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«Congressional Research Service 7-5700 R41003 Amendments Between the Houses: Procedural Options and Effects Summary The House and Senate ...»

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Amendments Between the Houses:

Procedural Options and Effects

Elizabeth Rybicki

Specialist on Congress and the Legislative Process

March 23, 2015

Congressional Research Service

7-5700

www.crs.gov

R41003

Amendments Between the Houses: Procedural Options and Effects

Summary

The House and Senate must agree to the same measure with the same legislative language before

a bill can be presented to the President. To resolve differences between House and Senate versions of legislation, Congress might appoint a conference committee to negotiate a compromise that is then reported to each chamber for consideration. Alternatively, Congress might use the process of amendment exchange. In this process, each chamber acts on the legislation in turn, shuttling the measure back and forth, sometimes proposing alternatives in the form of amendments, until both chambers have agreed to the same text.

The difference between a conference committee and an amendment exchange is not necessarily in the way a policy compromise is reached but in the formal parliamentary steps taken after the principal negotiators have agreed to a compromise. After each chamber has passed its version of the legislation—or in some cases even before that stage—Senators, Representatives, and staff from the relevant committees of jurisdiction engage in policy discussions in an effort to craft compromise legislation that can pass both chambers. These informal meetings and conversations are sometimes referred to colloquially as “pre-conference,” although they need not be followed by the convening of a formal conference committee. The phrase is applied generally to final-stage efforts to prepare legislation for passage in both the House and the Senate.

The decision to use the amendment exchange route has procedural implications. Amendments between the houses are not subject to the same procedures as conference reports. For example, some of the limitations on the content of conference committee reports do not apply to amendment exchange. Furthermore, amendment exchange provides alternative opportunities to structure decisions, because the policy compromise can be voted on as separate amendments between the houses instead of as a single legislative package. In addition, amendments between the houses are not considered under all of the same procedures as bills on initial consideration. As a result, a chamber might use this process to first consider what is effectively a new legislative proposal, or a new combination of legislative proposals, in the form of an amendment between the houses. In the Senate, House amendments are privileged, and therefore their consideration typically begins immediately after the majority leader asks the Presiding Officer to lay them before the Senate. In contrast, to begin consideration of a bill or resolution, the majority leader must either obtain unanimous consent or make a motion to proceed to the measure, which is debatable in most circumstances. Furthermore, in the House, consideration of Senate amendments is unlikely to include an opportunity for a Member of the minority party to offer a motion to recommit, an opportunity that is generally assured on initial consideration of a bill or joint resolution.

In an amendment exchange, the formal actions the chambers generally take on amendments from the other chamber are (1) to concur, (2) to concur with an amendment, or (3) to disagree. There is a limit to the number of times each house can propose amendment(s) and send the measure back to the other house, but in both chambers the limitation can be waived. In the contemporary House, Senate amendments are typically disposed of through a special rule reported by the Committee on Rules, a motion to suspend the rules, or by unanimous consent. In the Senate, consideration of House amendments has the potential to become procedurally complex, particularly when the Senate must dispose of multiple House amendments. Because House amendments, unlike conference reports, are subject to amendment, the Senate majority leader might offer a motion to dispose of the House amendment and then “fill the tree” to temporarily prevent any Senator from proposing an alternative method of acting on the House amendment.

Congressional Research Service Amendments Between the Houses: Procedural Options and Effects Contents Introduction

Resolving Legislative Differences: A Brief Overview

Select a Measure

Agree on Same Legislative Language

Senate Consideration of House Amendments

Laying House Amendments Before the Senate

Motions in the Senate to Dispose of House Amendments

Disposing of a Single House Amendment in the Nature of a Substitute

Disposing of Multiple House Amendments

“Filling the Tree” on a Motion to Dispose of House Amendments

Motions Necessary to “Fill the Tree”

“Filling the Tree” and Cloture

Comparison of Amendment Exchange and Conference Committee Procedures in the Senate

House Consideration of Senate Amendments

Rules Committee: Calling Up and Disposing of Senate Amendments

Motion to Recommit Usually Not Allowed

Considering Multiple House Amendments to a Senate Amendment

Suspending the Rules to Dispose of Senate Amendments

Unanimous Consent





Comparison of Amendment Exchange and Conference Committee Procedures in the House

Case Study: The Amendment Exchange on H.R. 3221, 110th Congress

FiguresFigure 1. The Amendment Exchange on H.R. 3221, 110th Congress

Tables Table 1. Amendment Exchange and Conference Committees in the Senate: A Brief Comparison of Key Procedures

Table 2. Amendment Exchange and Conference Committees in the House: A Brief Comparison of Key Procedures

Table A-1. Resolving Differences on Measures That Became Public Law

Table A-2. House Consideration of Senate Amendments by Special Rule, Suspension, or Unanimous Consent (to Measures That Became Public Law)

Appendixes Appendix. Tables on Procedures Used to Resolve Differences, 1999-2012

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Contacts Author Contact Information

Acknowledgments

Congressional Research Service Amendments Between the Houses: Procedural Options and Effects Introduction Congress relies on two formal means of resolving differences on House and Senate versions of legislation: conference committee and amendments between the houses. Historically, conference committees have been used to resolve differences on major bills, where policy issues are complex and differences between the chambers are likely to be greater. The process of exchanging amendments between the houses is more likely to be used when differences between the chambers are comparatively small, although from time to time the chambers use it to resolve their differences on major legislation as well. In recent Congresses, the use of conference committees to resolve differences has decreased.1 Regardless of the formal parliamentary mechanism chosen, in the contemporary Congress the chambers generally arrive at a resolution of the substantive differences between House and Senate versions of a measure through informal, bicameral discussions that might resemble conference committee meetings even though neither house has officially appointed conferees to The difference between an amendment exchange and a consult over a bill. Once the interested conference committee is not necessarily in the way a policy compromise is reached but in the formal legislators have negotiated an acceptable parliamentary steps taken after the principal negotiators compromise through these discussions, the have agreed to a compromise.

compromise can then be embodied in an amendment between the houses or, if conferees have been formally appointed, in a conference report. In this way, the difference between amendments between the houses and a conference committee is not necessarily in the way a policy compromise is reached but in the formal parliamentary steps taken after the principal negotiators have agreed to a compromise.

The purpose of this report is to explain the procedural options for resolving differences through amendments between the houses, and to discuss the procedural effects of resolving differences through this process as an alternative to conference committee. Throughout the report, the phrase “amendment exchange” is sometimes used as an alternative to the longer but formal name of “amendments between the houses.” The report is arranged to identify legislative options at each stage of the amendment exchange process, first for the Senate and then for the House. For each chamber, key procedural differences between amendments between the houses and conference committee are also discussed and then listed in Table 1 (Senate) and Table 2 (House). The answers to frequently asked questions are highlighted throughout the report in separate, shaded text boxes. The final section of the report describes a particularly complicated case of amendment exchange from the 110th Congress to illustrate a variety of actions the chambers might take.2 Data on this point is presented in Table A-1 of the Appendix. For more information on the causes of this recent change, and its implications, see CRS Report RL34611, Whither the Role of Conference Committees: An Analysis, by Walter J. Oleszek.

For a brief description of the amendment exchange procedure, see CRS Report 98-812, Amendments Between the Houses: A Brief Overview, by Elizabeth Rybicki and James V. Saturno; for a full description of conference committee procedures, see CRS Report 96-708, Conference Committee and Related Procedures: An Introduction, by Elizabeth Rybicki.

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Resolving Legislative Differences: A Brief Overview The House and Senate must agree to the same legislative language in the same legislative vehicle before the bill can be presented to the President. The requirement that they act on the same bill with the identical text means that the House and Senate must (1) select a measure on which they will both act and (2) agree on the same legislative language.

Select a Measure The selection of the measure, or identifying which bill Congress will send to the President, does not restrict either chamber from acting on its preferred legislative language. More specifically, whether the chambers select an “H.R./H.J. Res.” or an “S./S.J. Res.” as the vehicle on which to resolve differences will not necessarily affect what policy proposals a chamber considers on the floor. Both the House and Senate can amend the legislation sent by the other chamber, and they can amend it in its entirety.

The selection of a measure that both chambers will act on is usually straightforward.3 The bill that passes a chamber first and is sent to the other chamber is normally the bill that is selected as the vehicle and is eventually presented to the President. The Constitution requires, however, that all revenue provisions originate in the House. The House interprets this to include all appropriations measures as well, and the Senate generally defers to the House on this issue because it does not affect the Senate’s ability to propose changes to the legislation. For this reason, measures raising revenues or providing for appropriations that are sent to the President will carry a House bill number (H.R. or H.J. Res.).4 Most of the time, neither chamber finds it advantageous to wait for the other to act before beginning its own work on a major policy initiative. Typically, the committees of jurisdiction from both chambers will consider legislation regardless of what action (if any) is taking place on similar topics in the other chamber. At some point, however, the chambers must select one bill to be the vehicle that is sent to the President. The selection of the vehicle is either done at the start of floor consideration or at the very end. It can only be done at the beginning if one of the chambers has already passed a bill on the subject, in which case the other chamber might choose to take up that bill on the floor instead of legislation crafted by its own committee. Usually, in this situation, an amendment(s) representing the work of the committee of jurisdiction is presented at the outset of consideration, and if the amendment is a full-text substitute amendment, it is effectively treated as the text for further amendment by the chamber.5 Alternatively, a chamber can take up a bill reported from its own committee. At the conclusion of floor consideration of its own bill, the Strategic considerations can enter into decisions about which chamber should act first as well as over which bill should be selected as the vehicle to be sent to the President. For more information, see CRS Report 98-696, Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses, by Elizabeth Rybicki.

For more information, see CRS Report RS21236, Blue-Slipping: The Origination Clause in the House of Representatives, by James V. Saturno.

In the House, this could be accomplished through the adoption of a special rule that makes in order committee amendment(s) or provides for a committee-recommended amendment to be either automatically adopted or considered as an original bill for purposes of amendment. In the Senate, if the committee has reported the House bill with an amendment, that amendment is automatically pending when the bill is taken up on the Senate floor. If the committee has not formally reported the House bill, then the floor manager can offer the amendment in the nature of a substitute.

–  –  –

chamber can then take up the companion bill passed by the other chamber, strike all of the text after the enacting clause, and insert the text of the bill it originated.6 Either way, the chambers have fulfilled the first requirement: selecting the same bill on which to act. The second step, agreeing to the same legislative language, is generally more challenging.

Agree on Same Legislative Language If one chamber passes a bill, and the other chamber agrees to it without amendment, then the legislative process is complete and the bill is sent to the President. This is extremely common;



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