Senate Minibus Violates Rule XVI

The Senate is one step closer to taking up a so-called “minibus” spending bill. Senators voted 85 to 12 to invoke cloture (i.e., end debate) on the motion to proceed to the House-passed Military Construction, Veterans Affairs, and Related Agencies Appropriations Act (MilCon-VA; HR 4366). The Senate next votes on whether to take up HR 4366 at the end of a post-cloture period. That vote happens 30 hours, at most, from when the Senate first invoked cloture.

After the Senate votes to proceed to HR 4366, the Senate’s presiding officer (or “chair”) will most likely recognize either Majority Leader Chuck Schumer, D-N.Y., or Appropriations Committee Chair Patty Murray, D-Wash., to offer the Senate’s version of the MilCon-VA bill as an amendment to the House-passed bill. (Senate Rule XIX requires the presiding officer to recognize the senator who first seeks recognition. But Senate precedents note that presiding officers have given “the Majority Leader and Minority Leader, the majority manager and the minority manager” priority recognition “in that order.”)

The Senate version - The Consolidated Appropriations Act (S. Amendment 1092) - significantly differs from the House-passed HR 4366. It includes MilCon-VA funding (Division A), as well as the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act (Division B) and the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act (Division C). Consequently, S. Amendment 1092 - as presently drafted - violates the Rule XVI prohibition of non-germane amendments on appropriations bills. If the Senate follows its rules instead of adopting new rules for the minibus debate by unanimous consent, any senator could raise a point of order against the amendment once Schumer or Murray offers it to HR 4366. If sustained, the point of order would bring down the Senate’s minibus spending bill, not just the targeted provision (or division).

Rule XVI

Rule XVI limits the amendments senators can offer to general appropriations bills on the Senate floor. Senate precedent defines general appropriations bills as “all bills appropriating money for more than a single purpose or agency.” HR 4366 is a general appropriations bill.

Under Rule XVI, senators’ amendments to HR 4366 must be germane (i.e., related to a provision in the underlying bill). The rule also stipulates that senators cannot offer amendments to HR 4366 that include legislative language (i.e., provisions that change existing law). According to Senate precedent, “legislative amendments are those which propose to do anything except appropriate funds or limit the purposes which funds appropriated in the pending appropriations bill could be used.” 

Enforcing Rule XVI 

Senators may raise a point of order under Rule XVI against an amendment offered on the floor by another senator if that amendment is not germane to the underlying bill (HR 4366 here). Senators may also raise points of order against amendments that include legislative language.

If the Senate’s presiding officer sustains a point of order against an amendment reported by the Appropriations Committee, the amendment is sent back to the committee (i.e., recommitted). If the presiding officer sustains a point of order against a senator's floor amendment, the amendment in question is dismissed (i.e., defeated) by the Senate without an up-or-down vote.

Implications

S. Amendment 1092 is not germane to HR 4366. For example, divisions B and C violate Rule XVI because they are not related to the MilCon-VA provisions in the legislation. Consequently, any senator may raise a point of order against S. Amendment 1092 after Schumer or Murray offers it to HR 4366 because the amendment includes language that is not germane to the underlying bill. At that point, the Senate's minibus spending bill is defeated unless the presiding officer (and enough senators) decide to ignore the rule.

Minibus proponents want to waive the applicable provisions of Rule XVI by unanimous consent. Doing so would prevent senators from using a Rule XVI point of order to defeat it.

Of course, the Senate's rules are not self-enforcing. And violations of the rules do not always elicit points of order. But minibus proponents would rather not consider the legislation under these conditions. This is because proceeding without an agreement to waive Rule XVI gives rank-and-file senators leverage in negotiations over what amendments they can offer to S. Amendment 1092. That is, senators can threaten to raise a Rule XVI point of order against the minibus because divisions B and C are not germane to MilCon-VA appropriations. If credible, their threat makes it harder for proponents of the minibus to deny them the opportunity to offer their amendment(s).

The Takeaway

The Senate's minibus spending bill violates Rule XVI as presently drafted. Its proponents would like to lock in a unanimous consent agreement to waive the applicable portions of Rule XVI. The empowers rank-and-file senators to participate in the debate by giving them leverage in negotiations over what amendments the Senate will consider. Therefore, waiving the rule by unanimous consent undermines senators' leverage to participate in the debate.