There’s been quite a lot of debate lately about the Constitutional definition of a “recess.” This has brought on even more confusion over a already often-confusion question of Senate procedure, because a “recess” is also a legislative term under Senate rules. While the Constitutional “recess” is contemplating a break in Senate session generally, a “recess” under Senate rules is a more narrow idea.
So bearing in mind that this discussion has nothing to do with recess appointments under the Constitution, here’s a question I often get asked:
At the end of a day, why does the Senate sometimes adjourn and sometimes recess?
The answer is that there are different procedural consequences to doing one or the other, and thus strategic reasons for the majority to prefer one to the other.
First, a little background. What is a recess and what is an adjournment?
A recess is simply a temporary halt to activity on the floor. Everything stops, and when the recess ends, the Senate resumes from where it left off. A recess might last 10 minutes or it might last days. The length of time does not matter.
An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Regardless of whether the adjournment is for 1 minute or for three weeks. Instead, a new legislative day is created.
Wait, what’s a legislative day?
There are two types of “days” in Congress: calendar days and legislative days. A calendar day is exactly what is sounds like: one day of the year, as we normally think of it. So if today is January 27, in two calendar days it will be January 29.
A legislative day, however, is different. A new legislative day begins only when the chamber returns from an adjournment. And at the beginning of a new legislative day, there are certain things that happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc. But there are also consequential things: for instance, in the Senate, for the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.
So a successful motion to adjourn creates a new legislative day, while a successful motion to recess does not. Consequently, if the Senate continually recesses instead of adjourning at the end of business each calendar day (which is quite common), it might be January 27, but legislative day January 5. (The House routinely adjourns at the end of a day’s proceedings. As a result, the House’s calendar days and legislative days are almost always the same.)
This can have certain consequences. Some procedural events are triggered by calendar days. For example, a cloture motion must lie over two calendar before a vote can be taken on it. So if you introduce a cloture motion on Tuesday, it cannot be voted on until Thursday. However, some procedures are based on legislative days. For example, under rule XIX, no Senator can speak more than twice on any one question on the same legislative day.
So back to the original question: why choose recess over adjourn, or vice versa?
Well, as the previous paragraph indicates, one reason to choose a recess would be to try and smoke out a small group of Senators filibustering via floor monopoly. If the Senate doesn’t adjourn, then each Senator could only speak on the motion to proceed twice, meaning they would have a limited number of opportunities for breaks. (This is actually a poor tactic to break a filibuster). But that’s a rare situation. More common is that the majority leader might prefer to recess to avoid the routine business required on new legislative days, if he just wants to pick up where things left off, or if he fears that hostile Senators might use the business for purposes of delay.
On the other hand, there are procedural advantages for the Majority Leader to create a new legislative day by adjourning. If he wants to skip a lengthy debate on the motion to proceed, he can adjourn, create a new legislative day, and then call up a bill under the provisions that make the motion to proceed non-debatable during the first few hours of a new day. This is a dangerous maneuver, however, since opposition Senators could then object to consent requests and force the reading of the journal and the other pieces of routine business normally dispensed with, in an effort to eat of the two hours before the motion to proceed could be given and voted upon.
The majority leader can also use adjournment to regain control of the floor if he has lost it for any reason. This famously happened to Senator Byrd when he was majority leader in the 1970s. He lost control of the floor to opposition Senators, who were bent on wrecking his plans for the day by moving to other business. Byrd made a motion to adjourn (which is non-debatable and takes priority over virtually all other things) for one minute. Backed by the majority party, he won the vote. The Senate adjourned for one minute. A new legislative day was created, and as majority leader, Byrd was entitled to priority of recognition from the chair, which he accepted and then went on with his business.