Summary
On Monday, July 26, 1999, the Senate agreed to S.Res. 160, a resolution to overturn a 1995 precedent which had allowed Senators to offer legislative amendments to general appropriations bills. The Senate rejected an amendment to the resolution to also overturn another precedent which since 1996 has allowed Senate conferees to include in conference reports new subjects not contained in either chamber's original version of the bill in question. This report describes the parliamentary agreement through which these proposals were brought to the floor, and describes the parliamentary conditions surrounding the precedents in question. A final section briefly discusses related issues in light of Senate action on S.Res. 160, including procedural problems caused by Senate consideration of original appropriations bills instead of House-passed measures, the availability of the "germaneness defense" for amendments offered to Senate appropriations bills, and the possibility of additional appeals from the rulings of the chair on Rule XVI issues. This report will be updated as events warrant.
On July 26, 1999, the Senate, by a vote of 53-45, agreed to S.Res. 160, a resolution offered by Senate Majority Leader Trent Lott (R., MS). The Lott resolution overturned the so-called Hutchison precedent set in 1995 which had effectively prevented the Senate from banning legislative amendments to general appropriations bills. Earlier in the day, the Senate rejected, by a vote of 47-51, an amendment to the Lott resolution by Minority Leader Tom Daschle (D., SD) which would have also overturned a 1996 precedent (the so-called FedEx precedent) that has allowed Senate conferees to include in conference reports matter not submitted to a conference through either chamber's version of a bill.
The Lott resolution and Daschle amendment were made in order pursuant to a time agreement entered into on July 22, 1999. The agreement provided for six hours of debate, equally divided, on the Lott resolution and the Daschle amendment. S.Res. 160 was introduced and placed on the Senate calendar by unanimous consent on July 22, as well.
The Hutchison and FedEx Precedents
In principle, Senate rules set up a barrier between authorization and appropriations bills. In general, appropriations bills ought not contain provisions of a general legislative character. Senate Rule XVI (paragraphs 2 and 4) prohibits the Appropriations Committee from reporting an appropriations bill containing amendments "proposing new or general legislation" and a Senator from offering an amendment proposing "general legislation" to an appropriations bill. Paragraph 4 specifies that a Senator whose legislative amendment to a House appropriations bill is challenged may circumvent the point of order by arguing that the amendment is relevant. The chair does not rule on relevancy but, instead, submits such questions to the Senate for its decision.
On March 16, 1995, Senator Kay Bailey Hutchison (R., TX) offered an arguably legislative amendment to a supplemental appropriations bill. Senator Harry Reid (R., NV) made a point of order that the Hutchison amendment was legislation on an appropriations bill. Instead of "raising the defense of germaneness," as the practice was called, and asking the Senate to vote on whether her amendment was germane to the bill, Senator Hutchison appealed the chair's ruling that sustained the Reid point of order. By a vote of 42-57, the Senate voted not to sustain the chair's ruling, setting a precedent that the Senate would not enforce its ban against legislative amendments to general appropriations bills. (For a more comprehensive discussion of the Hutchison precedent, see Stanley Bach, "1995 Senate Decision Concerning Legislating on Appropriations Bills," CRS General Distribution Memorandum, October 16, 1996.) By adopting S.Res. 160, the Senate has directed the Senate's presiding officer once again to enforce the Senate rule permitting points of order to be raised against legislative amendments to appropriations bills, offered either by Senators from the floor or by committee amendments reported by the Appropriations Committee.
The FedEx precedent was set on October 3, 1996. Under Rule XXVIII, conferees enjoy great discretion to negotiate a compromise when one chamber has agreed to a full-text substitute for the other's bill. Rule XXVIII does declare that conferees "may not include in the (conference) report matter not committed to them by either House." In the Federal Aviation Administration reauthorization bill, conferees inserted new language amending the Railway Labor Act in a way that affected the Federal Express corporation. A Rule XXVIII point of order, if sustained, could have killed the bill because the Senate was about to adjourn sine die. Such a point of order was made and sustained by the chair. Senator Lott appealed the ruling and, by a vote of 39 to 56, the Senate overturned it. This effectively ended any limits on Senate conferees' authority to include new matter in conference reports. (See also Stanley Bach, "Recent Senate Decision Concerning Conference Reports," CRS General Distribution Memorandum, October 16, 1996.) The defeat of the Daschle amendment to S.Res. 160 means that the Senate will continue to permit Senate conferees to include new matter in conference reports.
Other Issues
By reversing the Hutchison precedent, the Senate has again banned, in principle, legislative amendments to appropriations bills. If the Senate were to consider a House-originated appropriations bill, relevant legislative amendments to appropriations bills would still be allowed under the "defense of germaneness." Changes in the form in which appropriations bills are considered on the Senate floor may affect the enforcement of Rule XVI provisions.
The Senate Appropriations Committee has begun to report original appropriations bills (that is, new Senate bills without committee-reported amendments). Senate Rule XVI prohibits only legislative amendments to appropriations bills. Since original appropriations bills are presented without amendments (but with legislative language included in the original bill), no point of order appears to lie against such mixture of authorization and appropriations language by the Appropriations Committee. Overturning the Hutchison precedent restricts Senators, but may not seemingly restrict the Appropriations Committee if it continues to report Senate appropriations bills.
Senate precedents under Rule XVI have permitted the "germaneness defense" to allow Senate legislative amendments to House-initiated legislative provisions in an appropriations bill (Riddick's Senate Procedure, p. 162). Seemingly, no Senator could use the "germaneness defense" to offer a legislative floor amendment to a legislative provision included by the Senate Appropriations Committee in an original appropriations bill. If the chair were to so rule in response to a point of order, another challenge to Senate precedents might ensue.
Some Senators spoke about this issue during debate on S.Res. 160. Senator John Chafee (R., RI) in particular urged a more comprehensive review of Rule XVI to prevent the Appropriations Committee from reporting legislative provisions either in an original bill or in the form of committee-reported amendments. (The remarks of Senator Chafee appear in Congressional Record, vol. 145, July 26, 1999 (daily edition), pp. S9206-7; the full debate on S.Res. 160 appears on pp. S. 9171-9209, with brief interruptions.)
Senator Lott's earlier proposals to overturn the Hutchison and FedEx precedents, S.Res. 4 and S.Res. 8, both introduced on January 6, 1999, were referred to the Senate Rules and Administration Committee, but they and other related proposals have not been acted upon to date.
Some have also been concerned about changing the parliamentary environment in the middle of a Congress, especially in the midst of Senate action on FY2000 appropriations bills. Part of the agreement which provided for consideration of S.Res. 160 also protected certain legislative amendments to the Agriculture Appropriations bill from Rule XVI points of order. Occasions may arise during Senate consideration of other FY2000 appropriations bills in which the reinstated procedures prove problematical for some in the Senate.