The first session of the 115th Congress saw the worst provision ever placed in a Congressional budget resolution, and which actually passed the House. The subsection never made it’s way into the final version of the Concurrent Resolution on the Budget for Fiscal Year 2018, that it made it far enough to be sensibly rejected by the Senate and House Leadership. From a purely drafting technical standpoint, it’s hard to see how it could have been worse. Section 322 of H. Con. Res. 71, as passed the House of Representatives, reads as follows:

(e) Other Adjustments.—The chair of the Committee on the Budget of the House of Representatives may adjust other appropriate levels in this concurrent resolution depending on congressional action on pending reconciliation legislation.

Adjustment authority is given to the Chairman of the Budget Committee all the time, particularly for policy-driven reserve funds, but this very little similarity to those. While it is hard to tell exactly what the reason for it is, it seems to give the authority to adjust budget resolution levels for a reconciliation bill, should one come to the House floor. That has been done before, so why previous language wasn’t used is a mystery. The two fatal errors here are that the provision doesn’t sufficiently say what these “other levels” are. An alternative would have been to use the catchall: “allocations, aggregates, and other budgetary levels”. The big problem is that this catchall is used in a previous subsection, calling into question what “other appropriate levels” might be since it appears to be relative to something.

The other problem is the reason for the adjustment to be made: it may be made “depending on congressional action on pending reconciliation legislation.”  It does not make any reference to the reconciliation language in this particular budget resolution, no cross reference, apparently any reconciliation bill would do. What Congressional action, or what “depending on” means is entirely left to the imagination.

Since ended in the delete file, no harm, maybe, was done. Still, it remains as an engrossed testament to bad drafting.

Bumble Query: Has the House and Senate always differed on applying the point of order against breaching allocations?

Yes. It has always been the case. Under Section 302(a) and (b) of the 1974 Budget Act, aggregate spending levels in the budget resolution are allocated to committees and then further subdivided by those committees either by subcommittee or by program. Section 302(f), added by the 1985 Balanced Budget Act, prohibits the consideration of any spending measure that would cause a committee’s spending subdivisions to be exceeded.

The House and Senate enforce Section 302 procedures differently. One major difference is that the House does not provide for a point of order against violations of outlay subdivisions.