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Ditched Minibus Money Bill Paves Way for Massive Omnibus

Newly appointed Senate Appropriations Chairman Thad Cochran (R-Miss.) was asked by reporters in 2005 whether he expected any omnibus appropriations bills on his watch. He paused, and then replied, “No, but there could be a minibus now and then.”

[IMGCAP(1)]Congressional Democrats rolled out their first minibus last month when they included the military construction and Veterans Affairs appropriations bill as part of the conference report on the Labor, Health and Human Service, and Education funding bill. The clever double-decker practically carried a “Veto This!” dare on its roof because President Bush supported funding the vets (using offsets) but had vowed to veto the costly Labor-HHS bill.

The ingenious procedural strategy ran into a ditch when Sen. Kay Bailey Hutchison (R-Texas) raised a point of order against inclusion of the mil-con and VA language on grounds it violated Senate Rule 28. The rule, which was enhanced as part of the lobby/ethics reform law earlier this year, prohibits adding new matter in conference that was not part of either the House- or Senate-passed versions.

The House and Senate have long had such points of order against “scope violations” in conference reports, so named because the provisions go beyond the scope of matters committed to conference by either chamber. The point of order is severe because, if sustained, it automatically defeats the conference report. Until this year, the House scope rule differed from the Senate’s because it provided an automatic way to put things back on track if a conference report is defeated. The Senate rule change this year conformed its process to that of the House with one difference: The Senate requires a three-fifths vote to waive the rule whereas the House routinely circumvents the rule by majority votes when it waives all points of order against conference reports in special rules from the Rules Committee.

When the House-passed Labor-HHS- Education conference report was called up in the Senate on Nov. 7 with its mil-con/VA appendage and Hutchison raised her point of order, Sen. Tom Harkin (D-Iowa) offered the motion to waive the rule. He fell far short of the three-fifths vote necessary, 48-47. The presiding officer then sustained the point of order, which automatically defeated the conference report.

However, the new Senate scope rule, like its House counterpart, keeps the process alive in such circumstances by providing for the automatic consideration of the original bill with a substitute amendment consisting of the conference language minus the offending provisions (in this case, the stricken mil-con/VA portion). After the Senate approved the Labor-HHS bill under this procedure, it returned the bill to the House where it was cleared for the president. (As expected, he vetoed it and the House fell two votes short of overriding the veto.)

The new Senate scope rule for conference reports was originally adopted last year as part of the lobby/ethics bill. Sen. Jim DeMint (R-S.C.) blocked it from going to conference because he could not get assurances that new earmark transparency rules, which he helped strengthen by floor amendment, would not be altered.

The lobby/ethics bill was resurrected in identical form this year as one of the new Democratic majority’s legislative priorities. While the scope provision was thought by many to be aimed primarily at “air-dropped earmarks” (Member pork projects that originate in conference committees), it became clear during debate that most new earmarks fall within the scope of conferences so long as the money had been generally allotted for such projects in the original House- or Senate-passed bills. Consequently, Sens. John Ensign (R-Nev.), John McCain (R-Ariz.) and DeMint offered a successful amendment to ensure that the scope rule point of order would also apply to earmarks — any specific program, project or activity not committed to conference by either chamber.

When the bill was returned to the Senate in the form of a House substitute amendment, the earmark scope point of order had been relocated to another Senate rule (Rule 44) and confined to one or more “new directed spending provisions.” (The use of a House amendment to change a Senate-adopted rule was a peculiar outsourcing of Senate rule-making authority.)

What apparently was not thought fully through was the prospect that the existing scope rule (Rule 28) could be used to shoot down entire, clunky appropriations bills being parachuted into conference committees on other bills. This presents the majority leadership with a quandary if it wants to pursue the traditional strategy of using an existing House-Senate conference report on an appropriations bill as a platform on which to build minibus or omnibus appropriations bills. The leadership must first come up with 60 votes in the Senate to waive the scope rules.

The most obvious way to circumvent both scope rules is to avoid using a conference report and instead either originate an entirely new omnibus bill or use an existing appropriations bill as a platform for the rest. The House Democratic leadership decided on the latter course late last week, using the Department of State and foreign operations appropriations bill as a table for a game of pingpong (amendments between the houses). The House Rules Committee has paved the way for bringing up the bill in the House tomorrow and adopting a substitute amendment that adds the other 10 money bills (and who knows what else?).

While this ploy avoids the scope points of order for conference reports, it does potentially reopen the amendment process in the Senate to games and delays. It also confronts Members with a massive document they cannot begin to digest before voting on it. Democrats say they have been talking with the administration about a possible compromise. Absent that, they will need a two-thirds super-majority in both houses to make it veto-proof. That would require a copious supply of holiday spirit. Fa-la-la.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.