Senate 48-hour availability requirement becomes law

On September 14, 2007, President Bush signed into law S. 1 (Public Law No: 110-81), the Honest Leadership and Open Government Act of 2007.
Section 511(b) is the “Public Availability Amendment”. It amends Rule XXVIII of the Standing Rules of the Senate to require that conference reports may not be voted on for 48 hours until after being made publicly available via government website. The requirement can be waived by a 3/5 vote of all senators.

S. 1 did not repeal any of the existing Senate rules about availability before floor consideration, but those rules are routinely waived.

DIFFERENCES BETWEEN HOUSE AND SENATE RULES
It should be noted that the Senate rule is weaker than the House rule in several ways:

Coverage — The Senate rule covers only conference reports. The House “three-day rule” covers both conference reports and bills coming out of committee (with exceptions for declarations of war, etc.).

Length of time — The Senate rule requires waiting 48 hours. The House requires waiting until the “third calendar day”.

When clock starts — The Senate rule specifies that the clock starts at the time (presumably measured in hours and minutes) when a conference report is made available via website. The House rule says that the clock starts on the calendar day that the bill is made available, and is fuzzy about when a bill is considered to have been made available.

When clock stops — The Senate rule allows debate on the conference report to begin anytime. Only the final vote to adopt the conference report must wait 48 hours. In contrast, the House requires waiting until the third calendar day to begin consideration of a bill. This is a major difference, and potential loophole.

Available to whom — The Senate rule is stronger because it explicitly requires availability to the general public. The House requires only availability to its members (but has an additional provision requiring posting in the Congressional Record, which eventually becomes available to the public).

Method of availability — The Senate rule is stronger because it explicitly requires availability by means of website. The House requires availability to members but is vague and confusing on exactly how, and has no explicity requirement for web availability.

Waiver — To waive the rule, the Senate rule requires a 3/5 vote of serving senators. The House rule can be waived by simple majority of members voting.

TEXT OF SENATE PROVISION

Following is the text of Section 511(b) as enacted:

(b) Public Availability Amendment-

(1) IN GENERAL- Rule XXVIII of the Standing Rules of the Senate is amended by adding at the end the following:

`9. (a)(1) It shall not be in order to vote on the adoption of a report of a committee of conference unless such report has been available to Members and to the general public for at least 48 hours before such vote. If a point of order is sustained under this paragraph, then the conference report shall be set aside.

`(2) For purposes of this paragraph, a report of a committee of conference is made available to the general public as of the time it is posted on a publicly accessible website controlled by a Member, committee, Library of Congress, or other office of Congress, or the Government Printing Office, as reported to the Presiding Officer by the Secretary of the Senate.

`(b)(1) This paragraph may be waived in the Senate with respect to the pending conference report by an affirmative vote of three-fifths of the Members, duly chosen and sworn. A motion to waive this paragraph shall be debatable for not to exceed 1 hour equally divided between the Majority Leader and the Minority Leader or their designees.

`(2) An affirmative vote of three-fifths of the Members, duly chosen and sworn, shall be required to sustain an appeal of the ruling of the Chair on a point of order raised under this paragraph. An appeal of the ruling of the Chair shall be debatable for not to exceed 1 hour equally divided between the Majority and the Minority Leader or their designees

`(c) This paragraph may be waived by joint agreement of the Majority Leader and the Minority Leader of the Senate, upon their certification that such waiver is necessary as a result of a significant disruption to Senate facilities or to the availability of the Internet.’.

(2) IMPLEMENTATION- Not later than 60 days after the date of enactment of this section, the Committee on Rules and Administration, in consultation with the Secretary of the Senate and the Clerk of the House of Representatives, and the Government Printing Office shall promulgate regulations for the implementation of the requirements of paragraph 9 of rule XXVIII of the Standing Rules of the Senate, as added by this section.