The Senate is considering Senate Joint Resolution 54, under the expedited procedures in 50 USC 1546(a) (the War Powers Act). The statute provides for a fully open amendment process with no limitations. Which would mean that, according to the statute, the Senate can pass literally any amendment (build the wall, Repeal Obamacare, defund Planned Parenthood, tax cuts … anything) with 51 votes. Those amendments become part of the bill which cannot be filibustered. The process would be like budget reconciliation, except with no “Byrd Rule” limiting the subject matter of the bill.
Senate Majority leader Mitch McConnell took to the floor to observe that the ability for the Senate to pass these kinds of unrelated amendments with 51 votes would be a problem. He asked the Parliamentarian to confirm that, in fact, the rules allow unrelated amendments (such as Obamacare repeal, or Trump’s border wall) to be passed with 51 GOP votes. When the Chair confirmed this fact, McConnell yielded to Sen. Bob Corker, who made a motion that a germaneness requirement be instituted to bar such amendments. The Senate voted 96 to 3 with all Democrats plus most Republicans voting to prohibit these amendments. Only Senators Cruz, Lee, and Paul voted against the gag rule. At the bottom of this post is a verbatim transcript of the floor proceedings. The video is here.
It is noteworthy that the Senate did not eliminate any ability to consider amendments. Even with the new limitations, the War Powers procedures still permit unlimited amendments — with 51 votes required to pass each amendment. This process is called vote-a-rama, and is similar to the Budget Resolution and Reconciliation procedures. Senators can offer as many amendments and can continue to do so until they give up from exhaustion. The only change that was made by the McConnell-Corker procedure is that the amendments cannot be “nongermane” (repeal Obamacare, build the wall, defund Planned Parenthood, cut taxes, etc.).
The amendments simply must be germane to the underlying resolution. While this may seem like a significant handcuff, it can actually be quite broad when the Senate employs a tactic known as “creeping germaneness.” Creeping germaneness is when the germaneness standard of a bill evolves as new amendments are added to it. In other words, every time an amendment is adopted, a new germaneness standard would apply. Like the game “Six Degrees of Kevin Bacon” we could see a scenario where Senators could make a war powers resolution germane to virtually any policy through a gradual step-by-step process of adopting one germane amendment after another.
An illustrative analogy can be found on the ornate walls just outside the Senate chamber. The walls were adorned with beautiful frescoes by Constantino Brumidi in the 1860s. Due to the heavy use of tobacco and oil lamps in the building at the time, the walls would discolor. Occasionally, artists would be brought in to “restore” them, only instead of cleaning the frescoes, they would apply a fresh coat of paint over the top. The artists would attempt to match the color, but the color having been darkened due to environmental damage and previous overpainting. With every generation, as a fresh coat of overpaint was applied, the color would be matched — not to the original Brumidi design, which could no longer be seen — but to the most recent coat of paint. Modern restoration has exposed the original Brumidi work, but more interesting for this analysis, we can also see the colors of each layer of overpaint, which clearly demonstrates how the building ended up with the awful colors that were on the walls in the late 20th century. In the image below, you can see how with 150 years and six layers of overpaint, a nice white background had become a drab brownish orange. Each layer of overpaint is numbered with 6 being the first layer and 1 being the last.
Each layer of paint was “germane” to the previous layer, even if it looked nothing like the underlying Brumidi masterpiece which the artist had never seen. Creeping germaneness in legislation works the same way. By adopting germane amendments in a series, the Senate could theoretically change the subject from the war in Yemen to just about anything. All you need is 51 Senators to pass the amendments one at a time. Here is an example:
- Start with an amendment addressing the impact of the Yemen war on refugees.
- Then pass an amendment addressing the treatment of refugees from the Yemen war.
- Then pass an amendment relating to the treatment of refugees more broadly.
- Then pass an amendment addressing refugees applying for asylum in the U.S.
- Then pass an amendment relating to refugees at the Southern border.
- Then pass amendment funding the President’s border wall.
You are now left with an unfilibusterable bill that funds the President’s border wall.
Perhaps this is an exaggeration of how simple it would be to use creeping germaneness to add the border wall to the War Powers Resolution. But, given how rare it is that the Senate considers a 51 vote vehicle, it is a question worth exploring.
To be sure, this process would have been much simpler if the Corker-McConnell rule was not instituted to gratuitously handcuff the Senate. However, even with the Corker-McConnell handcuff, the ability of Senators to offer amendments is limited only by their imagination, legislative drafting abilities, and physical stamina.
In the end, the Senate decided not to use any of these tools, and agreed to a unanimous consent agreement setting up a few votes on germane amendments and a final passage vote. While it is important that the Senate went on record on issue of Yemen, Senators missed a unique one-time opportunity to use an expedited procedure to pass other elements of the Trump agenda.
Below is the transcript of the floor action.
MCCONNELL
Mr. President, I believe there are problems with the law governing the consideration of these types of resolutions. One of the biggest is the consideration of amendments. I have a series of parliamentary inquiries that I think will help clarify the problems with the statute.
Parliamentary inquiry. Does the statute provide any guidelines for the consideration of amendments on this resolution?
THE PRESIDING OFFICER (SEN. PAT TOOMEY):
No, it does not. The statute does not set forth the text ot be used in the joint resolution and this statute uses the expedited procedures from the Arms Export Control Act, a statute which does not allow amendments and so there are no parameters for the consideration of amendments built into the language.
MCCONNELL
I believe that most times the Senate uses expedited procedures. We have either a germaneness requirement for amendments or they cannot be amended. Can the Chair expound on what some of those are and what the concept means in the Senate?
THE PRESIDING OFFICER
Generally speaking when the Senate considers a measure under statutory expedited procedures like the Budget Act, the Congressional Review Act, the Trade Act of the ARms Control Act or even under the cloture rule, there are guardrails for the consideration of the measure and for amendments thereto. There are statutes and rules with prescribed text, limits on debate time, jurisdictional offenses, filing deadlines and germaneness requirements. Or a complete prohibition on amendments. Often there are points or waivers written into the structure as well. The Senate trades its normal procedure of unfettered debate and amendment and need for 60 votes to end debate and consideration for a more predictable structured and streamlined procedure for consideration and a majority threshold vote.
MCCONNELL
In the opinion of the chair, does a statute with no endpoint and no restriction on text or amendments consistent with the other expedited procedures which the senate often uses.
THE PRESIDING OFFICER
No, this construct is inconsistent with the concepts embodied in other expedited processes, even those that are themselves flawed, and the opportunity for abuse of this process is limitless.
MCCONNELL
I think the Senate should speak to this issue.
THE PRESIDING OFFICER
The Senator from Tennessee.
CORKER
I think it is important when using expedited procedures, especially on matters of national security, such as this. The Senate limit consideration to the matter at hand. Therefore, I raise a point of order that amendments offered under 50 U.S.C., 1546-A must be germane to the underlying joint resolution to which they are offered.
THE PRESIDING OFFICER
The laws governing the consideration of this type of resolution do not prescribe what type of amendments can be considered. The Senate has not previously considered this question. Therefore, the chair submits the question to the Senate for its decision. Shall amendments offered under 50u.S.C., 1456A be germane to the underlying joint resolution to which they are offered. The question is debatable for one hour.
Senate Vote 262 – on the point of order S.J.Res. 54
Point of order well taken (96 – 3)
THE PRESIDING OFFICER
On this vote, the yeas are 96, the nays are 3. The point of order is taken.