Budget Counsel Reference


Reference Source
for the
Congressional Budget Process


Welcome to the Budget Counsel Reference website. The intent and design here is to facilitate greater comprehension of Congressional budget law. Of the many responsibilities of the U.S. Congress, perhaps the most essential is its power over the resources of the United States. The law governing the budget process is not a matter of accounting, but the essence of a republican form of government. 

A New Compendium of the Laws

The last comp was issued in 2015 and a new one has been long needed. Those laws are all here, somewhere, on this website, but an actual book is sometimes nice. For those who like paper, one can be obtained here:

A Compendium of the Budget Laws Annotated (116th Congress)

Notes from beyond the wall
February 15, 2019

A questionable reprogramming budget authority does not sound very revolutionary, though that will likely be the response rhetoric upon the declaration of an “emergency” by the President when it comes. “This is the way democracies die … ” will be trotted out. In a way, we’ve been here before since similarities come to mind about the Iran Contra Affair of thirty year ago. The barest of them, but a few: An irritating Congress putting limitations on the way funds can be used — in that case to support certain foreign policies of the President, which was to implement the Reagan Doctrine of supporting anti-communist forces in Soviet client states. Democrats did not like it though everything pretty much worked out for the best in the end. More than one millennial has uttered the words “The Soviet what?”

Here, depending on how it is done, the idea probably would be to use budget authority already appropriated for the Defense Department and divert it to construction projects along the souther border to build a security wall. The Armed Services Committees will not approve, since they are jealous of every last dime in defense spending, even if it’s squandered on something nonsensical.

The technicalities of reprogramming are simple, the response to a court order is less so. When the inevitable lawsuit is filed, one first has to ask who has standing to get a court to pay attention. The obvious entity would be GAO — they are fully empowered to guard against the Executive Branch spending money not approved by Congress. The Antideficiency Act is just shy of 150 years old, if one dates it to the very first incarnation back in 1870. This puts GAO in an interesting position since it is a Legislative Branch support agency, and beholden to House and Senate leaders and Committees. They do a fine job, though sometimes are a little too oriented toward Executive operations in their budget analysis. That is not surprising since that is most of their workload. Still, GAO does not want to make either the House or the Senate angry and in a split control Congress, that is a tough spot and not inconsequential.

If not GAO, then Member of Congress will be sure to file suit, but their standing is less clear. It is still a fair bet that someone will be able to shop around and get a court to issue some sort of injunction. Then the Administration has a big question to answer, that being whether a district court judge from Hawaii or Minnesota, or wherever, has the power to stop the obligation of budget authority that is a response to a Presidentially-declared emergency? The answer “no” brings a lot of precedent with it.

The future cannot take notes, but a lot of people in the present can and are.

February 6, 2019

Gephardt Rule Redux, what to call it?

In constituting itself, the 116th Congress brought in a bunch of new Democrats, and with it a host of rules changes, all courtesy of H. Res. 6 (116th Congress, which departed from the traditional numbering for such resolutions as H. Res. 5 — but observed the tradition for at least three of the four new majorities since 1995 (the 104th, 110th, and 116th Congresses used that number, while the 110th did not).

That minutiae aside, or perhaps to continue with it, what to make of new House Rule XXVIII? The old rule was called the “Gephardt Rule” after the former Democratic Majority and later Minority Leader under Republican Majorities in Congress. It obtained that name well before he was in such august positions, but the name stuck for the procedure by which the House could avoid a vote on increasing the debt limit. When the House voted on adopting a final budget resolution, it had the effect of generating a joint resolution automatically sent to the Senate without a separate vote, to increase the debt limit by a specified amount.

Since budget resolutions are concurrent resolutions, and hence not enacted into law with a Presidential signature, a joint resolution is necessary — so it still would have to come back to the House if the Senate amended the joint resolution in anyway, but the Gephardt Rule allowed a nice pivot to avoid an unpleasant vote in the initial, and sometimes for the House, final stage — this being so if the Senate wanted to just approve the thing and send it on and not mess around.

The Republicans got rid of it twice. After they repealed it the first time, they realized how valuable it could be, and brought it back when Rep. Dennis Hastert was speaker. When they did this, even though the rule was exactly the same, Democrats dubbed it the “Hastert Rule” in a sort of ham-handed political slap. It did not take, and the rule continued to be referred to as “Gephardt”.

A problem does present itself with the advent of the Pelosi 116th Congress — Republicans could probably be forgiven if they wanted to try and call a return to the Gephardt Rule the “Pelosi Rule”. The House Rules does have it back, but only in a way — it is a different rule in two ways: The original joint resolution was spun off when a final budget resolution was adopted. That means in the form of a conference report or an amendment between the Houses, the latter done in unusual circumstances. In fact deeming resolutions, just to make sure no confusion over the matter could arise, often specifically stated that they did not “contemplate” the ignition of the rule. See § 17.3 Deeming Resolutions of Deschler’s Precedents, Chapter 41. The new rule is triggered when the House approves the budget resolution, and the bar for that is far, far lower than a conference report. The House, until the dark days of the Price Budget Committee gavel where incompetence reached a new pinnacle, generally approves some sort of budget resolution.

The other distinction is that it “suspends” the debt limit rather than changing the actual number. Ever since the increase in the debt limit included in the resolving clause of the Statutory Pay-As-You-Go Act of 2010 — a bill that began as a Gephardt Rule bill — no law has actually changed the amount in section 3101 of title 31 of the U.S. Code. Instead, they have “suspended” the application of the debt limit for a particular time period. They did this in section 30301 of the  Bipartisan Budget Act of 2018. The date is fast approaching, as it is March 1, 2019, though that will only trigger the special procedures which is the magic that the Treasury Department conjures up to whip up money until the real doomsday default day arrives. That day is mysterious since it is always imminent, so the boy, his wolf, and the Treasury Department all have something in common.

To call this new rule the “Gephardt Rule” would be misleading, since it’s not the same. These are not minor difference, in particular the relatively low bar of House approval of a budget resolution. To call it the “Pelosi Rule” seems fair in a “turnabout is …” kind of way. Dismissing terming it such as “politics” in other Congressional circumstances would be like complaining about the lack of tea party etiquette at a Manson Family picnic. On this website, politics is bad form, and by which is meant talking point nonsense and rhetorical gibberish that is reserved for Media Press Dojos. Gephardt Redux is a little too obscure and “Gep-Die Hard” seems a stretch, though the rule does seem to spring back to life Jason/Freddie like. Maybe “Pelosi Rule” is as good as any until something better comes up.


Random thoughts from days past … collectively just called: The Blather File.

Items of Note

H. Res. 6 (116th Congress)
The Joint Committee on Budget and Appropriations has a website …
Whither the Budget Committee? Wither the Budget Committee

Biennial Budgeting and the Budget as Law: An Inadvertent Trial Run
The Daft Draft: Wording and Debt Limit Language

Consolidated Appropriations Act, 2018
Bipartisan Budget Act of 2018 (Pub. L. 115-123)
Joint Select Committee on Budget and Appropriations Process Reform (BBA 2018)

H. J. Res. 128, Continuing Resolution (Expiring February 8, 2018)
H. Con. Res. 71 (FY2018 Budget Resolution)
Bad Idea: Directed Scoring Provision
Current services budget deadline missed, again

Items of Note, the List

Budget Process

With a Joint Select Committee on Budget and Appropriations Process Reform established by the Bipartisan Budget Act of 2018, those keenly aware of the overwhelming need for such reform must be encouraged. The specifics of the procedures the Committee must follow are somewhat daunting, but any start is a good start. In particular, two thing make for difficulty: The time frame is short — the Select Committee is given only until the end of the year to finish the task. The other is that not only is a majority required of its members, but a majority of both Republicans and Democrats must be in favor it. With budget reform being difficult and complex, this is a hurdle, but optimism is in order since the topic has arisen and the opportunity for success is welcome. 

For some background on the issue of budget reform, the below tractate lays out the basics:

Analysis: Contemplating the Congressional Budget Process

  Periodic Counsel Advisory
Current Budget Resolution

None: Concurrent Resolution on the Budget for Fiscal Year 2019, Deeming Resolution included in Bipartisan Budget Act of 2018 (Pub. L. 115-123)