A Session With No Business

The Senate met at 1:30 p.m. on Friday 9 October. Senator Todd Young presided, and, in the words of the Senate Press Gallery, “no business was conducted.” It meets again on Tuesday at 3:30 p.m., and then on 15, 19, 22, 26 and 29 October and 2 and 5 November, each time “with no business expected.” Those are eight more sessions, every one of them already scheduled to do nothing.

The Senate’s last working day was Wednesday 30 September. It confirmed Keith Sonderling as Secretary of Labor at 11 p.m. by 47 votes to 41, according to the gallery’s floor log, and adjourned at 11:24 p.m. The pro forma schedule runs past the 3 November election: after the session on Thursday 5 November, the Senate stands adjourned until 3 p.m. on Monday 9 November, with one roll call vote set for about 5:30 p.m.

What a pro forma session is

A pro forma session is a real sitting of the Senate that is not meant to do anything. A single senator takes the chair, the chamber convenes and it adjourns again. The gallery’s logs show Senator Cynthia Lummis presiding on 1 October, Senator Roger Wicker on 5 October, Senator Katie Britt on 6 October and Young on 9 October, each time with no business conducted.

The reason is in the Constitution. Article I, section 5 says: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” A Senate that wants to be away for five weeks without a concurrent resolution, which the House would have to pass, adjourns in short steps instead. The posted dates fit that rule. Several gaps run four calendar days, from a Thursday to a Monday or a Friday to a Tuesday, but under Senate practice, as the Supreme Court noted in 2014, “Sunday is generally not considered a day” for this purpose. Counted that way, no gap exceeds three days. That is this publication’s reading of the posted schedule.

What it blocks

The legal effect that matters most is on appointments. The President may fill vacancies “that may happen during the Recess of the Senate.” In NLRB v. Noel Canning the Court held that “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” and that pro forma sessions count. It also held that “a recess of more than 3 days but less than 10 days is presumptively too short” for a recess appointment. A Senate that never breaks for more than three days never opens the door.

There is a second effect, on nominations already sent up. The Standing Rules of the Senate provide in Rule XXXI that if the Senate adjourns or takes a recess “for more than thirty days, all nominations pending and not finally acted upon” are returned to the President. The five weeks from 30 September to 9 November would cross that line if the Senate simply left. Meeting every few days keeps the pending nominations where they are. None of the Senate notices gives a reason for the schedule; these are its effects, not its stated purpose.

What it permits

The schedule’s wording is a forecast, not a rule. A notice posted by the Senate Democrats’ floor staff says that “notwithstanding the Senate’s adjournment, reports of committees and introduction of measures will be authorized on Thursday, October 15th from 10:00am until 11:00am.” Bills can be introduced in a chamber that is formally adjourned. What cannot happen in practice is a vote. The only roll call on the calendar is the one on 9 November, on cloture on the motion to proceed to H.R. 2347, which the gallery calls “the legislative vehicle for the permitting reform bill.”

The deadline on the other side

Government funding is on a separate clock. The continuing resolution is Division A of H.R. 6500, the Continuing Appropriations and Extensions Act, 2027, which the President signed on 2 September. Section 106 of the enrolled text keeps the money available until the earliest of three events: enactment of an appropriation for the project, enactment of the applicable fiscal 2027 bill without one, or “December 11, 2026.” Section 101 lists all twelve of the regular appropriations acts for fiscal 2026 as the base.

Both chambers passed it by wide margins. The Senate voted 90 to 6 at 3:37 a.m. on 8 August, with Senator Lindsey Graham voting present and three senators not voting, in roll call 228, where three-fifths was required. The House agreed to the Senate’s amendments on 1 September by 370 to 48 under suspension of the rules, in roll call 286. Nineteen Republicans and 29 Democrats voted no. With 418 members voting, two-thirds was 279, so the motion passed with 91 votes to spare. That is this publication’s arithmetic from the clerk’s totals.

The Senate returns on Monday 9 November. The resolution runs out on Friday 11 December, 32 days later by this publication’s count, with Thanksgiving on 26 November in between. The first business scheduled for the return is a permitting bill, not a spending bill. The pro forma sessions decide nothing about what happens to the twelve bills. They decide only that the Senate will still be in session, on paper, on every day between now and then.

Sources

The session times, presiding senators, the 30 September floor log and the 9 November vote are from the Senate Press Gallery’s daily pages. The 15 October authorisation is from the Senate Democrats’ schedule notice. The constitutional text, the Sunday convention and the recess holdings are from NLRB v. Noel Canning, 573 U.S. 513 (2014). Rule XXXI is from the Standing Rules of the Senate. The continuing resolution’s terms are from the enrolled bill, the signing date from the White House, and the votes from the Senate and House roll calls. The day counts and vote arithmetic are this publication’s.