How to spot policy riders in appropriations bills
(Editor’s note: This piece originally appeared in Legislative Procedure on August 15, 2018.)
By James Wallner
Senate Rule XVI (paragraphs 1 and 2) prohibits the inclusion of legislation in appropriations bills and in amendments offered to them. Specifically, paragraph 2 stipulates,
“The Committee on Appropriations shall not report an appropriation bill containing amendments to such bill proposing new or general legislation or any restriction on the expenditure of the funds appropriated which proposes a limitation not authorized by law if such restriction is to take effect or cease to be effective upon the happening of a contingency, and if an appropriation bill is reported to the Senate containing amendments to such bill proposing new or general legislation or any such restriction, a point of order may be made against the bill, and if the point is sustained, the bill shall be recommitted to the Committee on Appropriations.”
VIOLATIONS = LEVERAGE
Yet despite this prohibition, almost every appropriations bill that the Senate considers includes legislative provisions. The ability to quickly identify those provisions gives rank-and-file senators leverage in negotiations with party leaders and bill managers over floor amendments. Once identified, senators can threaten to raise a point of order against a legislative provision if leaders and/or bill managers block their amendments.
A Rule XVI point of order is a powerful tool. It directs the Senate’s Presiding Officer to construe the prohibition “strictly and, in case of doubt, in favor of the point of order.” If the point of order is sustained, the underlying appropriations bill is automatically sent back to the Appropriations Committee. Unlike Budget Act points of order, there is no waiver mechanism allowing senators to ignore the prohibition on legislative provisions without creating a new precedent (see below for a short discussion of the defense of germaneness with regard to a House appropriations bill). And unlike Rule XXVIII points of order, it is not surgical. If sustained by the Presiding Officer, Rule XVI points of order impact the entire bill whereas Rule XXVIII points of order strike only the targeted provisions.
VIOLATIONS IN HOUSE BILL = HOOKS
Rule XVI also provides for a point of order against non-germane amendments to general appropriations bills in addition to legislative amendments. Since 1888, the Senate has permitted legislative amendments to appropriations bills if the underlying House-passed bill also includes germane legislative language. Any member offering such an amendment can protect their proposal from a Rule XVI point of order by asserting a defense of germaneness. And since 1979, the practice has been for the Presiding Officer to make a “threshold determination when germaneness is asserted as an affirmative defense against a point of order that an amendment is legislation on an appropriations bill.” The amendment is protected if the Presiding Officer can identify language in the underlying bill to which it is arguably germane. If the Presiding Officer cannot identify any language that is arguably germane, the amendment falls.
QUICKLY IDENTIFYING VIOLATIONS
Yet it can be challenging for members and staff to quickly identify legislative provisions when the Senate considers minibus and omnibus appropriations bills. In those instances, searching the bill(s) text for the following words is a useful shortcut for identifying provisions that may violate Rule XVI. Once identified, members and staff can better determine if the provision in question is legislative in nature. If it is, it gives them a source of leverage or a potential hook (i.e. a defense of germaneness) for their own legislative amendment.
1. Notwithstanding: As in “notwithstanding any provision(s) of law.” Provisions that include this language are legislative in nature and thus violate Rule XVI.
2. Until: As in funding for a specific program in the underlying bill is made available “until expended.” Provisions that include this language are legislative in nature and thus violate Rule XVI.
3. “Provided,”: This is not always a Rule XVI violation. Adding quotations and a comma to the search query should better isolate legislative provisions that include prohibited uses of the term. They are set in italics in the bill text.
4. “Provided Further,”: Same stipulations as above. Provisions that include this language are more likely to be a Rule XVI violation due to the additional proviso signified by “further.”
5. Secretary: Provisions that include this language usually contain a contingency (which is legislative in nature). They may also direct the Secretary (or Administrator, Attorney General, etc.) to take a specific action (also legislative in nature).
6. Unless: Provisions that include this language usually contain a contingency. Stipulating “unless” gives administration officials discretion in the context of that contingency.
7. Or any other: Provisions that include this language usually contain a funding rider, as in “none of the funds made available in this act or any other Act.” Limiting funds made available by Congress in other acts is legislative in nature. Provisions that do so thus violate Rule XVI.
8. Determines: Used in the context of a contingency. That is, provisions that include this language usually restrict the availability of funding until a determination of some kind is made.
9. In General: Usually the first two words of a full bill. What follows is almost always legislative in nature and thus violates Rule XVI.
10. Are Authorized: Provisions that include this language authorize funding as opposed to appropriating it. They are legislative in nature and thus violate Rule XVI.
11. Is Amended: Provisions that include this language usually contain amendments to existing statutes. Doing so is legislative in nature and thus violates Rule XVI.
12. Report Accompanying: Provisions that include this language usually incorporate, by reference, language included in the Committee report. It is not always legislative in nature. (Note: This language was used to incorporate earmark tables into appropriations bills before senators ended the practice.)
James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.