House Republican lawmakers, as well as many Republican congressional candidates, have made a variety of promises they intend to carry out should they be given control of the U.S. House of Representatives. Two documents can be considered capstones of these Republican promises. A Pledge to America appeared on the political scene during the election and then Rep. Cantor’s Delivering on Our Commitment coming shortly after the mid-term election was over. Both of these documents contain excellent proposals and add to the Republican rhetoric about changing the way Congress does business, making government more efficient and accountable, and doing the work the voters sent them there to do. However, one very simple, yet powerful, reform is missing.
This simple reform is nothing more than only allowing germane amendments to a piece of legislation or appropriations bill. This idea is neither novel nor rarely seen. Many states have this prohibition in place. In some states (Washington being an excellent example), if a piece of legislation or voter initiative addresses more than one issue it can be, and usually is, ruled unconstitutional by the court system. So if a legislator wants to create a carbon tax by amending a must pass bill addressing a serious yet unrelated issue it would not be allowed. By only allowing germane amendments, unpopular ideas and proposals that could not pass on their own accord are prevented from being concealed in popular or must pass pieces of legislation at the state level and would do wonders at the national level.
If the states see the necessity of a requirement for germane amendments, why doesn’t Congress? Currently any amendment can be added to any bill regardless of whether the amendment addresses the same issue or not. This tactic has been a way for unpopular or controversial items to be limped through the legislative process with little to no opposition or debate. By adding an amendment on an issue opposed by one party’s legislators into a bill relating to an issue those legislators have agreed to support, it creates a catch 22 situation. If they vote for the bill, they will be beaten up by their constituents for allowing such an issue to get past them. On the other hand, if they vote against the legislation because of the issue amended in, these legislators will be excoriated for not being willing to support the special interest or its funding they had agreed to support. For example, language repealing Don’t Ask Don’t Tell is addressed in the military appropriations bill. What does repealing DADT have to do with military appropriations? Nothing. But the military appropriations bill is seen as must pass and an easy way to jam DADT with little resistance due to its inability to be passed as an individual piece of legislation. This creates a problem for Republicans and some moderate Democrats. If they don’t support the military appropriations bill then the merciless attacks of being unsupportive of the military will come from the press and others during the next election cycle. Should they vote for the bill with DADT repeal language securely embedded, they run the risk of angering sections of their base and could find themselves in serious trouble the next election cycle (as well as receiving phone calls from constituents and supporters expressing their frustration and anger over its passage in the meantime).
So what can Congress do about this backdoor tactic used to pass unpopular and controversial legislative items? Two options come to mind. First, create a House rule prohibiting the use of this tactic. This is the easiest and mostly a temporary remedy. Under such a rule no amendments would be considered at the committee or floor levels that don’t meet the criteria for a germane amendment. However, as we have seen over the last two years, rules can be suspended, easily changed, or outright ignored by the majority party when attempting to force through legislation that experiences strong opposition. A House rule would be a suitable stopgap until either legislation is passed prohibiting the practice or, ideally, getting a Constitutional Amendment ratified creating a permanent ban.
The second option would be to require some sort of constitutional authority statement on each piece of legislation. This option has previously garnered support among House Republican during the elections. Such a statement would include the article, section, and verbatim language from the Constitution stating where Congress derives the authority to enact the legislative mandate addressed in the specific piece of legislation. This statement should not be a multi-page dissertation, but a couple of paragraphs of discussion clearly outlining where Congress’ authority comes from and how the legislation fits into that authority. The problem with this option is that an amendment may vaguely follow the constitutional authority statement but not the letter or spirit of the original legislation. Thus it would be much more difficult to keep non-germane amendments, due to the potential for a myriad of grey areas for the amendment language to hide behind, from being amended into a piece of legislation than if the first option was in place.
Ideally, both of these options will be implemented to protect the American people from bad legislative mandates slipping through the system as an amendment rather than being dealt with on their own merits. Banning the practice of adding non-germane amendments to any and all legislation would go a long way in creating a more open and transparent Congressional process. After the last two years, the American people need as transparent a Congress as they can get. Hopefully the Republican leaders heading up the U.S. House of Representatives will catch on to this idea and implement it. It would go far in showing the American people how serious they are about what they have promised.
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