Permission for committees to sit during the hours restricted by the rule is routinely granted in the Senate. On occasion, however, the two-hour rule is invoked, most often as a form of protest or in order to delay committee action on a particular measure or matter. Invoking the rule for these reasons has increased in recent years. Permission to sit during times prohibited by the rule is now most often granted by joint leadership agreement instead of by unanimous consent, a change from prior practice.

Senate rules restricting committee meeting times have existed for over 70 years and have evolved over time. A rule limiting committees from sitting while the Senate is in session was first enacted in Section 134(c) of P.L. 79-753, the Legislative Reorganization Act (LRA) of 1946. Rules regulating the meeting times of Senate committees were amended in 1964 and again in 1970. The Senate adopted the present form of the two-hour rule on February 4, 1977, via Section 402 of S.Res. 4 , a resolution implementing the recommendations of the Temporary Select Committee to Study the Senate Committee System.

Under the terms of the rule, no Senate committee or subcommittee (except the Committees on Appropriations and Budget and their subcommittees) can meet after the Senate has been in session for two hours or past 2:00 p.m. unless one of the following things occur: (1) the Senate grants unanimous consent for them to meet; (2) both the majority and minority leaders (or their designees) agree to permit the meeting, and their agreement has been announced on the Senate floor; or (3) the Senate adopts a privileged motion to allow the meeting. Should a committee meet during a restricted time period without being granted permission, any action that it takes—such as ordering a bill or nomination reported to the Senate—is considered "null, void, and of no effect."

Paragraph 5(a) of Senate Rule XXVI, sometimes referred to as the "two-hour rule," restricts the times that most Senate committees and subcommittees can meet when the full Senate is in session. The rule is intended to help balance the Senate's committee and floor work and to minimize the logistical conflicts that Senators face between participating in committee hearings and markups and attending to their duties on the chamber floor.

The "Two-Hour Rule"

Paragraph 5(a) of Senate Rule XXVI, sometimes referred to as the "two-hour rule," restricts the times that most Senate committees and subcommittees can meet when the full Senate is in session.1 The rule, which has evolved over the years, is intended to help balance the Senate's committee and floor work and to minimize the logistical conflicts that Senators face between participating in committee hearings and markups and attending to their duties on the chamber floor. The two-hour rule applies to all committee meetings, including hearings and markups.

Senate Rule XXVI, paragraph 5(a); The "Two-Hour Rule" Notwithstanding any other provision of the rules, when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o'clock postmeridian unless consent therefor has been obtained from the majority leader and the minority leader (or in the event of the absence of either of such leaders, from his designee). The prohibition contained in the preceding sentence shall not apply to the Committee on Appropriations or the Committee on the Budget. The majority leader or his designee shall announce to the Senate whenever consent has been given under this subparagraph and shall state the time and place of such meeting. The right to make such announcement of consent shall have the same priority as the filing of a cloture motion.

Pursuant to paragraph 5(a) of Senate Rule XXVI, no Senate committee or subcommittee (except for the Appropriations and Budget Committees and their subcommittees) can meet after the Senate has been in session for two hours or past 2:00 p.m. unless both the majority and minority leaders (or their designees) agree to permit the meeting and their agreement has been announced on the floor.2 The Senate can also, by unanimous consent, grant permission for committees to meet,3 and until recently the practice was for a Senator to ask unanimous consent that committees be authorized to meet, rather than for the leaders to announce their agreement that meetings be permitted. A third but arguably impractical option is for the Senate to adopt a privileged motion to allow the meeting.4

Invoking the Two-Hour Rule

Most of the time, the restrictions of the two-hour rule are not invoked. It is a routine, often daily, occurrence for committees to be given permission to meet during periods proscribed by the rule after agreements are announced on the Senate floor that grant them the authority to do so.5 Committee staff, when preparing for a hearing or a markup, routinely notify floor staff of the time and date of the meeting to ensure it is included in any unanimous consent agreement or joint leadership announcement.

Sometimes, however, the two-hour rule's restrictions on committee meeting are insisted upon, most commonly as a form of protest or to delay a committee's action on a specific measure or matter.6

To invoke the rule does not necessarily require any formal parliamentary action. Senators can object if a unanimous consent agreement for committees to meet is propounded on the floor. In practice, however, informal communication with leadership is likely required to invoke the rule. This is true not only because the leaders alone could grant permission for committees to meet but also because, from a practical perspective, it would be difficult for Senators to predict when any unanimous consent agreement might be propounded so that they could arrange to be present to object.

It was the long-standing practice of the Senate that, after receiving the requests from committees and clearing them with the minority leader, the majority leader (or a designee) would state on the floor

I have [number] unanimous consent requests for committees to meet during today's session of the Senate. They have the approval of the majority and minority leaders. I ask consent that these requests be agreed to and these requests be printed in the Record.

If no Senator objected, the Congressional Record would print, as if they were spoken on the floor, a series of unanimous consent requests for each committee to meet at stated times, each request being ordered "without objection."

Perhaps partly due to this practice, it was widely understood in the Senate that unanimous consent was necessary to permit committees to meet after the Senate was in session for two hours or past 2:00 p.m.7 If leaders usually honored any request to prevent committees from meeting, then that practice would also leave the impression that unanimous consent was required.

Currently, permission for Senate committees to sit during times prohibited by the two-hour rule is being granted almost exclusively by joint leadership agreement instead of by unanimous consent, a change from prior practice.8 A Senator on the floor now typically states

I have [number] requests for committees to meet during today's session of the Senate. They have the approval of the majority and minority leaders.

The presiding officer responds, "duly noted" to the Senator; no opportunity is afforded for a Senator to object, because unanimous consent is not requested. The list of committees authorized to meet is then printed in the Congressional Record following the statement made on the floor. Joint leadership permission has been used over 130 times since November 30, 2016, to authorize one or more Senate committees to meet during restricted hours and now appears to be the preferred way to provide a waiver of the rule.9 The change in practice might be in response to an apparent increase in invoking the rule, discussed in the final section of this report.

Options If the Rule Is Invoked

The consequences for a Senate committee of violating the two-hour rule are potentially significant. Any action taken by a committee during a meeting prohibited by the rule is "null, void, and of no effect."10 For example, a nomination reported by a committee when it did not have authority to meet "is not properly before the Senate and, on a point of order, will be returned to committee."11 If a Senate committee was meeting without permission, it would immediately have to adjourn when the restricted hour arrived in order to comply with the rule.

In response to the two-hour rule being invoked, a Senate committee could cancel its meeting or reschedule it to periods not covered by the rule—for example, meeting early in the morning before the Senate has convened or after it has adjourned.

The Senate could also recess or adjourn in order for a committee to sit during the hours restricted by the two-hour rule, and in some cases it has done so in order for a committee to hear testimony or act on an important measure or matter.12

There are examples of Senate committees adjourning an official hearing pursuant to the two-hour rule and continuing to interact with witnesses in a non-formal setting, characterized as a "briefing" or "listening session."13 Such gatherings are not official, however, and do not enjoy the same powers and protections of actual Senate hearings. For example, witnesses could not testify under oath at such a meeting, and no official transcript of the interactions would be kept.

Origin and Evolution of the Senate Two-Hour Rule

Senate rules restricting committee meeting times have existed for over 70 years and have evolved over time. A rule limiting committees from sitting while the Senate is in session was first enacted in Section 134(c) of P.L. 79-753, the Legislative Reorganization Act (LRA) of 1946, which stated

No standing committee of the Senate or the House, except the Committee on Rules of the House, shall sit without special leave, while the Senate or the House, as the case may be, is in session.14

The stated intent of the1946 rule was to reduce scheduling conflicts between committee and floor work. The Senate committee report accompanying the 1946 act predicted that the new rule would "make for closer concentration on committee work, on the one hand, and for fuller attendance on the floor, on the other."15 Under the 1946 form of the rule, all Senate committees had to cease sitting when the Senate went into session unless the unanimous consent of the Senate to meet was obtained.

The provisions of the 1946 LRA were superseded on January 30, 1964, by Senate adoption of S.Res. 111, which placed an amended restriction on committee meetings in (then) paragraph 5 of Rule XXV of the standing rules of the Senate. As adopted, S.Res.111 stated

Sec.1 No standing committee shall sit without special leave while the Senate is in session after (1) the conclusion of the morning hour, or (2) the Senate has proceeded to the consideration of unfinished business, pending business, or any other business except private bills and the routine morning business, whichever is earlier.

Sec.2 Section 134(c) of the Legislative Reorganization Act of 1946 shall not be applicable to the standing committees of the Senate.16

The 1964 amendment to the standing rules was intended to provide additional periods for Senate committees to meet. Legislative history documents accompanying S.Res.111 make clear that many Senators felt the 1946 LRA rule had been too restrictive and had impeded the ability of committees to conduct their work. As two Senators noted in individual views in the committee report accompanying S.Res.111

Every Senator has had the experience of having consideration of a measure in which he is vitally interested repeatedly put off because of the inability of standing committees to meet ... while the Senate is in session. The problem has now assumed a chronic and persistent character. Objections against committees sitting are lodged as a matter of course, and often it is only in the exceptional case that a committee is able to secure unanimous consent to sit.... As the sessions of the Congress drag on through the year, the problem of finding time for committee work grows progressively worse. Daily sessions of the Senate begin earlier and end later, occupying an increasingly greater share of the working hours of the day. And, as if matters were not bad enough, as the time available for committee work decreases, the need for time to clear committee dockets before the end of the session grows more urgent.17

Whereas, under the 1946 LRA provision, no Senate committee could meet at any time that the Senate was in session, the 1964 amendment effected by S.Res. 111 permitted committees to sit during the first two hours of Senate session on a new legislative day (a period known as the "Morning Hour")18 and immediately thereafter if the Senate was engaged in routine "housekeeping" business or the processing of private bills.

Subsequently, Section 117(a) of P.L. 91-510, the Legislative Reorganization Act of 1970, enacted on October 26, 1970, established a provision in law that supplemented the 1964 version of the rule contained in paragraph 5 of Senate Rule XXV. That statutory provision stated

Except as otherwise provided in this subsection, no standing committee of the Senate shall sit, without special leave, while the Senate is in session. The prohibition contained in the preceding sentence shall not apply to the Committee on Appropriations of the Senate. Any other standing committee of the Senate may sit for any purpose while the Senate is in session if consent therefor has been obtained from the majority leader and the minority leader of the Senate. In the event of the absence of either of such leaders, the consent of the absent leader may be given by a Senator designated by such leader for that purpose. Notwithstanding the provisions of this subsection, any standing committee of the Senate may sit without special leave for any purpose as authorized by paragraph 5 of rule XXV of the Standing Rules of the Senate.19

The cumulative effect of the 1970 statutory provision and the still-existing provisions of Senate Rule XXV adopted in 1964 were to exempt the Appropriations Committee from any restrictions on meeting and to permit a committee to sit during a restricted period not just if it obtained the unanimous consent of the Senate to do so but also if the majority and minority leaders (or their designees) jointly authorized it to do so.20

The present form of the two-hour rule, which combined the provisions of the 1964 standing rule and the 1970 statutory provision, was adopted by the Senate on February 4, 1977, via Section 402 of S.Res. 4, a resolution implementing the recommendations of the Temporary Select Committee to Study the Senate Committee System.21 The 1977 rules change added an exception for the Committee on the Budget, created in 1974, from the existing restrictions on meeting.

Subsequent Senate action relocated the two-hour rule unchanged from Rule XXV to its current place in Section 5(a) of Rule XXVI.22

Recent Use of the Two-Hour Rule

Table 1 lists examples identified by CRS of the enforcement of the two-hour rule between 1985 and 2017. The table includes the date the rule was invoked; where possible, an identification of the committee or committees affected; a summary of the proceedings; and a citation to the Congressional Record page, news account, or hearing transcript used to identify the table entry. In preparing the table, CRS conducted full-text searches in the Congressional Record and electronic news databases for either discussion of the rule or instances of objection to unanimous consent requests authorizing committees to meet. Not included in the table are instances where Senators or their staff indicated an intention to invoke the two-hour rule but for which no further evidence demonstrates that the rule was enforced.

CRS cannot guarantee that these records are comprehensive of all instances of the two-hour rule being invoked. First, as discussed above, public action is not necessary to invoke the rule. As seen from the cases in Table 1, sometimes no statement regarding authority for committees to meet was made on the floor. The majority leader was simply made aware that there was not an agreement and therefore no consent request or announcement was ever made on the floor. In 2017, in contrast, announcements were sometimes made when agreement was not reached, an apparently new practice that could affect results. Second, because the research is necessarily partly dependent on news accounts, variations in the nature of reporting on Senate action could potentially affect the results, although it is reasonable to expect unexpected adjustments to committee meetings and schedules to be newsworthy over the entire period under study. Third, and finally, various full-text search strategies employed may not necessarily identify every reported instance or every objection to a unanimous consent request made on the floor.

Nevertheless, the cases identified suggest two general trends in the use of the two-hour rule. First, as has been noted, for the life of the two-hour rule, it has been a routine occurrence for committees to be given permission to meet during restricted periods. In recent years, however, it appears that the restrictions on sitting contained in the rule are being invoked more frequently. Over the 32-year period examined, CRS identified 47 occasions where one or more Senate committees had a meeting restricted by invocation of the two-hour rule. Over half of these instances have occurred since 2005. The eight instances identified by CRS as occurring in 2017 represent the highest number in any year over the period. Second, these data suggest that, since 1985, when the two-hour rule restrictions on committee meetings have been invoked, it appears to have been done in a large majority of cases as a form of protest or to delay committee action on a specific measure or matter. Invoking the rule to delay the consideration of judicial nominations has been particularly common.