Legislating & Appropriating in the House
One of the first major changes in the budget process was the distinction made between authorizing and appropriating legislation. While a Member of the House, John Quincy Adams suggested that the House “strip these appropriation bills of everything but were legitimate matters of appropriation, and such as were not...[be] made the subject of a separate bill.” In the 44th Congress, on September 14, 1837 the House adopted a rule which stated: “No appropriation shall be reported in such general appropriation bills, or be in order as an amendment thereto, for any expenditure not previously authorized by law.” The prohibition against unauthorized appropriations was broadly interpreted, as early as 1842, to prohibit the inclusion of legislative provisions in appropriation bills as well.
Clause 2 of House rule XXI of the rules of the House for the 106th Congress outlines those matters which specifically give rise to points of order against provisions in reported appropriation measures. Clause 2(a)(1) of rule XXI provides that: “An appropriation may not be reported in a general appropriation bill, and may not be in order as an amendment thereto, for an expenditure not previously authorized by law, except to continue appropriations for public works and objects that are already in progress.” Clause 2(b) of rule XXI provides that: “A provision changing existing law may not be reported in a general appropriation bill, including a provision making the availability of funds contingent on the receipt or possession of information not required by existing law for the period of the appropriation, except germane provisions that retrench expenditures by the reduction of amounts of money covered by the bill....”
Since each of these points of order lies against reporting (or receiving) a bill containing such unauthorized or legislative provisions, the proper time for the point of order to be raised is when the committee files its report with the House. In other words, the point of order is raised against reporting the measure instead of against its consideration.
However, clause 1 of House rule XXI reads that, “at the time a general appropriation bill is reported, all points of order against provisions therein shall be considered as reserved.” Consequently, the right of any Member to raise a point of order for a violation of these clauses of rule XXI is protected and therefore may be raised at a later time when the paragraph or section containing such a violation is read for amendment during consideration of the bill for amendment under the five-minute rule in the Committee of the Whole.
The Chair first inquires whether any Member has a point of order against the pending paragraph or section before entertaining any amendments to that portion of the bill. The Chair makes the same inquiry when a bill is open to amendment to a certain point by unanimous consent. A point of order may be raised against a portion of the paragraph or section, or against the entire paragraph or section. If a Member raises a point of order against a paragraph or section, another Member may extend the point of order to the entire section or paragraph. If the Chair sustains such a point of order, the entire paragraph or provision against which the point of order was raised is automatically stricken from the bill.
Once a point of order has been raised, the burden of proving the authorization for language carried in an appropriation bill falls on the proponents and managers of the bill. This burden is met by citing specific statutory authority for the appropriation. This same process applies to points of order raised against provisions deemed to be legislative in nature. The manager of the appropriation bill must meet the burden of proof that a provision is not legislative in nature.
Language is deemed to be a “provision changing existing law” as stated under clause 2 of House rule XXI if it meets any of the following criteria:
- A change in the text of existing law - Existing law may be repeated verbatim in an appropriation bill but the slightest change of the text causes it to be ruled out. Applying an amendment to funds other that those included in the pending measure is also not allowed.
- The enactment of law where none exists - The provision of the rule forbidding legislation in any general appropriation bill is construed to mean the enactment of law where none exists, such as permitting funds to remain available until expended or beyond the fiscal year covered by the bill, or immediately upon enactment, where existing law permits no such availability.
- The repeal of existing law - A repeal of a law is a straight forward legislative proposal.
- A waiver of a provision of existing law - A waiver may be regarded as legislation on an appropriation bill where it uses such language as “notwithstanding the provisions of any other law'' or “without regard to [sections of] the Revised Statutes.”
Clause 3(f)(1) of House rule XIII states that the Appropriations Committee report must include
a concise statement describing the effect of any provision of the accompanying bill that directly or
indirectly changes the application of existing law and a list of all appropriations contained in the bill for expenditures not previously authorized by law (except classified intelligence or national security programs, projects, or activities). This statement and list, although often not exhaustive, are often used in determining what provisions of the underlying appropriations bill are unauthorized or legislative. The report must also include a statement of the last year for which the expenditures were authorized, the level of expenditures authorized for that year, the actual level of expenditures for that year, and the level of appropriations in the bill for such expenditures.
It should also be noted that special rules granted by the Rules Committee providing for consideration of appropriation bills often waive points of order against provisions in the bill for violation of clause 2 of rule XXI. Occasionally, these waivers apply to an entire bill, except for certain specified paragraphs. In these instances, the unprotected portions of the bill would remain subject to a point of order for violating this rule of the House. Additionally, it should be noted that clause 4 of House rule XXI prohibits the inclusion of appropriations in legislative bills.
Finally, the rules of the House are not self-enforcing, particularly these rules. Members must raise timely points of order in order for these rules to apply to the consideration of appropriation and legislative bills.