Budget Counsel Reference Directory
Sections of Chapter 41
Deschler’s Precedents
Section 302
Budget Process
[pp. 164-171]
[pp. 171-225]
D. Budget Act Points of Order
§ 11. Section 302
As noted in Sections 4 and 5, the concurrent resolution on the budget serves as a guide or blueprint for Congress in making spending decisions throughout the appropriations process. An important part of that framework is the division of the recommended totals for new budget authority and outlays into separate portions assigned to the various committees of Congress. Pursuant to section 302(a) of the Congressional Budget Act,[1] the joint explanatory statement accompanying the conference report on the budget must include ‘‘allocations’’ of total new budget authority and total outlays to each House committee with jurisdiction over legislation providing or creating such amounts. As described below, points of order can be raised to keep spending within the limits of these section 302(a) allocations.
As originally written, the Congressional Budget Act mandated that each committee given a section 302(a) allocation of spending authority further subdivide that allocation among its various subcommittees (or programs). Pursuant to the Budget Enforcement Act of 1997,[2] however, this requirement was dropped for all committees except for the Committee on Appropriations, which is still required to subdivide its section 302(a) allocation among its subcommittees. The Committee on Appropriations files a report with the House to indicate how the committee has divided its section 302(a) allocation among its subcommittees,[3] and supplemental reports may revise such subcommittee allocations.[4] This requirement is found in section 302(b) of the Congressional Budget Act, and these suballocations are sometimes referred to as section 302(b) allocations to distinguish them from allocations made under section 302(a).
[1] 2 USC § 633(a).
[2] Pub. L. No. 105–33.
[3] For an example of the filing of such a report, see 136 Cong. Rec. 14612, 101st Cong. 2d Sess., June 19, 1990.
[4] 143 Cong. Rec. 12009, 105th Cong. 1st Sess., June 24, 1997.
Former Section 602
The Budget Enforcement Act of 1990 [1] added a new title VI to the Congressional Budget Act. For the years in which such title was operative (1990–1998), the requirement to allocate budget authority and outlays to the legislative committees of the House was found in section 602, and allocations were made pursuant to this section rather than section 302. Section 603 authorized the chairman of the Committee on the Budget to publish a section 602(a) allocation for the Committee on Appropriations after April 15 if no concurrent resolution on the budget had been agreed to by that date. This would allow the Committee on Appropriations to begin work on appropriation bills even in the absence of a budget resolution. Section 606(e), added by the Contract with America Advancement Act [2] (and subsequently amended by the Personal Responsibility and Work Opportunity Reconciliation Act),[3] gave additional authority to the chairman of the Committee on the Budget to make ‘‘adjustments’’ to the section 602(a) allocation made to the Committee on Appropriations to reflect an increase in the budget authority and outlays for continuing disability reviews under the Social Security Act. For more on the history of the Budget Enforcement Act of 1990, see Section 1.
[1] Pub. L. No. 101–508.
[2] Pub. L. No. 104–121.
[3] Pub. L. No. 104–193.
Section 314
The Budget Enforcement Act of 1997 created a new section 314 of the Congressional Budget Act. [1] Section 314 mandated certain ‘‘adjustments’’ to applicable section 302(a) allocations in response to legislation providing new budget authority and outlays. Such legislation was limited to certain categories (such as emergency spending or continuing disability reviews), as defined in section 314(b). [2] The chairman of the Committee on the Budget was required to revise section 302(a) allocations to reflect these adjustments after the reporting of legislation meeting the requirements of section 314(b), and the adjustment took effect upon enactment of such legislation. Pursuant to section 314(d), the Committee on Appropriations was authorized to submit a revised section 302(b) report in order to subdivide any potential adjustment to its section 302(a) allocation among its subcommittees. [3] However, the Committee on Appropriations was not required to submit such a report, and in the absence of such a report, the underlying section 302(b) allocations remained as they were prior to the adjustment occasioned under section 314.
The Budget Control Act of 2011 [4] extensively revised section 314 of the Congressional Budget Act. The former ‘‘automatic’’ adjustments were replaced with discretionary authority for the chairman of the Committee on the Budget to make allocation adjustments in response to qualifying legislation. Such qualifying legislation was defined by reference to section 251(b) of [the Balanced Budget and Emergency Deficit Control Act of 1985]. [5] A new section 314(d) rendered ‘‘invisible’’ for certain Budget Act purposes spending designated as emergency spending. Section 314(d)(2)(B) also provided that a proposal to strike an emergency designation shall be ‘‘excluded from an evaluation of budgetary effects’’ for purposes of titles III and IV of the Congressional Budget Act. Without this provision, such a proposal could violate section 302(f) of the Budget Act if the spending at issue (whose budgetary effects are now to be included by the proposal) exceeded the committee’s section 302 allocation.
[1] 2 USC § 645.
[2] Those categories are: (1) amounts designated as emergencies; (2) amounts for continued disability review; (3) certain amounts relating to the International Monetary Fund; (4) certain amounts for international organizations and multilateral development banks; (5) amounts for an earned income tax credit compliance initiative; and (6) certain amounts for adoption incentive payments.
[3] For an example of a section 302(f) point of order being sustained in the context of such an ‘‘un-adjusted’’ section 302(b) suballocation, see § 11.14, infra.
[4] Pub. L. No. 112–25.
[5] Pub. L. No. 99–177.
302(f) Points of Order
Section 302(a) and section 302(b) allocations define certain spending limits that may not be exceeded. The [Balanced Budget and Emergency Deficit Control Act of 1985] reforms to the Congressional Budget Act created a new section 302(f) point of order that could be raised against any bill, joint resolution, or amendment that contains spending authority in excess of a committee’s section 302(a) allocation or a subcommittee’s section 302(b) suballocation. [1] In evaluating a section 302(f) point of order, the Chair must determine: (1) if the measure contains provision(s) constituting new budget authority; and (2) whether such new budget authority, if enacted into law, would cause the relevant section 302(a) or section 302(b) allocation to the committee or subcommittee to be exceeded. The Chair is authoritatively guided by estimates from the Committee on the Budget in determining these budgetary levels. [2]
In 2007, Rule XXI clause 8 [3] was added to the House rules to expand the reach of title III of the Congressional Budget Act to certain unreported measures. If a measure is considered pursuant to a special order of business, title III of the Congressional Budget Act will continue to apply to such measure regardless of whether it was reported from committee. Thus, since 2007, section 302(f) points of order have been applicable to unreported measures pursuant to this clause. [4] Section 302(f) points of order are applicable only after Congress has adopted a concurrent resolution on the budget and cannot be raised prior to said adoption. [5]
During the period of applicability of title VI of the Congressional Budget Act, [6] section 606(d)(2) provided an exception to the normal operation of section 302(f) points of order (as well as other points of order under title III of the Congressional Budget Act). Section 606(d)(2) provided that for consideration of certain categories of spending, [7] evaluations under section 302(f) shall not take into account any ‘‘new budget authority, new entitlement authority, outlays, receipts, or deficit effects.’’ The practical effect of this provision was to render ‘‘invisible’’ for certain Congressional Budget Act enforcement purposes spending that fell within the defined categories. [8]
Prior to the enactment of the Budget Control Act of 2011, section 314 of the Congressional Budget Act (as added by the Budget Enforcement Act of 1997) provided for automatic ‘‘adjustments’’ to be made to committee allocations if the spending at issue fell within certain pre-defined categories. [9] By increasing committee allocations in this way, measures containing such spending could be protected from points of order under 302(f). However, the Budget Control Act eliminated the automatic adjustment mechanism and replaced it with discretionary authority to make such adjustments. [10]
[1] As noted above, for the period 1990–1998, committee allocations were made pursuant to title VI of the Congressional Budget Act, as added by the Budget Enforcement Act of 1990. Thus, during this time period, section 302(f) points of order could be raised against measures exceeding the relevant section 602 allocations.
[2] The requirement for the Committee on the Budget to provide estimates to the Chair in evaluating section 302(f) points of order was originally found in former section 302(g), as added by [the Balanced Budget and Emergency Deficit Control Act of 1985]. The Budget Enforcement Act of 1997 broadened this requirement to cover not only section 302(f) points of order, but any applicable point of order made under title III or title IV of the Congressional Budget Act. This new authority is currently found in section 312(a) of the Congressional Budget Act. 2 USC § 643(a). Pursuant to Rule XXIX clause 4, added in the 112th Congress, authoritative guidance on budgetary matters may be provided by the chairman of the Committee on the Budget. See House Rules and Manual § 1095d (2011).
[3] House Rules and Manual § 1068c (2011).
[4] For parliamentary inquiries on the application of section 302(f) points of order prior to the advent of Rule XXI clause 8, see Deschler-Brown Precedents Ch. 31 § 10.23, supra.
[5] 2 USC § 633(f)(1). For a discussion of House actions to ‘‘deem’’ committee allocations effective for Congressional Budget Act purposes in the absence of a final budget resolution, see § 18. Because section 302(f) points of order become available only after a concurrent resolution on the budget has been adopted, any such ‘‘deeming’’ resolution must include language to affirmatively trigger the application of section 302(f) in the absence of a final budget. For an example of a resolution ‘‘deeming’’ committee allocations in place for Budget Act enforcement but arguably failing to properly engage section 302(f) points of order, see 144 Cong. Rec. 12991, 105th Cong. 2d Sess., June 19, 1998 (H. Res. 477).
[6] Title VI was effective from 1990 until 1998.
[7] The specific categories are defined by reference to section 251 of [the Balanced Budget and Emergency Deficit Control Act of 1985]. The five categories are: (1) Internal Revenue Service compliance initiatives; (2) debt forgiveness for the Arab Republic of Egypt and the Government of Poland; (3) the United States quota for the International Monetary Fund; (4) certain emergency requirements (including the costs for Operation Desert Shield); and (5) amounts specifically designated by the President and Congress as emergencies.
[8] For an example of a special order ‘‘self-executing’’ an amendment designating certain amounts as emergency spending under former section 606(d) of the Congressional Budget Act, see 137 Cong. Rec. 6114, 102d Cong. 1st Sess., Mar. 13, 1991 (H. Res. 111).
[9] The Budget Control Act of 2011 revised these adjustments to accommodate: (1) changes in concepts and definitions; (2) appropriations designated as emergency requirements; (3) appropriations for Overseas Contingency Operations and Global War on Terrorism; (4) appropriations for continuing disability reviews and redeterminations; (5) appropriations for controlling health care reform; and (6) appropriations for disaster relief. See 2 USC §§ 645, 901.
[10] For more on the Budget Control Act of 2011, see § 1, supra, and § 26, infra.
The ‘‘Fazio Exception’’
As discussed in Section 10, section 302(a) allocations are used in evaluating a particular exception to the regular operation of section 311 points of order. Section 311(a) of the Congressional Budget Act prevents the consideration of measures, the enactment of which would cause the total budget authority in the most recent concurrent resolution on the budget to be exceeded. Section 311(c) provides the following exception: if a measure that would cause a breach of the total budget authority contained in the concurrent resolution on the budget nevertheless remains within the section 302(a) allocation to the committee of jurisdiction for that measure, then the section 311 point of order will not lie. The rationale for this exception is that a committee should not be punished for advancing measures that do not exceed such committee’s own section 302(a) allocation but which, due to overspending by other committees, would cause the total budget authority level to be breached.
This exception was first made part of the Congressional Budget Act by the [Balanced Budget and Emergency Deficit Control Act of 1985] reforms of 1985.[1] Prior to these changes to the Congressional Budget Act, concurrent resolutions on the budget would occasionally provide for a similar exception to section 311(a) points of order.[2]
When the Budget Enforcement Act of 1990 created the new title VI of the Congressional Budget Act, the committee allocation provisions were temporarily[3] located in section 602 rather than section 302. However, the exception to section 311 maintained its reference to allocations made ‘‘pursuant to section 302(a).’’ This broken cross-reference was temporarily repaired in the concurrent resolution on the budget for fiscal year 1993, which included a separate section ‘‘clarifying’’ the relationship between the exception in section 311 and the new title VI.[4]
[1] This provision was originally found in section 311(b) but was moved to section 311(c) by the Budget Enforcement Act of 1997.
[2] See 131 Cong. Rec. 22637, 99th Cong. 1st Sess., Aug. 1, 1985; 130 Cong. Rec. 28049, 98th Cong. 2d Sess., Oct. 1, 1984; and 129 Cong. Rec. 16585, 98th Cong. 1st Sess., June 21, 1983. See § 4, supra.
[3] Title VI of the Congressional Budget Act expired in 1998 and ceased to be effective after this date.
[4] 138 Cong. Rec. 12156, 102d Cong. 2d Sess., May 20, 1992. See also § 4, supra.
Section 302(c)
The [Balanced Budget and Emergency Deficit Control Act of 1985] reforms of 1985 amended section 302 of the Congressional Budget Act to create a new point of order related to section 302(b) suballocations. This point of order, found in section 302(c), prohibited the consideration of any bill, joint resolution, amendment, motion or conference report providing new budget authority or new spending authority unless and until the committee of jurisdiction filed a report dividing its overall section 302(a) allocation into section 302(b) suballocations among its subcommittees. [1] If the committee had not received a section 302(a) allocation at the time the measure was considered, the point of order did not apply.
Prior to this change, concurrent resolutions on the budget would occasionally contain a separate requirement that no measure providing new budget or spending authority would be considered until the committee of jurisdiction filed its section 302(b) report. [2]
When the Budget Enforcement Act of 1997 eliminated the requirement that all legislative committees file reports subdividing their section 302(a) allocations among their subcommittees, and instead maintained this requirement only for the Committee on Appropriations, it likewise changed the operation of section 302(c) to apply only to that committee. Section 302(c) states that after the Committee on Appropriations has received its section 302(a) allocation, no bill, joint resolution, amendment, motion or conference report within the jurisdiction of such committee that provides new budget authority may be considered until the committee has filed the report dividing its section 302(a) allocation into section 302(b) suballocations for each of its subcommittees.
The section 302(c) point of order is fundamentally about timing. Whether the point of order will be sustained rests solely on: (1) the threshold question of whether the committee of jurisdiction (now applicable only to the Committee on Appropriations) has received a section 302(a) allocation; and (2) whether the committee has filed the requisite section 302(b) report subdividing the section 302(a) allocation. The point of order will not lie before the Committee on Appropriations has received its section 302(a) allocation, and neither will it lie after the committee has filed the necessary report.
[1] For an example of such a report being filed, see 136 Cong. Rec. 14612, 101st Cong. 2d Sess., June 19, 1990.
[2] See 130 Cong. rec. 28049, 98th Cong. 2d Sess., Oct. 1, 1984; and 128 Cong. rec. 14546, 97th Cong. 2d Sess., June 22, 1982. See § 4, supra.
Section 401(b)(2) Referrals
Section 401(b)(2) [1] of the Congressional Budget Act provides authority for the Speaker to sequentially refer [2] any bill or resolution providing new entitlement authority that exceeds the relevant committee’s section 302 allocation to the Committee on Appropriations for a 15-day period. The purpose of the referral is to allow the Committee on Appropriations to recommend an amendment to the House that would reduce the level of new entitlement authority and thus bring such amounts under the relevant section 302 allocation. Indeed, section 401(b)(3) defines the role of the Committee on Appropriations as reporting the bill or resolution at issue ‘‘with an amendment which limits the total amount of new spending authority provided in such bill or resolution.’’ [3]
A bill or resolution may be referred pursuant to this authority any time that the breach of the section 302 allocation is discovered. This includes measures that were already placed on the appropriate calendar of the House, [4] or measures reported prior to the establishment of section 302(a) allocations (contained in the joint statement of managers accompanying a concurrent resolution on the budget or established pursuant to another authority). [5]
Although the Committee on Appropriations has authority to report the bill or resolution within the 15-day period, it is not required to do so, and failure to report the bill or resolution within the requisite time period results in an automatic discharge from the committee. [6] The bill or resolution is then placed on the appropriate calendar of the House.
Section 401(c) provides exceptions to the operation of section 401(b)(2) by exempting certain categories of spending from the analysis of a measure’s effect on the relevant section 302 allocation. These categories include budget authority whose outlays flow from certain trust funds or are made by certain mixed-ownership government corporations. [7]
The Budget Enforcement Act of 1997 made several major changes to the Congressional Budget Act that either directly amended section 401(b)(2) or had an indirect impact on its operation. First, it changed the Speaker’s section 401(b)(2) referral authority from a mandatory requirement whenever a bill or resolution exceeded the relevant section 302 allocation to mere discretionary authority. Since 1997, the Speaker has not exercised this authority. Secondly, it eliminated the requirement that committees other than the Committee on Appropriations subdivide their section 302(a) allocations into section 302(b) suballocations. Thus, section 401(b)(2) is currently only triggered when legislative committees exceed their 302(a) allocations. [8] Finally, the Budget Enforcement Act of 1997 made several changes regarding the definition of ‘‘spending’’ and ‘‘entitlement’’ authority.
[1] This provision of the Congressional Budget Act was codified in the standing rules of the House at Rule X clause 4(a)(2), House Rules and Manual § 747 (2011).
[2] See Deschler’s Precedents Ch. 17 § 26, supra. This provision of the Congressional Budget Act does not otherwise affect the sequential referral process. For an example of a bill sequentially referred both to the Committee on Appropriations pursuant to section 401(b)(2) and to another committee pursuant to the Speaker’s general referral authority, see 129 Cong. Rec. 14699, 98th Cong. 1st Sess., June 7, 1983. For an example of a bill sequentially referred to additional committees after a sequential referral to the Committee on Appropriations (but before such committee reported), see 127 Cong. Rec. 11746, 97th Cong. 1st Sess., June 8, 1981.
[3] 2 USC § 651(b)(3).
[4] See § 11.31, infra.
[5] See § 11.30, infra.
[6] For an example of a special order having the effect of discharging the Committee on Appropriations from further consideration of a measure sequentially referred thereto under section 401(b)(2) of the Congressional Budget Act, see 137 Cong. Rec. 6114, 102d Cong. 1st Sess., Mar. 13, 1991 (H. Res. 111).
[7] 2 USC § 651(c).
[8] This is consistent with the current wording of Rule X clause 4(a)(2), which mirrors the requirements of section 401(b)(2) and refers explicitly to section 302(a) allocations. House Rules and Manual § 747 (2011). Prior to the Budget Enforcement Act of 1997, section 401(b)(2) referrals could be made for breaches of legislative committee section 302(b) suballocations.
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