Unringing the Bell (Part II)

A previous post identified four ways senators can bring back the judicial filibuster by reversing the 2013 and 2017 nuclear option precedents. Yesterday’s post responded to critics who argue that the Senate cannot bring back the judicial filibuster because a bell once rung cannot be un-rung. Specifically, it examined a specific instance in 1975 when the Senate un-rang the bell.

The 1975 episode is not unique. On closer inspection, it turns out that senators have rung and un-rung the bell on several occasions over the past few decades. 

Resolving House-Senate Differences

A bill must pass both the House of Representatives and the Senate in identical form before it can be signed into law by the president. Differences between the House- and Senate-passed versions of a bill are often reconciled in a joint House-Senate conference comprised of conferees (members) selected by each chamber.

For example, the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act (one of the so-called minibus appropriations bills; HR 5895) is currently in conference. The legislation cleared the House on June 8. The Senate passed it on June 28. And the Senate recently requested a joint House-Senate conference to resolve differences between the two chambers’ farm bill (Agriculture Improvement Act; HR 2). The House and Senate are also likely to use a conference committee to resolve differences between their defense appropriations bill. The Senate used the House-passed version (HR 6157) as the legislative vehicle for its next minibus appropriations bill.

Rule XXVIII

While conferees have a lot of latitude in resolving differences, their power is limited by the institution’s rules and precedents. For example, Rule XXVIII, paragraph 3(a), prohibits conferees from inserting into their report “matter not committed to them by either House.” It also bars conferees from striking from the bill “matter agreed to by both Houses.” If conferees violate either of these provisions, a member can raise a point of order against the final product when it is considered in the full Senate.

Senators Nuke Rule XXVIII

On October 3, 1996, senators created a new precedent (the so-called FedEx precedent) that explicitly violated Rule XXVIII. During consideration of the Conference Report for the Federal Aviation Reauthorization Act of 1996 (Public Law 104-264), Majority Leader Trent Lott, R-Miss., raised a point of order that the conferees exceeded the scope of conference by including provisions relating to Federal Express. The Senate’s Presiding Officer (i.e. the Chair) sustained (or approved) the point of order. Lott then appealed the ruling and the Senate overruled the Chair by a vote of 39 to 56.

The FedEx precedent signaled that senators would ignore the provisions of Rule XXVIII prohibiting extraneous matter from being included in conference reports moving forward. This increased significantly conferees’ power by permitting them to include provisions in conference reports that were not included in the original House- or Senate-passed measure.

Senators Reverse the Nuclear Option

The Senate restored Rule XXVIII during the 106th Congress. Specifically, the Department of Commerce and Related Agencies Appropriations Act of 2001 (HR 5548) included the following provision reversing the precedent established during the 104th Congress.

Sec. 801. Beginning on the first day of the 107th Congress, the Presiding Officer of the Senate shall apply all of the precedents of the Senate under Rule XXVIII in effect at the conclusion of the 103rd Congress.

This provision was eventually enacted as part of the Conference Report to accompany the District of Columbia Appropriations Act for fiscal year 2001 (Public Law 106-553) that was signed into law on December 21, 2000. Additionally, an identical provision was included in the Consolidated Appropriations Act of 2001 (Public Law 106-554), which passed the Senate on December 15, 2000 and was also signed into law by the president on December 21. These actions brought Senate practice back into compliance with Rule XXVIII. 

Note that there has not been a serious or sustained effort to gut Rule XXVIII via the nuclear option in the 14 years since the FedEx precedent was reversed.

For more information on this from the leading authority on resolving House-Senate differences, see: Elizabeth Rybicki, “Senate Decisions Concerning the Authority of Conferees (Rule XXVIII),” Congressional Research Service(February 28, 2006).