The 2015 appropriations season is underway. Appropriations subcommittees have a little more swagger this year due to last year’s budget agreement. More bills will be reported, more bills will be considered on the floor and perhaps a few even will be sent to the President for signature. In addition to creating the possibility of new funding, the passage of individual bills—either separately or packaged—provides the opportunity for the attachment of new strings such as restrictions, limitations and statutory guidance.
Recent press stories have outlined how members from both parties are preparing to attach policy riders to the appropriations bills.
In many ways, this is a return to “regular order” for which many, especially Appropriators, have been longing.
The rules of the House and Senate prohibit the inclusion of legislation in appropriations bills. But that hasn’t stopped this from occurring throughout much of Congress’ history, which requires either a waiver or non-enforcement of House or Senate rules. Last year’s appropriation bill saw a host of policy riders ranging from anti-abortion language to EPA regulations and fights are already brewing over potentially controversial riders being attached to bills this year.
There are three main opportunities for members and senators to attach policy riders during the appropriations process—during committee consideration, while the bill is being amended on the Floor and while different versions of the bill are being reconciled—either in a conference committee or as amendments between the Houses.
At each stage, there are rules that members and senators from offering policy riders. In the House, if the chair of the relevant authorizing committee agrees and if the rider is not politically charged, waivers of applicable points of order often go by unnoticed. The same can’t be said of controversial provisions.
While it may be possible to draft a controversial rider that doesn’t violate the rules of the House, more often than not, the Rules Committee must grant a waiver to the underlying provision of the bill or amendment.
On initial consideration in the House, if the chair of the authorizing committee opposes a provision in a bill or amendment, or if there is significant opposition to the amendment, the path to getting the policy rider considered by the House is much more difficult.
This holds even if the bill is being considered under an “open rule.” In theory, appropriations bills do not need a rule since they are privileged. The procedure for amendments is found in the standing rules of the House. For example, if a policy rider imposes a duty on a federal official, its consideration could be blocked by the objection of any member. The same holds true for an amendment that contains legislation, causes budget allocations to be breached, or appropriates money for an unauthorized program. That is why most amendments that address policy often run afoul of the standing rules of the House and are never successfully offered. Typically, the House Rules Committee is asked to allow the offering of such amendments through the issuance of a waiver of the standing rules. That is one reason why special rules are granted to appropriations bills.
Even if a limitation is properly framed and doesn’t violate any House Rules, it still needs to pass muster with the Majority Leader who is authorized to offer a motion that can cut off consideration of the provision.
Contrary to common misconception, there are fairly rigid rules in the Senate that restrict the offering of amendments on its Floor. Senate Rule XVI requires that all amendments to appropriations bills must be germane, although rarely enforced except when cloture is invoked. Legislative provisions are not in order except limitations and no limitation can be tied to a contingency. Under the “defense of germaneness” principle, however, it is in order to offer an amendment containing legislation to a House-passed provision that is arguably related in nature.
Often the most fruitful time for policy riders to make their appearance is when the competing versions of the bill are being reconciled. It is during the consideration of a conference report or amendments between the Houses that an “all or nothing” mentality is most prevalent and Members and Senators are more willing to accept a noxious policy rider if the alternative is seeing the entire appropriations bill fail.
Spulak and Crawford are members of King & Spalding’s Government Advocacy and Public Policy group. Each has served as staff director of the House Rules Committee.