Congress returns to work this week with just eight weeks to go before its extra-long summer break, thanks to the parties’ earlier-than-normal presidential nominating conventions. High on the list of issues demanding its attention—in addition to dealing the Puerto Rican debt crisis and an emergency spending package to address a potential Zika outbreak—is completing action on funding measures to keep the government running past October 1.
Much has been made of how both the House and Senate are trying to jump-start the appropriations process by using largely unprecedented, but certainly permissible, maneuvers. The House appears poised to take advantage of a provision in the 1974 Congressional Budget Act that permits it to consider appropriations measures after May 15 even if a budget resolution has not been adopted, a task with which the chamber has struggled so far this year. Difficulty agreeing on a budget resolution, especially across both houses, is nothing new. Congress’s usual response to this challenge is to use a backstop procedure, known as a deeming resolution, to accomplish many of the budget resolution’s functions. Speaker Paul Ryan (R-WI) has indicated he does not plan to use that approach this year, likely because doing so would require relying on Democratic votes for passage.
The Senate’s unusual move, meanwhile, involves taking leftover appropriations measures from last year and using them as “shells.” While taking one piece of legislation and replacing all of its text with different language is not an uncommon way for the Senate to circumvent certain procedural constraints, this appears to be the first time the upper chamber has used unfinished spending bills from the previous session to get the process moving. (Congress has previously used leftover measures from a prior year as vehicles for temporary, continuing resolutions, such as when the incomplete State/Foreign Operations bill from 2009 was used as the base legislation for a spending bill that kept the government running through the 2010 elections.)
Getting the process moving isn’t the only obstacle both chambers are likely to face, however. With floor consideration comes a much more familiar foe: amendments. In the House, unlike most other measures, appropriations bills are still reliably open to amendment on the floor. Since 1995, 77 percent of the regular appropriations bills have been considered under some type of open amending process. During the current Congress, moreover, the only measures considered under any kind of open rule in the House have been appropriations bills. When appropriations bills come to the floor under open rules, the Rules Committee loses its ability to dictate which amendments are permitted to be offered and thus prevent votes on potentially divisive issues. Last summer, for example, the appropriations process ground to a halt thanks in part to a controversy over amendments involving the Confederate flag. An open amendment process meant Democrats were able to offer two amendments restricting the display of flag imagery in national parks, to which Republicans responded with their own amendment relaxing those prohibitions. Rather than expose divisions within the party, Republican leaders pulled the measure from the floor.
If Speaker Ryan and his fellow leaders are skittish about a repeat performance this year, one option would be to use the Rules Committee to restrict Democrats’ ability to offer amendments, but continue to allow Republicans to propose them freely. Recent experiences with a more open amending process, however, suggest that rank-and-file Republicans also propose amendments that the leadership, for one reason or another, wishes to keep off the floor. During consideration of last fall’s highway bill, the Rules Committee made in order only half of the amendments submitted by Republican members. The success rate on amendments for members of the House Freedom Caucus—which has continued to irritate the House leadership by waging opposition to the budget resolution—was even lower, at roughly 36 percent. Limiting amendment opportunities among co-partisan Republicans on appropriations, especially those who care most about a “return to regular order,” might prove politically problematic.
Even if Speaker Ryan and the Rules Committee find a way to structure floor consideration in a way that balances members’ desires to offer amendments with the leaders’ goals of keeping divisive issues off the floor, amendments present a second challenge in the House: time. Considering amendments on the floor takes time, and there is some evidence that members of the majority party are seeking more opportunities to amend appropriations bills now than in the past. Forthcoming research by Michael Lynch, Anthony Madonna, and Jason Roberts suggests that, thanks to the use of restrictive rules for considering other measures in the House, there is pent-up demand for amending opportunities, and majority party members may be acting on those impulses during the less restrictive amending environment that appropriations measures allow.
By way of illustration, let us compare two years with similar institutional environments: 2007 and 2015. In 2007, the first year of unified Democratic congressional control under a Republican president, eleven appropriations bills were brought to the floor in the House under open rules. They attracted 463 amendments, or an average of 39 per bill. Of these, 101, or 22 percent, came from the majority party. In 2015, the first year of unified Republican congressional control with a Democratic president, the six appropriations measures considered under open rules attracted 453 amendments, or approximately 76 per bill. Of these, 258, or 57 percent, were offered by members of the majority. In other words, the demand for amending opportunities by majority party members roughly doubled in that eight year period. Moving as many appropriations bills as possible through the House under “regular order,” then, may also require convincing some majority party Republicans to offer fewer amendments.
In the Senate, meanwhile, the challenge also comes from the demand side of the equation. The Senate lacks a parallel institution to the House Rules Committee, and decisions about which amendments will receive floor consideration are often made as part of negotiations between the majority and minority party leadership in which the minority party threatens to engage in obstruction unless their demands are met. In the context of appropriations bills, research by Peter Hanson demonstrates that the number of amendments offered in the Senate has fallen dramatically over time, in large part because the majority party leadership increasingly relies on omnibus spending bills that combine multiple individual measures. If senators expect to consider few appropriations measures—or, frankly, few pieces of legislation at all—the incentive of those offering amendments to stick to their guns and demand votes on their proposals increases. This may be especially true this year, since senators lost one of their usual opportunities to offer messaging amendments—the so-called vote-a-rama—when the Senate opted not to consider a budget resolution. We have already seen one example of this with an amendment from Senator Tom Cotton (R-AR) involving Iran on the pending Energy and Water appropriations bill and there’s little reason to believe senators would not try similar tactics on future measures.
To date, much of the attention paid to this year’s version of dysfunction in the budget process has focused on the House’s intra-party conflict over the total size of the pie to be divided up by individual spending bills. Even with that fight pushed to the side, however, battles over the details remain. If Congress ends up with an omnibus or continuing resolution later this year, it will be as much because of familiar fights as new ones.