How Leaders Prevent Senators From Acting

A draft unanimous consent request recently floated by Senate Majority Leader Mitch McConnell, R-Ky., offers a window into the institution's internal dynamics and illuminates how its leaders try to prevent members from using their leverage to participate in the legislative process. 

Earlier this morning, the Republican cloakroom notified senators that McConnell “plans to move two packages of Appropriations bills across the floor in the next several weeks.  In order to satisfy the provisions of Rule 16, consent will be required on defense of germaneness.”

According to the hotline, the leadership would like to begin debate on the House-passed minibus bill (HR 6147) covering the Department of the Interior and Environmental Protection Agency (Interior) and the departments and agencies funded in the Financial Services and General Government appropriations bill (FSGG). As soon as the Senate begins debate on HR 6147, McConnell and Minority Leader Chuck Schumer, D-NY., plan to offer a substitute amendment to it that includes the Senate versions of Interior and FSGG as well as the Transportation, Housing, and Urban Development (THUD) and Agriculture (Ag) appropriations bills approved by the Senate Appropriations Committee. At that point, the Senate would be debating four appropriations bills: Interior, FSGG, THUD, Ag.

While the minibus strategy has been known for some time, the hotline is interesting because it provides a clear example of the leverage senators have to offer amendments and the ways in which leaders try to prevent them from using it. For example, the hotline asserts that “in order to consider all of these bills on H.R. 6147, the managers would enter a unanimous consent agreement that for the purpose of Rule 16, the corresponding divisions of H.R. 6147 (for Interior and FSGG) and the House-reported THUD and Ag bills H.R. 3353 and H.R. 3268 would be considered underlying text for the purpose of defense of germaneness.” It concludes by alerting senators to the fact that McConnell “intends to turn to the Defense appropriations bill and add the Senate-reported Labor/HHS title later this summer.” And as with HR 6147, the hotline claims that “a [unanimous] consent [agreement] to comply with Rule 16 will be necessary to make the combined substitute in order.”

But the hotline is misleading because it uses language like “in order to satisfy the provisions of Rule 16, consent will be required on defense of germaneness” and “a consent to comply with Rule 16 will be necessary to make the combined substitute in order.” Unanimous consent is not required. This is because the Senate’s rules are not self-enforcing. That is, a member must raise a point of order to ensure that the Senate complies with them. In this instance, if a senator does not raise a Rule XVI point of order against the THUD and Ag divisions in the substitute, nothing happens. Similarly, a defense of germaneness is only needed to protect legislative language in the THUD and Ag divisions if a senator raises a point of order.

Rule XVI of the Standing Rules of the Senate provides for a point of order against non-germane amendments to general appropriations bills (i.e. the minibus bill), as well as legislative amendments (i.e. amendments not strictly limited to spending money). 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 Chair 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 Chair can identify language in the underlying bill to which it is arguably germane. If the Chair cannot identify any language that is arguably germane, the amendment falls.

There are two reasons why McConnell would like unanimous consent to proceed as indicated. First, THUD and Ag are not germane to the House-passed minibus given that it includes only Interior and FSGG. Consequently, McConnell’s substitute amendment (Interior, FSGG, THUD, and Ag) would be subject to a Rule XVI point of order that it isn’t germane to the underlying bill. Second, McConnell’s substitute amendment would also be subject to a point of order absent unanimous consent because it includes legislative language in THUD and Ag that does not have a defense of germaneness. That’s why McConnell would like to waive the provisions in Rule XVI that preclude THUD and Ag from being offered to House-passed legislation. And he would like to create a defense of germaneness against a Rule XVI point of order for the THUD and Ag divisions in his substitute amendment by getting the full Senate to agree in advance to pretend that the House versions of those bills are included in the underlying legislation.

Contrary to what the hotline asserts, the Senate can proceed with McConnell’s minibus strategy without unanimous consent. And doing so gives rank-and-file senators leverage to ensure that they are treated fairly in the amendment process. That is, senators can threaten to raise the Rule XVI point of order in the absence of unanimous consent if McConnell (or any other senator for that matter) tries to block them from offering amendments to the expanded minibus bill. Such threats would be taken seriously because Rule XVI points of order can’t be waived and, if sustained, would bring down the entire substitute amendment. 

Consequently, rank-and-file senators would giving up valuable leverage to participate in the legislative process by granting their consent to proceeding as McConnell would like. That is why McConnell creates the impression that the minibus strategy can’t work without unanimous consent. Senators will be more likely to place themselves in a disadvantageous position vis-à-vis their leadership if they think that doing so is necessary to fund the government.

In sum, today’s hotline is more consequential for senators’ ability to participate in the legislative process than it is for the minibus strategy to proceed.