House Members Have Ways To Pass Amendments

Many doubters assume that House members cannot legislate, especially not from the House floor. Within the House, the doubters would say, legislation offered in the form of floor amendments are not in order unless they are germane. Germaneness is a tight limit on floor amendments. House leaders would say that in order to move bills along, they cannot waive germaneness too much.

Moreover, the Rules Committee may look askance at potential amendments and adopt floor directions (“special rules) that do not make those amendments in order. Finally, what good does it do to adopt House legislation when it will only die in the Senate?

There are about a half-dozen answers to this.

Assume that the offerors of the legislative amendments are the twenty Representatives, mostly members of the House Freedom Caucus (“Freedom Caucusers”). If it gets on the floor, 218 Republicans would vote for it, but some would rather it not get considered on the floor; it is a vote that would hurt them politically with the independent voters in their district.

The Caucus made deals, some open, some secret, to make their legislative amendments more in order. One deal seems to be to bend the will of the Rules Committee. At least one member sympathizing with the Freedom Caucus was put on the Rules Committee. That Member could seek to persuade the other Republicans on the Rules Committee to waive germaneness.

Having this Member there is as much symbolic as concrete. The presence of the Freedom Caucuser is enough to make visible that there could be another fight over the Speakership of Kevin Alexander if the Rules Committee tries to get too restrictive on amendments.

Moreover, if the visible hold-up is one recalcitrant committee chair, who is the Member of the House Republicans bold enough and maybe insightful enough to fight the legislative provision openly, that can be handled elaborately or crudely. Elaborately, get a majority of votes on a discharge petition and get the bill out of committee to the floor that way. (Another version of the same device is to discharge a special rule from the Rules Committee that brings the bill onto the floor.) Crudely, just have the House Republican Caucus take the chair away from the bold hold-out and put someone in the chair who will cooperate.

Still, even if the provision is adopted on the House floor, what gets it to the Senate?

The one vehicle that the Senate must consider from the House is an appropriation. (Technically, the Senate cannot even consider an appropriation until after the House acts. In reality, the Senate takes Senate appropriation bills toward final passage and then pauses for the companion House bill.)

In general, the House rules bar legislating on an appropriation.

But there a number of exceptions.

First, if the Caucuser can persuade the Appropriations Committee to include the legislation, it only needs a special rule from the Rules Committee to waive the rule against legislation on an appropriation bill. For the same reasons discussed above, the Rules Committee may bend to the Republican Party’s wishes.

Second, the Caucuser can skip the Appropriations Committee and offer their legislative provision from the floor. Again, this needs a special rule from the Rules Committee to waive the rule against legislative amendments on an appropriations bill.

Third, there is the Holman Rule, considered a way to wipe out programs or agencies. As Richard Loeb, Senior Policy Counsel at the American Federation of Government Employees put it, “Use of Holman is a recipe for program elimination. The point of Holman is not economy. It is designed to instill fear of agency dismantling and loss of jobs.”

Fourth, the amendment can be put in the form of a prohibition on spending. This type of provision, a “limitation” provision, is good only for the life of the appropriation, a year or less. But some of these provisions have been very powerful. For example, the Hyde Amendment says, approximately, that none of the funds in the bill shall be spent for Medicaid abortions, except for rape, incest, or the life of the woman. It has continued from the 1970s. For every regulation abhorred by Caucusers, there could be a “limitation” amendment not to spend on its enforcement.

In short, all roads can lead to the House floor.