Back to the Future for Appropriations Procedures in the 118th Congress?
Matt Glassman | March 17, 2023
President Biden released the President’s Budget last week and with it, the federal appropriations process has lurched to a start. In the modern era, we have come to expect to see late introduction of the President’s budget, forgoing passing a budget resolution by the budget committees (“deeming” them instead), and the failure to pass individual appropriations bills. But House Republicans are promising to go old school with an aspect of appropriating—and indeed, with legislating more generally. Similar to previous Speakers, McCarthy has promised a voice for more legislators and more legislative deliberation: a return to open rules for amendments on the House floor.
Speaker McCarthy and House Republicans have pledged to make significant changes to House floor procedures during the 118th Congress that may significantly impact the consideration of appropriations legislation, including individual consideration of the 12 annual appropriations bills and the use of open rules during floor consideration.
These changes are consistent with a more general stated commitment from Republican leaders to restore regular order to the budget and appropriations process. This is welcome news from a deliberative point of view. We’ve seen use of a modified-open rule on a bill already, with another (non-appropriations) to possibly follow soon. It will also, however, create procedural opportunities for Members that may make completing action on appropriations bills more time-consuming, more difficult, and more politically painful for the Republican majority.
Individual consideration of annual appropriations measures
Under long-standing congressional practice, discretionary appropriations have been divided into roughly a dozen annual bills. Traditionally, each of these measures was passed as a stand-alone appropriations act. In recent years, this process has broken down. It has become routine to not individually consider the appropriations bills on the House floor. Instead, the House has often chosen to package one or more of these bills together for consideration (a “minibus”) or to package all of them together (an “omnibus”).
Last year (FY2023), none of the annual bills were taken up individually on the House floor; in FY2022, only two bills were taken up as stand-alone measures. The last time all 12 bills came to the House floor separately for consideration was in FY2010.
The advantage of a minibus or omnibus vehicle is straightforward: they create a single vote on a variety of legislation. By skillfully packaging together various bills, leadership can simultaneously avoid up/down floor votes on unpopular legislation that would be difficult to pass through the chamber alone, and at the same time they can corner Members (and the President) into accepting the unpopular legislation by pairing it with legislation Members (or the President) are loath to reject. A member may vow to vote against a certain domestic discretionary bill or the President may vow to veto it, but they will think twice about doing so if the legislation is paired with the defense appropriations. Of course, this also strengthens the hand of party leadership in deciding the bills’ contents, which may also include exacerbating informational asymmetries and speedier decision-making.
Speakers Boehner and Ryan used a particular version of this technique the last time the Republicans had the House majority. The problem for leadership was that there was not a partisan Republican majority for certain domestic discretionary bills; conservatives would only accept cuts that moderates would not agree to. The leadership solution was to only bring appropriations bills to the floor that could command a solid Republican (or bipartisan) majority. Other bills, such as the Labor-HHS appropriations, were never considered. Once an overall omnibus was negotiated with the Senate, it was brought to the House floor for final passage, and usually carried by a majority built from the center of both parties.
A return to individual consideration of all 12 bills will require Republican leaders to thread a needle that may not be possible. Conservatives are demanding (and McCarthy has reportedly agreed to) cuts that bring overall appropriations back to FY2022 levels. Assuming defense spending would be exempt from this, it would require cuts in the 20% range for non-defense bills, which will likely not please Republican moderates. Given their narrow House majority (222-213), it is hard to see how leaders would find the votes for such a bill.
Understanding open rules for appropriations measures & recent history
One plausible solution to this dilemma is to take advantage of the other procedural promise Republican leaders have made: a return to open rules for floor consideration of appropriations bills. In the contemporary House, most major legislation comes to the floor via a special order from the Rules committee, which specifies the terms of debate and the process of amending the legislation.
In recent years, virtually all of the special orders have either barred all amendments (a “closed” rule) or have only allowed specific amendments pre-approved by the Committee on Rules (a “structured” rule). Once commonplace, the use of “open” rules (any amendment that conforms to the standing rules allowed) or “modified open” rules (any amendment allowed so long as it is publicly disclosed ahead of time) has essentially disappeared.
The Republican vow to return to open rules will have a significant impact on the consideration of appropriations bills. In the distant past (prior to 1995), appropriations bills often came to the floor directly as privileged legislation, with consideration structured only by the House standing rules and the amendment process completely open. Between 1995 and 2009, it was common practice for appropriations measures to come to the floor via a special order, but in most cases it was under an open rule or, more commonly, a modified open rule that gave priority of recognition to Members with amendments that had been preprinted. Fully 77% of special rules had some open amending component from FY1996 to FY2015. Of course, fewer appropriations bills are brought to the floor individually after FY2010.
Consequently, a typical appropriations bill might be on the House floor for 3 or 4 days, with dozens of amendments considered. Often, a unanimous consent (UC) agreement was eventually put in place that limited consideration, or if things were dragging on too long and a UC was not possible, the leadership might bring a new, structured rule to the floor to aid in finishing up consideration.
Beyond their time-consuming nature, open rules also allow for maximum deliberation. Both minority Democrats and backbench majority Republicans will have opportunities to offer amendments to appropriations bills, which may be hostile to leadership or Appropriations Committee positions. In particular, we will likely see a significant number of minority messaging amendments, designed to put majority members to uncomfortable tough votes. The very experience of this sort of legislating will be new to many; very few current members have participated in the more free-wheeling and unpredictable deliberations of an open rule. In addition, open rules put additional time pressure on floor managers and committee staff, who must prepare for a wide array of potential floor amendments.
What open amending might mean going forward
Such partisan amendments were part of the reason the appropriations process started moving away from open rules beginning in FY2010. And while there are still significant restrictions on what amendments are allowed even under an open rule—appropriations amendments must be germane, cannot change existing federal law, and must be offset, among other things—they will undoubtedly cause numerous headaches for the leadership.
They also, however, may offer Speaker McCarthy and Republicans a path forward in navigating the politics of the appropriations process. While Republicans may not have the votes for the large across-the-board cuts to domestic discretionary spending that conservatives have demanded, an open rule for consideration would likely allow for such cuts to come to the floor as an amendment or, at least in theory if cleverly structured, as part of the bill that could then be removed by amendment. That might be just enough to satisfy conservatives.
Such a procedural technique would still require McCarthy to either (a) bring a bill to the floor that didn’t have significant cuts already in it, or (b) use Democratic votes to increase spending in an appropriations bill via an amendment. Neither of those seem politically palatable from the Speaker’s viewpoint. But unless there are enough House Republican votes to pass a bill with drastic cuts to non-defense discretionary appropriations—there weren’t in 2017 when Trump proposed them under a bigger majority—it’s hard to see how individual appropriations bills will successfully move through the House this year in a manner consistent with all of McCarthy’s promises.