Budget Counsel Reference Directory

Chapter 41
Deschler’s Precedents
Volume 18

[pp. 164-171]
[
pp. 171-225]

D. Budget Act Points of Order

§ 11. Section 302

Breach of Allocation

§ 11.1 An amendment extending eligibility for foster care maintenance payments to a new class and thus providing an increase in mandatory budget authority was ruled out of order for violating section 302(f) of the Congressional Budget Act by exceeding (as estimated by the Committee on the Budget) the section 302(a) allocation to the Committee on the Judiciary.

§ 11.2 An amendment that delayed the imposition of a monetary penalty, resulting in a loss of offsetting receipts and thus increasing new discretionary budget authority, was ruled out of order for violating section 302(f) of the Congressional Budget Act by exceeding the section 302(b) allocation of the Committee on Merchant Marine and Fisheries (as estimated by the Committee on the Budget).

§ 11.3 An amendment that provided an increase in discretionary budget authority in the bill was ruled out of order for violating section 302(f) of the Congressional Budget Act by exceeding the section 302(b) allocation of the relevant subcommittee of the Committee on Appropriations (as estimated by the Committee on the Budget).

Breach of a Special Allocation

§ 11.4  To an appropriation bill originating in a subcommittee of the Committee on Appropriations that had received two separate allocations of budget authority by the most recent concurrent resolution on the budget,[1] an amendment attempting to transfer funds from accounts under one allocation to accounts under the other was ruled out of order as violating section 302(f) of the Congressional Budget Act for exceeding the level of the latter allocation (as estimated by the Committee on the Budget).

Section 302(f) Point of Order Application to Outlays

§ 11.5 An amendment to an appropriation bill that provided an increase offset by an identical decrease in amounts of new budget authority contained in separate paragraphs (but no net new budget authority) was held not to violate section 302(f) of the Congressional Budget Act, which only proscribes new budget authority in excess of a pertinent allocation and does not enforce outlay levels.

On June 7, 2000, during consideration of a defense appropriation bill (H.R. 4576), the following transpired in the Committee of the Whole:

amendment no. 8 offered by mr. kucinich

Clerk: The text of the amendment is as follows:

Amendment No. 8 offered by Mr. Kucinich:

Page 33, line 5, insert ‘‘(reduced by $174,024,000)’’ after the dollar amount.

Page 35, lines 10 and 11, insert ‘‘(increased by $174,024,000)’’ after the dollar amount.

[…]

Mr. Lewis (CA): I make a point of order against the amendment because it is in violation of section 302(f) of the Congressional Budget Act, as amended.

* * * * * * *

Chairman: The gentleman from California makes a point of order under section 302(f) of the Budget Act which constrains budget authority. The amendment provides no net new budget authority. That it may not be neutral on outlays is of no moment under section 302(f) of the Budget Act.[2] The point of order is overruled.

[146 Cong. Rec. 9836, 9837, 106th Cong. 2d Sess.]

Offsetting Breach

§ 11.6 An amendment that provides negative budget authority by precluding the collection of certain fees, but that offsets such negative budget authority by simultaneously authorizing a reduction of expenditures in an amount equal to the uncollected fees, does not violate section 302(f) of the Congressional Budget Act.

§ 11.7 An amendment to a supplemental appropriation bill providing new budget authority in excess of the relevant allocation under section 302(b) of the Congressional Budget Act (as estimated by the Committee on the Budget) cannot be offset by redirecting funds designated as emergency funds (such funds having no budgetary impact pursuant to a provision in the most recent budget resolution)[3] and thus violates section 302(f) of the Congressional Budget Act.

§ 11.8 An amendment to a general appropriation bill providing new budget authority in excess of the relevant allocation under section 302(b) of the Congressional Budget Act (as estimated by the Committee on the Budget) cannot be offset by the elimination of unauthorized contract authority contained in an earmark (which provides no budgetary savings) and was conceded to violate section 302(f) of the Congressional Budget Act.

§ 11.9 Amendments to an appropriation bill making a series of numerical changes intended to offset one another considered en bloc are subject to points of order under section 302(f) of the Congressional Budget Act where the intended reductions in contract authority (not considered budget authority) fail to offset new increases in new discretionary budget authority (as estimated by the Committee on the Budget), so that the net effect of the amendments is to cause the bill to exceed the appropriate allocation of new discretionary budget authority made pursuant to section 302(b) for that fiscal year.

Contingent Breach

§ 11.10 An amendment proposing to strike from a general appropriation bill a proviso stating that a specified increment of new discretionary budget authority ostensibly provided by the bill would ‘‘become available for obligation only upon the enactment of future appropriations legislation’’ was held to cause the bill to provide additional new discretionary budget authority in that incremental amount, in breach of the pertinent allocation under former section 602,[4] (as estimated by the Committee on the Budget) and therefore in violation of section 302(f) of the Congressional Budget Act.

Striking Rescission

§ 11.11 An amendment proposing to strike from a general appropriation bill a rescission scored as negative budget authority was held to provide new budget authority in excess of the relevant allocation under section 302(b) of the Congressional Budget Act (as estimated by the Committee on the Budget) and thus in violation of section 302(f) of the Congressional Budget Act.

Striking Limitation

§ 11.12 Where a limitation on funds in a general appropriation bill was estimated (by the Committee on the Budget) under section 312(a) of the Congressional Budget Act to provide negative new budget authority in an amount below the pertinent allocation of such authority, an amendment striking the limitation from the bill was held to provide new budget authority causing a breach in violation of section 302(f) of the Congressional Budget Act.

§ 11.13 Where a limitation on funds in a general appropriation bill was estimated to provide negative new budget authority in an amount sufficient to avoid a breach of the pertinent allocation of such authority, an amendment striking the limitation from the bill was held to provide new budget authority causing a breach (as estimated by the Committee on the Budget), in violation of section 302(f) of the Congressional Budget Act.

Allocation Adjustment

§ 11.14 An amendment increasing an amount designated as an ‘‘emergency’’ thus triggering an increase in the relevant section 302(a) committee allocation (pursuant to section 314 of the Congressional Budget Act)[5] but failing to trigger a corresponding increase in the section 302(b) subcommittee allocation, was ruled out of order for violating section 302(f) of the Congressional Budget Act by exceeding such section 302(b) allocation (as estimated by the Committee on the Budget).

On June 21, 2000,[6] [a point of order was raised against an amendment increasing emergency-designated budget authority for the Federal Emergency Management Agency].

point of order

Mr. Walsh: I make a point of order against the amendment because it is in violation of section 302(f) of the Congressional Budget Act of 1974.

Chairman: The amendment … would increase the level of new discretionary budget authority in the bill. Because of the attending emergency designation, the amendment automatically occasions an increase in the section 302(a) allocation to the Committee on Appropriations, but it does not occasion an automatic increase in the section 302(b) suballocation for the pending bill.

As such, the amendment violates section 302(f) of the Budget Act.


[Counsel Notes]

Adjustments to the 302(a) and (b) allocations were changed by the Budget Control Act of 2011 (Pub. L. 112-25). At certain times, an emergency designation would cause an adjustment to the allocation, and so an amendment increasing the underlying amount would cause the allocation to rise as well. As here, the 302(b) suballocation, though, would not rise and so the point of order would lie against the amendment. After the BCA, emergency designations do not cause an adjustment to the allocations (or to the discretionary spending limits) but rather are not “counted” are hence not recognized as spending at all.


§ 11.15 An amendment to a general appropriation bill providing new budget authority in excess of the relevant allocation under section 302(b) of the Congressional Budget Act (as estimated by the Committee on the Budget) does not trigger a corresponding increase to that allocation pursuant to procedural provisions contained in a concurrent resolution on the budget[7] where such provisions specify that the new budget authority must be contained in a reported bill (and not in an amendment), and such an amendment thus violates section 302(f) of the Congressional Budget Act.

Section 302(f) Points of Order—Applicability to Motions to Recommit

§ 11.16 A motion to recommit a bill with instructions to report ‘‘forthwith’’[8] a direct amendment to existing law providing new budget authority in excess of the relevant subcommittee allocation under section 302(b) of the Congressional Budget Act (as estimated by the Committee on the Budget) was held to violate section 302(f) of the Congressional Budget Act and ruled out of order.

§ 11.17 A motion to commit a bill with instructions to report ‘‘forthwith’’ an amendment providing new budget authority in excess of the relevant allocation under section 302(a) of the Congressional Budget Act, and not protected by waiver against similar provisions in the bill, was held to violate section 302(f) of the Congressional Budget Act and ruled out of order.

Section 302(f) of the Budget Act precludes consideration of an amendment providing new budget authority if the adoption of the amendment and enactment of the bill, as amended, would cause the pertinent allocation of new budget authority under section 302(a) of the act to be exceeded.

The Chair is persuasively[9] guided by an estimate of the gentleman from Iowa (Mr. Nussle) that an amendment providing any net increase in new budget authority for fiscal year 2003, or the period of fiscal years 2003 through 2007, over that provided by the bill would exacerbate the breach of the applicable section 302(a) allocations of the Committee on Ways and Means. As such, the motion to commit violates section 302(f) of the Budget Act.

§ 11.18 A motion to recommit a bill with instructions to report ‘‘forthwith’’ an amendment providing new budget authority in excess of the relevant allocation under section 302(a) of the Congressional Budget Act (as estimated by the Committee on the Budget) was held to violate section 302(f) of the Congressional Budget Act and ruled out of order (sustained by tabling of appeal).

§ 11.19 A motion to recede and concur in a numbered Senate amendment was ruled out of order for violating section 302(f) of the Congressional Budget Act where the Senate amendment exceeded the section 302(b) allocation to the relevant subcommittee of the Committee on Appropriations (as estimated by the Committee on the Budget).

§ 11.20 A motion to recede and concur in a Senate amendment with a further House amendment was ruled out of order for violating section 302(f) of the Congressional Budget Act where the House amendment exceeded the section 302(b) allocation to the relevant subcommittee of the Committee on Appropriations (as estimated by the Committee on the Budget).

§ 11.21 The House has, by unanimous consent, agreed to recede from a House amendment to a numbered Senate amendment and concur in the original Senate amendment, notwithstanding the fact that budget authority in the Senate amendment exceeded the applicable section 302(b) allocation (as estimated by the Committee on the Budget) and would have thus violated section 302(f) of the Congressional Budget Act.

Withdrawal

§ 11.22 A point of order raised against a bill on the grounds that it violates section 302(f) of the Congressional Budget Act may be withdrawn as a matter of right and such withdrawal does not require unanimous consent.

The ‘‘Rise and Report’’ Point of Order

§ 11.23 The House has adopted a special order of business resolution reported from the Committee on Rules containing a separate section creating a point of order (applicable during that Congress)[10] against rising from the Committee of the Whole and reporting a general appropriation bill that exceeded the applicable section 302(b) allocation and providing additional procedures should such a point of order be sustained.

Section 302(c) Points of Order

§ 11.24 A motion to recommit a joint resolution further continuing appropriations with instructions to report ‘‘forthwith’’ an amendment was held to violate section 302(c) of the Congressional Budget Act (sustained by tabling of appeal) by providing new budget authority in a fiscal year for which the Committee on Appropriations had received an allocation under section 302(a) but had yet to file the required section 302(b) report dividing such allocation among its subcommittees.

§ 11.25 A motion to recommit a joint resolution continuing appropriations with instructions to report ‘‘forthwith’’ an amendment was held to violate section 302(c) of the Congressional Budget Act by providing new budget authority in a fiscal year for which the Committee on Appropriations had received an allocation under section 302(a) but had yet to file the required report dividing such allocation among its subcommittees (sustained by tabling of appeal).[11]

§ 11.26 Where a general appropriation bill containing new budget authority was permitted to be considered by a special order of business waiving the application of points of order under section 302(c) of the Congressional Budget Act against the bill, an amendment further increasing budget authority was ruled out of order (despite failure to raise similar points of order against other amendments) for violating section 302(c), which prohibits consideration of such amendments prior to the filing of a section 302(b) report by the Committee on Appropriations.

Section 401(b)(2) Referrals

§ 11.27 Pursuant to section 401(b)(2) of the Congressional Budget Act, the Speaker sequentially referred a bill reported by the Committee on Armed Services (containing new spending authority in excess of such committee’s section 302(a) allocation) to the Committee on Appropriations for a period not to exceed 15 legislative days.

§ 11.28 Pursuant to section 401(b)(2) of the Congressional Budget Act, the Speaker sequentially referred a bill reported by the Committee on Agriculture (containing new spending authority in excess of such committee’s section 302(a) allocation) to the Committee on Appropriations for a period not to exceed 15 legislative days.

§ 11.29 The House has agreed to a unanimous-consent request to extend by another 15 legislative days the sequential referral of a bill to the Committee on Appropriations pursuant to section 401(b)(2) of the Congressional Budget Act.

§ 11.30 Where a bill is reported prior to the adoption of a concurrent resolution on the budget, and the subsequent adoption of a budget resolution reveals that such bill exceeds the committee’s section 302(a) allocation, the Speaker may discharge the bill from the Union Calendar and, pursuant to section 401(b)(2) of the Congressional Budget Act,(1) sequentially refer such bill to the Committee on Appropriations for a period not to exceed 15 legislative days.

§ 11.31 Pursuant to section 401(b)(2) of the Congressional Budget Act, the Speaker may discharge from the Union Calendar a bill that exceeds the reporting committee’s section 302 allocation (whenever such breach is discovered) and refer such bill to the Committee on Appropriations for a period not to exceed 15 legislative days.[12]

 

[1] [Footnote #1; p. 178] Parliamentarian’s Note: The concurrent resolution on the budget for fiscal year 2013 provided the Committee on Appropriations with a separate section 302(a) allocation for overseas contingency operations and the global war on terrorism. Pursuant to the committee’s section 302(b) report, most of this budget authority was allocated to the Subcommittee on Defense, which thereafter proceeded with both a ‘‘general purpose’’ and an ‘‘overseas contingencies’’ 302(b) suballocation. At the time of the offering of the amendment at issue here, both of these suballocations were at their limit of new budget authority, such that any increase in either allocation would cause a breach of that allocation. As each allocation was evaluated independently, the budgetary savings occasioned by a decrease in one allocation could not be used to offset an increase in the other — hence the violation of section 302(f).

[2] [Footnote #4, pp. 180-181] Parliamentarian’s Note: At times, the House had made outlays the subject of budgetary enforcement mechanisms. The House had adopted a concurrent resolution on the budget (later ‘‘deemed’’ effective for purposes of Congressional Budget Act enforcement) containing a special reserve fund for highway programs. That provision created a special application of section 302(f) to require neutrality of both budget authority and outlays for such programs (contrary to the general principle exemplified by this precedent). See 148 Cong. Rec. 3691 [Daily Ed. H1039], 107th Cong. 2d Sess., Mar. 20, 2002. See § 4, supra.

[3] 150 Cong. rec. 10040, 108th Cong. 2d Sess., May 18, 2004 (S. Con. Res. 95, sec. 402). See § 4, supra.

[4] For more information on title VI of the Congressional Budget Act, see the introduction to this section.

[5] However, the Budget Control Act of 2011 amended section 314 of the Congressional Budget Act such that it no longer operates in the manner described here. See § 1, supra and § 26, infra, for more on the Budget Control Act of 2011 and its various reforms to the congressional budget process.

[6] [Footnote #3; p. 198] 146 Cong. Rec. 11747–49, 106th Cong. 2d Sess.

Parliamentarian’s Note: The following paragraph of the bill, designating these amounts as ‘‘emergency requirements’’ on the condition that the President transmit a reciprocating designation, was later held to constitute legislation in violation of rule XXI clause 2(b) (House Rules and Manual § 1038 (2011)): ‘‘Notwithstanding any other provision of law, the foregoing amounts are designated by the Congress as an emergency requirement pursuant to section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended: Provided, That the entire amount shall be available only to the extent that an official budget request for a specific dollar amount, that includes designation of the entire amount of the request as an emergency requirement as defined in the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, is transmitted by the President to the Congress.’’ See 146 Cong. Rec. 11749, 106th Cong. 2d Sess., June 21, 2000.

[7] 143 Cong. Rec. 9984, 105th Cong. 1st Sess., June 4, 1997 (H. Con. Res. 84, sec. 205). This section of the fiscal year 1998 budget resolution authorized committee allocation adjustments in response to qualifying Federal land acquisition legislation. For more on similar adjustment authorities contained in budget resolutions, see § 4, supra.

[8] [Footnote #1; p. 200] Parliamentarian’s Note: A motion to commit or recommit a bill or joint resolution ‘‘forthwith’’ provides that any amendatory instructions contained therein be carried out immediately, and thus engages the provisions of the Congressional Budget Act. In the 111th Congress, Rule XIX clause 2 was amended to provide that all motions to recommit a bill or joint resolution that contained instructions must be ‘‘forthwith.’’ House Rules and Manual § 1001 (2011). Prior to this change, such motions may have specified a different adverb (most often ‘‘promptly’’) to indicate a mere non-binding recommendation to the committee of recommittal, and therefore such formulations did not engage the Congressional Budget Act. For an example of such a ‘‘promptly’’ motion to recommit, containing an amendment that had previously been ruled out of order for violating section 302(f) of the Congressional Budget Act, see 147 Cong. Rec. 11253, 107th Cong. 1st Sess., June 20, 2001. See also Deschler’s Precedents Ch. 23 § 32.25, supra.

[9] [Footnote #4; pp. 204-205] Parliamentarian’s Note: The chairman of the Committee on the Budget had not, at the time of this ruling, been elected to that position by the full House, and thus that committee could not provide the Chair with authoritative guidance as to the budgetary effect of the amendment contained in the motion to commit, pursuant to section 312(a). However, the presumptive chairman of the Committee on the Budget (Mr. Nussle) had been authorized by a separate order of the House to submit for inclusion in the Congressional Record binding section 302(a) allocations for the committees of the House. On this basis, the Chair was persuasively guided by estimates from the Member so authorized. For the order of the House authorizing Mr. Nussle to make the binding section 302(a) submission, see 149 Cong. Rec. 172, 173, 108th Cong. 1st Sess., Jan. 8, 2003. Pursuant to Rule XXIX clause 4, added in the 112th Congress, authoritative guidance as to budgetary estimates may now be provided by the chairman of the Committee on the Budget (rather than the committee itself). House Rules and Manual § 1095d (2011).

[10] [Footnote #1; p. 214] Parliamentarian’s Note: As noted, this point of order was applicable only during the 109th Congress. However, in the 110th, 111th, and 112th Congresses [BCR Note: This also applied the 113th, 114th, and 115th Congresses], the same point of order was carried as a separate order in the resolution adopting the rules of the House for those Congresses. See 157 Cong. Rec. H9 [Daily Ed.], 112th Cong. 1st Sess., Jan. 5, 2011 (H. Res. 5, sec. 3(a)(4)); 155 Cong. Rec. 9, 111th Cong. 1st Sess., Jan. 6, 2009 (H. Res. 5, sec. 3(a)(4)); and 153 Cong. Rec. 24, 110th Cong. 1st Sess., Jan. 4, 2007 (H. Res. 5, sec. 511(a)(4)). The procedural provisions triggered upon sustaining this point of order operate in a similar manner to the question of consideration (see Deschler-Brown Precedents Ch. 29 § 5, supra): the chairman of the Committee of the Whole puts the question, ‘‘Shall the Committee of the Whole rise and report the bill to the House with such amendments as may have been adopted notwithstanding that the bill exceeds its allocation of new budget authority under section 302(b)?’’ Such question is debatable for 10 minutes, equally divided between the proponent and an opponent. If decided in the negative, only one proper amendment is in order — debatable for 10 minutes and not subject to a demand for a division of the question — and certain pro forma amendments. It should also be noted that this point of order lies against a motion to rise and report a non-compliant bill. A special order of business resolution reported by the Committee on Rules for the consideration of a bill may specify that the Committee automatically rise (without motion) to report the bill back to the House upon the completion of all debate and consideration of any permitted amendments. Such a special order of business prevents any opportunity to raise this point of order. For an example thereof, see 155 Cong. Rec. 16078, 16079, 111th Cong. 1st Sess., June 24, 2009 (H. Res. 573).

[BCR Note: This “automatic rise and report” is reflected by this language from H. Res. 573 (111th Congress): “At the conclusion of consideration of the bill for amendment the Committee shall rise and re- port the bill to the House with such amendments as may have been adopted.”]

[11] Footnote #5. [p. 217] Parliamentarian’s Note: As the proceedings indicate, a waiver of section 302(c) of the Congressional Budget Act applies only to the specific text or measure referenced in the waiver. Here, although the broad waiver of points of order against the underlying bill covered section 302(c) points of order, no such points of order were waived for amendments thereto (including amendments contained in a motion to recommit). For an example of a special order of business resolution that specifically waived section 302(c) for an amendment in the nature of a substitute, see 135 Cong. Rec. 26843, 101st Cong. 1st Sess., Nov. 1, 1989 (H. Res. 277).

[12] [Footnote #2, p. 225] For examples of other bills discharged from the Union Calendar for a sequential referral pursuant to section 401(b)(2), see, e.g., 124 Cong. Rec. 28543, 95th Cong. 2d Sess., Sept. 8, 1978; and 128 Cong. Rec. 24317, 97th Cong. 2d Sess., Sept. 20, 1982.

Deschler’s Precedents

Deschler’s Chapter 41

[BCR §075]