Twelve Ways to Find Dirt in “Clean” Appropriations Bills
(This piece originally appeared in Legislative Procedure.)
If Congress does not act soon, funding for approximately one-third of the Federal government will expire on Thursday, at the end of the current fiscal year. The House passed legislation last week in a bid to avoid a partial government shutdown. Specifically, its members passed the Continuing Appropriations Act (HR 8337; the CR) by a vote of 359 to 57. Among its provisions, HR 8337 maintains current funding levels until December 11. The Senate plans to vote this week on the House-passed CR.
Negotiations over stop-gap funding bills like HR 8337 often center on whether they will include so-called anomalies – departures from last year’s funding levels or changes to current law. For example, Republicans were especially interested in negotiations over HR 8337 to add provisions to the bill that would have changed current law relating to farm payments.
Democratic and Republican leaders typically pitch stop-gap funding bills as “clean” – without anomalies – to preempt efforts by rank-and-file members in the House and Senate to attach riders which could jeopardize their passage in either chamber. In this year’s negotiations, the Trump administration and House Speaker Nancy Pelosi, D-Calif., agreed early in the process that Congress should pass a “clean” CR (i.e., CR without anomalies).
But CRs are rarely clean. That is, they almost always include anomalies that are prohibited by House and Senate rules.
In the Senate, Rule XVI (“Appropriations and Amendments to General Appropriations Bills”) limits the floor amendments that senators can offer to general appropriations bills. According to Senate precedent, general appropriations bills include “all bills appropriating money for more than a single purpose or agency.” Examples of general appropriations are legislation like the Energy and Water Development and Related Agencies Appropriations Act of 2021 (HR 7613), the Consolidated Appropriations Act of 2020 (Public Law 116-93), and the Continuing Appropriations Act of 2021 (HR 8337).
Under Rule XVI, senators’ amendments to bills like these must be germane (i.e., related to a provision in the underlying bill). The rule also stipulates that senators cannot offer amendments to general appropriations bills 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 the Rules
Any senator may raise a point of order under Rule XVI against an amendment reported by the Appropriations Committee (e.g., an amendment in the nature of a substitute – the Senate version of the underlying appropriations bill) or an amendment offered on the floor by another senator if that amendment includes 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.
Defense of Germaneness
Rule XVI also provides for a point of order against non-germane amendments to general appropriations bills (in addition to its prohibition of legislative amendments). Since 1888, the Senate has permitted legislative amendments to appropriations bills if the underlying House-passed bill includes legislative language to which the amendment is germane. Consequently, any senator who offers such an amendment can protect his or her proposal from a Rule XVI point of order by asserting a defense of germaneness.
Since 1979, the Senate’s 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 in question 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 in question falls.
In short, if the underlying House bill contains legislative language germane to that offered in the Senate, senators have the opportunity to vote first on whether the amendment is germane to the House language when a senator raises a point of order.
Identifying Rule XVI Violations
It can be challenging for senators and their 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, senators and their 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.
- Notwithstanding: As in “notwithstanding any provision(s) of law.” Provisions that include this language are legislative in nature and thus violate Rule XVI.
- 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.
- “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.
- “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.”
- 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).
- Unless: Provisions that include this language usually contain a contingency. Stipulating “unless” gives administration officials discretion in the context of that contingency.
- 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.
- 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.
- In General: Usually the first two words of a full bill. What follows is almost always legislative in nature and thus violates Rule XVI.
- Are Authorized: Provisions that include this language authorize funding as opposed to appropriating it. They are legislative in nature and thus violate Rule XVI.
- Is Amended: Provisions that include this language usually contain amendments to existing statutes. Doing so is legislative in nature and thus violates Rule XVI.
- 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.)
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