The Senate Minibus, Unanimous Consent, and Rule XVI Points of Order

The Senate voted 91 to 7 to begin debate on the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act (MilCon-VA; HR 4366). Senators intend to use HR 4366 as the legislative vehicle for their own MilCon-VA spending bill, the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, and the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act. And Majority Leader Chuck Schumer, D-N.Y., offered a minibus spending package including all three appropriations bills as an amendment (S. Amendment 1092) to HR 4366 on behalf of Appropriations Committee Chair Patty Murray, D-Wash., after the Senate voted to proceed to it.

But Murray’s amendment violates Senate Rule XVI because it includes provisions not germane (or relevant) to the underlying House-passed bill. S. Amendment 1092 is, therefore, subject to a point of order. And that point of order - if not overruled by the presiding officer or the full Senate - would throw out the Murray amendment and, in the process, temporarily thwart senators' minibus plan.

Unanimous Consent

Murray subsequently tried to dilute the impact of a Rule XVI point of order on her amendment by asking unanimous consent that "it be considered an Appropriations Committee amendment for purposes of Rule XVI."

The Senate parliamentarian reportedly advised that such language, if agreed to, would make Rule XVI points of order against S. Amendment 1092 surgical instead of global. In other words, a point of order against S. Amendment 1092 under Murray's proposed consent agreement would only throw out the specific provision it targeted. It would not throw out the entire minibus spending bill.

Ron Johnson, R-Wis., objected to Murray’s unanimous consent request.

Surgical Points of Order

Notwithstanding Johnson's objection or the parliamentarian's counsel, non-germane committee amendments to appropriations bills are subject to a Rule XVI point of order. The Senate's rules and practices do not stipulate that a point of order against a committee amendment is surgical and a point of order against a floor amendment is not.

Senate precedents stipulate, “A point of order cannot be made against an a portion of an amendment, but must be made against the entire amendment.” And the Senate was explicit in the limited instances in which it created a surgical point of order. For example, surgical Byrd Rule points of order are specifically designated as such. The Congressional Budget Act stipulates that “upon a point of order being made by any Senator against material extraneous to the instructions to a committee which is contained in any title or provision of the bill or resolution or offered as an amendment to the bill or resolution, and the point of order is sustained by the Chair, any part of said title or provision that contains material extraneous to the instructions to said Committee as defined in subsection (b) shall be deemed stricken from the bill and may not be offered as an amendment from the floor.”

The Takeaway

The Senate minibus amendment violates Rule XVI and is therefore subject to a point of order. Absent unanimous consent, that point of order would throw out the entire amendment, not just the provision(s) it targeted. Consequently, Murray's failed consent request would not have diluted the impact of a Rule XVI point of order on the minibus.