[Congressional Record Volume 155, Number 197 (Monday, December 21, 2009)]
[Senate]
[Pages S13646-S13647]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               SENATE PROCEDURE AND THE SANDERS AMENDMENT

  Mr. CARDIN. Mr. President, on Wednesday, the junior Senator from 
Vermont offered his ``single-payer'' health insurance amendment, amdt. 
No. 2837, to H.R. 3590. Under rule XV of the Standing Rules of the 
Senate, an amendment must be read aloud into the Record unless its 
reading is dispensed with by unanimous consent. Such consent is 
routinely granted but in this instance, the junior Senator from 
Oklahoma objected so the clerks commenced with reading the 767-page 
amendment. After several hours passed, Senator Sanders withdrew his 
amendment.
  Later in the day, the Republican leader came to the floor and 
complained that ``the majority somehow convinced the Parliamentarian to 
break with the longstanding precedent and practice of the Senate'' with 
regard to the reading of the amendment. He claimed that continued 
reading of the amendment could not be dispensed with absent consent 
being granted, suggesting that Senator Sanders had no right to 
interrupt the reading to withdraw his amendment. The Republican leader 
cited Riddick's Senate Procedure: Precedents and Practices, pages 43-
44, which states, in part:

       Under Rule XV, paragraph 1, and Senate precedents, an 
     amendment shall be read by the Clerk before it is up for 
     consideration or before the same shall be debated unless a 
     request to waive the reading is granted; in practice that 
     includes an ordinary amendment or an amendment in the nature 
     of a substitute, the reading of which may not be dispensed 
     with except by unanimous consent, and if the request is 
     denied the amendment must be read and further interruptions 
     are not in order; interruptions of the reading of an 
     amendment that has been proposed are not in order, even for 
     the purpose of proposing a substitute amendment to a 
     committee amendment which is being read.
       When an amendment is offered the regular order is it 
     reading, and unanimous consent is required to call off the 
     reading.
       A Senator has, at the sufferance of the Senate, reserved 
     the right to object to dispensing with further reading of an 
     amendment.

  Later on Wednesday, the senior Senator from Illinois ably addressed 
the Republican leader's concerns but I bring the matter up again 
because I was presiding at the time Senator Sanders withdrew his 
amendment and Senator Coburn called for regular order. I received 
several phone calls afterwards from individuals who claimed that I 
acted erroneously in permitting Senator Sanders to withdraw his 
amendment so I would like to set the record straight.
  First of all, before Senator Sanders withdrew his amendment, I 
consulted with the Senior Assistant Parliamentarian, who was on the 
floor while I was presiding. He assured me that a Senator has the right 
to withdraw an amendment if no action has been taken on it. No action 
can be taken on an amendment until it is officially pending. An 
amendment is not officially pending until it has been read into the 
Record or such reading has been waived by unanimous consent.
  It is important to understand that while the Presiding Officer, not 
the Parliamentarian, makes rulings, it would be unusual for him or her 
to ignore the advice of the Parliamentarian. Martin Gold, who was the 
senior floor staffer to two former Republican majority leaders, Howard 
H. Baker, Jr., and William H. Frist, MD, of Tennessee, writes in his 
definitive book, ``Senate Procedure and Practice,'' that former 
Parliamentarian Floyd M. Riddick ``claimed that in twenty-five years of 
advising the presiding officer, the Senate only once voted to overturn 
him on appeal. He also cites an example of Vice President Alben Barkley 
ignoring the parliamentarian's advice, only to be overturned on 
appeal.'' The Parliamentarian is a nonpartisan officer of the Senate. 
In the 72 years since the position was created, there have been just 
five Parliamentarians. The Parliamentarian and his staff are 
experienced professionals. I sought and received the Parliamentarian's 
advice on this matter and I followed it, which is how the Senate 
usually operates.

[[Page S13647]]

  The Parliamentarian and his staff conducted extensive research on 
rule XV and the precedents governing the reading and withdrawal of 
amendments prior to what happened during Wednesday's session. While the 
Riddick's text the Republican leader cited seems plain enough, it is 
trumped by section 2 of rule XV itself, which clearly and succinctly 
states:

       Any motion, amendment, or resolution may be withdrawn or 
     modified by the mover at any time before a decision, 
     amendment, or ordering of the yeas and nays, except a motion 
     to reconsider, which shall not be withdrawn without leave.

  Prior to the time Senator Sanders withdrew his amendment, no action 
had been taken on it that would have prevented such a move without 
consent for a very simple reason: the amendment wasn't officially 
pending while it was being read into the Record. So Senator Sanders had 
an unfettered right to withdraw it under such conditions.
  The precedent for a Senator's ability to withdraw an amendment while 
it is being read without gaining consent first, either to dispense with 
the reading or to withdraw it, was firmly established in 1950 and 
reiterated in 1992. On April 14, 1950, Senator Forrest C. Donnell 
insisted that an amendment being offered by Senator William Benton be 
read in its entirety. Afterwards, Senator Benton sought unanimous 
consent to withdraw his amendment. Senator Donnell made a parliamentary 
inquiry of the Chair, asking the Presiding Officer whether a Senator 
may withdraw an amendment while it is being read. He further stated 
that if consent were necessary he would object. The Presiding Officer 
replied that an amendment may indeed be withdrawn while it is being 
read, citing the language in rule XV I just mentioned. And Senator 
Benton withdrew his amendment.
  On September 24, 1992, Senator Brock Adams offered an amendment to a 
tax bill and sought consent twice to dispense with reading it. In both 
instances, Senator Bob Packwood objected so the clerk proceeded to read 
the amendment aloud. Later, Senator Adams asked for ``permission'' to 
withdraw the amendment and the Chair replied affirmatively that he had 
the right to do so.
  The 1950 precedent is cited on page 119 of Riddick's for the 
proposition that an amendment may be withdrawn ``even as soon as it has 
been read'' but it is, in fact, the same ruling as the 1992 precedent, 
that a Senator may withdraw his amendment while it is being read.
  The Republican leader did not refer to the 1950 precedent in his 
comments on Wednesday but spoke disparagingly of what happened in 1992, 
saying, ``the Chair made a mistake and allowed something similar (to 
Senator Sanders' move) to happen. But one mistake does not a precedent 
make.''
  The Parliamentarian doesn't share the Republican leader's contention 
that the 1992 action was a ``mistake,'' not a precedent. The 
Parliamentarian's view is echoed by Walter Oleszek, the noted senior 
specialist in American National Government at the Congressional 
Research Service, CRS, who wrote last year, ``Senators are free to 
modify or withdraw their amendments until the Senate takes ``action'' 
on them.'' This is from Senate Amendment Process: General Conditions 
and Principles, CRS Report 98-707, May 19, 2008. Martin Gold's book, 
``Senate Procedure and Practice,'' states:

       When a senator sends an amendment to the desk, he continues 
     to ``own'' that amendment in the sense that he can modify or 
     withdraw it at will (my emphasis) . . . Once ``action'' has 
     been taken on the amendment, that situation changes, and the 
     senator can modify or withdraw his amendment only by 
     unanimous consent. This is from page 102.

  The minority has tried to argue that there was Senate action on the 
Sanders amendment because the Senate previously had agreed to a 
unanimous consent request defining the amendment and the Hutchison 
motion to recommit as the only propositions in order at that stage and 
prohibiting amendments to them. It is true that if an amendment is on a 
defined list of the only amendments made in order, that amendment when 
pending cannot be withdrawn except by unanimous consent. But that order 
is irrelevant in this case because, as I mentioned before, the Sanders 
amendment was not pending and could not be until it was read in full or 
unless the reading was dispensed with by unanimous consent. Another way 
to put it is that the reading of the amendment was not ``interrupted'' 
by Senator Sanders; in withdrawing it he obviated the reason for a 
reading. The order allowed but did not require, as it could not, that 
Senator Sanders offer the amendment and take steps to make it pending.
  So, to summarize, rule XV of the Standing Rules of the Senate and the 
1950 and 1992 precedents are clear that Senator Sanders was well within 
his rights to withdraw the amendment, the reading of it 
notwithstanding. The Parliamentarian advised me accordingly and I 
followed his advice. I would add that Senator Coburn never explicitly 
objected to Senator Sanders withdrawing the amendment. He called for 
regular order. While regular order was indeed the reading of the 
amendment, that status couldn't prevent Senator Sanders from exercising 
his right to withdraw it.
  Finally, I regret that several of my colleagues on the other side of 
the aisle made comments that were critical of the Parliamentarian and 
his staff following this incident. The current Parliamentarian helped 
to write, edit, and revise Riddick's Senate Procedure and he has served 
in his current capacity as Chief Parliamentarian for 17 years and 
counting, and as a Senate Parliamentarian for 33 years. He and his 
staff have a combined total of 84 years of experience. They are 
professionals who serve this institution and the American people with 
distinction.

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