Copper Dome Chronicle: 2023 Session Week 17

Welcome to this week’s edition of the Copper Dome Chronicle, sponsored by Advocatus. We strive for substantive writing with brevity, inspired by the book Smart Brevity; one of the best books about communications and writing we’ve read in years.

This week’s edition, covering May 1-5, 2023, is 1,559 words or a 6 minute read. There are 3 legislative days remaining in the 2023 regular session. Thanks for reading and sharing; we welcome your feedback and commentary!

1. Both Chambers Grind Out Legislation as Sine Die Approaches

The House consumed 8 hours, 24 minutes of floor time sending 13 bills to the Senate and returning 4 bills with amendments. Some bills that saw some lively debate included S.96 (watercraft safety education), S.164 (certificate of need repeal), H.4086 (residential builders), S.36 (ignition interlock devices), S.330 (protecting utility infrastructure and fentanyl trafficking), and H.4002 (limit telecommunications devices inside correctional facilities). The House calendar ended the week at 9 pages (no change from May 2) with 22 bills (12 House, 10 Senate). 

The Senate held a long session on May 3 and consumed 14 hours, 37 minutes of floor time for the week, sending 8 bills to the House. On May 2, Senate Rules Committee Chair Shane Massey, who is also the Senate Majority Leader, used the motion period and the rules to maneuver several bills into postures where they would be debated. H.3908 (school district paid leave) was sent for Special Order first, then H.3681 (local government preemption regarding tobacco products) and H.3952 (auto dealer closing fees) were both set in the status of Adjourned Debate. This is not a common motion but the Senate rules clearly permit it. Lastly, Senator Massey used Senate Rule 32B to call H.3728 (Transparency and Integrity in Education Act) from the contested calendar to the floor for debate.

Some bills that saw extended debate included H.3728 (Transparency and Integrity in Education Act, S.739 (housing tax credits), S.399 (DHEC restructuring), S.164 (certificate of need repeal), H.3681 (local government preemption regarding tobacco products), H.3952 (auto dealer closing fees), H.4023 (First Steps reauthorization), S.120 (lethal injection shield law), and H.3908 (school district paid leave). The Senate calendar stood at 39 pages by the end of the week with 65 bills on it (29 Senate, 36 House).

2. The Dalai Lama and Rules

“Know the rules well, so you can break them effectively.” - His Holiness the 14th Dalai Lama

The closing week of the 2023 regular session is an opportunity to review House and Senate Rules that may be waived to advance or block legislation. Below are some to be mindful of as time ticks away.

House Rule 4.7B - This is a little-known but powerful House rule allowing a House committee to use a Senate bill as a vehicle to pass legislation. It states: “When reporting a Senate bill as favorable, the committee may include in its report an amendment identical to the final version of any House bill that has been referred to that committee and passed by the House during the current two-year session. If the amendment is identical to a previously passed House bill, the amendment must be considered germane to the bill.” This rule was used last week to attach an amendment concerning fentanyl trafficking to S.330, which the underlying bill would establish criminal penalties for those found guilty of intentionally damaging utility infrastructure.

House Rule 5.6 - This rule requires bills to be referred to a committee of jurisdiction, but it can be waived by unanimous consent after a quorum is present.

House Rule 5.10 - This rule requires bills to have been printed in the House calendar at least one statewide legislative day prior to second reading. It is common to waive this rule.

House Rule 5.12 - This is the crossover deadline (April 10) rule and requires a two-thirds vote of members present to waive it.

House Rule 5.15 - This is the printing rule, which applies to bills, but it can be waived by a two-thirds vote of members present.

House Rule 8.5 - This rule establishes the precedence of motions, their voting thresholds when a question (i.e. debate on a bill) is underway.

House Rule 8.6 - This is the House cloture rule, which limits the number of amendments, the time allowed to debate amendments (3 minutes in support and in opposition), and time allowed to debate the underlying bill (2 hours equally divided between support and opposition). There are two thresholds: during debate requires a quorum to be present, 50% of those members present and voting plus 5 additional votes in favor of the motion. When the motion is made not during a period of debate on a bill a simple majority vote of members present and voting is required.

House Rule 8.11 - This rule establishes the voting thresholds for non-debatable motions, such as the motions to adjourn, recede, continue, table, divide the question, and many other motions.

House Rule 8.15 - This rule establishes the procedures regarding the motion to continue, which if receiving an affirmative vote, moves a bill to the next session of the House (2024 session).

House Rule 9.3 - This is the House germaneness rule for amendments and is frequently used.

Senate Rule 12 - This rule governs the motion to reconsider a vote by, which requires the motion to be made within the two statewide legislative days following the vote to be reconsidered. Sometimes this rule is called the “mulligan or do-over” rule.

Senate Rule 14 -  This rule establishes an order of precedence for motions, which are debatable and non-debatable, and who can make these motions when a bill is under debate and a Senator has the floor.

Senate Rule 15A - This is the Senate cloture rule, which limits the number of amendments, the time allowed to debate amendments, and time allowed to debate the underlying bill. To invoke the rule requires the lesser of 26 Senators or three-fifths of Senators present and voting so long as the bill has been under debate for at least 2 hours on the current legislative day. However, the time 2 hour time period may be waived during the final 3 statewide legislative days by a three-fifths vote of the Senators present and voting. 

Senate Rule 18 - This rule, rarely used, allows a Senator to divide the question if is divisible. Example: an amendment is offered with three sections to it and a Senator supports only two of the three sections. The Senator may move to divide the question and vote on the amendment in two parts: the two sections supported by the Senator and one section opposed by the Senator.

Senate Rule 23 - This is the printing rule, which applies to bills, but it can be waived by unanimous consent or with a two-thirds vote of the Senate membership of members present if one day’s notice is given to waive the rule.

Senate Rule 24A - This is the Senate germaneness rule for amendments and is frequently used.

Senate Rule 26B - This rule has been waived frequently this session. Amendments on third reading are allowed if three-fifths of the Senators present and voting allow it. Many times the motion to waive this rule is part of a unanimous consent request.

Senate Rule 32A & 32B - This is an important but sometimes overlooked rule. It establishes the order of business of the Senate, which can be varied by a two-thirds vote of Senators present and voting. Also it establishes the number of bills that can be in the status of Interrupted Debate (1 bill), Adjourned Debate (2 bills), and Special Order (3 bills on 2nd reading, 3 bills on third reading). Additionally, during the final 6 days of a legislative session, the requirement for bills returned from the House or acts vetoed by the Governor to be placed on the Senate calendar for the next legislative day may be waived. The motion to waive Rule 32 in this special circumstance is non-debatable. Lastly, a bill on the Contested Calendar may be debated during the final 6 days of a legislative session by a majority vote of the Senate Rules Committee. Such a bill will be called after Special Orders.

Senate Rule 33 - This rule governs the motion period and the procedures for setting a bill for Special Order.

Senate Rule 34 - This rule establishes the procedures regarding the motion to continue, which if receiving an affirmative vote, moves a bill to the next session of the Senate (2024 session).

Senate Rule 37 - This bill requires each bill to receive three readings and requires reports of standing committees to be printed and placed on the calendar for at least one statewide legislative day. However, during the final 6 statewide legislative days preceding the date set for sine die, the one day requirement may be suspended by a three-fifths vote of Senators present and voting.

Senate Rule 39 - This bill requires bills to be printed and made available to Senators at least one day prior to second reading. This is a common point of order raised during the session.

Senate Rule 43 - This rule specifies how to suspend and amend the Senate Rules. Senate rules, such as the printing rule, are often suspended by unanimous consent requests. However, another avenue is available to suspend a rule if a Senator provides one day’s notice to make a motion to suspend a rule. In this special circumstance the vote to suspend the applicable rule requires a two-thirds vote of the Senate membership. Note the requirement “Senate membership” is different from “Senators present and voting.”

Senate Rule 47 - This is the crossover deadline (April 10) rule and requires a two-thirds vote of Senators present and voting to waive it.