Unanimous Consent Agreements Establishing a 60-Vote Threshold for Passage of Legislation in the Senate

Unanimous Consent Agreements Establishing
a 60-Vote Threshold for Passage of Legislation
in the Senate
May 19, 2008
Megan Suzanne Lynch
Analyst on the Congress and Legislative Process
Government and Finance Division

Unanimous Consent Agreements Establishing
a 60-Vote Threshold for Passage of Legislation
in the Senate
Summary
The Senate frequently enters into unanimous consent agreements (sometimes
referred to as “UC agreements” or “time agreements”) that establish procedures for
the consideration of legislation that the Senate is considering or will soon consider.
In recent practice, such unanimous consent agreements have sometimes included a
provision that would require a 60-vote threshold to be met for amendments or
legislation to be considered agreed to, rather than the simple majority ordinarily
required. These amendments or measures may be of a controversial nature with the
potential for causing a filibuster. By incorporating a 60-vote threshold, such UC
agreements avoid the multiple requirements imposed by Senate Rule XXII for
invoking cloture, while preserving the same requirement for super-majority support.
This report will be updated each session of Congress.

Contents
In troduction ......................................................1
Function and Effects of Adopting a 60-Vote Requirement..................1
Language and Recent Increase in Frequency.............................2
Method and Sources................................................3
List of Tables
Table 1. Identified Senate-Adopted Unanimous Consent Agreements
Establishing a 60-Vote Threshold for Passage of Legislation: 1999-2008..4

Unanimous Consent Agreements
Establishing a 60-Vote Threshold for
Passage of Legislation in the Senate
Introduction
The Senate’s emphasis on individual and minority rights, reflected in both its
standing rules and chamber custom,¹ can make it challenging for the chamber to
achieve its various goals in a timely manner. For this reason, the Senate routinely
chooses to set aside its standing rules by unanimous consent.² This is done formally
through UC agreements, which in many cases outline the terms under which specific
legislation will be considered. Under recent practice, these UC agreements
sometimes include a provision imposing a 60-vote requirement for approval of
amendments or legislation, instead of the simple majority vote³ ordinarily required
in the Senate.⁴ These amendments or measures are sometimes of a controversial
nature with potential to be subjected to extended consideration or even a filibuster.
By incorporating a 60-vote threshold, such UC agreements avoid the multiple
requirements associated with Senate Rule XXII, both for invoking cloture and for
consideration under cloture. Such UC agreements ensure that a measure will not be
successful without the same level of super-majority support that would be required
for cloture by stipulating that if the 60-vote threshold is not reached, the matter will
be disposed of. As with all UC agreements, once agreed to, they can be altered only
by the adoption of a further UC agreement.
Function and Effects of Adopting
a 60-Vote Requirement
Several possible effects could result from the Senate choosing to impose a 60-
vote threshold for the passage of legislation. First, for cases in which a large majority

¹ For information, see CRS Report RL30850, Minority Rights and Senate Procedures, by
Judy Schneider.
² For information on UC agreements, see CRS Report RS20594, How Unanimous Consent
Agreements Regulate Senate Floor Action, by Richard S. Beth.
³ One half-plus-one of the members voting, assuming a quorum. Floyd M. Riddick and Alan
S. Frumin, Riddick’s Senate Procedure: Precedents and Practices, 101^st Cong., 1^st sess.,
S.Doc. 101-28 (Washington: GPO, 1992), p. 912.
⁴ In the Senate, super-majority support is required, among other things, to suspend the rules,
waive certain provisions of the Congressional Budget Act, make a bill a special order,
postpone treaty consideration indefinitely, and invoke cloture. For information, see CRS
Report 98-779, Super-Majority Votes in the Senate, by Walter Oleszek.

of Senators is in favor of or opposed to the question, the time that would ordinarily
be required to invoke cloture can be avoided. Once a cloture petition has been
submitted, it must lay over until the second calendar day that the Senate is in session
before a vote on cloture occurs. For a cloture vote to be successful, in most cases
three-fifths of all Senators must vote in the affirmative (i.e., 60 votes if there are no
vacancies).⁵ If the cloture vote is successful, another 30 hours of consideration are
in order before a vote on the underlying business must occur. Incorporating the 60-
vote threshold into a UC agreement allows the Senate to bypass these time
consuming requirements.
Second, for cases in which a large majority either in favor of or against the
question cannot be assumed, the 60-vote threshold accomplishes the same purpose
as a filibuster by preventing or delaying passage, but without requiring the Senate to
engage in extended debate. Thus, surrendering the right to filibuster may be more
palatable if Senators are confident a measure will not pass without super-majority
support.
Another reason that a 60-vote threshold might be included in a UC agreement
is that it presents Senators with an opportunity to vote directly on the underlying
policy issue. Votes on cloture often fail and consequently a vote on the actual
measure or amendment may never occur. The 60-vote threshold in a UC agreement
has the effect of bypassing the procedural vote to grant Senators a direct vote on the
policy issue at hand.
Lastly, in many of these 60-vote threshold UC agreements, it is a pair (or group)
of amendments or measures that are jointly held to the 60-vote requirement. Many
of the pairs (or groups) are competing options for the same policy issue. This allows
the Senate to debate and choose between contending alternatives in a timely and
controlled manner.
Language and Recent Increase in Frequency
Although examples of UC agreements placing a similar 60-vote threshold
provisions can be found dating from at least the early 1990s, the practice has
increased in frequency over the last four years.
Unanimous consent agreements that impose a 60-vote threshold may be agreed
to at any time, either in advance, or during consideration. It is notable that unlike
Senate rules requiring super majorities, which typically are framed in terms of a
fraction either of the membership or those voting (e.g., two-thirds, three-fifths), these
UC agreements explicitly state the number of votes required. Given that practices
do not generally specify disposition for a question that achieves a majority vote, but
not a super-majority vote imposed by unanimous consent, the language of these UC
agreements typically provides for disposition of the amendment or measure if it fails

⁵ For amendments to the standing rules of the Senate, two-thirds of Senators present and
voting must agree. Senate Rule XXII. For information on cloture, see CRS Report 98-425,
Invoking Cloture in the Senate, by Christopher M. Davis.

to achieve the required 60 votes. Typically, the matter is withdrawn, but it could
alternately be laid on the table or returned to the calendar For example, in one UC
agreement, the Senate agreed that “... two amendments be subject to a 60 affirmative
vote threshold, and that if neither achieves that threshold, then it be withdrawn.”⁶
Thus far in the 110^th Congress (2007-2008), 30 amendments have been held to
the 60-vote threshold as a result of a provision in a UC agreement: seven were
adopted, 22 failed and one was withdrawn. Also in the 110^th Congress, seven
measures have been held to the 60-vote threshold as a result of a UC agreement. Of
these, five passed and two failed. Lastly, in the 110^th Congress, two motions to
concur with House amendments with a Senate amendment were held to the 60-vote
threshold by a UC agreement, one passed and one failed.
In the 109^th Congress (2005-2006), eight amendments were held to the 60-vote
threshold as a result of a provision in a UC agreement. Of these, six failed and two
were ruled out of order. Also in the 109^th Congress, three measures were held to the
threshold, all of which passed. No amendments or measures held to a 60-vote
threshold as the result of a UC agreement were identified in the 108^th (2003-2004),

107^th (2001-2002) or 106^th (1999-2000) Congresses.

Of the 50 amendments, motions, and measures held to the 60-vote threshold
since the 106^th Congress, an additional 13 (26%) would have been successful had
only a simple majority been required for passage.
Method and Sources
Table 1, as of May 8, 2008, shows all matters identified as having been subject
to a 60-vote requirement as the result of a provision in a UC agreement, from the
beginning of the 106^th Congress in 1999 through the current 110^th Congress. The
Congressional Record pages on which the specified consent agreements appear are
also included.
No source provides an explicit comprehensive list or index of consent
agreements having specific features such as the 60-vote threshold. Instead, the
instances presented were results of an electronic search done by CRS analysts of the
text of the Congressional Record in the Legislative Information System (LIS) of the
U.S. Congress for the phrase “60 votes” “60-vote threshold” or “60 votes in the
affirmative” or variants. The information obtained through this search was
supplemented as necessary by an examination of bill status information in the LIS.
This broad search captured many proceedings that referred to other forms of 60-vote
requirement, which were eliminated from the results presented.

⁶ Sen. Barbara Boxer, remarks in the Senate, Congressional Record, daily edition, vol.154,
April 17, 2008, p. S3109.

CRS-4
Table 1. Identified Senate-Adopted Unanimous Consent Agreements Establishing a 60-Vote Threshold
for Passage of Legislation: 1999-2008
(as of May 8, 2008)
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
^th Congress (2007-2008)
dt. 4539Boxer (D-CA)H.R. 1195 04/17/2008S.Amdt. 4539 agreed to in Senate by Yea-Nay Vote 64-28.
ⁱ^{ki/CRS-RL34491}Highway Technicalp. S3109Record Vote # 105 (4/17/2008).
^g/wCorrections Act of 2007
^s^.ordt. 4538Coburn (R-OK)S.Amdt. 4538 not agreed to in Senate by Yea-Nay Vote 49-43.
^le^akRecord Vote # 106 (4/17/2008).^a
^://wikidt. 3920 Whitehouse (D-RI)S. 2248 02/11/2008S.Amdt. 3920 agreed to in Senate by Voice Vote.^b
^h^ttpFISA Amendments Act ofp. S845
2008
dt. 3910 Feinstein (D-CA)S.Amdt. 3910 not agreed to in Senate by Yea-Nay Vote 57-41. ^a
Record Vote # 13 (2/12/2008).
dt. 3919 Feinstein (D-CA)S.Amdt. 3919 not agreed to in Senate by Yea-Nay Vote 41-57.
Record Vote # 18 (2/12/2008).

CRS-5
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
dt. 3919^cFeinstein (D-CA)S. 2248 01/31/2008S.Amdt. 3919 not agreed to in Senate by Yea-Nay Vote 41-57.
FISA Amendments Act ofp. S536Record Vote # 18 (2/12/2008).
2008
dt. 3930Cardin (D-MD)S.Amdt. 3930 not agreed to in Senate by Yea-Nay Vote 49-46. ^a
Record Vote # 7 (2/6/2008).
dt. 3920^cWhitehouse (D-RI)S.Amdt. 3920 agreed to in Senate by Voice Vote.^b

ⁱ^{ki/CRS-RL34491}
^g/w
^s^.or
^le^ak
^://wiki
^h^ttp

CRS-6
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
dt. 3876Levin (D-MI)H.R. 2764 12/18/2007S.Amdt. 3876 not agreed to in Senate by Yea-Nay Vote 50-45.
Department of State,p. S15828Recorded Vote # 438 (12/18/2007).^a
Foreign Operations and
dt. 3875Feingold (D-WI)Related Programs^dS.Amdt. 3875 not agreed to in Senate by Yea-Nay Vote 24-71.
Appropriations Act, 2008Record Vote # 43 (12/18/2007).
McConnell (R-KY)Motion agreed to in Senate by Yea-Nay Vote 70-25.
ⁱ^{ki/CRS-RL34491}dt.Recorded Vote # 439 (12/18/2007).
^g/w
^s^.ordt. to
^le^ak
dt. No.
^://wiki
^h^ttp
Motion not agreed to in Senate by Yea Nay Vote 48-46. ^a
Reid (D-NV)Record Vote # 440 (12/18/2007).
dt.
dt. To H.R.
dt. No. 3877
dt. 3640Craig (R-ID)H.R. 2419 12/13/2007S.Amdt. 3640 not agreed to in Senate by Yea-Nay Vote 37-58.
Food and Energy Securityp. 15417Record Vote # 429 (12/13/2007).

Act of 2007

CRS-7
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
dt. 3530Coburn (R-OK)H.R. 2419 12/13/2007S.Amdt. 3530 as modified agreed to in Senate by Unanimous
Food and Energy Securityp. S15412Consent (12/13/2007).^e
Act of 2007
dt. 3666Tester (D-MT)S.Amdt. 3666 not agreed to in Senate by Yea-Nay Vote 40-55.
Record Vote # 427 (12/13/2007).
dt. 3819Brown (D-OH)S.Amdt. 3819 not agreed to in Senate by Yea-Nay Vote 32-63.
ⁱ^{ki/CRS-RL34491}Record Vote # 428 (12/13/2007).
^g/wdt. 3695Dorgan (D-ND)H.R. 2419 12/11/2007S.Amdt. 3695 as not agreed to in Senate by Yea-Nay Vote 56-
^s^.or^a
^le^akFood and Energy Securityp. S1512843. Record Vote # 424 (12/13/2007).
Act of 2007
^://wikidt. 3673Gregg (R-NH)S.Amdt. 3673 not agreed to in Senate by Yea-Nay Vote 41-53.
^h^ttpRecord Vote # 422 (12/12/2007).
dt. 3810Klobuchar (D-MN)S.Amdt. 3810 not agreed to in Senate by Yea-Nay Vote 48-47.
Record Vote # 426 (12/13/2007).^a
dt. 2997 Biden (D-DE)H.R. 1585 09/26/2007S.Amdt. 2997 agreed to in Senate by Yea-Nay Vote 75-23.
National Defensep. S12093Record Vote # 348 (9/26/2007).
Authorization Act for Fiscal
dt. 3017 Kyl (R-AZ)Year 2008S.Amdt. 2997 agreed to in Senate by Yea-Nay Vote 76-22.
Record Vote # 349 (9/26/2007).

CRS-8
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
dt. 2924 Feingold (D-WI)H.R. 1585 09/20/2007S.Amdt. 2924 not agreed to in Senate by Yea-Nay Vote 28 -
National Defensep. S1178770. Record Vote # 345 (9/20/2007).
Authorization Act for Fiscal
Year 2008
dt. 2947 Boxer (D-CA)H.R. 1585 09/20/2007S.Amdt. 2947 not agreed to in the Senate by Yea-Nay Vote^a
National Defensep. S1178250-47. Record Vote # 343 (09/20/2007).
ⁱ^{ki/CRS-RL34491}dt. 2934Cornyn (R-TX)Authorization Act for FiscalYear 2008S.Amdt. 2934 agreed to in Senate by Yea-Nay Vote 72 - 25.
^g/wRecord Vote # 344 (09/20/2007).
^s^.or
^le^akdt. 2898Levin (D-MI)H.R. 1585 09/20/2007S.Amdt. 2898 not agreed to in Senate by Yea-Nay Vote 47-47.
^://wikiNational DefenseAuthorization Act for Fiscalp. S11801Record Vote # 346 (09/21/2007).
^h^ttpYear 2008
dt. 2909Webb (D-VA)H.R. 1585 09/19/ 2007S.Amdt. 2909 not agreed to in Senate by Yea-Nay Vote 56-44. ^a
National Defensep. S11731Record Vote # 341 (09/21/2007).
Authorization Act for Fiscal
dt. 2918McCain (R-AZ)Year 2008S.Amdt. 2918 not agreed to in Senate by Yea-Nay Vote 55-45. ^a

Record Vote # 342 (09/19/2007).

CRS-9
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
Levin (D-MI)08/03/2007S. 2011 not agreed to in Senate by Yea-Nay Vote 43 - 45.
e Protectp. S10861Record Vote # 310 (08/03/2007).
erica Act of
McConnell (R-KY)S. 1927 agreed to in the Senate with an amendment
ⁱ^{ki/CRS-RL34491}ericaSenate with an amendment by Yea-Nay Vote 60 - 28.
^g/wRecord Vote # 309 (08/03/2007).
^s^.or
^le^akdt. 2032 Hagel (R-NE)H.R. 1585 07/11/07S.Amdt. 2032 not agreed to in Senate by Yea-Nay Vote 52-45. ^a
National Defensep. S9005Record Vote #243 (7/11/2007).
^://wikiAuthorization Act for Fiscal
^h^ttpdt. 2078 Graham (R-SC)Year 2008S.Amdt. 2078 not agreed to in Senate by Yea-Nay Vote 41-55.
Record Vote #244 (7/11/2007).
dt. 1566 Warner (R-VA)H.R. 6 06/14/07S.Amdt. 1566 not agreed to in Senate by Yea-Nay Vote 43-44.
Energy Independence andp. S7712Record Vote # 212 (6/14/2007).
Security Act of 2007
dt. 1578Menendez (D-NJ)S.Amdt. 1578, amendment S.Amdt. 1566 having failed to
achieve the 60 votes required for adoption, withdrawn in
Senate (6/14/2007).

CRS-10
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
dt. 1176 Feingold (D-WI)S. 1248 06/5/07S.Amdt. 1176 agreed to in Senate by Yea-Nay Vote 67-26.
Water Resourcesp. S7058Record Vote # 185 (6/5/2007).
Development Act of 2007
dt. 1170 McConnell (R-KY)S.Amdt. 1170 not agreed to in Senate by Yea-Nay Vote 41-52.
Record Vote # 184 (6/5/2007).
dt. 1094 Kerry (D-MA)H.R. 1495 05/15/07S.Amdt. 1094 not agreed to in Senate by Yea-Nay Vote 51-42. ^a
ⁱ^{ki/CRS-RL34491}Water ResourcesDevelopment Act of 2007 p. S6098Record Vote # 166 (5/15/2007).
^g/w
^s^.orReid (D-NV)03/29/07S. 5 agreed to in Senate by Yea-Nay Vote 63-34.
^le^ak Cellp. S4221Record Vote # 127 (4/11/2007).
^://wikisearchent Act
^h^ttp
Coleman (R-MN)S. 30 agreed to in Senate by Yea-Nay Vote 70-28.
t Record Vote # 128 (4/11/2007).
.Res. 9 Reid (D-NV)03/15/07S.J.Res. 9 not agreed to in Senate by Yea-Nay Vote 48-50.
ited Statesp. S3161Record Vote # 75 (3/15/2007).

licy in Iraq

CRS-11
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
Murray (D-WA)S.Res. 107 agreed to in Senate by Yea-Nay Vote 96-2. Record
Vote # 76 (3/15/2007).
the
en to
ⁱ^{ki/CRS-RL34491}ine the
^g/w of the
^s^.ored Forces of
^le^aknited States
pact their
^://wiki to
^h^ttpplete their
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ssions.
Gregg (R-NH)S.Con.Res. 20 agreed to in Senate by Yea-Nay Vote 82-16.
Record Vote # 77 (3/16/07).

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CRS-12
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
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ⁱ^{ki/CRS-RL34491} or
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CRS-13
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
^th Congress (2005-2006)
Santorum (R-PA)6/29/2006S. 3504 agreed to in Senate by Yea-Nay Vote 100-0.
tus Farmingpp. S7169-S7170Record Vote # 204 (7/18/2006).
ⁱ^{ki/CRS-RL34491}eSantorum (R-PA)S. 2754 agreed to in Senate by Yea-Nay Vote 100-0. Record Vote # 205 (7/18/2006).
^g/w
^s^.or
^le^akll Therapies
ent Act
^://wiki
^h^ttpRep. Castle (R-DE)H.R. 810 agreed to in Senate by Yea-Nay Vote 63-37.
CellRecord Vote # 206 (7/18/2006).
search
ent Act
dt. 4322 Kennedy (D-MA)S. 2766 John Warner6/20/2006S.Amdt. 4322 not agreed to in the Senate by Yea-Nay Vote^a
National Defensep. S613752-46. Record Vote # 179 (6/21/2006).
Authorization Act for Fiscal
dt. 4376 Enzi (R-WY)Year 2007 S.Amdt. 4376 not agreed to in the Senate by Yea-Nay Vote

45-53. Record Vote # 180 (6/21/2006).

CRS-14
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
dt. 2165 Coburn (R-OK)H.R. 3058 10/20/2005S.Amdt. 2165 not agreed to in the Senate by Yea-Nay Vote
Transportation, Treasury,p. S1163615-82. Record Vote # 262 (10/20/2005).
Housing and Urban
dt. 2181 Stevens (R-AK)Development, the Judiciary,S.Amdt. 2181 not agreed to in the Senate by Yea-Nay Vote
the District of Columbia,33-61. Record Vote # 263 (10/20/2005).
and Independent Agencies
Appropriations Act, 2006
ⁱ^{ki/CRS-RL34491}dt. 2063 Kennedy (D-MA)H.R. 3058 10/19/2005S.Amdt. 2063 ruled out of order after motion to waive section
^g/wTransportation, Treasury,p. S11526425(a)(2) of the Congressional Budget Act (unfunded
^s^.or
^le^akHousing and Urbanmandate) not agreed to, 47-51. Record Vote # 257
Development, the Judiciary,(10/19/2005).
^://wikithe District of Columbia,
^h^ttpdt. 2115 Enzi (R-WY)and Independent AgenciesS.Amdt. 2115 ruled out of order after motion to waive section
Appropriations Act, 2006 425(a)(2) of the Congressional Budget Act (unfunded
mandate) not agreed to, 42-57. Record Vote # 258
(10/19/2005).^f
dt. 44 Kennedy (D-MA)S. 256 3/3/2005S.Amdt. 44 not agreed to in the Senate by Yea-Nay Vote 46-
Bankruptcy Abusepp. S2050-S205149. Record Vote # 26 (3/7/2005).
Prevention and Consumer
dt. 128 Santorum (R-PA)Protection Act of 2005 S.Amdt. 128 not agreed to in the Senate by Yea-Nay Vote 38-

61. Record Vote # 27 (3/7/2005).

CRS-15
Congressional Record
LegislationSponsorRelated Bill Number (in cases of amendments)Citation for UCFinal Senate Disposition
Agreement
^th Congress (2003-2004)
^th Congress (2001-2002)
ⁱ^{ki/CRS-RL34491}^th Congress (1999-2000)
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