How to Find Rule XVI Violations in Minibus
Republican divisions over earmarks are presently holding up a five-bill minibus appropriations package in the Senate. Majority Leader John Thune, R-S.D., wants the Senate to take up the minibus by unanimous consent instead of using the process defined in its rules to begin debate. Conservatives are objecting to advancing the package because it includes Republican-sponsored earmarks in violation of the party’s earmark ban.
But earmarks are not the only reason conservatives are objecting. Mike Lee, R-Utah, also objects to authorization provisions in the minibus that are under the jurisdiction of the Energy and Natural Resources Committee, which he chairs. For example, the proposed minibus authorizes the Secretary of the Interior to convey 4.4 acres of National Park Service land to Virginia or the District of Columbia. The minibus also requires the Secretary of Transportation to issue final National Electric Vehicle Infrastructure Formula Program Guidance within 120 days of its enactment. And it empowers the Interior and Agriculture secretaries to waive the non-federal cost-sharing requirements for specific conservation projects and make up the difference using federal funds.
Thune wants to begin the minibus debate by unanimous consent because such authorization provisions are Senate rule violations. If the Senate instead takes up the package by moving to proceed to the Department of Defense Appropriations Act (HR 4016) and Thune offers the minibus amendment once the bill is before the Senate, Lee - or any other senator - could strike any authorization provision in the minibus without an up-or-down vote simply by raising a point of order on the floor.
Rule XVI
Senate Rule XVI bars senators from including authorization provisions (i.e., legislative language) in appropriations bills. Paragraph 2 of that rule stipulates,
“The Committee on Appropriations shall not report an appropriation bill containing amendments to such bill proposing new or general legislation or any restriction on the expenditure of the funds appropriated which proposes a limitation not authorized by law if such restriction is to take effect or cease to be effective upon the happening of a contingency, and if an appropriation bill is reported to the Senate containing amendments to such bill proposing new or general legislation or any such restriction, a point of order may be made against the bill, and if the point is sustained, the bill shall be recommitted to the Committee on Appropriations.”
A Rule XVI point of order empowers senators in floor debate. If the Senate’s presiding officer sustains the point of order against an amendment offered to an appropriations bill, the amendment is defeated without a vote. Unlike Budget Act points of order, there is no waiver mechanism in Rule XVI that allows senators to ignore the prohibition without creating a new precedent that circumvents the rule (i.e., without nuking the rule). And unlike Rule XXVIII points of order, the effect of a Rule XVI point of order is not surgical. It defeats the entire amendment - not just the targeted rule violation.
Yet despite the Senate’s prohibition on using appropriations bills to authorize (or legislate), almost every funding bill that it considers includes legislative provisions. Since 1888, the Senate has permitted legislative amendments in appropriations bills if the underlying House-passed bill also includes germane legislative language. A senator can protect targeted provisions from a Rule XVI point of order by asserting a defense of germaneness. And since 1979, the Senate’s practice has been for the presiding officer 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 presiding officer can identify language in the underlying bill to which it is arguably germane. If the presiding officer cannot identify any language that is arguably germane, the amendment falls.
But to protect the authorization provisions in the minibus amendment from a Rule XVI point of order, a senator must assert a defense of germaneness that they are germane to legislative language in the underlying House-passed defense funding bill. While there may be relevant legislative language in the defense title of the Senate’s minibus amendment, the authorization provisions in other parts of the five-bill package are still vulnerable to a Rule XVI point of order. And a point of order made against just one rule violation takes down the entire amendment, including the defense title.
Identifying Rule XVI Violations
The ability to quickly identify provisions Rule XVI violations gives rank-and-file senators leverage in negotiations with party leaders and bill managers over floor amendments. Once identified, senators can threaten to raise a point of order against a legislative provision if leaders and/or bill managers block their amendments.
However, it can be challenging for senators and staff to quickly identify legislative provisions when the Senate considers minibus and omnibus appropriations bills. In those instances, searching the legislation for the words below is a helpful shortcut. Once identified, senators and staff can better determine if the provision in question is legislative in nature. If it is, it gives senators a source of leverage or a potential hook (i.e., a defense of germaneness) for their own legislative amendment.
Notwithstanding: As in “notwithstanding any provision(s) of law.” Provisions that include this language are legislative in nature and thus violate Rule XVI.
Until: As in funding for a specific program in the underlying bill is made available “until expended.” Provisions that include this language are legislative in nature and thus violate Rule XVI.
“Provided,”: This is not always a Rule XVI violation. Adding quotations and a comma to the search query should better isolate legislative provisions that include prohibited uses of the term. They are set in italics in the bill text
“Provided Further,”: Same stipulation as above. Provisions that include this language are more likely to be a Rule XVI violation due to the additional proviso signified by “further.”
Secretary: Provisions that include this language usually contain a contingency (which is legislative in nature). They may also direct the Secretary (or Administrator, Attorney General, etc.) to take a specific action (also legislative in nature).
Unless: Provisions that include this language usually contain a contingency. Unless it grants administration officials discretion in that context.
Or any other: Provisions that include this language usually contain a funding rider, as in “none of the funds made available in this act or any other Act.” Limiting funds made available by Congress in other acts is a legislative act. Provisions that do so thus violate Rule XVI.
Determines: Used in the context of a contingency. That is, provisions that include this language usually restrict the availability of funding until a determination of some kind is made.
In General: Usually the first two words of a full bill. What follows is almost always legislative in nature and thus violates Rule XVI.
Are Authorized: Provisions that include this language authorize funding as opposed to appropriating it. They are legislative in nature and thus violate Rule XVI.
Is Amended: Provisions that include this language usually contain amendments to existing statutes. Doing so is legislative in nature and thus violates Rule XVI.
Report Accompanying: Provisions that include this language usually incorporate, by reference, language contained in the Committee report. It is not always legislative in nature. (Note: This language was used to incorporate earmark tables into appropriations bills before senators ended the practice.)