December 20, 2019

Rule XVI and Appropriations


KEY TAKEAWAYS

  • Senate Standing Rule XVI governs the contents of amendments to appropriations bills.
  • Chief among the restrictions include a requirement that all amendments be germane, as well as prohibitions against contingent funding limitations and general legislation, e.g., authorizing language.
  • If the underlying House text violates the prohibition on general legislation, however, a 1979 precedent allows the Senate to respond with a germane modification.

Rule XVI of the Standing Rules of the Senate governs the content of amendments to appropriations bills. The rule contains multiple points of order, but Senate staff are most likely to encounter the following:

  1. Amendments must be germane to the subject matter contained in the underlying appropriations bill (paragraph 4); 

  2. Appropriations measures cannot propose amendments containing general legislation (paragraphs 2 and 4); and

  3. Funding limitations cannot be contingent upon something else (paragraphs 2 and 4).

The restriction on germaneness applies only to amendments offered from the floor, but the others apply to floor and committee amendments.

Amendments Must be Germane

“Germane” is a Senate term used to describe the degree to which a matter is related to the underlying measure. It is a strict, text-based test and is evaluated on a case-by-case basis using amendment-specific facts, circumstances, and arguments. Accordingly, an amendment that was germane in a prior instance may not be germane today. A nongermane amendment often has one or more of the following characteristics:

  • Introduces new subject matter;

  • Expands the powers, authorities, or constraints proposed in the underlying measure;

  • Amends existing law or another measure, other than the one before the Senate;

  • Implicates another class of people not otherwise covered by the underlying text;

  • Expands to include other administrative entities;

  • Falls under the jurisdiction of a committee other than the one that reported the underlying measure; and

  • Is not foreseeable, i.e., it is not a topic the Senate would expect to debate given the underlying legislation. For example, appropriations for surface transportation on a Labor-HHS bill.

Questions of germaneness under Rule XVI are not decided by the presiding officer, they are submitted to the Senate without debate. For example, if a senator raises a point of order that a pending first-degree amendment to a Senate substitute is not germane, the presiding officer will respond, “The question is: is the first-degree amendment germane to the Senate substitute?” and the Senate will proceed to vote. The affirmative vote of a simple majority of senators is needed to prevail.

Although germaneness can be decided by a vote of the Senate under Rule XVI, the parliamentarian routinely renders advice to members and staff on whether language is considered germane. Senators have exhibited caution in pushing the boundaries of germaneness after a 1995 incident in which the Senate inadvertently – and temporarily – supplanted Rule XVI and was forced to reverse itself. It is highly recommended that staff consult with the parliamentarian and her staff in advance of any debate on germaneness requirements. 

General Legislation and the Defense of Germaneness

The Senate Appropriations Committee cannot report – and individual senators cannot propose – amendments that contain general legislation on an appropriations bill. Language most likely to run afoul of this restriction includes:

  • Text that suspends existing laws or regulations;

  • Text that authorizes or mandates that an agency assume new activities, duties, or responsibilities;

  • Language that modifies, amends, or repeals existing law; and

  • Language that makes funds available beyond the fiscal year unless already authorized for advance appropriations in law.

If the underlying House text violates the prohibition on general legislation, however, a 1979 precedent allows the Senate to respond with a germane modification. This is called “the defense of germaneness” or DOG. Unlike germaneness post-cloture, the standard for defense of germaneness is very low. The articulated standard is “any provision that is arguably legislative to which the amendment is conceivably germane.”

A defense of germaneness argument under Rule XVI proceeds the same way as under Rule XXII (cloture) except that only the underlying House text is used as the basis. Staff must provide the Senate parliamentarian with the specific page and line numbers of the relevant texts in the Senate and House measures, an explanation of the provisions, and a connection between the two.

When the defense of germaneness is invoked, the presiding officer, with guidance from the parliamentarian, will make the threshold determination of whether there is House text that is legislative to which the amendment in question could be “conceivably germane” based on the information submitted by staff. If the presiding officer concludes the threshold test has not been met, the amendment falls (unless the senator prevails on an appeal). If the amendment is found to have a seemingly valid claim of defense of germaneness, the question of germaneness is immediately submitted to the Senate without debate. The presiding officer will say, “The question is: is the section germane to the language in the underlying House bill?” and the Senate will vote. An affirmative vote of a simple majority of senators present and voting is required to prevail. 

A senator does not need to wait for a Rule XVI point of order before asserting the defense of germaneness. The argument can be made pre-emptively by saying, “Mr. President, I call up my amendment and assert the defense of germaneness.”

The type of spending in a bill or amendment, whether it is direct or mandatory, is irrelevant for purposes of defense of germaneness. For example, a provision in a House appropriations bill that expands the mandatory portion of Pell grant spending does not automatically open the door to a Senate amendment expanding Medicare.

Continuing resolutions are considered appropriations bills. Rule XVI applies, but the parliamentarian automatically assumes the defense of germaneness exists for amendments to full, 12-bill CRs because of the breadth of subject matter encompassed by the underlying House measure, including all the general legislation often packed into them. The same does not hold for partial CRs, however, since fewer federal agencies are affected.

Matters included by reference in a House appropriations bill can be used as a hook for defense of germaneness because the Senate parliamentarian will “look through” to the underlying language. Nonbinding language in the underlying House text (e.g., findings, “whereas” clauses, Sense of Congress) is not an acceptable basis for the defense of germaneness. This type of language is not legislative in nature, so it is missing one of the required elements of a defense of germaneness.

Questions of germaneness concerning Sense of the Senate or Sense of Congress amendments offered from the floor are a special case. By precedent, they are decided by the presiding officer with guidance from the parliamentarian; the Senate does not vote. They are also subject to the higher germaneness threshold rather than the lower defense of germaneness test.

Case study: Successful Defense of Germaneness

During consideration of the Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 (H.R.1591, 110th Congress), a senator raised a Rule XVI point of order against legislative language in section 431 of the Senate substitute, amendment 641. The defense of germaneness was asserted. By a vote of 57-41, the Senate determined that the offending language was germane to the underlying House-passed text and the point of order fell. The highlighted text shows the text foundation for the “conceivably germane” argument for the defense of germaneness threshold test.

Rule XVI

Prohibition Against Contingent Funding Limitations

Funding limitations specify conditions under which certain funds can or cannot be spent. Rule XVI does not prohibit all funding limitations, just those that are conditioned on an outside event. Federal officials cannot be asked to make discretionary judgements or determinations as preconditions for accessing an agency’s funds. Contingent language – language that uses “if” or “until” – typically violates the rule unless there’s an affirmative defense.

In addition, funding limitations cannot reach beyond the pending appropriations bill in restricting the use of funds – they cannot go outside the immediate bill to affect other laws. For example, a restriction stating “no funds appropriated by the Act or any other Act ...” would be vulnerable to a point of order.

The table below provides examples of acceptable and unacceptable funding limitations. The Iraq reconstruction amendment violates Rule XVI in two ways: it reaches beyond the dollars provided in the underlying appropriations act (“any other provision of law”) and it makes the funding limitation contingent upon the president’s certification.

Rule XVI 

Floor Procedures

Most points of order in the Senate are not self-enforcing; a member must stand, be recognized, and state the point of order. A point of order may be raised against the bill as a whole if the Appropriations Committee violates Rule XVI, and if sustained, the bill is returned to the committee. A point of order also can be directed at the committee amendment, e.g., a complete substitute, or an individual senator’s amendment. In these cases, if the point of order is sustained the amendment falls, but the underlying bill (the House-passed measure) will remain pending. Unlike budget points of order, Rule XVI violations cannot be waived, except by the terms of a unanimous consent agreement.

Although Rule XVI prohibits the authorization of new or expiring programs in appropriations measures – under the restriction against general legislation – it is acceptable to appropriate funds for programs that are unauthorized and to appropriate funds in excess of authorized levels.

Staff seeking additional information on Rule XVI and the appropriations process are encouraged to contact the parliamentarian’s office. Staff also may find “Riddick’s Senate Procedure” to be useful.

Issue Tag: Senate