dispensed with. So one difference between the two motions is that the committee can vote to close the debate on the pending section of the bill, but it may not order the previous question on it.

The other difference is in the effect of the two motions. The motion to close debate does only that: It brings a debate to an end. Unlike the previous question, the motion to close debate does not affect the rights of members to offer additional amendments. The motion to close debate may take one of three forms: it may propose to close the debate immediately, or at a certain time, or after a certain period of time for additional debate. When a committee uses this motion to close debate immediately on a section, for example, no more debate is in order on the section or on amendments to it. Members can continue to offer additional amendments to the section, and request roll call votes on them, but they may not take any time at all to explain their amendments (except by unanimous consent, of course).

Because of its dual effect, committee members tend to move the previous question more often than they move to close debate when both motions are in order. Thus, members are most likely to move the previous question on a pending amendment or on the bill after it has been read in full or its reading has been dispensed with. On the other hand, members move to close the debate on a pending section of the bill because a motion to order the previous question on the section is not in order.

Majority Powers and Minority Rights

The limitations on the use of these motions put the majority party in committee at a disadvantage that the majority party can avoid on the floor. The House frequently considers major bills on the floor under the terms of special rules recommended by the Rules Committee that restrict the floor amendments that members are allowed to offer. By this use of special rules, the majority can limit the number of amendments that members can offer on the floor, and permit some specific amendments to be offered while blocking consideration of others. In the process, the majority party can use special rules to control how long members can spend offering and debating amendments to bills in Committee of the Whole.

During committee markups, on the other hand, there is no equivalent to the Rules Committee or to special rules. There is no procedural device by which a committee majority can vote to preclude consideration of certain amendments that comply with House rules. By the same token, there is no motion by which a committee majority can vote to conclude a markup until the committee has completed the process of reading the bill for amendment.

To put it differently, the minority members of a committee can insist that a bill be marked up one section at a time and that each section be read. Then they can continue to offer their amendments to each section, and request roll call votes on the amendments. The committee majority may vote to close the debate on each section after it is read, but doing so does not block the minority from offering more amendments to the section. The motion only precludes debate on amendments after debate on the section has been closed.

One way in which the majority can gain more control over how long a markup lasts is through the use of an amendment in the nature of a substitute. The committee's chair (or another majority party member acting for the chair) sometimes offers an amendment in the nature of a substitute as soon as the first section of the bill has been read. This complete substitute represents the majority's preferred version of the bill. While this substitute is pending, members may not offer amendments to the bill itself, except to the first section. This effectively blocks the minority from insisting that the bill be read for amendment by sections and from offering amendments to each section as it is read.

After the substitute has been read and debate on it has begun, the majority can order the previous question on the substitute whenever it decides to do so. If the previous question is ordered on the complete substitute, the committee then votes on agreeing to it without further debate or amendment. Because the substitute was offered by or for the chair, the committee is likely to agree to it, and that vote effectively ends the amending process. By agreeing to the substitute, the committee thereby amends the entire text of the bill. No more amendments to the bill are in order, therefore, because any further amendments would be subject to points of order for proposing to amend something that already has been amended.

In this way, the majority can use an amendment in the nature of a substitute to give it more control over the length of a markup. However, there are two potential disadvantages to this approach. First, any member can insist that the complete substitute be read in full, and this can be a time-consuming process. The majority cannot waive this reading by motion. Second, the majority's ability to use the amendment process to its advantage is limited. The majority's amendment in the nature of a substitute is a first-degree amendment to which the minority can offer second-degree perfecting amendments. When a minority party member offers a first-degree amendment that the majority opposes, the majority can respond by defeating it or, if that seems unlikely, by amending it in order to make it more palatable. However, when the minority offers unwelcome second-degree perfecting amendments to the majority's complete substitute, the majority can only attempt to defeat each minority amendment because second-degree amendments cannot be amended. If the committee agrees to consider an amendment in the nature of a substitute as "original text" or as "an original question for purpose of amendment," then committee members can offer amendments to it in two degrees. However, it requires unanimous consent to treat a complete substitute in this way.

Motions, Quorums, and Votes

Motions

In addition to offering amendments, members may propose various other motions during markups. The House Parliamentarian has stated in his commentary on Rule XI, clause 2(a), in the House Rules and Manual that committees "may employ the ordinary motions which are in order in the House," such as motions to adjourn, table, postpone to a day certain, postpone indefinitely, and reconsider. Chairs also regularly assert the right to declare committee meetings in recess—for example, for lunch breaks and to permit Members to reach the floor in time to be recorded on quorum calls and to participate in electronically recorded votes.

The motions to table and reconsider deserve some comment. The motion to table rarely is made to dispose of amendments during committee markups because the effect of tabling an amendment is to table (or kill) the bill to which the amendment was offered. The motion to reconsider is offered from time to time, especially when members who are losing a roll call vote (on an amendment, for example) believe that they are going to lose that vote only because one or more committee members are absent. In that case, a member who would prefer to vote on the losing side votes instead on the winning side. Doing so qualifies that member to move to reconsider the vote at some time before the markup ends. If a majority votes for the motion to reconsider, the committee then votes anew on the amendment and may reverse the outcome. Alternately, the committee may vote to dispose of a motion to reconsider by voting to table it.

In principle, each motion, like each amendment, must be in writing. Members usually do not enforce this requirement, especially in the case of routine motions, such as motions to adjourn. In the case of a procedurally important motion, however, such as a motion to reconsider the vote by which the committee narrowly agreed to an amendment, a member opposed to the motion may insist that it be presented in written form.

Quorums

There are two different quorum requirements governing committee markups. Clause 2(h)(1) of House Rule XI requires that a majority of the committee's membership must actually be present when the committee votes to order a measure reported. To facilitate the conduct of committee markups and other meetings, however, House rules do not insist that a majority be present for other purposes. For all other votes and for other proceedings during a markup, most committees may set their own quorum requirement in their committee rules, so long as that quorum is not less than one-third of the committee's members (Rule XI, clause 2(h)(3)). Most committees adopt a one-third quorum requirement as part of their rules.

It is much easier in committee than on the House floor for members to insist that a quorum be present. On the floor, a member rarely can demand the presence of a quorum unless a vote is taking place. In committee, on the other hand, any member whom the chair has recognized can make a point of order that a quorum is not present. When a member makes this point of order, the chair counts to determine whether in fact a quorum is present. The chair's count is not subject to challenge or appeal. If a quorum is present, the chair announces that fact and business resumes. If a quorum is not present, however, the chair must initiate a quorum call and the necessary quorum of members must register their presence before business can resume.

Voting

During committee meetings, like during House floor sessions, questions can be decided by voice, division, or record votes. Committees, like the House, first take a voice vote on each question. The chair asks those favoring the question to call out "Aye," and then asks those opposed to call out "No." Based on what the chair hears, he or she announces that the ayes or the noes appear to have it. At that point, any member who disagrees with the chair's announcement can demand a division vote. In that case, the chair asks those in favor to raise their hands until counted, followed by those opposed.

Before the chair announces the final result of either a voice vote or a division vote, any member may request that the question be decided by a call of the roll. The request for a roll call vote must be supported by at least one-fifth of the members present, although some committees adopt rules that make it even easier to obtain roll calls. In fact, a chair may order a roll call vote on a question as a courtesy to any member who requests it, or even in anticipation that members will request it.

When a roll call vote is ordered, the chair directs the clerk to call the roll. The clerk first calls the names of the majority party members, followed by the names of the minority party members. The chair may direct the clerk to call his or her name either first or last. After the clerk completes calling the roll, the chair normally directs the clerk to call the names of the members who failed to vote when their names were first called. The clerk then is to tally the vote and, at the chair's direction, report the number of members voting aye and no.

House Rule XI, clause 2(h)(4) grants committees the authority to adopt a rule authorizing the chair of the committee or subcommittee to postpone roll call votes on amendments and other matters, and several committees have done so. Members sometimes have two or more committee or subcommittee meetings at the same time, requiring them to leave one meeting to attend the other when a vote is taking place. Chairs know that their committee members want to be recorded as having voted whenever possible, so they may delay a roll call vote when they are informed that absent members intend to come to the committee room to vote. Alternatively, rather than postponing the vote, the chair might delay asking the clerk to report the tally to allow absent members to reach the committee room and cast their votes.

Although committees typically require only a one-third quorum for all but the final vote in markup, committee staff do their best to make sure that all the members of their party are present to be recorded on each roll call vote. The reason lies in part in the House's ban on proxy voting in committee. Before 1995, members could leave their proxies with one of their committee colleagues to cast for them. This often enabled a committee chair, if he or she held enough proxies, to win a roll call vote even when the chair's position was opposed by a majority of the members who actually were present.

Proxy voting was prohibited in 1995. The result has been to put more of a premium on maximizing attendance, especially when the majority party holds only a few more committee seats than the minority. In those circumstances, the absence of only one or two majority party members can enable the minority party to prevail on a party-line vote if all the minority party members are present. It is very important, therefore, for as many members as possible to attend markups and for the committee staff of each party to know how to contact their absent members as soon as a roll call vote begins (if not before). Committee staffs may devise systems to keep track of where their party's members are and may rely on members' legislative assistants to ensure that those members are present when they are needed to make a quorum or to cast their votes.

In addition, since the 112 th Congress (2011-2012), House rules have required that the results of roll call votes taken in committee be available to the public in electronic form. Specifically, under House Rule XI, clause 2(e)(1)(B)(i), committees must make the results of roll call votes taken in open sessions available within 48 hours of the vote. Under the rule, the information to be made publicly available includes a description of the amendment or other proposition voted on as well as the names of the members voting for and against it and the names of those committee members who were present but did not vote. Also since the 112 th Congress, the text of any amendment agreed to is required to be made publicly available in electronic form within 24 hours of its approval (House Rule XI, clause 2(e)(6)).

Points of Order and Parliamentary Inquiries

In presiding over a markup, the chair participates freely in the debate, unlike the Speaker and other members who preside over floor sessions of the House. Like the Speaker, however, the chair is responsible for maintaining order, insisting on proper decorum, and enforcing applicable procedures. Committee chairs are somewhat more likely than the Speaker to take the initiative in declining to recognize members who are about to say or do something in violation of proper procedure. In general, though, it is the responsibility of committee members to protect their rights by making points of order whenever they believe that appropriate procedures are being violated to their detriment.

Points of Order and Appeals

To make a point of order, a committee member addresses the chair at the appropriate time, and announces that he or she wishes to make a point of order. The chair recognizes the member to make and explain the point of order, indicating precisely what procedural requirement or prohibition is being violated. The member whose action is being challenged by the point of order then is recognized to reply, after which the chair may recognize other members to argue for or against the point of order. However, the chair entertains all debate on a point of order at his or her discretion; members have no right to debate points of order.

Whenever the chair has heard sufficient debate, he or she rules on the point of order, either sustaining or overruling it. The chair bases the ruling on his or her understanding of proper procedure, perhaps with the advice of senior committee staff and with the benefit of whatever debate on the point of order has just taken place. The House Parliamentarian and his assistants do not attend committee meetings to provide authoritative procedural guidance. However, committee staff may seek guidance from the Office of the Parliamentarian in advance of a committee meeting, or even by telephone during the course of the meeting.

Any committee member who disagrees with the chair's ruling may challenge it by addressing the chair and appealing his or her ruling. The committee acts on the appeal by voting on whether the ruling of the chair is to stand as the decision of the committee. An appeal is debatable under the five-minute rule, although any member who has been recognized may make either of two non-debatable motions that, if adopted, end debate on the appeal. A member may move the previous question on the appeal. Or, the member may move to table the appeal; if the committee votes to table an appeal, the ruling of the chair stands.

Reserving Points of Order

During committee markups, the most common points of order are against amendments—on the grounds, for example, that an amendment is not germane. To make a point of order against an amendment, however, a committee member must be alert to make it at the proper moment. A point of order may be made against an amendment (or any other debatable motion) after it has been read or the committee has waived the reading of the amendment, but before debate on it has begun. Once the proponent of the amendment begins to explain it, a point of order no longer can be made against the amendment; the point of order would come too late.

This can present a problem during committee markups that are conducted rather informally, as they usually are. Often, when a member offers an amendment, the chair responds by directing the clerk to distribute copies of it to all the members. While this is being done, the member offering the amendment sometimes begins to explain it. By the time the other committee members receive and review copies of the amendment, it is too late to make a point of order against it because debate on the amendment already has begun. To avoid this problem, members sometimes reserve points of order against amendments as soon as they are offered, and without having yet seen them. In this way, an amendment's sponsor may explain and defend it for five minutes, while other members examine it, determine whether it is subject to a point of order, and, if so, decide whether they want to make that point of order. After the sponsor has relinquished the floor, the member who reserved the point of order may make it, or withdraw the reservation and allow the debate to continue.

Parliamentary Inquiries

When a committee member is uncertain about the procedures being followed during a markup, he or she may address the chair and, when recognized, make a parliamentary inquiry. This inquiry must be a question about procedure, not about the substance, meaning, or effect of the bill or amendment the committee is debating. A committee chair is not required to entertain parliamentary inquiries, but chairs usually do so unless convinced that an inquiry is repetitive or is being made for dilatory purposes. The chair's reply to a parliamentary inquiry is not subject to appeal because it constitutes only an explanation, not a ruling.

From time to time, committee members may address the chair to raise a "point of information" or a "point of clarification." Neither exists under the procedures of the House of Representatives or its committees. Nonetheless, chairs sometimes reply as a courtesy to their fellow committee members.

Challenging Committee Procedures

The procedural rulings of the chair usually are final, unless reversed on appeal by majority vote of the committee. In most circumstances, a committee member who disagrees with a ruling made in committee may not challenge it on the floor of the House. It is generally left to each committee to enforce or disregard its markup procedures. In Procedure in the House (chapter 17, Section 11.1), the House Parliamentarian has stated that "a point of order does not ordinarily lie in the House against consideration of a bill by reason of defective committee procedures occurring prior to the time the bill was ordered reported to the House. Such point of order, if made in the House, may be overruled on the ground that the rules of a particular committee are for that committee to interpret unless they are in direct conflict with the rules of the House or unless the House rules specifically permit the raising of such objections." In general, if the committee votes to order a bill reported to the House, that vote (if properly conducted) cures procedural defects that may have occurred at earlier stages of the committee's consideration of the bill.

Motions to Conclude Markups

It bears repeating that no House committee has the authority to actually change the text of a measure that has been introduced and referred to it, nor do committees vote directly on the merits of bills and resolutions. The committee votes instead on the amendments that it will recommend to the House. The House then considers and votes on these committee amendments when it acts on the bill itself.

Markups may begin with an amendment in the nature of a substitute being offered by or on behalf of the chair, sometimes for the tactical reasons discussed above. Members then offer their amendments to that complete substitute, rather than to the text of the underlying bill. In such a case, the final vote the committee takes on amendments is on agreeing to the amendment in the nature of a substitute, as it may have been amended. When the committee reports the bill back to the House, the bill will be accompanied by only that one amendment in the nature of a substitute, even though the committee may have adopted several or even many amendments to it during the course of the markup.

Ordering the Bill Reported

The committee does not conclude its markup by voting on the bill itself. After voting on the last amendment to be offered, the chair recognizes a majority party member to move that the committee order the bill reported to the House with whatever amendments the committee has adopted during the markup, and with the recommendation that the House agree to those amendments and then pass the bill as amended. The bill is actually reported (as opposed to the committee ordering it reported) when the committee chair takes the bill and the accompanying committee report to the floor when the House is in session, files the report, and returns the bill to the House. The committee report then is printed, the bill is reprinted to show the committee's action and its recommended amendments, and the bill is listed on the Union Calendar if it authorizes or appropriates funds or affects revenues, or otherwise on the House Calendar.

The Committee's Reporting Options

A House committee has several options in deciding how it will report to the House after it has completed a markup.

Committee Amendments

If the committee has marked up a bill that was introduced and referred to it—H.R. 1, for example—the committee may vote to order H.R. 1 reported with one or more amendments.

If, as its last vote on amendments, the committee agreed to an amendment in the nature of a substitute (perhaps as amended), the committee may vote to order H.R. 1 reported with that one amendment, even though the amendment constitutes an entirely new text of the bill that may not resemble the text of H.R. 1 as it was introduced and referred to the committee.

If the committee has marked up H.R. 1 and agreed to several different amendments to it, each amendment affecting a different provision of the bill, the committee may vote to order H.R. 1 reported with those separate amendments. Instead, though, the committee may authorize the chair to incorporate those amendments into a single amendment in the nature of a substitute. The reason for doing so is that it is more convenient for the House, when considering a bill on the floor, to act on a single committee substitute than to act on a series of discrete committee amendments. The committee may agree to a unanimous consent request that the committee report an amendment in the nature of a substitute instead of the several amendments. Alternatively, a member may offer the amendment in the nature of a substitute as the last amendment to be considered during the markup. (In the latter case, however, any committee member has the right to insist that the substitute actually be drafted and available in writing at the time it is offered.)

Clean Bills

Alternately, the committee may vote to report what is known as a clean bill instead of reporting H.R. 1 with one or more amendments. A clean bill is a new bill that has a new number instead of H.R. 1 and that typically lists as its sponsor the committee chair, not the Member who had introduced H.R. 1. This new bill is known as a clean bill because it incorporates all the amendments that the committee adopted during its markup of H.R. 1. For this reason, the committee reports the new bill without amendment; in this sense, it is clean .

The effect of reporting a clean bill is much the same as reporting the marked-up bill with an amendment in the nature of a substitute. In either case, all the committee's proposed changes in the marked up text are incorporated into a single new text. Then why would a committee report a clean bill?

There are at least two reasons. First, if the committee has marked up a staff draft (discussion draft, chair's mark) instead of H.R. 1, that marked-up text must be introduced and reported as a bill before the House can consider it. Second, there are instances in which the committee (or its chair) decides to assume complete responsibility (and credit) for the bill it orders reported. Imagine, for example, that the committee has marked up H.R. 1 in ways that the original sponsor of the bill finds unacceptable. In that case, the sponsor may wish to disavow further responsibility for H.R. 1, and so welcomes the committee's decision to report a clean bill instead of reporting H.R. 1 with a committee substitute. In other cases, the chair may prefer a clean bill in order to have his or her name most closely associated with it.

Technically, the committee must have the clean bill in its possession before it can vote to order the bill reported. This means that, at the conclusion of the markup, the marked-up text must be prepared as a bill, it must be introduced while the House is in session, and the newly introduced, clean bill must be numbered and referred back to the committee before the committee may act on it. In the past, committees sometimes short-circuited this process if no one objected. Immediately after the committee completed its markup, it authorized the chair to report the clean bill. So long as the clean bill was introduced on that same calendar day, the official records of the House's proceedings did not indicate whether the clean bill actually was introduced and referred to committee before or after the committee's markup ended.

Other Views

Immediately after the committee votes to order the bill reported, the ranking minority member or another minority party member usually claims the right for all committee members to submit their own supplemental, minority, or dissenting views for printing as part of the committee's report on the bill. Clause 2(l) of Rule XI provides:

If at the time of approval of a measure or matter by a committee (other than the Committee on Rules) a member of the committee gives notice of intention to file supplemental, minority, additional, or dissenting views for inclusion in the report to the House thereon, that member shall be entitled to not less than two additional calendar days after the day of such notice (excluding Saturdays, Sundays, and legal holidays except when the House is in session on such a day) to file such views, in writing and signed by that member, with the clerk of the committee.

Preparing for Conference

If and when the time comes to take a bill to conference, the House often agrees to a unanimous consent request that the House create a conference committee with the Senate to negotiate a compromise between their differing positions on the bill. If unanimous consent cannot be secured, one option is to obtain a special rule from the Rules Committee for that purpose. A second alternative lies in Rule XXII, clause 1:

A motion to disagree to Senate amendments to a House bill or resolution and to request or agree to a conference with the Senate, or a motion to insist on House amendments to a Senate bill or resolution and to request or agree to a conference with the Senate, shall be privileged in the discretion of the Speaker if offered by direction of the primary committee and of all reporting committees that had initial referral of the bill or resolution (italics added).

Under the terms of this rule, the committee chair can make this motion on the House floor only if the committee has authorized him or her to do so. Some committees have adopted rules, explicitly permitted under House Rule XI, clause 2(a)(3), allowing a chair to make such a motion whenever appropriate. In other words, some committees have given their chair the authorization required by clause 1 of Rule XXII in a blanket form that applies to all of the bills that the committee may order reported during the course of the Congress.

If a committee rule does not grant this authority to the chair, then the committee must agree to authorize the chair to make the motion necessary to go to conference with respect to each bill or resolution on which it may eventually want to go to conference. The vote in committee on this motion requires that a majority of the committee actually be present, as does the vote to order the bill reported back to the House. By adopting the motion to go to conference at the same meeting at which the committee has marked up the bill and voted to order it reported, the committee avoids the need to schedule another meeting and assemble a majority of the committee's members when the time actually arrives, perhaps months later, to arrange for the conference with the Senate.