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Precedents: What they are and how they are created

Senate Republicans are not yet convinced that they can amend a resolution to terminate a presidential declaration of a national emergency under the National Emergencies Act. While the statute and the Standing Rules of the Senate clearly do not preclude amendments, some have suggested that the precedent set by the Senate last December during its consideration of the Yemen War Powers Resolution applies in this instance as well. A closer look at how the Senate creates precedent illustrates why that is not the case.

What is precedent?

The Senate operates day-to-day mostly according to informal rules stipulated in a collection of precedents (i.e., Riddick’s Senate Procedure). The late Robert C. Byrd, D-WV., described precedents as reflecting “the application of the Constitution, statutes, the Senate rules, and common sense reasoning to specific past parliamentary situations.” Former Senate Parliamentarian Floyd M. Riddick observed that precedents embody the practices of the Senate under the Constitution, its Standing Rules, and any relevant rule-making statutes. They fill in gaps contained in the Senate’s Standing Rules and statutory rules whenever those procedural authorities fail to address specific parliamentary situations.

As the current debate demonstrates, precedents are especially helpful to senators when it comes to filling in the gaps of the Senate’s rules regarding amendments. Senators use them to define germaneness under Rule XVI (amendments to general appropriations bills) and Rule XXII (cloture). Precedents restrict when senators may offer different types of amendments (i.e., first or second degree; perfecting or substitute). And they limit how many amendments may be pending simultaneously in a debate.

How is a precedent created?

Article I, section 5, clause 2 of the Constitution gives the Senate plenary power to “determine the rules of its proceedings.” This means that precedents must be based on what senators decided to do in the past. It also means that precedents must reflect past actions that occurred on the Senate floor.

Senators may create a precedent (or establish a pattern of past procedural behavior) in one of three ways.

By rulings of the presiding officer

Senators create a precedent when they go along with the Presiding Officer’s rulings. For example, the Senate majority leader was first granted priority or recognition in 1937 as a result of a decision made by the Vice President, John Nance Garner (“Cactus Jack”), while presiding over the Senate.

By Senate vote

Senators may also create a precedent when they vote to reverse (or sustain) the Presiding Officer’s ruling on a point of order. For example, Majority Leader Harry Reid, D-NV., raised a point of order in October 2011 that a motion to suspend Rule XXII, paragraph 2, to offer an amendment was dilatory and therefore out of order.

MR. PRESIDENT, I MAKE A POINT OF ORDER THAT THE MOTION TO SUSPEND IS A DILATORY MOTION UNDER RULE XXII.

— MAJORITY LEADER HARD REID, D-NV (2011)

 The Presiding Officer did not sustain Reid’s point of order. Reid subsequently appealed the ruling, and the Senate voted 48 to 51 to sustain the Presiding Officer’s decision (i.e., to reverse the ruling). The mechanics of how the Senate creates precedents are highlighted in the Presiding Officer’s announcement of the vote results.

ON THIS VOTE, THE YEAS ARE 48, THE NAYS ARE 51. THE DECISION OF THE CHAIR DOES NOT STAND AS THE JUDGMENT OF THE SENATE. THEREFORE, THE POINT OF ORDER IS SUSTAINED.

Here, the Senate decided by vote to create a new precedent based on the specific wording of Reid’s point of order.

More recently, the Senate created a new precedent that amendments offered to resolutions of disapproval under the War Powers Resolution must be germane. During debate on the Yemen War Powers Resolution, Bob Corker, R-Tenn., raised a point of order “that amendments offered under 50 U.S.C. 1546(a) must be germane to the underlying joint resolution to which they are offered.” The Presiding Officer subsequently submitted the question Corker’s point of order raised to the full Senate to decide because it was unprecedented. Senators voted 96 to 3 to create a new precedent stipulating that “amendments offered under 50 U.S.C. 1546(a) be germane to the underlying joint resolution to which they are offered.”

The precedent established by the Senate during the Yemen debate does not apply to amendments offered to joint resolutions pursuant to statutory authority other than 50 U.S.C. 1546(a). The specific wording of the point of order and, by extension, of the question submitted by the Presiding Officer to the full Senate, limits the applicability of the precedent.

By parliamentary inquiries

The Senate may establish a pattern of past procedural behavior (that senators may or may not follow in the future) when the Presiding Officer responds to parliamentary inquiries. Riddick’s Senate Procedure uses the word see to differentiate responses to parliamentary inquiries from precedents created by a ruling of the Presiding Officer or by a vote of the full Senate on appeal. While senators have traditionally viewed responses to parliamentary inquiries as non-binding, they have acquired precedential value in the past to the extent that repeated parliamentary inquiries provide future senators with insight into how the Presiding Officer and senators understand the rules and practices to operate.

For example, Majority Leader Mitch McConnell, R-Ky., posed a series of parliamentary inquiries to the Presiding Officer prior before Corker raised a point of order during the Yemen War Powers Resolution debate. The Presiding Officer’s responses clarified that amendments to joint resolutions under the War Powers Resolution did not have to be germane. McConnell concluded his remarks by urging the Senate to “speak to this issue.” In other words, McConnell called on the Senate to create a new precedent to require that amendments offered to joint resolutions under the War Powers Resolution must be germane. However, McConnell’s parliamentary inquiries did not create the precedent. Instead, the Senate established the precedent when it voted to sustain a specific point of order.

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Topics: Legislative Procedure
James Wallner
James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group t...