#11538 - Congressional Process’ Effects On Statutory Interpretation - Legislation and Regulation (Admin Law)

CONGRESSIONAL PROCESS’ EFFECTS ON STATUTORY INTERPRETATION

1. Senate

   1. No germaneness rule, limit on length of debate, or limit on number of amendments.

   2. The only method for cutting off is cloture (requires votes of 60 Senators).

   3. Senate operates under unanimous consent agreements, similar to how the House uses special rules—as a device to limit and structure debate.

2. House of Representatives

   1. Debate in the House is generally structured according to the rigid dictates of the special rule accompanying the bill.

   2. Germaneness Rule: One can only propose amendments that are germane to the bill on the floor.

      1. May be waived by Rules Committee.

   3. Rules Committee proposes special rules, which must be approved by a majority under the “one-hour rule,” with no amendments.

      1. Open Rules: Members can offer any number of floor amendments to a bill, subject to the “Amendment Tree.”

      2. Closed Rules (or gag rules): Bars any floor amendments.

      3. Modified Closed Rules: Allows amendments of only certain sections of a bill or certain types of amendments (amendments proposed by reporting committees or minority members).

      4. After a special rule is adopted, amendments may be proposed and the entire House considers each amendment under a “five-minute rule,” by which each side has five minutes to speak on the amendment.

   4. Journal of Votes and Debates

      1. Record of votes is only constitutionally required when 20% of House votes for it.

      2. Journal is required unless the House votes to keep it a secret.

   5. Amendment Tree:

      1. Helps in preventing cycling which occurs when preferences are fragmented so that no preference has a stable majority.

      2. Only “two degrees of amendment” are typically (can be waived by Rules Committee) permitted.

         1. First-Degree Amendments include:

            1. Original amendments to the bill itself (including both “motions to strike out and/or insert language and “amendments in the nature of a substitute” that replace the entire bill with new language).

            2. Substitute amendments that replace original first-degree amendments to the bill with entirely new ones.

         2. Second-Degree Amendments include:

            1. Perfecting amendments which amend (rather than replace) first-degree amendments (both original and substitute).

         3. There can be four amendments pending at the same time:

            1. One first-degree amendment to a bill.

            2. One first-degree substitute amendment, replacing the first-degree amendment to a bill.

            3. One second-degree perfecting amendment, amending the first-degree amendment to a bill.

            4. One second-degree perfecting amendment, amending the first-degree substitute amendment, which would replace the first-degree amendment to a bill.

      3. Amendments are voted on in reverse order.

         1. Second-degree perfecting vs. original first-degree.

         2. Second-degree perfecting vs. first-degree substitute.

         3. Original first-degree or perfected first-degree (depending on which won in vote one) vs. first-degree substitute or perfected first-degree substitute (depending on which one in vote two)

         4. Winner of vote 3 vs. original bill.

   6. Implications of the Amendment Tree

      1. The order and number of amendments allowed have a tremendous effect on the outcome—almost as much as Congress’ preferences.

      2. It can be tricky, as a matter of subtle tactics, to insure...