Reconsideration of a Previous Vote on
A Legislative Action: Some Recent Examples
Motion to Reconsider: What, When,
Who, How, and Why
By Jennifer Gilroy and Sharon Eubanks
One of the most frequently invoked, but most misunderstood rules, is the rule on reconsideration. Found in the rules of both the House (HR 35) and the Senate (SR 18), the rules addressing reconsideration of questions decided on the floor and in committees of reference are used as often to provide relief from miscalculated procedural moves as they are to reflect a change of mind or misstated vote. For example, during the 2011 session the Senate Majority Leader relied on Senate Rule 18 to turn back the hands of time and correct a procedural misstep that occurred late in the session (not in the final three days) when several Senate budget “orbit” bills returning from the House were read across the Senate desk and immediately called up for consideration of House amendments, without having first been placed on the Senate calendar or in members’ files.
After votes were taken to concur with the House amendments and to readopt the bills, minority party members objected to the procedure, citing SR 26(a), which requires that, except in the final three days of the session, concurrence in House amendments occur only after the bills are placed in members’ files and specifically referred to in the calendars. The Majority Leader then invoked SR 18 and gave notice of his intent to reconsider the votes on these bills on the next legislative day to ensure compliance with SR 26(a).
Reconsideration was also employed in the waning days of the legislative session to undo a surprise result that occurred when the Senate Minority Leader successfully amended the committee of the whole (COW) report to show that a controversial second-reading amendment to a general fund transfers bill did not actually pass. The unexpected passage of the COW amendment occurred when, instead of having a roll call vote, the President asked for “no” votes on the motion. Because a critical majority-party senator had left for the evening prior to that particular vote and was therefore unable to vote “no”, her “vote” registered as one in support of the motion to amend the COW report. To reverse course, the Majority Leader moved for a call of the Senate (SR 20) and sent the sergeants to retrieve the missing senator. Once she returned to the chambers some time later, the senator (having “voted” on the prevailing side) moved for immediate reconsideration of the last vote taken on the COW report, pursuant to SR 18. That motion passed, at which point the body reconsidered the Minority Leader’s motion to amend the COW report which, as originally anticipated, then failed.
On more than one occasion this past session, committees of reference found themselves in procedural quandaries and turned to the rules on reconsideration to aid them. For example, in February the House Finance Committee, after considering a bill, entertained a motion to send the bill to the House Appropriations Committee. The motion failed 4 – 7. Thereafter, another motion was offered to postpone the bill indefinitely. That motion failed on a tie vote. Procedurally, the Chair of the committee did not believe it was appropriate to entertain another motion to send the bill to the House Appropriations Committee, because HR 34 provides that, when any bill has been finally acted upon, no further action may be taken on the bill by the same body that will have the effect of defeating or resurrecting it. This “settled question” rule, as it is frequently referred to, is generally applicable to actions in committees of reference. To resolve the dilemma, the committee turned to HR 35 (e), which allows a member of a committee of reference who voted on the prevailing side of a question decided by the committee to move to reconsider it. After a committee member made the motion, which was approved by at least two-thirds of the members of the committee as required by the rule, the committee was thereafter able to move the bill forward.
However, it is critical to note that the rules on reconsideration set forth strict time limitations which, if not met or suspended by affirmative action, can render these rules useless. In another situation during the 2011 session, the House Economic & Business Development Committee adopted an amendment that struck everything in the bill below the enacting clause (SEBEC) and essentially substituted a new bill. Thereafter, the committee considered a motion to send the bill, as amended, to the committee of the whole. That motion failed and the bill was tabled. Several meetings later, the bill was brought up again. In the intervening time, members apparently reached a new solution. However, options that might have been available under reconsideration maneuvers pursuant to HR 35 (e) were no longer available since more than one subsequent meeting of the committee had occurred prior to the bill being calendared again. As a result, no one made a motion for reconsideration of the original SEBEC to reflect the new solution. Rather, a brand new SEBEC was offered and passed. It appears the committee considered the second comprehensive amendment to be a substitute for the first one originally approved by the committee, since the Chair did not expressly rule (nor did anyone raise the issue) that it was a settled question.
There are other limitations on invoking the reconsideration rules. For example, nearly every year the question arises whether reconsideration is available for use during committee of the whole debate. The House Rule addressing committee of the whole procedures (HR 32 (b)) expressly prohibits the use of reconsideration during committee of the whole debate. However, the similar rule on committee of the whole procedures in the Senate (SR 28) is silent on the use of reconsideration. And, in fact, Mason’s Manual of Legislative Procedure (see sections 687 and 688) seems to allow it, provided the bill has not left possession of the committee (in other words, before the committee rises and reports). During a committee of the whole debate in the Senate this spring, the Majority Leader moved for reconsideration of the action taken on a bill. The technical problems with invoking the rule on reconsideration during the committee of the whole, however, became immediately apparent. The rule dictates that the movant must have voted on the “prevailing side”, but how is that determined during the committee of the whole when votes are taken viva voce? It would appear to be more or less an “honor system” motion or a “moral” motion as some staff have been known to call it. In any event, the motion was not challenged as being out of order and the committee proceeded to reconsider its action.
While reconsideration can be a helpful tool, it should always be used cautiously and thoughtfully. When a vote for immediate reconsideration is taken to lock in a vote, it can completely shackle the body to a position it may later regret, such as what nearly happened in the Senate on the last day of session. The House had added a controversial amendment to the already contentious “rule review” bill. When the bill came back to the Senate for consideration of House amendments, the Senate rejected the House amendments and adhered to its position. The Senate then defeated a motion for immediate reconsideration of that action, pursuant to SR 18 (a), effectively locking the Senate into its position in a legislative game of “chicken” with the House. Senate Rule 18 (a) specifies that no further motion to reconsider is in order following defeat of the motion for immediate reconsideration, except by unanimous consent. Fearing the rule review bill might die if the House adhered to its position, the Senate Majority Leader considered options that might be available to undo the Senate’s action if a “deal” could be reached between the House and Senate that differed in any way from the Senate’s position. Ultimately, the House receded from its position and the Senate dodged the bullet, but it was an important lesson in the rules on reconsideration.