When a bill is introduced in congress, you often hear about proposed amendments. Supposedly, there have been a number of cases where amendments were “secretly” snuck in and no one was quite sure how they got there.
How are amendments to congressional bills added though? I would have assumed that the author of the bill has sole discretion to accept the amendment or not; yet apparently there is some sort of vote process. Yet I don’t understand how a majority could vote for/against the amendment if they haven’t even voted for/against the actual bill yet.
On the floor of a parliamentary assembly, consideration of a main motion, which would include the adoption of a law I presume, may be interrupted by a motion to amend it. Debate and vote on the amendment to the main issue under consideration precede further consideration of the main issue itself.
However, the reference to “secret” amendments makes me think that this is probably during the period when a proposed bill is referred to committee for review and recommendation, as it may be amended by the committee prior to being reported back to the floor of the assembly proper.
Amendments are offered on the floor of the House and Senate, can be debated and are publicly voted on before being added to the bill. When you hear about provisions being “snuck” into bills, you’re almost always talking about the conference committee.
Since the House and Senate almost always pass different versions of the same legislation, a conference committee is appointed by the two chambers to work out differences between the two versions. The conference will be composed of a small number of Senators and Representatives (usually including the chairman and ranking minority members of the relevant committees). Ideally, the conference would merely serve as forum for resolving specific points of disagreement between the two versions. However, the conferees can stick in things that weren’t in either version of the bill. You’ll see a lot of this on appropriations bills, and particularly omnibus appropriations bills which can be hundreds of pages long and easier to hide things in.
When the conferees finish their work they put it into a conference report, which goes back to the House and Senate to vote on. But according to the rules, the conference report cannot be amended, and cannot be filibustered in the Senate. So if you object to one of those sneaky provisions, your only recourse is to vote against the entire bill – which may include lots of otherwise important spending for your state.
Let’s clarify a little bit: there are three stages of the legislative process at which amendments may be considered: during committee markup, during floor action, and during a conference committee.
In markup, the chairman of a committee is responsible for assembling a “chairman’s mark” of a bill that is to be considered. The chairman has an opportunity to put new material in the bill at this stage, either at his own preference or due to a request by another member, whether or not he’s on the committee. This is how 99% of earmarks (aka pork) in the appropriations process are created. There are no votes on these “amendments” because it is the responsibility of the chairman to create the bill, so the “amendments” are actually part of the bill at the beginning of the legislative process. However, some people like to think of earmarks being “sneaked” into the bill, so that’s really more of a value judgment than a comment on the legislative process. (I’m not going to deal with the difference between bills and committee reports – I want to finish this post sometime this morning.)
Once a bill is approved by a committee it goes to the floor of either the House or the Senate, almost always open for amendment. An amendment can be called up and debated and voted on by the full body, or an amendment can be given to the managers of the bill – the Democrat and the Republican who have responsibility to see the bill through floor action, usually the chairman and ranking member of the committee originating the bill. If the managers see the amendment as non-controversial, they can adopt it by asking for unanimous consent to approve it, or a voice vote – in either case, not every member of the body votes on it, or is even aware of it. Often times managers will put a number of amendments together as a “manager’s package” and approve this group of amendments en bloc, by voice vote. If a member is on the floor and watching what amendments are being discussed, the member will have an opportunity to see these amendments – but if a member is out at committee hearings, giving press conferences, etc, he may feel that some amendment was sneaked in without his knowledge: something the managers see as non-controversial to themselves may be controversial to others. Members who watch what amendments are being considered generally have an opportunity to object to an item being inserted without a formal vote or debate, but really it isn’t practical for all members of the House or Senate to sit on the floor for debate on every bill due to their extensive commitments elsewhere.
And finally, flurb talked about conference committees very succinctly and well.
Slight quibble, but most earmarks in appropriations bills are not in the actual text of the bills. Instead, they are in the conference report which accompanies the bill. Bills have conference reports that explain the text of the bill (since most legislation is simply saying things like “replace lines 20 through 32 of whatever section of US Code with the following,” there needs to be something to explain what the bill does in plain English). In these reports, the appropriations committees will put in a variety of directions on how the money must be spent. The most important earmarks, however, may indeed be placed directly in legislation, since technically conference reports are not law (although most agencies ignore the directions in these reports at their peril).
Yeah, that’s why I added the line about not wanting to get into bills vs. reports. You’re right to clarify that appropriations earmarks are indeed in reports 99% of the time, but tax earmarks (in which certain industries get tax breaks for some purposes) are in bill text.
In this context it is also important to know that committee reports are also created by a chairman and can be amended during committee markups, but cannot be amended on the floor of either body.
The “author” of a bill (provided you could even come up with a definition) has no special privileges. Once legislation is introduced, it is subject to the rules of the body in question, which leaves most of the power in the hands of committee chairmen and chairwomen.
And this gets into the debate over what exactly qualifies as an “earmark”. Some things are obvious, like your traditional appropriations conference report text, “Of this amount, $1 million shall be allocated for the Herman B. Bumpkin Swamp Rat Research Institute at Apalachicola State University.” I’ve also seen text which nominally leaves the decision on how to grant the funding up to the administering agency, but structures the criteria for evaluating applicants is such a way that there’s only one possible recipient. Then you have things like tax provisions that don’t identify specific recipients, but whose benefits are targeted at a specific industry – are those “earmarks?”
The hottest talk these days is about the “phonemark” – since earmarks in bills is getting a bad wrap, Senators and Reps won’t include anything in the written text, but will call up the agency receiving the money and explain how they want the money to be spent. And so it goes. . .