Why the Senate Needs Unanimous Consent to Advance Minibus

Negotiations over advancing a five-bill minibus appropriations bill in the Senate remain at an impasse due to conservative opposition. Majority Leader John Thune, R-S.D., wants senators to begin debate on the measure by waiving the Senate’s rules by unanimous consent. But Mike Lee, R-Utah, Ron Johnson, R-Wis., and Rick Scott, R-Fla., are objecting because the assembled package includes Republican-sponsored earmarks in violation of the party’s conference rules. And Republicans on the Appropriations Committee oppose removing them from the legislation.

But the Senate can begin the minibus debate without waiving its rules. However, doing so gives senators leverage in negotiations over which amendments they can offer to the legislation during that debate. And proceeding under the Senate’s rules doesn’t guarantee that the contested earmark provisions remain in the minibus.

Why Thune Wants to Unanimous Consent

Senators can’t vote on the minibus until it is pending before the Senate. To assemble the five-bill package under the Senate rules, senators must first vote to proceed (i.e., to begin debate) to the House-passed Department of Defense Appropriations Act (HR 4016), which is presently pending on the Senate calendar. Once HR 4016 is pending before the Senate, Thune (or any other senator) must then offer an amendment to it that includes the four remaining bills constituting the minibus - Commerce, Justice, Science; Interior and Environment; Labor, Health and Human Services, and Education; and Transportation, Housing and Urban Development (as well as the Senate’s version of the defense funding bill).

The problem is that the minibus amendment violates the Senate’s rules. Specifically, Rule XVI stipulates that floor amendments to general appropriations bills must be germane (i.e., related to a provision in the underlying bill). Consequently, the Senate cannot assemble its five-bill minibus package on the floor without violating its rules. If the Senate began debate without waiving Rule XVI, any senator could raise a point of order once Thune offers the minibus amendment. And if the presiding officer sustained the point of order, the amendment would be defeated without an up-or-down vote, and the Senate could not use the defense funding bill as the legislative vehicle to advance the minibus. 

Yet the Senate’s rules aren’t self-enforcing. Senators enforce Rule XVI by raising a point of order against non-germane floor amendments. And senators do not always raise a point of order against rule violations. Thune doesn’t appear to be willing to risk a senator raising a point of order against the minibus amendment he wants the Senate to pass.

But guaranteeing that the minibus advances isn’t the only advantage Thune gains from the Senate agreeing to waive Rule XVI by unanimous consent. He also doesn’t want to put the Senate in a procedural posture that he can’t control.

Beginning debate on the minibus without waiving Rule XVI gives senators leverage in negotiations over which amendments they can offer to the minibus. Proceeding under the rules empowers all senators to raise a point of order against the minibus amendment if Thune - or any other senator - objects to an amendment they want to offer. In that situation, a senator’s threat to do so would be credible because the Senate can’t waive Rule XVI points of order and, if sustained, would defeat the minibus package without a vote.

The Takeaway

Conservatives aren’t the only reason why the Senate isn’t advancing the minibus. The Senate can begin debate on the defense funding bill under its rules, and Thune can offer the minibus amendment to it. But starting debate without waiving the Senate’s rules gives all senators - not just conservatives - leverage to demand votes on their amendments. And Thune doesn’t want to risk an open amendment process without a guarantee that the Senate advances the minibus in the end.