Earlier this month Senator McConnell placed in the Congressional Record a CRS memorandum regarding pro forma sessions (hat tip, Mort Rosenberg). The memo makes three points of interest to those who are following the legal challenges to President Obama’s January 2012 recess appointments.
First, CRS notes that the term “pro forma” relates to the reason for holding the session (i.e., for sake of formality), but “does not distinguish the nature of the session itself.” A “pro forma session is not materially different from other Senate sessions.”
CRS indicates that a pro forma session has the same authority to act as any other type of session: “Should the Senate choose to conduct legislative or executive business at a pro forma session, it could, provided it could assemble the necessary quorum or gain the consent of all Senators to act.” (I infer from this, although it is not completely clear, that if a majority of Senators attended a pro forma session, they could set aside any unanimous consent agreement that restricted the pro forma session).
Second, CRS identifies instances where the Senate conducted pro forma sessions only for periods of more than 30 days, and the Senate Executive Clerk did not return nominations to the President under Senate Rule XXXI. Since that rule, I have argued before, provides the clearest line of demarcation between session and recess for purposes of the Recess Appointments Clause, this is evidence that Senate practice does not treat a pro forma session as a recess.
Finally, CRS identifies a number of statutory provisions that require computing periods of congressional sessions for purposes of whether a particular executive action or authority has become effective. For example, under the Congressional Review Act, certain agency rules do not become effective until the Senate has had 60 days of “session” to act on a joint resolution of disapproval. For these purposes, days of “pro forma sessions” are counted, a practice accepted by both the legislative and executive branches.