The term “Armey Protocol” indicates the practice of placing exceptions in a waiver of clause 2 of rule XXI of the Rules of the House of Representatives. This clause prohibits legislating on an appropriation bill, so the exceptions for specified language in the bill leave that language “unprotected” and thus subject to a surgical, or extractive, point of order. If the point of order is raised and sustained under clause 2, the specified language is stricken from the bill, which continues to be considered. Usually, the authorizing committee, that committee having jurisdiction in which the language falls, makes the request to the Rules Committee of the House. That committee will honor the request, unless the Speaker or Majority Leader tell it to do otherwise.
Clause 2 of rule XXI prohibits the inclusion of language “changing existing law,” commonly referred to as the prohibition on legislating on appropriations bills. One of the reasons why the regular appropriations bills come to the Rules Committee is to provide a waiver of this rule for provisions included in the bill. Generally, appropriations bills carry a number of legislative provisions, many of which the authorizing committees have agreed to. In prior congresses, there has been a protocol for dealing with authorizing committee objections to legislative provisions carried in appropriations bills (referred to as the “Armey Protocol” for then-Majority Leader Dick Armey), however to date it does not appear that the Democratic majority has established a similar process.
There are 2 basic prohibitions in clause 2 of rule XXI: (1) A prohibition on unauthorized appropriations; and, (2) a prohibition on legislation in a reported appropriations bill, or amendments which change existing law, or limit funds contingent on something not required by current law.
CRS Report Excerpt: Regular Appropriations Bills Terms of Initial Consideration and Amendment in the House FY1996-FY2015 (March 6, 2015)
Rule XXI, Clause 2 Waivers
In addition to waiving points of order against consideration, special rules and UCAs initiating consideration of regular appropriations bills have often waived House Rule XXI, clause 2,59 which prohibits general appropriations bills from including provisions “changing existing law.” Such provisions, for example, impose new duties upon the recipient of funds, change agency discretion, or mandate action contrary to existing law.60 Clause 2 also prohibits appropriations for programs, projects, or activities “not previously authorized by law.”61 This rule stems from the principle that the process through which the activities of government are chosen should be.
Regular Appropriations Bills: Terms of Initial Consideration and Amendment
distinct from the process through which those activities are funded. Points of order under Rule XXI, clause 2, may be raised against any portion of the bill during consideration. If such a point of order is raised and sustained, the entire portion is stricken and consideration of the bill may continue.62
Since the FY1996 regular appropriations bills, almost all waivers of Rule XXI, clause 2, for provisions in the bill have taken one of two forms. First, some of these waivers have covered the entire measure. For example, H.Res. 320 (112th Congress), which provided for consideration of the FY2012 Defense appropriations bill, contained the following provision: “Points of order against provisions in the bill for failure to comply with clause 2 of rule XXI are waived.”
Second, waivers of Rule XXI, clause 2, have specified provisions that are excepted from the blanket waiver and thereby left unprotected. For example, H.Res. 836, which provided for consideration of the FY2007 Homeland Security appropriations bill, included the following provision:
Points of order against provisions in the bill for failure to comply with clause 2 of rule XXI are waived except: beginning with the comma on page 38, line 11 through ‘funds’ on line 14; section 512; beginning with ‘or’ on page 54, line 12 through ‘appropriation’ on line 13; and section 536.
Alternately, a waiver of Rule XXI, clause 2, might apply only to specific provisions but still leave other provisions unprotected.
In many instances, the Rules Committee chooses to provide waivers with exceptions (or waivers for only specific provisions) because the authorizing committee of jurisdiction objects to the inclusion of a particular legislative provision or unauthorized appropriation.63 This practice has generally been recognized as the “Armey Protocol” since the 104th Congress.64 Under this protocol, a provision that would potentially be out of order under Rule XXI, clause 2, is left unprotected and could be subject to a point of order on the floor.65 If such a point of order against that provision were raised and sustained, the provision would be stricken and consideration of the bill would continue.66
59. During the period covered by this report, waivers for provisions in the bill have been periodically provided for other House rules, such as Rule XXI, clauses 5 and 6. Such waivers have been provided only intermittently and are not addressed by this report.
60. For further information on provisions changing existing law, also known as “legislation on appropriations,” see CRS Report R41634, Limitations in Appropriations Measures: An Overview of Procedural Issues, by Jessica Tollestrup.
61. For further information on appropriations not previously authorized by law, see CRS Report R42098, Authorization of Appropriations: Procedural and Legal Issues, by Jessica Tollestrup and Brian T. Yeh.
62. House Practice, ch. 4, §7, pp. 77-78.
63. House Committee on Rules, “Open Rules and Appropriations Bills,” May 1, 2009, [House Committee on Rules, “Open Rules and Appropriations Bills,” October 13, 2011].
64. Ibid.; for further information on the Armey Protocol, see Walter Oleszek, Congressional Procedures and the Policy Process (Washington, DC: CQ Press, 2007), 7th ed., pp. 134-135. Because this protocol is not a formal part of House rules, it is not possible to compile data on its use or impact.
65. In most legislative situations, it is more typical that measures, rather than specific provisions, are subject to a point of order, so that, if successful, the point of order would cause the measure to be removed from floor consideration and recommitted to its committee of origin. For further information, see CRS Report 98-307, Points of Order, Rulings, and Appeals in the House of Representatives, by Valerie Heitshusen. For an example of points of order being raised and sustained against unprotected provisions in a regular appropriations bill, see the consideration of H.R. 5025, House debate, Congressional Record (daily edition), vol. 150, issue 109 (September 14, 2004), pp. H7126-H7136; H7139-H 7177.
66. House Manual, §1044, p. 850.