PARLIAMENTARY PROCESS, BASIC FACTS, AND STRATEGIES Parliamentary BOOt camp TRAINING
Drafting and Offering Amendments The motion to amend is among the most basic in the House and in committee. Its purpose is to allow a member to make changes in a measure under consideration. In committee and under “open” rules, members often have wide latitude in the kinds of amendments which they can offer; during consideration of measures under a “structured” process on the floor, the amendment process is more limited and predictable. In either case, there are a number of issues to be considered during the drafting and markup process. Both open and structured amendment processes during floor consideration are usually
conducted in the Committee of the Whole, which is structured to allow for amendment debate.
DRAFTING AMENDMENTS templates can be found at http://legcoun. Pre-Printing. To have an amendment Legislative Counsel. When drafting house.gov/members/amends.html. preprinted in the Congressional Record, amendments, Members should use the the amendment should be submitted the Members should also ask the Office of the House Office of Legislative Counsel. day prior to consideration (or by the dead- Parliamentarian to review the amend- Legislative Counsel has a large team line announced by the Rules Committee) ment to get advice on whether it complies of attorneys who are experts in legisla- in the amendment box located on the with House rules, such as germaneness or tive drafting in their particular areas Speaker’s Rostrum on the same side as the budget act points of order. of responsibility. By using the Office of Hopper. The amendment will be printed Legislative Counsel, members will receive Finally, Members should also ask for a in House section of the Congressional expert advice on drafting issues, as well review by the Congressional Budget Record labeled “Amendments”. as having amendments properly format- Office to ensure that the amendment does Managers under an open amendment ted so that they can be easily engrossed not change direct spending, resulting in process will attempt to establish a “uni- if adopted. While the Office of Legisla- a point of order for violating the CUTGO verse” of amendments by entering into a tive Counsel serves both parties, their rules. attorneys are bound by law to maintain unanimous consent agreement as soon confidentiality allowing them to effec- AMENDING A BILL THROUGH AN as possible. Under an open amendment tively work with Members from opposing OPEN AMENDMENT PROCESS process, they will try to limit amend- sides without conflict. While the majority of bills are considered ments to those printed in the Record and through structured amendment processes, at the Speaker’s desk, and will likely try Due to limited resources, the Office of important legislation is still considered to establish time limits for debate. As a Legislative Counsel prioritizes requests under open amendment scenarios. For result, it is important that the amendment from leadership and committee offices instance, most of the regular appropria- either be printed in Record as soon as pos- to ensure that drafting needs for the floor tions bills are considered under open rules, sible, or the Republican bill manager be and committee are met. While they are and many other bills are considered under advised about the amendment so that they usually able to meet the needs of rank- modified-open rules. The most common and-file members, they do offer templates type of modified open rule requires the for House offices to use in drafting their pre-printing of amendments in the Con- own amendments if necessary. Those gressional Record prior to consideration. House of Representatives Committee on
H-312, the Capitol › Washington, D.C. 20515 › 202-225-9191 › www.rules.house.gov Last updated: March 4, 2012 RULES Amendments continued
can ensure that the amendment is covered by the unanimous The text of the amendments made in order is usually printed consent agreement. in the report to accompany the special rule. While the rule usually waives points of order against the amendments, those Reading for Amendment. While the Rules Committee can waivers are generally only prophylactic in nature, meaning that specify another process, consideration of bills under open rules no waivers are actually required. It is important to note that is usually by section (or paragraph in the case of appropriations the Rules Committee is generally reluctant to provide waivers bills). Amendments to a particular section may be offered only of particular rules for amendments, so it is important to ensure at the point that the section or paragraph that they are amend- that amendments comply with House rules prior to submission ing is being read. If a member misses the correct point in the to the Rules Committee. reading, unanimous consent is required to allow the member to go back, although often an amendment may be redrafted to the During consideration of the bill under a structured rule, end of the bill. amendments made in order— » May only be offered in the order printed in the report; Amendments can be subject to points of order, and are debated » under the 5-minute rule, unless a unanimous consent agree- »»Must be offered by the sponsor or his or her designee; ment is in operation. Under the 5-minute rule, a proponent and » Are debatable only for the time specified in the report; and, opponent are each recognized for 5 minutes, and other mem- » » Are considered as read. bers may use pro forma amendments to “strike the last word” » to get 5 minutes to speak on an amendment. The terms of the rule may not be changed during amendment debate in the Committee of the Whole, even by unanimous A pro forma amendment is a device used to obtain time to consent. They may only be changed by a subsequent order of the speak on a pending item. Although pro forma amendments House, usually in the form of a unanimous consent agreement are phrased to make some minor change in the language under propounded in the House or a subsequent rule reported by the consideration, such as “striking the last word,” they do not Rules Committee. contemplate an actual change in the measure under consider- ation. A member may not be recognized for a second pro forma The only exception is a change to the text of an amendment, amendment on the same amendment. which may be modified by unanimous consent. Members are AMENDING A BILL THROUGH A STRUCTURED not permitted to amend their own amendment, only modify it. AMENDMENT PROCESS Lastly, members may only offer an amendment in their own In many ways, a structured amendment process is easier to name, or as the “designee” of another member. Members may manage, particularly for the bill manager. Under a structured not “jointly” offer amendments, although the Rules Committee rule, the most common type of rule, the Rules Committee does allow members to “cosponsor” amendments for purposes will announce a filing deadline for amendments, and in its of its report. rule providing for consideration for the bill will make certain amendments in order for a defined amount of time.
Clause 6 of rule XVI specifies referred to as an amendment in mane to the amendment un- TYPES OF the 4 kinds of amendments the “firs degree.” der consideration, as well as AMENDMENTS that are available in the 2. Amendment to the the underlying bill. House and its committees: AVAILABLE IN Amendment — Commonly 3. Substitute amendments THE HOUSE 1. Amendment — The most called a “second degree” — A substitute amendment basic form, this is a “perfect- amendment, this is a per- “takes the place of” the cur- ing” amendment to the mea- fecting amendment to the rently pending amendment, 5 sure under consideration and is amendment. It must be ger- i.e. “substituting” for the Forms of Amendments in the House
In addition to the basic types of amend- Insert. Similarly, the insert amendment Page 14, line 1 through page 15, line 12 ments described in this document, adds language at the point described in is amended to read as follows: amendatory instructions take differ- the amendment. Sec. 101. Limitation on Certain ent forms, depending on the desired Health Plans. Page 14, line 12, insert “until July 1, effect. When drafting amendments, it’s (a) No health plan may ... 2013” before the period. important to remember that while refer- ences to page and line numbers are Global Changes. An amendatory instruc- Strike and insert. Another common preferred for both ease and accuracy in tion may be drafted to make changes form of amendment combines the strike engrossment of the amendment, relative throughout a portion of text and can be and insert into a single amendment. references (e.g. “Section 201 is amended used when there are changes to a term to read...”) may also be used. Page 14, line 12, strike “qualified” and or condition used in multiple places AMENDMENTS TO PARTS OF BILLS insert “until July 1, 2013” before the throughout a measure. period. Often referred to as cut“ and bite” Page 14, line 1 through page 15, line 12 amendments, these amendatory forms is amended by striking “2013” and insert- are usually used to make changes to dis- Rewrites. If there are a number of chang- ing “2014” in each place it appears. crete portions of bills. es to be made to a particular portion of a bill, it may be easier to rewrite the entire Strike. Among the most basic amend- Amendments en bloc. Amendments portion being amended. These kinds of ment forms, this type of amendment is offered en bloc are amendments to amendments may be expressed either in used to delete language from the measure multiple portions of the measure being relative or page and line number refer- being amended. amended offered together. It is important ences. Note that the amendment itself to note that if a bill (or other measure is usually not in quotes, but delineated Page 14, line 12, strike “qualified”. being amended) is not open for amend- from the amendatory instruction by line ment at any point, amendments en bloc numbers. Quotation marks may or may Note that the punctuation falls outside may only be offered by unanimous not be used depending on whether the the quotation marks, as the period consent. indicates the end of the amendatory amendment is to a free-standing measure instruction and not that the period should or existing law. be stricken.
pending text, and not the en- As shown on the amendment tioning, though it is not one degree position and may only tire bill. tree (See “The Amendment of the 4 basic types: be offered as the first section 4. Amendments to the Sub- ‘Tree’”) all 4 forms of amend- 5. Amendment in the Nature of a bill is read, or at the end ment may be pending at one of the bill. It is often confused stitute — A substitute amend- of a Substitute — This amend- time. with “substitute amendments,” ment may also be further ment is a subset of the perfect- though they are fundamentally amended through a perfect- There is an additional form of ing amendment, and replaces different forms. ing amendment. amendment that bears men- the entire text of the pending measure. It occupies the 1st THE AMENDMENT “TREE”
A common metaphor used to describe the various kinds of amen- 1 Perfecting Amendment (2nd Degree) datory forms available during consideration of bills in the House or in committee is the amendment “tree.” Perfecting Amendment (1st Degree) 4 Assuming that the base text (either the bill itself or an amendment 3 Substitute in the nature of a substitute considered as base text by unanimous Perfecting Amendment 2 Amendment consent) is the “trunk,” the various amendatory forms can be to the Substitute Amendment viewed as “branches.”
The most common form, the perfecting amendment, is an amend- Base Bill ment to the base text.
That amendment can be further perfected, at which point the amendment is in the “second degree”. The rules of the House Figure 3. The classic, single-branch amendment “tree”. Numbers in red squares indicate vot- prohibit consideration of amendments beyond the second degree. ing order.
A first degree is also subject to amendment by a complete substi- tute amendment. A substitute amendment is distinguishable from complete replacement for the text, and generally can only be dis- an amendment in the nature of a substitute by the object of the tinguished by its caption, “Substitute Amendment to the Amend- amendment and the amendatory instructions. ment by M. ______.”
An amendment in the nature of a substitute amends a bill, and A pending substitute amendment can also be further perfected. contains the amendatory instruction “Strike all after the enacting All of these forms of amendment may be pending at the same clause and insert the following:”. In contrast, a substitute amend- time. In figure 3, the numbered red squares indicate the order in ment amends a pending amendment in the first degree with a which the Chair puts the question on each amendment. Amendment Forms continued Amendments En Bloc offered by instruction. When a bill is being read by in its entirety, and is subject to further M. _____ section, it is only in order when the first perfection, even while the underlying Page 14, line 12, strike “qualified” and section is being read for amendment or amendment is pending and has been insert “until July 1, 2013”. after all sections have been read. perfected. The caption of a substitute Page 22, line 8, before the period insert amendment usually describes the Amendment in the Nature of a “unless such plan is not a qualified plan.” amendment it substitutes for, and the Substitute offered by M. _____ amendatory instructions are within the Strike all after the enacting clause, and MAJOR AMENDMENT FORMS scope of those of the underlying amend- insert the following: These amendatory forms are usually ment. It is important to remember that Section 1. Short Title. used to make changes to entire measures the substitute amendment must be ger- This Act may be cited as the “Sample under consideration, either bills or entire mane to both the bill and the amendment Act of 2012”. ... amendments. There are two basic forms it is substituting for. usually distinguished by their captions While an Substitute Amendment for the and amendatory instructions: Substitute Amendment. Amendment in the Nature of a Substitute Jones Amendment offered by M. Amendment in the Nature of a is often referred to as a “substitute” it is _____ Substitute. This amendatory form different than a substitute amendment. Page 14, line 12, strike “qualified” and substitutes for an entire text, and A substitute amendment is intended to insert “until July 1, 2013”. is distinguished by its amendatory substitute for a pending amendment