Reader Comment – Senate Unanimous Consent Process

Yesterday an anonymous reader posted a comment to my post on “Reader Comment – CFATS Inspectors vs Admin”. The reader asked:

“PJ - With your legislative knowledge can you provide some insight into why senate leadership would not have taken any other routes to bypass the committee's unanimous consent agenda(?) requirement --as held up by those 1-2 senators. Not sure if I got the procedure correct but basically why couldn't they pass this on a majority vs universal concurrence.”

The unanimous consent process in the Senate is a way of avoiding the time consuming ‘regular order’ process. It provides a mechanism for passing less controversial legislation that does not require the full deliberative process.

Regular order in the Senate requires a piece of legislation go through three stages:

Debate on whether to consider the bill,

Debate on the content of the bill (where amendments are proposed and debated),

Debate on passage of the bill.

That final stage leads to an actual vote on the bill. Each of the above stages requires a 3/5ths vote to close the debate (cloture) before the next stage can begin. The final vote requires just a simple majority. And there are rules about how long each stage of the debate should continue, though there is no requirement for any actual discussion of the legislation during the debate. There are procedures for limiting each stage of the debate, but they require unanimous consent. The Senate leadership negotiates with various factions within the body about what amendments will be proposed during the second stage of the debate to minimize the time consumed during that process, but the 60-vote threshold to close that debate frequently favors the consideration of unrelated amendments (each amendment typically requires a 60-vote threshold for passage, though that can be waived to a simple majority vote by unanimous consent) to buy votes or silence on unanimous consent motions.

Needless to say this is a time consuming process and very few bills are actually passed under regular order. What it comes down to is a political decision about what bills are important enough to consume the Senate’s time. The CFATS reauthorization was never going to be important enough (except to those within the industry of course) to be considered in this way.

There is one other way that a bill can be passed without going through either regular order or the unanimous consent process, being added to another bill that is important enough. The text of a bill could be added to the bill as an amendment in the markup of the larger bill in Committee, the same committee that would consider the original bill. That process requires the cooperation of the Committee leadership (including, to a large extent, the Ranking Member of the Committee). Sen Paul (R,KY) was the Ranking Member of the Senate Homeland Security and Governmental Affairs Committee that would have considered HR 4470, the CFATS reauthorization bill, thus Paul would have some level of control over adding that language to some other bill. He could have been bypassed, but it would have come at some level of political cost. Again, this bill was not politically important enough to bear that cost.

There is one last method of adding the text of a bill to some more important bill, and that is offering the language as an amendment in the floor debate about the provisions of the bill. For important bills, there are a large number (sometimes hundreds) of amendments that are offered, but few are actually considered. The Committee Chair and Ranking Member of the Committee that would have jurisdiction over the subject of the amendment have an effective veto over the consideration of those amendments. Again, that veto could be ignored by the Senate Leadership, but at great political cost.

So, at the end of the day, once Sen Paul decided to object to consideration of HR 4470, there was no practical method of passing that bill without changing his opposition. And Paul is a very stubborn politician.