Despite the longstanding warnings from the Capitol attending physician and D.C. health official extending the stay-at-home order from May 15 to June 8, the Senate chose to return to Washington DC on May 4 for regular business. This includes voting on voting on nominations on the Senate floor as well as holding various committee proceedings.
But a majority of the committee proceedings have been different since the Senate has returned, with senators often choosing to appear via video conference to adhere to social distancing guidelines. Earlier this year, the Senate HELP Committee hosted a proceeding that included the chairman, the ranking member, and all four witnesses all participating via video conference.
Given the circumstances, these modified proceedings had us thinking: What are the quorum requirements of each committee and what could potentially need to be changed if virtual proceedings are fully implemented?
Senate Rule XXVI establishes specific requirements for certain Senate committee procedures. In addition, each Senate committee is required to adopt rules to govern its own proceedings. These rules may “not be inconsistent with the Rules of the Senate,” but committees are allowed some flexibility to establish rules tailored to how certain activities can be conducted, which can result in significant variation in the way each committee operates.
Given the changing circumstances of committee proceedings, we read each Senate committee’s rules and procedures to find trends, gaps, and unusual practices. Our complete spreadsheet on the House and Senate committee rules breakdown can be found here and is embedded below.[googleapps domain=”docs” dir=”spreadsheets/d/e/2PACX-1vQYUCtAvIQ5vmNtm7_mZWHpAXIAUXdAOVY70cIKLkMDzm9m7ir1n-UpxCEsq44h8HuIdiqnOmi83Prj/pubhtml” query=”widget=true&headers=false” /]
Below are some of the key findings.
Quorum is the minimum number of Members that must be present to do business. The vast majority of committees can hold hearings to conduct business with one-third of committee Members present. Only a select few committees require a majority of Members to be present, including the Banking, Housing, and Urban Affairs committee and the Indian Affairs Committee. The Select Committee on Ethics requires half (3 of 6) of its Members in attendance while the Veterans Affairs Committee requires at least 5 of the 17 members, including at least one Member of the minority party.
Reporting a Measure or Recommendation
Almost all committees require a majority of members to be physically present to report measures or recommendations out of committee. Only a select few committees explicitly mention Members’ “physical presence,” including Foreign Relations Committee and HELP Committees. Three committees, including Homeland Security, Intelligence, and the Judiciary all explicitly say “actually present.”
Taking Testimony or Receiving Evidence
Nearly all committees require at least one Member present to take testimony. The committees that hold different requirements include:
- Armed Services: Three members of the committee, one of whom shall be a member of the minority party.
- Ethics: The Select Committee may fix a lesser number as a quorum for the purpose of taking sworn testimony. One member, provided that all members have been given notice of the hearing.
- Rules and Administration: 2 Members of the committee shall constitute a quorum for the purpose of taking testimony under oath and 1 Member of the committee shall constitute a quorum for the purpose of taking testimony not under oath; provided, however, that in either instance, once a quorum is established, any one Member can continue to take such testimony.
While not all committees explicitly outline the requirements of member presence when receiving evidence, the ones that do mostly require one Member present to receive evidence. Exceptions include Commerce, Science, and Transportation (One-third of Members) and Foriegn Relations (One-third of members, including at least one member from each party).
Each standing committee — and its relevant subcommittees — is empowered to investigate matters within its jurisdiction and issue subpoenas for relevant persons and/or documents. Differences begin to arise in the language that is used for each committee. Here is what the relevant committee’s rules language says about when the Chair (on behalf of the Committee) may issue a subpoena.
|[Chair and Ranking] Acting Together||Aging/Ethics|
|Approval of the Ranking Member||Agriculture, Commerce, Science and Transportation, Energy and Natural Resources, Finance Homeland Security and Governmental Affairs, Indian Affairs, Judiciary, Small Business and Entrepreneurship, Veterans Affairs|
|Consultation with the Ranking Member||Armed Services, Banking, Housing, and Urban Affairs|
|Authorized by a majority of all the Members of the Committee||Energy and Natural Resources, Finance, Foreign Relations, Health, Education, Labor, and Pensions, Indian Affairs, Judiciary, Small Business and Entrepreneurship|
The Senate Budget Committee is allowed to poll its members for issuance of subpoenas.
Changing Committee Rules
Most Senate committees may amend or revise their own rules at any time, provided that not less than a majority of the committee is present or provides proxies or are given notice prior to the meeting. The differences arise regarding how much notice must be given. Examples include:
- Aging: At least three days notice.
- Agriculture, Nutrition, and Forestry: 48 hour notice.
- Energy and Natural Resources: Three days in advance of a meeting.
- Ethics: With due notice of the proposed change.
- Foreign Relations: At least 72 hours prior to the meeting.
- Health, Education, Labor, and Pensions: With due notice, or at a meeting specifically called for that purpose.
- Indian Affairs: At least seven days in advance of such a meeting.
- Intelligence: At least 48 hours prior to the meeting.
- Small Business and Entrepreneurship: With due notice, or at a meeting specifically called for that purpose.
Polling and Proxy Votes
Unlike the House pre-COVID, Senate committee rules appear to allow proxy voting in certain circumstances. However, the application may not be as straightforward as the language suggests, and it may mean only that the vote of the absent member is reflected in the committee report, but is not actually counted. This also may be inconsistent across committees. Nonetheless, the majority of committees have adopted rules that appear to permit proxy voting. In most cases, a committee may not permit the casting of a proxy vote unless the absent Senator has been notified about the question to be decided and has requested that their vote be cast by proxy.
The following committees explicitly outline that proxy voting may not be considered for establishing quorum:
- Armed Services
- Energy and Natural Resources
- Homeland Security and Governmental Affairs
- Indian Affairs
“Polling” is a method of assessing the position of the committee on a matter without the committee physically coming together. Polling cannot be used to report measures or matters due to Senate rules requiring a majority of Members to be physically present to report measures or recommendations. However, Polling may be used by committees that allow it for internal procedural matters before the committee, such as questions regarding how the committee should proceed on a measure.
Some Senate committees have specific provisions that are not included in other committee rules. Some notable examples include:
- Armed Services: Hearings shall be held only in the District of Columbia unless specifically authorized to be held elsewhere by a majority vote of the committee or subcommittee.
- Banking, Housing, and Urban Affairs: No hearing shall be scheduled outside the District of Columbia except by agreement by the Chairman and the RM, or by a majority vote of the committee.
- Homeland Security and Governmental Affairs: If at least three Members of the Committee desire the Chairman to call a special meeting, they may file in the offices of the Committee a written request therefore, addressed to the Chairman.
- Intelligence: “No investigation shall be initiated by the Committee unless at least five members of the Committee have specifically requested the Chairman or the Vice Chairman to authorize such an investigation.
— Written by Taylor J. Swift