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Congressional Research Service 7-5700 www.crs.gov 98-995 Summary Most amendments that Representatives propose to legislation on the House floor are offered in the Committee of the Whole. Measures considered under suspension of the rules are not subject to floor amendments, and few amendments are proposed to bills and resolutions considered in the House or in the House as in Committee of the Whole. The House's procedures recognize distinctions between first- and second-degree amendments, between perfecting and substitute amendments, and among amendments in the forms of motions to strike, to insert, and to strike out and insert. An amendment in the nature of a substitute proposes to replace the entire text of a bill or resolution. All amendments must be germane to the text they would amend, and they are subject to other general prohibitions such as that against proposing only to re-amend language that has already been fully amended. Additional restrictions apply to appropriations and tax amendments, and the budget process creates various other points of order that Members may make against certain amendments. In general, a Member must make a point of order against an amendment before debate on it begins unless that point of order is waived by a special rule. Under an open amendment process in the Committee of the Whole, measures are usually considered for amendment one section or paragraph at a time. Members must offer their amendments to the appropriate part of a bill when it has been read or designated. Each amendment is debated under the five-minute rule, providing five minutes for the Member offering the amendment and five minutes for a Members in opposition. After this first 10 minutes of debate, Members may obtain additional time for debate by offering pro forma amendments in the form of motions to strike the last word or the requisite number of words. Unless barred by the terms of a special rule reported by the House Committee on Rules, each amendment in the Committee of the Whole may be amended by a perfecting amendment, a substitute amendment, or both. A substitute for an amendment is also amendable. After the Committee of the Whole disposes of the last amendment to be offered to the bill, it rises and the House then votes again on all the amendments the committee has approved. A recommittal motion usually offers a final opportunity to amend a bill or joint resolution before the House votes on passing it. Contents Introduction 1 Distinctions Among Amendments 2 Degrees of Amendments 2 Forms of Amendments 2 Effects of Amendments 3 Amendments in the Nature of Substitutes for Measures 4 Drafting Amendments 5 Principles and Prohibitions 6 In General 6 Committee Amendments 7 General Principles 7 The Germaneness Rule 9 Offering and Debating Amendments 13 In the House 13 In the Committee of the Whole and the House 15 General Debate 16 Reading Measures for Amendment 17 Offering Amendments 18 Debating Amendments 21 After the Committee Rises and Reports 24 The Motion to Recommit 26 In the House as in Committee of the Whole 27 Under Suspension of the Rules 28 The Amendment Tree 28 Motions to Insert and to Strike Out and Insert 30 Motion to Strike Out 33 Amendment in the Nature of a Substitute for a Measure 34 Special Procedures for Tax and Appropriations Measures 36 Making and Reserving Points of Order 38 Summary of the Effects of Special Rules 39 Sources of Additional Information 40 Figures Figure 1. The Amendment Tree 30 Contacts Author Contact Information 41 Acknowledgments 41 Introduction The amending process on the floor of the House of Representatives gives Members an opportunity to change the provisions of the bills and resolutions on which they are going to vote. This report summarizes many of the procedures and practices affecting this process, which can be among the most complex as well as the most important stages of legislative consideration. The discussion that follows is intended to be a useful introduction; however, it is not exhaustive, and it cannot substitute for a careful examination of the House's rules and precedents themselves, close observation of the House in session, and consultation with the Parliamentarian and his associates on specific procedural problems and opportunities. The way in which the House considers each measure affects Members' opportunities for amending it and the procedures that govern the amending process. There are essentially four alternative sets of procedures, or modes of consideration, by which the House considers public bills and resolutions on the floor: (1) under suspension of the rules, (2) in the House, under the hour rule, (3) in the Committee of the Whole and the House, and, very rarely, (4) in the House as in Committee of the Whole. The overwhelming majority of the floor amendments on which Representatives vote are offered while measures are being considered in the Committee of the Whole, before being reported back to the House for a vote on final passage. Under the suspension of the rules procedure, floor amendments are prohibited, although the Member making the motion may call up the measure with an amendment. In the House and the House as in Committee of the Whole, floor amendments are technically in order but are much less likely to be offered, either because of the procedures involved or because of the nature of the measure being considered. There are distinctions among different kinds of amendments as well as some general principles and prohibitions governing the amendments that Members and committees can offer. These distinctions, principles, and prohibitions can be important whatever set of procedures the House is using, although they are more likely to matter when measures are considered in the Committee of the Whole than under other circumstances. This report begins with a discussion of distinctions among amendments, followed by some observations on drafting amendments and on several general principles and prohibitions affecting the amending process. Next it examines the specific possibilities and procedures for offering and debating amendments under each of the four sets of procedures, beginning with measures that are debated and amended in the House, under the hour rule, and then those that are considered first in the Committee of the Whole and then in the House. The possible "amendment tree" that may develop is then discussed. The report also discusses several other elements of the amending process: the special procedures and rules governing appropriations and tax amendments and amendments affecting federal spending programs, the procedures for making points of order against amendments, and the effects of special rules on the amending process. At the end of the report is a list of sources of additional information. This report concentrates on amendment procedures under the House's standing rules and precedents. It does not address the various ways in which special rules can affect the amending process, nor does it discuss the points of order that Members may make against amendments under the Congressional Budget and Impoundment Control Act of 1974 and subsequent laws. On these subjects, see CRS Report 98-612, Special Rules and Options for Regulating the Amending Process, by Megan Suzanne Lynch, and CRS Report 97-865, Points of Order in the Congressional Budget Process, by James V. Saturno. Distinctions Among Amendments Amendments are not all the same. One can distinguish among amendments in terms of their degree, their form, and their effects. Moreover, these are not merely analytical distinctions; they can help us understand what amendments Members may offer, under what circumstances, and with what consequences. Degrees of Amendments Whenever a bill or resolution can be amended on the House floor, it is subject to amendments in two degrees. An amendment in the first degree proposes to change the text of the measure itself. After a Representative offers a first-degree amendment but before the House votes on it, another Member may propose an amendment to that amendment. An amendment to a first-degree amendment is an amendment in the second degree. The House then debates and votes on the second-degree amendment before voting on the first-degree amendment, which may now have been amended. As a general rule, third-degree amendments (amendments to second-degree amendments) are not in order. Forms of Amendments Amendments may also be distinguished in terms of their form. First, an amendment may propose only to insert something into a bill or resolution (or first-degree amendment) without changing the provisions already in it. For example, the amendment may propose to insert a new section or title without affecting the existing sections and titles. Second, the amendment may propose only to strike out something from a measure (or first-degree amendment) without inserting anything in its place. For example, the amendment may propose to strike out as little as one word or as much as one or more titles of a bill. Third, an amendment may propose to both strike out and insert by replacing something that is already in the measure (or first-degree amendment) with something else. For example, the amendment may propose only to change a dollar amount, or it may replace a section or title of a bill with an entirely different version of that section or title. Members sometimes characterize their amendments in terms of these effects; for instance, Representatives may state that they wish to offer a motion to strike out a particular section or that their amendment is a motion to strike out and insert. As this indicates, amendments are a special kind of motion. Effects of Amendments A third way of distinguishing among amendments is in terms of their effects. With respect to first-degree amendments, an amendment may propose only to make some change in the portion of the bill or resolution being considered for amendment without affecting the rest of it. Such an amendment is a perfecting amendment; it proposes to change—and, therefore, presumably perfect—that portion of the bill without replacing it altogether. For instance, a section of a bill may authorize an amount of money to be appropriated for certain purposes. An amendment to change only the dollar figure, but not the purposes for which that amount is authorized, would be a perfecting amendment. On the other hand, an amendment may propose to strike out the entire pending portion of a bill—whether it be a paragraph, section, or title—and replace it completely. For instance, the amendment could propose to strike out a section of an authorization bill and replace it with a new section that changes both the amount that is authorized and the purposes for which it is authorized. Such an amendment may be designated an amendment in the nature of a substitute, although Members typically do not do so. Of greater practical importance are the differences in effects among amendments to amendments. An amendment proposing to make some change in the text of a first-degree amendment, without replacing it completely, is a perfecting amendment. By contrast, an amendment to replace the entire text of a first-degree amendment is a substitute amendment. The significance of this distinction will emerge from the discussion of the "amendment tree." The difference between perfecting amendments and substitute amendments depends primarily on the way in which they are drafted and not on the magnitude of the policy changes they would make. A perfecting amendment may replace all but the first word, line, or sentence of a section of a bill (or a first-degree amendment) and so entirely change its substantive effect. Conversely, a substitute for a first-degree amendment would amend the text completely but might make only one minor substantive change and replace the remainder with precisely the same language. A perfecting amendment may take any one of the three possible forms; it may propose to strike out, to insert, or to strike out and insert. On the other hand, a substitute amendment is a proposal to replace one thing with another, and so it always takes the form of a motion to strike out and insert. Amendments in the Nature of Substitutes for Measures Finally, a special kind of amendment, known as an amendment in the nature of a substitute, always proposes to replace the entire text of a bill or resolution, not some lesser portion of the measure. This amendment strikes out everything after the enacting clause of a bill (or the resolving clause of a resolution) and replaces the entire text of the measure with a different text. If a majority of Members vote for such an amendment, Representatives cannot offer any additional amendments to the measure because it has been amended in its entirety. When Members refer to an amendment in the nature of a substitute, they almost always have this kind of amendment in mind, although, as noted above, the same phrase can be, in a technical sense, applied to an amendment that proposes to replace whatever portion of the measure is then being considered for amendment. There are several unique characteristics about the way in which the House considers amendments in the nature of substitutes for the entire text of measures. First, most often this kind of amendment is recommended by a committee at the same time it reports the measure itself. And in practice, Members almost always want to devote far more of their time and attention on the floor to this committee alternative than to the text of the bill as introduced. For this reason, special rules reported by the Rules Committee almost always give a committee substitute special standing during the amending process in the Committee of the Whole by providing for Members to offer their amendments to that substitute rather than to the bill itself. The committee substitute is considered "as an original bill for the purpose of amendment," meaning that it is not treated as a first-degree amendment. Instead, it is amendable in two degrees as if it were the text of a measure itself. Second, if an amendment in the nature of a substitute for a bill or resolution is not given this special standing, a Member can propose it as a first-degree amendment at only two points during the amending process in the Committee of the Whole. The amendment is in order either at the very beginning of the process or at the very end, after the committee has voted on all other amendments to the text of the measure. But even if a Member or committee offers an amendment in the nature of a substitute at the beginning of the amending process, the Committee of the Whole typically does not vote on it until the end of the process, because Members will direct most—usually all—of their amendments to it. Finally, when an amendment in the nature of a substitute for everything after the enacting or resolving clause is proposed at the beginning of the amending process, other Members can propose amendments to the pending portion of the measure as well as to the complete substitute; if so, they vote on any and all such amendments before voting on the amendment in the nature of a substitute. (This possibility, which rarely arises in practice, is discussed at the end of the section on "The Amendment Tree.") Drafting Amendments Clause 1 of Rule XVI requires that every amendment offered on the House floor must be in writing, and it must be drafted accurately to achieve its intended procedural and policy effects. Each amendment must state precisely where and how it would amend the measure or other amendment, identifying the specific pages, lines, and words it would affect. The text of every amendment reveals its form (whether it inserts, strikes out, or strikes out and inserts) and may also identify it as a perfecting or substitute amendment. The following examples illustrate some of the ways in which various kinds of amendments may be drafted. Amendments to a measure: To insert: After line 8 on page 23, insert the following: At the end of Title III, insert the following new section: To strike out: Beginning on page 3, strike out line 1 and all that follows through line 14 on page 4. To strike out and insert: On line 10 of page 7, strike out "$100" and insert in lieu thereof "$50". To strike out all after the enacting (or resolving) clause and insert: Strike out all after the enacting (or resolving) clause and insert in lieu thereof the following: Amendments to an amendment: Perfecting amendment—to insert: At the end of the amendment offered by the gentleman from New York, insert the following: Perfecting amendment—to strike out: In the amendment offered by the gentlewoman from California, strike out Section 2. Perfecting amendment—to strike out and insert: In the amendment offered by the gentleman from Wisconsin, strike out "$100" and insert in lieu thereof "$50." Strike out Section 1 of the pending amendment and insert in lieu thereof the following: Substitute amendment: In lieu of the matter proposed to be inserted by the gentleman from Texas, insert the following: It is sometimes possible to draft an amendment in more than one way. It bears emphasizing that the distinction between perfecting and substitute amendments is generally a matter of drafting style, not substantive effect. For example, imagine an appropriations bill that includes the following on lines 6 and 7 of page 12: For the salaries and expenses of the Congressional Research Service of the Library of Congress, $500. A Member who wishes to amend this appropriation to increase it to $1,000 could draft the amendment in at least two different ways: On line 7 of page 12, strike out "$500" and insert in lieu thereof "$1,000" or Strike out lines 6 and 7 on page 12 and insert in lieu thereof the following: "For the salaries and expenses of the Congressional Research Service of the Library of Congress, $1,000." These two amendments would have precisely the same substantive effect, even though they are drafted differently. Representatives sometimes find it advisable to have amendments (and especially amendments to amendments) drafted in more than one way, especially when a bill or resolution is considered in the Committee of the Whole, because the development of an "amendment tree" may permit or encourage a Member to propose an amendment in one form but not in another. The examples offered above are illustrative only. The House Rules Committee regularly points out to Members drafting amendments to legislation to be considered on the chamber floor that they should use the Office of Legislative Counsel to ensure that their amendments are properly drafted and should check with the Office of the Parliamentarian to be certain their amendments comply with the rules of the House. Principles and Prohibitions A number of general principles and prohibitions govern the amending process and restrict the amendments that committees and individual Representatives may propose on the floor. Many of these principles and prohibitions derive from House precedents, but the best known restriction on amendments—the germaneness requirement—is embodied in the House rules themselves. Like most other House procedures, Members must generally enforce these principles and prohibitions, and thereby protect their own rights and interests, by making appropriate points of order. The procedures for doing so are discussed in a later section of this report. In General The House's published precedents are the source for many of the principles and restrictions affecting the amending process. For example, the prohibition against third-degree amendments is one of the most basic limitations on the amendments that Members may offer, but it is not stated explicitly in the standing rules. Precedents govern the amending process in several other important respects. Committee Amendments Standing committees do not actually amend measures during their markups; instead, a committee votes on what amendments it wishes to recommend to the House. These amendments then have the status of "committee amendments." If the committee reports a measure with one or more amendments, they receive priority consideration on the floor and they are considered automatically. The House considers each of them at the appropriate time; it is not necessary for a committee member to offer them from the floor. When and how the committee amendments are considered depends on the set of procedures under which the bill or resolution itself is being considered. Under several possible procedures for considering amendments to a measure, it is "open to amendment at any point"—that is, amendments can be offered to any part of the bill in any order. In such a case, the Speaker directs the clerk to read the first committee amendment as soon as the bill is considered for amendment. After the House votes on this amendment, it considers any additional committee amendments in turn. Members may be able to offer their own amendments to each committee amendment, but they may generally not propose amendments to the text of the bill itself until the House has completed action on the committee amendments. The amending process under these procedures is usually routine; typically, no more than one committee amendment is to be considered. On the other hand, the particularly important procedures governing the amending process in the Committee of the Whole are usually governed by the principle that a measure is to be "read for amendment"—that is, only one paragraph, section, or title of the measure is open to amendment at a time. In this case, the Committee of the Whole automatically considers any committee amendment(s) to each part of the bill as soon as it is read. Again, Representatives may propose amendments to each committee amendment, but the Members must dispose of the committee amendments to each part of the measure before they can offer other amendments to that part of it. An exception to this principle arises whenever the committee amendment takes the form of a motion to strike out some language or provision of the bill. While such a committee amendment is pending, a Member may offer an amendment to change the part of the bill that the committee proposes to strike out altogether. This possibility is considered in more detail during the discussion of the "amendment tree." In current practice, on most major measures, a House committee's recommendations for changes in a bill or resolution are embodied in a single amendment in the nature of a substitute. As already noted, the special rules for considering measures often make special arrangements for Members to consider a committee substitute in the Committee of the Whole by designating it as a proposal that Members may amend in two degrees. Because of this widespread practice, it is extremely rare to see multiple discreet committee amendments considered on the House floor in the way described above. General Principles Several other general principles govern the amending process. First, clause 2 of Rule XVI requires that the clerk is to read each amendment when it is offered and before debate on it begins, whether it is a committee amendment or one proposed by an individual Member. The sponsor or principal proponent of the amendment very often asks unanimous consent that the amendment be considered as read, and there is usually no objection unless an interested Member is not familiar with it and wants time to examine the amendment before it is debated. In addition, a Member may move to dispense with the reading, under circumstances discussed in a later section, but only if Members already have access to a printed copy of the amendment. Second, an amendment should not affect the measure in more than one place. This principle protects the House against having to cast one vote on two or more propositions that may be unrelated. Thus, an amendment to replace the text of Section 201 and add a new sentence at the end of Section 203 is subject to a point of order if the bill is being read by sections. Instead, the sponsor of the amendment could offer each part of it as a separate amendment, or the sponsor could ask unanimous consent that the two amendments be considered "en bloc"—that is, as if they were one amendment. There is often no objection to such a request if both amendments are necessary to achieve a single purpose. Alternatively, if the title containing Sections 201 and 203 has been read for amendment, or if the bill is open to amendment at any point, the sponsor could avoid a point of order by drafting a single amendment to strike out Sections 201-203 and replace them with the preferred provisions. Third, any Member may demand, as a matter of right, the division of an amendment proposing to insert additional provisions into (or strike provisions from) a measure or first-degree amendment but only if the amendment to be divided (or the matter to be stricken) consists of two or more parts that, in the judgment of the chair, could stand as independent propositions. When an amendment is divided, the House considers each division of the amendment in turn, as if each were a separate amendment. This right, which also protects the House against having to cast a single vote on two or more separable proposals, is conveyed by clause 5 of Rule XVI; however, the same rule states in part that a motion to strike out and insert is not divisible. It is important to keep in mind that special rules can limit the divisibility of amendments. Fourth, the same amendment may not be offered more than once. If the House has considered and rejected an amendment, it may not be offered again unless it has been changed substantively. Without such a prohibition, the House could not be sure of its ability to dispose of questions conclusively. However, a part of a rejected amendment may be offered as a separate amendment, and the entire text of the rejected amendment may be included as part of a larger amendment. In addition, as has been discussed, it is sometimes possible to offer two amendments that are substantively identical. For example, a Member may propose to add a new title to the text of a bill and also move to insert the same new title into the text of an amendment in the nature of a substitute for the bill. These amendments are different procedurally because each seeks to amend a different text. Fifth, it is not in order for a Representative to offer an amendment that proposes only to amend language that has already been amended. If not for this principle, the House would have difficulty resolving questions once and for all. Thus, if a dollar number in an appropriations bill has been amended, another amendment that would only change the same number again is subject to a point of order. Or if the House agrees to a substitute for a section or title of a bill, no further amendments only to that section or title are in order because it has been fully amended. Any further amendment to it would constitute a prohibited attempt to re-amend. An important implication of this principle is that adoption of an amendment in the nature of a substitute precludes all further amendments to the measure. This complete substitute replaces the entire text of the bill or resolution, so any new amendment would propose to re-amend something that has already been fully amended. An exception to the prohibition against re-amendment is what is sometimes called the principle of "the bigger bite." Representatives may seek to amend something already amended if they do so as part of an amendment to change a larger part of the text. For example, a Member may re-amend a dollar figure in an appropriations bill by offering a substitute for the paragraph containing that number so long as the amendment also makes some other substantive change in the paragraph. Similarly, after the House has agreed to a substitute for a section of a bill, a Member may propose a substitute for the title containing that section and thereby re-amend the section in the process of amending other sections of the same title. Each of these amendments takes a bigger bite out of the text than the amendment the House has already considered and adopted. The Germaneness Rule Clause 7 of Rule XVI states in part that "no motion or proposition on a subject different from that under consideration shall be admitted under color of amendment." This brief clause constitutes the germaneness rule—a rule that is simple and straightforward in principle but complex and sometimes difficult to apply in practice. Indeed, determining whether an amendment is germane can be the most challenging task in interpreting the House's legislative procedures. The four-line rule is accompanied by 28 pages of commentary and explanation in the House Rules and Manual for the 114th Congress, and discussions of precedents on this subject consume all the 1,957 pages of volumes 10 and 11 of Deschler's Precedents of the House of Representatives. The principle underlying the germaneness rule is that the House should consider one subject at a time. While debating authorizations for military weapons systems, for example, the House should not be distracted by amendments concerning food safety, mass transit, or other unrelated subjects. The object of the rule is not simply orderliness. If not for the germaneness requirement, Members could offer amendments on any subject of their choice, thereby bypassing the standing committee system and depriving the House of the committees' expert appraisals, recommendations, and reports. Furthermore, Members could be compelled to vote on unanticipated questions without adequate time for preparation. In sum, the germaneness rule is designed to encourage systematic and thoughtful legislative decisions. Germaneness is a requirement that applies to all amendments originating in the House, whether proposed by individual Representatives or recommended by House committees. Because the rule prohibits amendments on a new subject, it does not apply to the provisions of measures themselves; anything contained in a bill or resolution is immune to challenge on grounds of germaneness. Also, Members generally may not make points of order against nongermane Senate amendments until the House has reached the stage of disagreement with the Senate over a measure—and usually when the House begins to consider a conference report. In determining whether an amendment proposed on the House floor is germane, the chair is normally concerned with the relationship between the amendment and the text it proposes to amend. In general, a second-degree perfecting amendment or a substitute for an amendment must be germane to the amendment it would affect. So it may be ruled nongermane even though it could be germane to the underlying text of the bill. And a first-degree amendment to a section or title of a bill must be germane to that section or title; the chair may rule it nongermane even though it might be germane to some other portion of the bill. On the other hand, an amendment proposing to add a new section or title at the end of a measure may be subjected to a broader test: whether it is germane to the text of the measure as a whole. Also, an amendment must be germane to the text it would amend as that text reads at the time the amendment is proposed. Thus, it is not sufficient that an amendment be germane to the bill as originally introduced (or to the first-degree amendment as originally proposed). Instead, the amendment must be germane to the bill (or amendment) as it may have already been amended. By its votes on amendments offered earlier during its consideration, the House may have broadened or narrowed a bill (or amendment) in ways that affect the germaneness of other amendments that Members might propose. This situation adds to the difficulty of anticipating, evaluating, and protecting against germaneness challenges. The Parliamentarian and his associates can offer a Representative expert advice on the germaneness of a prospective amendment. But by the time the Representative actually offers the amendment on the floor, the House may have amended the bill (or amendment) in ways that change the relationship on which the germaneness ruling is based—the relationship between the proposed amendment and the text it proposes to amend. The concept of germaneness is akin to that of relevance or pertinence but more restrictive. The mere fact that the House is considering a tax bill, for instance, does