[Senate Report 115-381]
[From the U.S. Government Publishing Office]
Calendar No. 667
115th Congress } { Report
SENATE
2d Session } { 115-381
_______________________________________________________________________
REFORMING GOVERNMENT ACT OF 2018
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 3137
TO PROVIDE FOR REFORMING AGENCIES OF THE FEDERAL
GOVERNMENT TO IMPROVE EFFICIENCY AND EFFECTIVENESS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 26, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2018
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota KAMALA D. HARRIS, California
STEVE DAINES, Montana DOUG JONES, Alabama
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Courtney J. Allen, Deputy Chief Counsel for Governmental Affairs
Margaret E. Daum, Minority Staff Director
Charles A. Moskowitz, Minority Senior Legislative Counsel
Thomas J.R. Richards, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 667
115th Congress } { Report
SENATE
2d Session } { 115-381
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REFORMING GOVERNMENT ACT OF 2018
_______
November 26, 2018.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 3137]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 3137) to provide
for reforming agencies of the Federal Government to improve
efficiency and effectiveness, having considered the same,
reports favorably thereon with amendments and recommends that
the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and the Need for Legislation..........................2
III. Legislative History..............................................7
IV. Section-by-Section Analysis......................................9
V. Evaluation of Regulatory Impact.................................10
VI. Congressional Budget Office Cost Estimate.......................10
VII. Changes in Existing Law Made by the Bill, as Reported...........11
I. Purpose and Summary
The purpose of S. 3137 is to provide authority for the
President to submit government reorganization proposals to
Congress for expedited consideration. This bill provides the
expedited reorganization authority for up to two years upon
enactment and requires that the President provide certain
information to Congress as a condition before Congress can use
the expedited authority to consider the proposal.
II. Background and the Need for Legislation
On March 13, 2017, President Donald Trump signed Executive
Order 13781 ``to improve the efficiency, effectiveness, and
accountability of the executive branch by directing the
Director of the Office of Management and Budget [(OMB)] to
propose a plan to reorganize governmental functions and
eliminate unnecessary agencies . . . components of agencies,
and agency programs.''\1\ To help inform the Federal Government
reorganization plan, the Executive Order directed the head of
each Federal agency to submit to OMB a plan to reorganize its
agency to maximize efficiency, effectiveness, and
accountability.\2\ OMB directed agencies to submit plans that
meet the following objectives:
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\1\Exec. Order No. 13781, 82 Fed. Reg. 50, 13959 (Mar. 16, 2017).
\2\Exec. Order No. 13781, 82 Fed. Reg. 50, 13959 (Mar. 16, 2017).
[c]reate a lean, accountable, and more efficient
government that works for the American people; [f]ocus
the Federal government on effectively and efficiently
delivering those programs that are the highest needs to
citizens and where there is a unique Federal role
rather than assuming current programs are optimally
designed or even needed; [a]lign the Federal workforce
to meet the needs of today and the future rather than
the requirements of the past; and [s]trengthen agencies
by removing barriers that hinder front-line employees
from delivering results.\3\
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\3\Memorandum from Mick Mulvaney, Director, Off. of Mgmt. and
Budget, Comprehensive Plan for Reforming the Federal Government and
Reducing the Federal Civilian Workforce, M-17-22 (Apr. 12, 2017).
The Executive Order directed OMB to issue a notice in the
Federal Register soliciting public comments for suggestions on
the individual agency plans and to consider these public
comments when developing the Federal Government reorganization
plan.\4\ The Executive Order instructed OMB to consider:
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\4\Exec. Order No. 13781, 82 Fed. Reg. 50, 13959 (Mar. 16, 2017).
whether some or all of the functions of an agency, a
component, or a program are appropriate for the Federal
Government or would be better left to State or local
governments or to the private sector through free
enterprise; (ii) whether some or all of the functions
of an agency, a component, or a program are redundant,
including with those of another agency, component, or
program; (iii) whether certain administrative
capabilities necessary for operating an agency, a
component, or a program are redundant with those of
another agency, component, or program; (iv) whether the
costs of continuing to operate an agency, a component,
or a program are justified by the public benefits it
provides; and (v) the costs of shutting down or merging
agencies, components, or programs, including the costs
of addressing the equities of affected agency staff.\5\
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\5\Exec. Order No. 13781, 82 Fed. Reg. 50, 13959 (Mar. 16, 2017).
On June 21, 2018, OMB issued its Federal Government
reorganization plan, entitled, ``Delivering Government
Solutions in the 21st Century: Reform Plan and Reorganization
Recommendations.''\6\ In the report, OMB noted:
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\6\Off. of Mgmt. and Budget, Exec. Office of the President,
Delivering Government Solutions in the 21st Century: Reform Plan and
Reorganization Recommendations (June 21, 2018), available at https://
www.performance.gov/GovReform/Reform-and-Reorg-Plan-Final.pdf.
[T]he public still believes that the Federal
Government serves critical roles, and in some areas
performs them well. However, public trust in the
Federal Government has declined over the last decade,
calling into question how well the current
organizational constructs of Government are aligned to
meet Americans' needs in the digital age.\7\
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\7\Off. of Mgmt. and Budget, Exec. Office of the President,
Delivering Government Solutions in the 21st Century: Reform Plan and
Reorganization Recommendations, 4 (June 21, 2018) (citing Pew Research
Center, Public Trust in Government: 1958-2017 (Dec. 2017) and Pew
Research Center, Government Gets Lower Ratings for Handling Health
Care, Environment and Disaster Response (Dec. 2017)).
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OMB also noted that this reorganization plan serves as ``a
cornerstone to build productive, bipartisan dialogue around
realigning the Federal Government mission delivery model to
make sense in the 21st Century.''\8\ In this plan, the Trump
Administration offered 32 cross-agency ideas for reorganizing
the Federal Government and 50 agency-specific proposals to
achieve more efficient and effective government operations for
the public.\9\
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\8\Off. of Mgmt. and Budget, Exec. Office of the President,
Delivering Government Solutions in the 21st Century: Reform Plan and
Reorganization Recommendations (June 21, 2018), available at https://
www.performance.gov/GovReform/Reform-and-Reorg-Plan-Final.pdf.
\9\Off. of Mgmt. and Budget, Exec. Office of the President,
Delivering Government Solutions in the 21st Century: Reform Plan and
Reorganization Recommendations (June 21, 2018), available at https://
www.performance.gov/GovReform/Reform-and-Reorg-Plan-Final.pdf.
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The Committee held a hearing on July 18, 2018, to examine
the Administration's reorganization plan with OMB Deputy
Director for Management Margaret Weichert.\10\ Ms. Weichert
noted in her testimony that the reform proposal is a ``starting
point for public dialogue'' and further testified:
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\10\Reviewing the Administration's Government Reorganization
Proposal: Hearing Before the S. Comm. on Homeland Security and
Governmental Affairs, 115th Cong. (2018).
At its core, reorganization aims to increase the
efficiency, effectiveness, and accountability of how
government serves its people. It's not uncommon to see
a large company change and realign its business model
to respond to evolving technologies and customer needs.
Even though its mission and priorities are different,
the Federal government should be similarly responsive
to changing customer expectations and technology-
enabled opportunities to enhance mission delivery.\11\
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\11\Reviewing the Administration's Government Reorganization
Proposal: Hearing Before the S. Comm. on Homeland Security and
Governmental Affairs, 115th Cong. (2018) (statement of Margaret
Weichert, Deputy Director for Management, Off. of Mgmt. and Budget),
available at https://www.hsgac.senate.gov/imo/media/doc/Testimony-
Weichert-2018-07-18.pdf.
On July 26, 2018, the Committee's Subcommittee on
Regulatory Affairs and Federal Management held a hearing that
focused on one of the ideas in the plan to reorganize the
Office of Personnel Management (OPM) by transferring the
agency's human resources transactional services to the General
Services Administration (GSA).\12\ Then-OPM Director Dr. Jeff
Pon testified at the hearing [m]erging certain OPM provided
services with GSA functions will provide increased economies of
scale and creates opportunity for significant cost-avoidance
based on reductions in contract and IT duplication, as well as
increased data sharing and availability.''\13\ GSA
Administrator Emily Murphy added ``[c]entralizing the
transaction processing and IT for administrative functions in
GSA, where it is our mission to provide excellent mission-
support services, will allow for OPM to focus on their core
strategic mission.''\14\ Dr. Pon echoed that this
reorganization proposal ``is an opportunity to elevate the
Federal workforce management function and maximize the
operational efficiency of human capital services.''\15\
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\12\The Challenges and Opportunities of the Proposed Government
Reorganization on OPM and GSA: Hearing Before the Subcomm. On
Regulatory Affairs and Fed. Mgmt. of the S. Comm. on Homeland Security
and Governmental Affairs, 115th Cong. (2018).
\13\Id. (statement of Dr. Jeff Pon, Director, Off. of Personnel
Mgmt.).
\14\Id. (statement of Emily Murphy, Administrator, Gen. Serv.
Admin.)
\15\Id. (statement of Dr. Jeff Pon, Director, Off. of Personnel
Mgmt.).
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Although the U.S. Constitution vests in Congress the
authority to organize the Executive Branch,\16\ former
presidential administrations have asked Congress to grant
expedited government reorganization authority to allow it to
execute cross-agency government reorganizations more
efficiently. President Herbert Hoover first requested
government reorganization authority, and Congress granted this
request in 1932.\17\ The government reorganization authority
allowed the President to: transfer independent executive
agencies and/or their components to another executive
department or executive agency; transfer executive agencies
from one executive department to another executive department;
consolidate or redistribute the functions of an executive
department or of an executive agency, and designate and change
the names and functions of any consolidated activity or
agency.\18\ The statute authorized the President to issue an
executive order directing any of these reorganization
activities on his own, and required Congress to issue a
resolution of disapproval within 60 days before the executive
order became effective if it wanted to nullify any
provision.\19\
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\16\U.S. Const. art I.
\17\Henry Hogue, Cong. Research Serv., R42852, Presidential
Reorganization Authority: History, Recent Initiatives, and Options for
Congress 5 (Dec. 11, 2012).
\18\Legislative Appropriations Act for Fiscal Year 1933, Pub. L.
No. 72-212, Sec. Sec. 401, 403, 47 Stat. 413 (1933).
\19\Legislative Appropriations Act for Fiscal Year 1933, Pub. L.
No. 72-212, Sec. Sec. 403, 407, 47 Stat. 413, 414-15 (1933).
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From this first statute statutory grant in 1932 through the
modifications made in 1984, Congress amended, extended,
narrowed, or reactivated this government reorganization
authority 16 times under both Republican and Democratic
administrations.\20\
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\20\Henry Hogue, Cong. Research Serv., R42852, Presidential
Reorganization Authority: History, Recent Initiatives, and Options for
Congress 4 (Dec. 11, 2012).
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The most recent version of the authority, amended in 1984
pursuant to the U.S. Supreme Court's decision in Immigration
and Naturalization Service v. Chadha,\21\ authorized the
President to propose a reorganization plan to Congress that:
transfers an agency or an agency component to another executive
agency; abolishes all or part of the functions of an agency;
consolidates or coordinates part of an agency or its functions
with another part of the same agency; authorizes an officer to
delegate any functions; or abolishes an agency or an agency
component if it would no longer have any functions after
effectuating the reorganization plan.\22\ The President was
required to submit the reorganization plan to Congress for
approval, along with detailed information about implementation
of the plan and estimates of expenditures or cost savings for
the plan;\23\ no more than three reorganizations plans could be
pending before the Congress at any one time.\24\
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\21\Reorganization Act Amendments of 1984, Pub. L. No. 98-614, 98
Stat. 3192 (1984); Immigration and Naturalization Service v. Chadha,
419 U.S. 919 (1983) (holding the exercise of the legislative veto by
Congress is unconstitutional).
\22\5 U.S.C. Sec. 903(a). The President was not authorized to
propose a reorganization plan that would create a new executive
department, rename an existing executive department, abolish or
transfer an executive department or independent regulatory agency, or
consolidate two or more executive departments or two or more
independent regulatory agencies. 5 U.S.C. Sec. 905.
\23\5 U.S.C. Sec. 903(b).
\24\5 U.S.C. Sec. 903(b).
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Once a plan was submitted to Congress, the House Committee
on Government Operations and the Senate Committee on
Governmental Affairs would have 75 calendar days of continuous
session of Congress to approve or disapprove of the
resolution.\25\ If the committees did not act within this 75-
day period, then the resolution would be discharged from the
committee and placed on the calendar of the House or
Senate.\26\ Once there, any Member of the House or Senate could
move to proceed to consideration of the bill, with the motion
not being debatable.\27\ If the motion was agreed to, debate on
the resolution was limited to ten hours,\28\ after which time a
vote on final passage of the resolution must occur.\29\ If
Congress did not vote on a resolution within 90 days of the
plan being submitted to Congress, or if Congress voted against
the resolution, then the resolution was considered to be
disapproved by Congress, and the President could not implement
the reorganization plan under the expedited government
reorganization authority.\30\ The authority for Congress to
receive and consider reorganization plans under this expedited
congressional procedure expired on December 31, 1984.\31\
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\25\5 U.S.C. Sec. 909-910.
\26\5 U.S.C. Sec. 911.
\27\5 U.S.C. Sec. 912(a).
\28\5 U.S.C. Sec. 912(b).
\29\5 U.S.C. Sec. 912(c)
\30\5 U.S.C. Sec. 906(a).
\31\5 U.S.C. Sec. 908.
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Between 1932 and 1984, presidents submitted 126
reorganization proposals to Congress, of which 93 were
implemented and 33 were affirmatively rejected by Congress.\32\
Outcomes of the implemented reorganizations included the
creation of the Executive Office of the President,\33\ the
Office of Science and Technology Policy in the Executive Office
of the President,\34\ the Environmental Protection Agency,\35\
the National Oceanic and Atmospheric Administration in the
Department of Commerce,\36\ the Drug Enforcement Administration
in the Department of Justice,\37\ the Federal Emergency
Management Agency,\38\ the Office of Personnel Management, the
Merit Systems Protection Board, and the Federal Labor Relations
Authority (in conjunction with the Civil Service Reform Act of
1978),\39\ and the transfer of international trade policy
coordination and negotiations to the U.S. Trade Representative
in the Executive Office of the President.\40\
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\32\Henry Hogue, Cong. Research Serv., R42852, Presidential
Reorganization Authority: History, Recent Initiatives, and Options for
Congress 4 (Dec. 11, 2012).
\33\Exec. Order No. 8248, 4 Fed. Reg. 3864 (Sept. 9, 1939). See
also Reorganization Plan No. 1 of 1939, 53 Stat. 1423, (1939) and
Reorganization Plan No. 2 of 1939, 53 Stat. 1431 (1939).
\34\Reorganization Plan No. 2 of 1962, 76 Stat. 1253 (1962).
\35\Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (1970).
\36\Reorganization Plan No. 4 of 1970, 84 Stat. 2090 (1970).
\37\Reorganization Plan No. 2 of 1973, 87 Stat. 1091 (1973).
\38\Reorganization Plan No. 3 of 1978, 92 Stat. 3788 (1978).
\39\Reorganization Plan No. 2 of 1978, 92 Stat. 3783 (1978). See
also Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.
1111 (1978).
\40\Reorganization Plan No. 3 of 1979, 93 Stat. 1381 (1979). See
also Henry Hogue, Cong. Research Serv., R42852, Presidential
Reorganization Authority: History, Recent Initiatives, and Options for
Congress 37 (Dec. 11, 2012) (citing Remarks on Government Reform, 2012
Daily Comp. Pres. Doc. 1 (Jan. 13, 2012).
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President Obama asked Congress to reauthorize the
government reorganization authority in 2012,\41\ and lamented
the absence of the authority:
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\41\Press Release, President Barack Obama, President Obama
Announces Proposal to Reform, Reorganize, and Consolidate Government
(Jan. 13, 2012).
In 1984 . . . Congress stopped granting
[reorganization authority]. And when this process was
left to follow the usual congressional pace and
procedures, not surprisingly, it bogged down. So
congressional committees fought to protect their turf
and lobbyists fought to keep things the way they were
because they were the only ones who could navigate the
confusion. And because it's always easier to add than
subtract in Washington, inertia prevented any real
reform from happening. Layers kept getting added on and
added on and added on.\42\
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\42\Henry Hogue, Cong. Research Serv., R42852, Presidential
Reorganization Authority: History, Recent Initiatives, and Options for
Congress 37 (Dec. 11, 2012) (citing Remarks on Government Reform, 2012
Daily Comp. Pres. Doc. 1 (Jan. 13, 2012).
As part of his request for the legislation to be
reauthorized, President Obama indicated that his first
reorganization proposal submitted to Congress would include
consolidating six business and trade agencies.\43\ Senators
Joseph Lieberman and Mark Warner introduced legislation one
month later in response to President Obama's request for
reorganization authority.\44\ The bill sought to reauthorize
the 1984 government reorganization authority for a period of
two years with a few modifications: it would permit the
abolishment or transfer of an independent regulatory agency or
consolidation of two or more independent regulatory agencies,
and add a requirement that all reorganization proposals
submitted to Congress by the President either result in a
decrease in the number of Federal agencies or in cost savings
in performing agency functions.\45\
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\43\Press Release, President Barack Obama, President Obama
Announces Proposal to Reform, Reorganize, and Consolidate Government
(Jan. 13, 2012)
\44\S. 2129, 112th Cong. (2012).
\45\S. 2129, 112th Cong., Sec. 2 (2012).
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The Committee held a hearing in March 2012 to discuss the
bill and President Obama's reorganization proposal, but the
Committee never brought the bill to a vote.\46\
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\46\Retooling Government for the 21st Century: The President's
Reorganization Plan and Reducing Duplication; Hearing Before the S.
Comm. on Homeland Security and Governmental Affairs, 112th Cong. 112-
531 (2012).
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Like the 2012 proposal, S. 3137 would reauthorize the 1984
reorganization authority for a period of two years and require
that all reorganization proposals submitted either result in a
decrease in the number of Federal agencies or in cost savings
in performing agency functions. In addition, it would require
the President to provide more information to Congress with a
reorganization proposal, and would modify the conditions for
congressional approval of a reorganization proposal.
Specifically, S. 3137 would allow the President to submit
to Congress a reorganization proposal that includes the
creation of a new agency that is not part of an existing
executive department or agency. The bill requires the President
to consult with the agencies affected by a reorganization
proposal, to respond within 30 days to any congressional
request for background information of a proposal, and to submit
to Congress, for oversight purposes, any reorganization plan
that the President intends to implement with an independent
statutory authority rather than reorganization authority.
The bill prevents a Committee from discharging a proposal
or a member to move to approve a proposal for 45 days unless
the Congressional Budget Office (CBO) submits a cost estimate.
It also clarifies that the 75-day window for committee
consideration of a reorganization proposal does not begin until
the expiration of this 45-day period or the issuance of a CBO
cost estimate, whichever occurs earlier.
S. 3137 would extend the debate time on a reorganization
proposal once the Senate or House has moved to approve the
proposal to 30 hours, and prohibits any motion to limit debate.
As amended, the bill also requires a three-fifths vote in
the Senate for approval, unless the resolution for the proposal
is co-sponsored by five members of each political party, or
independent members who caucus with one of the two parties, in
which case the proposal can be approved with a simple majority
vote.
Should Congress approve a reorganization proposal submitted
under this authority, this bill requires the President to
report to Congress within one year of approval on the
implementation of the proposal and any performance
improvements, costs, cost savings achieved that year, and
projected cost savings over the subsequent five and ten-year
periods.
III. Legislative History
S. 3137 was introduced on June 26, 2018, by Senators Ron
Johnson (R-WI) and James Lankford (R-OK). The bill was referred
to the Committee on Homeland Security and Governmental Affairs
on June 26, 2018. Senator Heidi Heitkamp (D-ND) was added as a
co-sponsor to the bill on September 27, 2018.
The Committee considered S. 3137 at a business meeting on
September 26, 2018. Senator Heidi Heitkamp offered an amendment
that would: prohibit the consideration of any reorganization
plan until CBO issued a cost estimate for the plan; require OMB
to report on the implementation of the reorganization proposal
within one year of its approval by Congress; require OMB to
submit to Congress, for oversight purposes, any reorganization
plan that the President would implement with an independent
statutory authority and an explanation of that independent
statutory authority; require the President to respond within 30
days to a request from Congress for information about a plan;
prohibit the consideration of a plan if the President had not
completely responded to a request from Congress for background
information about the plan; and require OMB to submit to
Congress any alternative reorganization proposals that the
President decided not to pursue in a reorganization plan. The
amendment would also require three-fifths of the members of the
Senate to vote for passage of the resolution.
Senator Heitkamp modified her amendment to: no longer
prohibit congressional consideration of a reorganization plan
if a request from Congress for background information was
outstanding; no longer require submission of alternative
reorganization proposals; and allow consideration of a
reorganization plan upon the earlier of either the issuance of
a CBO cost estimate or 45 days after submission of the plan to
Congress.
At the business meeting, Committee members debated Senator
Heitkamp's proposal to require a three-fifths, or 60-vote,
threshold. Senator Heitkamp argued that a higher vote threshold
would require that the proposals be bipartisan:
I think it is a matter of whether we want to get
something done and what we do has permanency . . . . We
need to sit down in a bipartisan way and com[e] to a
conclusion on how we are going to structure and oversee
and provide the critical kind of permanency--not
permanency, but the critical stability that we can for
State agencies.\47\
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\47\Business Meeting, S. Comm. on Homeland Security and
Governmental Affairs, 115th Cong. (Sept. 26, 2018) (statement of
Senator Heidi Heitkamp).
Senators Johnson, Lankford, and Enzi spoke in support of a
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simple majority threshold. Senator Enzi explained further:
I have tried to do a number of reorganizations, and
there is usually bipartisan opposition to a great
extent, which means there is also bipartisan support to
a great extent. And I do not think there is anything
tougher than making some kind of a change that affects
perhaps chairmanships and jurisdiction, and . . . where
the whole committee might vote against it because it is
infringing on a small part of their jurisdiction. You
can pass it if you get 51 votes. I would rather see an
amendment that says it has to be a bipartisan 51 votes.
That might solve the problem rather than going to the
60 votes and maybe never being able to get any
reorganization done.\48\
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\48\Business Meeting, S. Comm. on Homeland Security and
Governmental Affairs, 115th Cong. (Sept. 26, 2018) (statement of
Senator Michael Enzi).
After further discussion on the issue, Senator Heitkamp
proposed modifying her amendment to require that a
reorganization plan have a 60-vote threshold on the Senate
floor, unless the plan is sponsored by at least five members
from the majority party and five members from the minority
party; in that case, the plan would need a simple majority vote
on the Senate floor.
Senator Lankford concurred with this proposal, noting it
was a ``way to be able to make sure [reorganization] is
bipartisan.''\49\
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\49\Business Meeting, S. Comm. on Homeland Security and
Governmental Affairs, 115th Cong. (Sept. 26, 2018) (statement of James
Lankford).
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The Heitkamp amendment, as modified, was adopted favorably
by voice vote with Senators Johnson, Portman, Lankford, Enzi,
Hoeven, McCaskill, Heitkamp, Peters, Hassan, Harris, and Jones
present. The legislation, as amended, was passed by voice vote
with Senators Johnson, Portman, Lankford, Enzi, Hoeven,
McCaskill, Heitkamp, Peters, Hassan, Harris, and Jones present.
Senator Harris voted ``no'' for the record.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
``Reforming Government Act of 2018.''
Section 2. Providing consolidation authority
Subsection (a) defines the term ``efficiency-enhancing
plan'' and adds ``creation'' to the definition of
``reorganization.''
Subsection (b) allows reorganization plans to create a new
Executive Branch department, abolish, transfer or rename an
existing Executive Branch department, consolidate two or more
Executive Branch departments, or create a new Executive Branch
agency that is not part of an existing Executive Branch or
independent agency.
Subsection (b) amends the current reorganization authority
statute to require the President to consult with agencies that
would be affected by a reorganization plan and, in its proposal
submitted to Congress, to describe how OMB will measure the
performance of implementation of the reorganization plan.
Section 3. Duration and scope of authority
Subsection (a) provides the President with reorganization
authority for up to two years after enactment of this bill and
requires that any plan submitted to Congress must be certified
by the OMB Director as likely to result in a reduction in the
number of agencies or cost savings. Any reorganization proposal
submitted to Congress will be subject to the congressional
approval process under the reorganization authority. The
President will also be required to provide to Congress, for
oversight purposes, any reorganization plan that the President
will implement under an independent statutory authority and an
explanation of that independent statutory authority.
Subsection (b) requires the President to submit to Congress
a report on the implementation of a reorganization plan within
one year after receiving Congressional approval. This report
must describe the steps taken for implementation, any
performance improvements that have occurred as a result, the
costs expended for implementation, and any cost savings
achieved as a result. The report must also include five and
ten-year projections of cost expenditures for implementation
and savings to be achieved.
Subsection (c) reactivates the statutory rules of the
Senate and the House of Representatives for consideration of
reorganization plans for up to two years after enactment of
this bill.
Subsection (d) removes the reference to the 20th century in
the date for the terms to be used in the joint resolution of a
reorganization plan.
Subsection (e) updates the names of the Committee on
Homeland Security and Governmental Affairs of the Senate and
the Committee on Oversight and Government Reform of the House
of Representatives in 5 U.S.C. Sec. 910. This subsection also
requires CBO to conduct a financial analysis of the
reorganization proposal, during which the 75-day period for
congressional consideration will be suspended. Congress may
move to discharge the resolution if CBO issues a score or if 45
days have passed since the resolution was referred to the
committee.
Subsection (f) extends the period of debate for a
resolution from 10 hours to 30 hours and bars any motion to
limit debate. Under this subsection, if a resolution has 5
cosponsors from the Senate majority party and 5 cosponsors from
the Senate minority party, or independent members who caucus
with one of the two parties, then a simple majority is needed
for passage. If a resolution has any fewer than five cosponsors
from either party, then three-fifths of the members of the
Senate must vote for passage.
Section 4. Severability
This section provides that, in the event any provision or
application of a provision of this bill is held to be
unconstitutional, the remainder of this bill shall not be
affected.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 22, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3137, the Reforming
Government Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 3137--Reforming Government Act of 2018
S. 3137 would amend federal law concerning the authority of
the President to reorganize the federal government.
Specifically, the bill would authorize the President to develop
a plan to reorganize the federal government and to present that
plan to the Congress under an expedited legislative procedure.
The new authority would last for two years after enactment. The
Administration would need to report regularly to the Congress
on the status, costs, and savings of any resulting
reorganization. Finally, the Congressional Budget Office would
be required to prepare a financial analysis of any
reorganization plan submitted to the Congress under S. 3137.
CBO has no basis to estimate the number of government
reorganizations that may be proposed under the bill. Executive
Order 13781 required the Office of Management Budget to develop
a plan to reorganize the executive branch. That plan was
released in June 2018. Any significant budgetary effects from
implementing government reorganization plans would depend on
future legislation. Thus, CBO estimates that implementing S.
3137 would have no significant effect on the federal budget
because it would not expand the duties of executive agencies.
Enacting S. 3137 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 3137 would not significantly
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2029.
S. 3137 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 9--EXECUTIVE REORGANIZATION
* * * * * * *
Table of Sections.
Sec. 901. * * *
Sec. 902. * * *
Sec. 903. [Reorganization plans] Reorganization plans; permissible
actions.
Sec. 904. [Additional contents of the reorganization plan] Contents of
reorganization plans; amendment procedures.
* * * * * * *
SEC. 902. DEFINITIONS.
* * * * * * *
(1) * * *
[(2) ``reorganization'' means a transfer,
consolidation, coordination, authorization, or
abolition, referred to in section 903 of this title;
and] (2) ``efficiency-enhancing plan'' means a
reorganization plan that the Director of the Office of
Management and Budget determines will result in, or is
likely to result in--
(A) a decrease in the number of agencies; or
(B) cost savings in performing the functions
that are the subject of that plan;''
(3) ``officer'' is not limited by section 2104 of
this title [.]; and
(4) ``reorganization'' means a transfer,
consolidation, coordination, authorization, abolition,
or creation, referred to in section 903 of this title.
SEC. 903. REORGANIZATION PLANS; PERMISSIBLE ACTIONS.
[(a) Whenever] Whenever the President, after investigation,
finds that changes in the organization of agencies are
necessary to carry out any policy set forth in section 901(a)
of this title, he shall prepare a reorganization plan
specifying the reorganizations he finds are necessary. Any plan
may provide for--
(1) * * *
* * * * * * *
(5) the authorization of an officer to delegate any
of his functions; [or]
(6) the abolition of the whole or a part of an agency
which agency or part does not have, or on the taking
effect of the reorganization plan will not have, any
functions [.]; or
(7) the creation of a new agency that is not a
component or part of an existing executive department
or independent agency.
[The President shall transmit the plan (bearing an
identification number) to the Congress together with a
declaration that, with respect to each reorganization
included in the plan, he has found that the
reorganization is necessary to carry out any policy set
forth in section 901(a) of this title.]
[(b) The President shall have a reorganization plan
delivered to both Houses on the same day and to each House
while it is in session, except that no more than three plans
may be pending before the Congress at one time. In his message
transmitting a reorganization plan, the President shall specify
with respect to each abolition of a function included in the
plan the statutory authority for the exercise of the function.
The message shall also estimate any reduction or increase in
expenditures (itemized so far as practicable), and describe any
improvements in management, delivery of Federal services,
execution of the laws, and increases in efficiency of
Government operations, which it is expected will be realized as
a result of the reorganizations included in the plan. In
addition, the President's message shall include an
implementation section which shall (1) describe in detail (A)
the actions necessary or planned to complete the
reorganization, (B) the anticipated nature and substance of any
orders, directives, and other administrative and operational
actions which are expected to be required for completing or
implementing the reorganization, and (C) any preliminary
actions which have been taken in the implementation process,
and (2) contain a projected timetable for completion of the
implementation process. The President shall also submit such
further background or other information as the Congress may
require for its consideration of the plan.
[(c) Any time during the period of 60 calendar days of
continuous session of Congress after the date on which the plan
is transmitted to it, but before any resolution described in
section 909 has been ordered reported in either House, the
President may make amendments or modifications to the plan,
consistent with sections 903-905 of this title, which
modifications or revisions shall thereafter be treated as part
of the reorganization plan originally transmitted and shall not
affect in any way the time limits otherwise provided for in
this chapter. The President may withdraw the plan any time
prior to the conclusion of 90 calendar days of continuous
session of Congress following the date on which the plan is
submitted to Congress.]
SEC. 904. [ADDITIONAL CONTENTS OF REORGANIZATION PLANS] CONTENTS OF
REORGANIZATION PLANS; AMENDMENT PROCEDURES.
[A reorganization plan transmitted by the President under
section 903 of this title--]
(a) A reorganization plan prepared by the President under
section 903--
[(1) may, subject to section 905, change, in such
cases as the President considers necessary, the name of
an agency affected by a reorganization and the title of
its head, and shall designate the name of an agency
resulting from a reorganization and the title of its
head;
[(2) may provide for the appointment and pay of the
head and one or more officers of any agency (including
an agency resulting from a consolidation or other types
of reorganization) if the President finds, and in his
message transmitting the plan declares, that by reason
of a reorganization made by the plan the provisions are
necessary;
[(3) shall provide for the transfer or other
disposition of the records, property, and personnel
affected by a reorganization;
[(4) shall provide for the transfer of such
unexpended balances of appropriations, and of other
funds, available for use in connection with a function
or agency affected by a reorganization, as the
President considers necessary by reason of the
reorganization for use in connection with the functions
affected by the reorganization, or for the use of the
agency which shall have the functions after the
reorganization plan is effective; and
(5) shall provide for terminating the affairs of an
agency abolished.]
(1) shall be transmitted by the President (bearing an
identification number) to Congress together with a
declaration that, with respect to each reorganization
included in the plan, the President has found, in
consultation with the affected agencies, that the
reorganization is necessary to carry out a policy set
forth in section 901(a);
(2) shall be delivered to both Houses on the same day
and to each House while it is in session;
(3) shall specify, with respect to each transfer,
consolidation, coordination, authorization, abolition,
or creation of a function included in the plan, the
statutory authority for the exercise of the function;
(4) shall--
(A) provide a financial analysis estimating
any reduction or increase in expenditures
(itemized so far as practicable) associated
with maximizing the net benefits of
implementation of the plan, using both
quantitative and qualitative measures,
according to cost-benefit analysis practices
set by Executive orders and the Office of
Management and Budget; and
(B) describe any improvements in management,
delivery of Federal services, or execution of
the laws and any increases in efficiency of
Government operations that are expected to be
realized as a result of the reorganizations
included in the plan;
(5) shall include an implementation section that
shall--
(A) describe in detail--
(i) the actions necessary or planned
to complete the reorganization;
(ii) the anticipated nature and
substance of any orders, directives, or
other administrative or operational
actions that are expected to be
required for completing or implementing
the reorganization; and
(iii) any preliminary actions that
have been taken in the implementation
process;
(B) contain a projected timetable for
completion of the implementation process; and
(C) describe how the affected agencies and
the Office of Management and Budget will
measure performance of the implementation of
the reorganization plan;
(6) shall provide for the transfer or other
disposition of the records, property, and personnel
affected by a reorganization;
(7) shall provide for the transfer of unexpended
balances of appropriations, and of other funds,
available for use in connection with a function or
agency affected by a reorganization, to the extent--
(A) with respect to unexpended balances, the
balances will be used for the purposes for
which the appropriation was originally made;
and
(B) the President considers necessary by
reason of the reorganization for use in
connection with the functions affected by the
reorganization, or for the use of the agency
which shall have the functions after the
reorganization plan is effective;
(8) shall provide for terminating the affairs of an
agency abolished;
(9) may, subject to section 905, change, in such
cases as the President considers necessary, the name of
an agency affected by a reorganization and the title of
its head, and shall designate the name of an agency
resulting from a reorganization and the title of its
head; and
(10) may provide for the appointment and pay of the
head and one or more officers of any agency (including
an agency resulting from a consolidation or other types
of reorganization) if the President finds, and in his
message transmitting the plan declares, that by reason
of a reorganization made by the plan the provisions are
necessary.
[A reorganization plan transmitted by the President
containing provisions authorized by paragraph (2) of this
section may provide that the head of the agency be an
individual or a commission or board with more than one member.
In the case of an appointment of the head of such an agency,
the term of office may not be fixed at more than four years,
the pay may not be at a rate in excess of that found by the
President to be applicable to comparable officers in the
executive branch, and if the appointment is not to a position
in the competitive service, it shall be by the President, by
and with the advice and consent of the Senate. Any
reorganization plan transmitted by the President containing
provisions required by paragraph (4) of this section shall
provide for the transfer of unexpended balances only if such
balances are used for the purposes for which the appropriation
was originally made.]
(b) Not later than 30 days after the date of the request,
the President shall submit to Congress any background or other
information requested by Congress in connection with its
consideration of a reorganization plan.
(c) Any time during the period of 60 calendar days of
continuous session of Congress after the date on which a
reorganization plan is transmitted to Congress, unless a
resolution described in section 909 relating to the plan has
been ordered reported in either House, the President may make
amendments or modifications to the plan, consistent with
sections 903 and 905 and this section, which modifications or
revisions shall thereafter be treated as part of the
reorganization plan originally transmitted and shall not affect
the time limits otherwise provided for in this chapter. The
President may withdraw the plan any time before the end of the
period of 90 calendar days of continuous session of Congress
following the date on which the plan is submitted to Congress.
(d) A reorganization plan transmitted by the President in
accordance with subsection (a)(10)--
(1) may not eliminate an enforcement function or
statutory program;
(2) may provide that the head of any agency be an
individual or a commission or board with more than 1
member; and
(3) in the case of an appointment of the head of such
an agency--
(A) may not fix the term of office at more
than 4 years;
(B) may not fix the rate of basic pay to be
in excess of the amount found by the President
to be applicable to comparable officers in the
executive branch; and
(C) if the appointment is not to a position
in the competitive service, shall require
appointment to the position to be by the
President, by and with the advice and consent
of the Senate.
(e) Not more than 3 reorganization plans may be pending
before Congress at 1 time.
SEC. 905. LIMITATION ON POWERS.
(a) * * *
(1) [creating a new executive department or renaming
an existing executive department,] abolishing or
transferring an [executive department or] independent
regulatory agency, or all the functions thereof, or
consolidating [two or more executive departments or
two] 2 or more independent regulatory agencies, or all
the functions thereof;
* * * * * * *
[(5) creating a new agency which is not a component
or part of an existing executive department or
independent agency;]
[(6)] (5) increasing the term of an office beyond
that provided by law for the office; or
[(7)] (6) dealing with more than one logically
consistent subject matter.
(b) A provision contained in the reorganization plan may
take effect only [if the plan is transmitted to Congress (in
accordance with section 903(b)) on or before December 31,
1984.] if the plan is--
(1) transmitted to Congress (in accordance with
section 904 on or before the date that is 2 years after
the date of enactment of the Reforming Government Act
of 2018; and
(2) an efficiency enhancing plan.
(c) Any reorganization plan prepared by the President (in
accordance with section 903 and subsection (a) of this section)
that purports to advance the policies described in section
901(a) shall be subject to the approval process under this
chapter, absent an independent statutory authority to implement
the plan. If the President implements a reorganization plan
that advances policies described in section 901(a) and relies
on an independent statutory authority, the President shall
transmit to Congress an explanation of the plan and its
independent statutory authority consistent with the requirement
of section 903 and 904 and this section, which Congress may
use, at its discretion, to conduct oversight of the
reorganization plan for any purpose consistent with the
mandates of Congress under Article I of the Constitution of the
United States.
SEC. 906. EFFECTIVE DATE AND PUBLICATION OF REORGANIZATION PLANS.
(a) * * *
* * * * * * *
(e) Not later than 1 year after the date on which a
reorganization plan takes effect, and upon request by any
Member of Congress, the President shall transmit to Congress a
report describing in detail--
(1) the steps taken to implements the reorganization
plan;
(2) any improvements to performance that occurred as
a result of implementation of the reorganization plan;
(3) the costs expended and amounts saved during the
period beginning on the date on which the
reorganization plan took effect and ending on the date
on which the report is submitted; and
(4) the costs projected to be expended and amounts
projected to be saved during--
(A) the period beginning on the date on which
the reorganization plan took effect and ending
on the date that is 5 years after that
effective date; and
(B) the period beginning on the date on which
the reorganization plan took effect and ending
on the date that is 10 years after that
effective date.
* * * * * * *
SEC. 908. RULES OF THE SENATE AND HOUSE OF REPRESENTATIVES ON
REORGANIZATION PLANS.
Sections 909 through 912 of this title are enacted by
Congress--
(1) as an exercise of the rulemaking power of the
Senate and the House of Representatives, respectively,
and as such they are deemed a part of the rules of each
House, respectively, but applicable only with respect
to the procedure to be followed in that House in the
case of resolutions with respect to any reorganization
plans transmitted to Congress (in accordance with
[section 903(b) of this chapter) on or before December
31, 1984] section 904) on or before the date that is 2
years after the date of enactment of the Reforming
Government Act of 2018.
* * * * * * *
SEC. 909. TERMS OF RESOLUTION.
For the purpose of sections 908 through 912 of this title,
``resolution'' means only a joint resolution of the Congress,
[the matter after the resolving clause of which is as follows:
``That the Congress approves the reorganization plan numbered
transmitted to the Congress by the President on , 19
.'', and includes such modifications] the matter after the
resolving clause of which is as follows: ``That the Congress
approves the reorganization plan numbered __ transmitted to the
Congress by the President on __, .'', and includes such
modifications and revisions as are submitted by the President
under [section 903(c) of this chapter] section 904(c). The
blank spaces are to be filled appropriately. The term does not
include a resolution which specifies more than one
reorganization plan.
* * * * * * *
SEC. 910. INTRODUCTION AND REFERENCE OF RESOLUTION.
(a) No later than the first day of session following the
day on which a reorganization plan is transmitted to the House
of Representatives and the Senate under section [903] 904, a
resolution, as defined in section 909, shall be introduced (by
request) in the House by the chairman of the [Government
Operations Committee of the House] Committee on Oversight and
Government Reform of the House of Representatives, or by a
Member or Members of the House designated by such chairman; and
shall be introduced (by request) in the Senate by the chairman
of the [Governmental Affairs Committee of the Senate]
Committee on Homeland Security and Governmental Affairs of the
Senate, or by a Member of Members of the Senate designated by
such chairman.
(b) A resolution with respect to a reorganization plan
shall be referred to the [Committee on Governmental Affairs of
the Senate and the Committee on Government Operations of the
House] Committee on Homeland Security and Governmental Affairs
of the Senate and the Committee on Oversight and Government
Reform of the House of Representatives, as the case may be. The
committee shall make its recommendations to the House of
Representatives or the Senate, respectively, within 75 calendar
days of continuous session of Congress following the date of
such resolution's introduction.
(c)(1) After a resolution with respect to a reorganization
plan is referred to committee under subsection (b), the
Congressional Budget Office shall perform a financial analysis
of the reorganization plan.
(2) The 75-day period under subsection (b) and section 911
shall be tolled and it shall not be in order in the Senate or
House of Representatives for a committee to report or for a
Member to move to discharge a resolution until the earlier of--
(A) 45 days after the date on which the resolution
was referred to the committee; or
(B) the date on which the committee receives the
financial analysis of the Congressional Budget Office.
* * * * * * *
SEC. 912. PROCEDURE AFTER REPORT OR DISCHARGE OF COMMITTEE; DEBATE;
VOTE ON FINAL PASSAGE.
(a) * * *
(b) Debate on the resolution, and on all debatable motions
and appeals in connection therewith, shall be limited to not
more than [ten] 30 hours, which shall be divided equally
between individuals favoring and individuals opposing the
resolution. A motion to further limit debate [is in order and
not debatable] is not in order. An amendment to, or a motion to
postpone, or a motion to proceed to the consideration of other
business, or a motion to recommit the resolution is not in
order. A motion to reconsider the vote by which the resolution
is passed or rejected shall not be in order.
[(c) Immediately following the conclusion of the debate on
the resolution with respect to a reorganization plan, and a
single quorum call at the conclusion of the debate if requested
in accordance with the rules of the appropriate House, the vote
on final passage of the resolution shall occur.]
(c)(1)(A) In the Senate, immediately following the
conclusion of the period of debate on a resolution relating to
a reorganization plan under subsection (b), including any
debate on any motions and appeals, and a single quorum call at
the conclusion of the debate, if requested in accordance with
the rules of the Senate, the Senate shall vote on passage of
the resolution.
(B) A vote under subparagraph (A) shall be agreed to only
upon the affirmative vote of three-fifths of the Members, duly
chosen and sworn, unless the resolution is cosponsored by not
less than 5 Senators who are members of, or caucus with, the
party in the minority in the Senate and by not less than 5
Senators who are members of, or caucus with, the party in the
majority in the Senate, in which case the resolution shall be
agreed to upon an affirmative vote of a majority of those
voting, a quorum being present.
(2) In the House of Representatives, immediately following
the conclusion of the debate on the resolution with respect to
a reorganization plan, and a single quorum call at the
conclusion of the debate if requested in accordance with the
rules of the House of Representatives, the House of
Representatives shall vote on passage of the resolution.
[all]