Note 24: Unanimous Consent in the Senate, Part II
The Odd History of Time Agreements
[For some basic information on unanimous consent agreements, see Note 23]
The first, and somewhat isolated, use of a unanimous consent request to limit debate or amendments occurred in 1846.[1] Not surprisingly, the 1846 agreement was raised in a most casual way (Cong. Globe, 13 April 1846, 659). A senator observed that the debate on the Oregon resolutions seemed to be winding down after more than two months and that “it would be an accommodation to many Senators to have an understanding as to the exact day” the Senate would vote. The agreement was quite informal—merely to vote on the resolutions in three days. A senator noted that the chamber could not be sure that debate on amendments would end by then; another assured him that the remaining debate would be brief. Notably, one senator said that he “had not the slightest objection to fixing upon some day for terminating the debate, provided it was not to be regarded as establishing a precedent.” On the appointed day, the debate lasted longer than some senators expected, but they brought the resolutions to a vote.
Identifying complex UCAs in the mid-19th century is difficult. As informal agreements, UCAs were not reported or indexed in the Senate Journal or other official publications. Perusal of the Congressional Globe, which does not provide reliable coverage of all procedural action, indicates that by 1870 UCAs were being used with some frequency. As many are today, the UCAs were time-limitation agreements that provided for disposal of a measure by a specified time. The typical UCA provided for a vote on a bill by time certain, usually 4 or 5 o’clock one or two days in the future. The presiding officer usually repeated the agreement once offered so that senators could hear and understand it.
As early as 1870, the Senate found itself bound by an interpretation of the parliamentary status of UCAs that made them difficult to enforce. On Saturday, July 4, 1870, with many senators losing patience with their extended summer stay in Washington, the hour for a final vote on a naturalization bill under a UCA passed with opponents continuing to press amendments and debate the bill. Senators observed that the debate continued in violation of the UCA. John Sherman, in fact, complained that it was the first violation of a UCA in the history of the practice (Congressional Globe, July 4, 1870, 5152). When a point of order was raised by another senator, the President Pro Tempore, Henry Anthony, stated that the chair did not have the power to enforce the agreement. “The agreement under which the Senate came to an understanding to vote at five o’clock on Saturday was by unanimous consent,” Anthony declared. “It was not an order entered on the Journal, but merely an understanding among Senators. The Chair has no power and no right to enforce an agreement of that kind” (Congressional. Globe, July 4, 1870, 5150). Anthony’s repeated rulings established a precedent that UCAs could not be enforced by the presiding officer, a precedent that led to much confusion over the next four decades.
Anthony’s interpretation appeared to be based on the casual nature of UCAs in the years before the Civil War, when UCAs were viewed as mere “gentlemen’s agreements.” The argument was based on two premises—that UCAs were not recognized in the Senate’s rules and that the presiding officer had no authority except that granted explicitly by the rules or an order of the Senate. After Anthony left the Senate, Henry Cabot Lodge (R, Massachusetts) became the Senate’s unofficial parliamentarian-in-residence and frequently articulated this rationale.
In practice, presiding officers after Anthony were not entirely consistent in their approach to UCAs. Most presiding officers in the decades around the turn of the 20th century contributed to the implementation of UCAs by noting that the time had arrived to call up or vote on a measure subject to a UCA. But senators varied in their understanding of the role of the presiding officer and the role of presiding officers in facilitating the UCA process was not settled before the 19th century ended. Most presiding officers routinely refused to enforce UCAs, but others chose to go their own way and appeared to be tolerated by their colleagues.
Responsibility for negotiating UCAs appears to have rested primarily on the shoulders of bill managers until the second decade of the 20th century. The Congressional Record is replete with long exchanges among senators about a bill manager’s unanimous consent request. Confusion about the provisions of UCAs was common, with senators sometimes quoting the Record to prove a point. Senators sometimes complained that they were not present when unanimous consent was granted.
Further complicating the use of UCAs after the turn of the century was the thesis that UCAs could not be modified, even by unanimous consent. Lodge made this argument in 1907 (Cong. Record, 10 Jan. 1907, 878–79) and consistently maintained the position (Cong. Record, 10 Jan. 1913, 1389–90), along with the view that the presiding officer could not enforce UCAs. Lodge’s theory was that a UCA, as a gentlemen’s agreement, created an obligation that could not be violated at a later time by senators who happened to be on the floor and were seeking a modification. Lodge argued, as Sherman had maintained in 1870, that modifications in UCAs, even by unanimous consent, would eventually undermine confidence in UCAs. Although presiding officers were not consistent on this matter, the Lodge thesis was the prevailing interpretation during the first decade of the 20th century.
Agreements that provided for a vote on a bill and pending amendments at a time certain were a regular part of floor management practice at the turn of the century. Although compliance with UCAs was generally good, critical features of modern floor practice were not in place. No formal party floor leaders were present to orchestrate agreements and oversee their implementation. The thesis that UCAs could not be modified by unanimous consent made them inflexible tools for scheduling. Presiding officers enforced agreements sporadically, whether because of the ignorance of precedent or the forbearance of senators.
In the first years of the 20th century, the Senate adopted practices that reduced confusion about UCAs. Senators began to submit unanimous consent requests in writing to the desk. UCAs were often read by the secretary at the request of the presiding officer. UCAs that were intended to govern the conduct of business on subsequent days were printed on the title page of the daily Calendar of Business as long as they were operative. And the secretary appears to have reworded numerous agreements so that they would conform to what had become the “usual form,” as some senators noted on the floor. These innovations occurred without any official recognition of the UCAs in the standing rules of the Senate.
Arguments about the twisted logic in Senate precedents on UCAs came to a head in January, 1913 (Congressional Record, January 10-11, 1913, 1324–29, 1354–56, 1388–95). After having failed in previous days to gain unanimous consent for consideration and a vote on a prohibition bill, Newell Sanders (R, Tenn.) asked for unanimous consent once again and, probably much to his surprise, received it. In a moment, Reed Smoot (R, Utah) inquired, “Was there a unanimous consent agreement just entered?” When the presiding officer indicated that there was, Smoot immediately asked that it be reconsidered, to which the presiding officer responded that “it is beyond the power of the Senate to change or interfere with a unanimous consent agreement after it is made.” Several senators insisted that they had not heard the request and that previous practice in such cases was to have request submitted to the Senate again. Others, including Lodge, had to confess that a UCA must be observed. One senator, Joseph Bristow (R, Kans.), proclaimed that he was free to violate the UCA. The next day, Smoot suggested that the request be resubmitted to the Senate. Over the strong protest of another Republican, New Hampshire’s Jacob Gallinger, President Pro Tempore Augustus Bacon (D, Ga.), now back in the chair, indicated that he had no power to rule on the matter and allowed the issue to be decided by the Senate. A large majority voted to have the request resubmitted, which it was, and Smoot promptly objected to the request. Gallinger then restated the request—with a different date for action on the measure—and it was accepted.
By the beginning of the next session, a committee recommended the adoption of a new rule, an additional paragraph for Rule XII. The rule provided that,
[N]o request by a Senator for unanimous consent for the taking of a final vote on a specified date upon the passage of a bill or joint resolution shall be submitted to the Senate for agreement thereto until, upon a roll call ordered for the purpose by the presiding officer, it shall be disclosed that a quorum of the Senate is present; and when unanimous consent is thus given, the same shall operate as the order of the Senate, but any unanimous consent may be revoked by another unanimous consent granted in the manner prescribed above upon one day’s notice (Rule XII (4)).
The requirement for a quorum call was not controversial. Even the provision for UCAs to be considered orders of the Senate, enabling the presiding officer to enforce them, received little discussion. Lodge and Smoot complained about the ability to modify UCAs by unanimous consent, but appeared to accept the logic once the proponents of the rule accepted an amendment that required one day’s notice of a request to modify such a UCA (one providing for a final vote). Later rulings would allow the one-day notice requirement to be waived by unanimous consent (Riddick 1992, 1354). A bipartisan majority supported the proposal, as amended (Congressional Record, January 16 1914, 1756–59).
With the new rule, UCAs became formally recognized as orders of the Senate. As such, a UCA supersedes Senate rules and precedents that are contrary to its provisions. Presiding officers began to exhibit consistency in their interpretation of the parliamentary status of UCAs and their power to implement them. They would enforce UCAs as all other orders of the Senate and, over time, a large body of precedent accumulated in support of the proposition that presiding officers were obligated to take the initiative in enforcing the provisions of UCAs (on interpretations of UCAs under Rule XII, see Riddick’s Senate Procedure: Precedents and Practice, 1992, 1311-69). By the early 1920s, UCAs began to be reported faithfully in the Journal as orders of the Senate and the parties’ floor leaders were actively engaged in negotiating them (Congressional Record, July 20, 1921, 4115, and August 1, 1921, 4480).
Practices surrounding UCAs were not entirely settled in the mid-20th century. In the last half of the 20th century, the majority leader became more inventive in designing agreements to limit debate and amendments. Just as the House majority leadership began to craft limits on debate and amendments in special rules to the political situation of each bill, Senate majority leaders acquired a larger repertoire of UCA provisions. This process took place in stages.[2]
For more than 30 years, nearly all UCAs propounded were of a standard form. The form is recorded in former Senate Parliamentarian Floyd Riddick’s Senate Procedure:
Ordered, by unanimous consent, that on the calendar day of ____, 19__, at not later than ___ o’clock p.m. the Senate will proceed to vote, without further debate, upon any amendment that may be pending, any amendment that may be offered, and upon the bill (bill number and name) through the regular parliamentary stages to its final disposition; and that after the hour of ___ o’clock p.m., on said calendar day, no Senator shall speak more than once or long than ___ minutes upon the bill, or more than one or long than ___ minutes upon any amendment thereto (Riddick 1992, 1312).
The purposes of these UCAs were to gain final disposition of a bill, including any action on amendments, by a certain time and to divide time for debate equitably in the meantime.
Since the early 1970s, when Democratic Whip Robert Byrd started negotiating the details for his floor leader, Mike Mansfield, UCAs have come in all sizes, big and small. While UCAs are often tailored to individual measures and often to brief periods of debate and a single amendment, they also have been used to establish a comprehensive floor agenda for a measure, or even a set of measures, in delicate legislative situations. UCAs have the virtue of being difficult to modify (only by unanimous consent, of course) so they provide a particularly useful means for cementing arrangements intended to guarantee votes on certain measures or amendments or preclude votes on others.
[1] Robert Keith, “The Use of Unanimous Consent in the Senate.” In U.S. Senate, Committees and Senate Procedure. 94th Congress 2nd session. Washington DC: Government Printing Office, 1977.
[2] Steven S. Smith and Marcus Flathman, “Managing the Senate Floor: Complex Unanimous Consent Agreements Since the 1950s,” Legislative Studies Quarterly (1989) 14(3): 349-374.