Senators Give Parliamentarian Power to Make New Rules

According to a recent report, Republicans in the Senate believe that the parliamentarian will not allow them to offer non-germane amendments to a House-passed resolution terminating President Trump’s emergency declaration. Majority Whip John Thune, R-SD., acknowledged “They’re applying a pretty tight filter…There are a few amendments that could meet the germaneness test, but there are [others] that don’t do it.” Rand Paul, R-Ky., observed “It’s almost impossible to write a germane amendment under whatever their germane rules are. So I don’t think they’re going to allow any amendments.”

Yet there is no germaneness requirement in the National Emergencies Act, the Senate’s Standing Rules, or its precedents that applies to this situation. The parliamentarian’s role is to advise senators on how the legislative procedures contained in the National Emergencies Act, the Senate’s Standing Rules, and its precedents apply to the current situation. She is not authorized to create a new germaneness requirement that has not been approved by the full Senate. Consequently, non-germane amendments are allowed until the Senate says otherwise.

Technically, the parliamentarian is not even authorized to decide what “germane” means even in situations where the Senate does require that amendments be germane. For example, Senate rules XVI and XXII both require that amendments be germane in certain limited instances. Rule XXII bars non-germane amendments after the Senate has invoked cloture on a bill. Rule XVI similarly prohibits senators from offering non-germane amendments to appropriations bills.

But neither rule defines the term “germane.”

“On a point of order made by any Senator, no amendment offered by any other Senator which proposes general legislation shall be received to any general appropriation bill, nor shall any amendment not germane or relevant to the subject matter contained in the bill be received; nor shall any amendment to any item or clause of such bill be received which does not directly relate thereto; nor shall any restriction on the expenditure of the funds appropriated which proposes a limitation not authorized by law be received if such restriction is to take effect or cease to be effective upon the happening of a contingency; and all questions of relevancy of amendments under this rule, when raised, shall be submitted to the Senate and be decided without debate; and any such amendment or restriction to a general appropriation bill may be laid on the table without prejudice to the bill.”

-Rule XVI

“No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.”

-Rule XXII

The germaneness standards consulted by the parliamentarian to determine whether amendments are in compliance with Rule XVI and Rule XXII are based on the Senate’s past decisions. That is, they are defined by precedent. And precedents are created only when senators act on the Senate floor.

Given that the Senate has never before considered a resolution under the expedited procedures created by the National Emergencies Act, there are no precedents for the parliamentarian to consult even if the statute required that amendments be germane (it doesn’t). By allowing the parliamentarian to prohibit non-germane amendments in this situation, senators are essentially delegating to her the authority to make new rules.