Chapter 41, Deschler’s Precedents

Chapter 41
Deschler’s Precedents
Volume 18

[pp. 145-164]

D. Budget Act Points of Order

§ 10. Section 311

Section 311 of the Congressional Budget Act[1] provides a point of order against the consideration of legislation providing budget authority that exceeds the spending ceiling or reduces revenues below the revenue floor established by the most recent concurrent resolution on the budget. The point of order addresses budget aggregates (i.e., total levels of budget authority and revenues), rather than committee allocations (which are governed by section 302(f)) or individual functional categories.

A point of order under section 311(a) is applicable to bills, joint resolutions, amendments, motions and conference reports. The point of order will be sustained if the enactment of the bill or resolution (in either its reported form or the form recommended in a conference report) or the adoption and subsequent enactment of an amendment would cause a breach of the spending limit (or a reduction of revenues below the revenue floor) established by the concurrent resolution on the budget.[2] With respect to revenues, the point of order applies not only to the first fiscal year covered by the budget resolution, but also the total of that first fiscal year and the ensuing fiscal years for which allocations are provided under section 302(a) of the Congressional Budget Act.[3] Gramm-Rudman-Hollings[4] added an exception providing that when a declaration of war by the Congress is in effect, section 311(a) points of order are not applicable.

A waiver of section 311(a) points of order against the initial consideration of a measure in the House does not extend to consideration of amendments to that measure[5] or to consideration of conference reports on that measure, unless specified in the waiver.[6] Likewise, a waiver against initial consideration of a measure in the House does not extend to motions to concur in Senate amendments containing additional violations of sections 311(a), such motions requiring separate waivers.[7]

The point of order is applicable in both the House and the Senate.[8] As with other points of order under the Congressional Budget Act, a vote of three-fifths of Senators duly chosen and sworn is required to waive section 311(a), pursuant to section 904(c).[9]

In the House, the point of order must be raised at the time the bill, amendment, or conference report is first considered, and is untimely once debate has begun on the measure.[10]

Gramm-Rudman-Hollings also codified the so-called ‘‘Fazio exception’’ at section 311(c) of the Congressional Budget Act.[11] That subsection exempts from the application of section 311 certain measures that, although in breach of the overall budget authority ceiling, would not cause the appropriate allocation of new budget authority made pursuant to section 302(a)[12] of the Budget Act for that fiscal year to be exceeded. Thus, if the enactment of a bill or resolution (in its reported form or the form recommended by a conference report) or the adoption and enactment of an amendment would not cause the bill to exceed that committee’s 302(a) allocation, it would be exempt from 311(a) points of order. The rationale for this exception is to prevent penalizing committees that had avoided breaching their own budget allocations but had, due to overspending by other committees, reported bills breaching the total level of budget authority as established in the most recent concurrent resolution on the budget.[13]

The Budget Enforcement Act of 1990 created a broad exception[14] to certain Congressional Budget Act points of order (including sections 302, 303 and 311), which provided that certain categories of spending (including emergency spending)[15] shall not be taken into account when evaluating points of order under those sections. The BEA of 1990 also clarified the scope of section 311 by substituting ‘‘joint resolution’’ for ‘‘resolution’’ to avoid the possibility that a simple resolution of the House (such as a special order of business reported from the Committee on Rules) could violate section 311.[16] Finally, the BEA of 1990 also inadvertently broke a cross-reference in section 311(c) (the ‘‘Fazio exception’’) to committee allocations made pursuant to title VI of the Congressional Budget Act.[17] This error was temporarily repaired by a specific clarification contained in the budget resolution for fiscal year 1993.[18]

Rule XXI clause 8[19] provides that points of order under title III of the Budget Act (including section 311(a)) apply to unreported as well as reported measures, beginning in 2007.[20]

Pursuant to section 308(b) of the Budget Act,[21] the Committee on the Budget must report periodically to the House a status update on current House budget actions as compared to the spending ceiling and the revenue floor of the latest budget resolution in order to aid point of order enforcement (including section 311 of the Budget Act).[22] Section 312(a) provides that evaluation of points of order under titles III and IV of the Budget Act, including section 311(a), shall be made on the basis of estimates provided by the Committee on the Budget.[23] Pursuant to Rule XXIX clause 4, such estimates may be provided by the chairman of that committee.[24]

Deschler’s Precedents of the U.S. House of Representatives, Volume 18, Chapter 41, §10, p. 145-147.

[1] 2 USC § 642.

[2] See §§ 10.1–10.3, infra.

[3] 2 USC § 642(a)(1). See § 11, infra.

[4] Pub. L. No. 99-177.

[5] See § 10.8, infra.

[6] See 128 Cong. Rec. 1270, 97th Cong. 2d Sess., Feb. 9, 1982 (H. Res. 356).

[7] See § 10.7, infra.

[8] For an example of a section 311(a) point of order sustained in the Senate for an amendment causing an outlay breach, see 133 Cong. Rec. 11990, 100th Cong. 1st Sess., May 12, 1987. For examples of amendments struck down in the Senate on section 311(a) points of order for reducing revenues below the revenue floor, see, e.g., 129 Cong. Rec. 9131, 9132, 9151, 98th Cong. 1st Sess., Apr. 20, 1983; and 129 Cong. Rec. 6564, 6565, 6573, 98th Cong. 1st Sess., Mar. 22, 1983. For an example of an amendment struck down in the Senate for reducing a rescission (thus having the net effect of increasing budget outlays above the spending ceiling), see 126 Cong. Rec. 17469–79, 96th Cong. 2d Sess., June 27, 1980.

[9] 2 USC § 621 note; House Rules and Manual § 1127 (2011). For an example of a successful waiver of this point of order, see 140 Cong. Rec. 29956, 103d Cong. 2d Sess., Nov. 30, 1994. For an example of an attempted waiver that failed to achieve the necessary three-fifths vote, see 142 Cong. Rec. 1462, 1476, 104th Cong., 2d Sess., Jan. 26, 1996.

[10] See Deschler-Brown Precedents Ch. 31 § 4.3, supra.

[11] 2 USC § 642(c).

[12] See § 10.9, infra.

[13] Prior to the advent of Gramm-Rudman-Hollings, concurrent resolutions on the budget would occasionally provide this same exception on an ad hoc basis. See § 4, supra, and § 10.4, infra.

[14] This exception was found in the temporary title VI of the Congressional Budget Act, at section 606(d)(2). Pub. L. No. 101–508.

[15] See Pub. L. No. 99–177, secs. 251(b)(1), 251(b)(2)(A–D), and 252(e).

[16] Parliamentarian’s Note: Prior to this change, section 311 was liable to the interpretation that a special order of business ‘‘self-executing’’ text containing budget authority violating aggregate budget levels or ‘‘hereby’’ concurring in Senate amendments with similar violations would ‘‘provide’’ such impermissible budget authority and therefore not be in order. The revision described here allowed the Committee on Rules this additional procedural flexibility without the need for Budget Act waivers.

[17] Between 1990 and 1998, committee allocations were made pursuant to authority found in section 602 of the Congressional Budget Act, rather than section 302. See § 11, infra. However, section 311(c) was not amended to account for this change and its provisions were still textually tied to (non-existent) committee allocations made pursuant to section 302. As noted in the following footnote, a clarifying statement was carried in the budget resolution for fiscal year 1993 to reflect congressional intent to continue the ‘‘Fazio exception’’ during this time period.

[18] 138 Cong. Rec. 12156, 102d Cong. 2d Sess., May 20, 1992 (H. Con. Res. 287, sec. 11). See § 4, infra.

[19] House Rules and Manual § 1068c (2011).

[20] See § 11, infra.

[21] 2 USC § 639(b).

[22] See § 7, supra.

[23] 2 USC § 643(a). A form of this provision (applicable only to section 311 points of order) was originally found in section 311(b) of the Congressional Budget Act, prior to Gramm-Rudman-Hollings.

[24] House Rules and Manual § 1105d (2011).

§ 10. Section 311 [pdf]

Deschler’s Precedents, Chapter 41, Volume 18; (H. Doc. 94-661), 112th Congress, Tuesday, April 2, 2013.

§9. Section 303

§11. Section 302

[BCR § 075]