Senate Rule XXVIII: Out of Scope Material

Senate and House rules place restrictions on the kinds of agreements conferees can propose to their two houses. Implicit in the rules of both chambers is the requirement that conferees resolve the differences committed to them by reaching agreements within what is known as "the scope of the differences" between the House and Senate versions of the bill. The conferees may accept the House position, the Senate position, or a position that is a compromise between them. Any position that is not within this range of options exceeds the scope of the differences between the two houses. It constitutes "matter not committed to them by either House" and makes their conference report subject to a point of order on both the House and Senate floor. 
In practice, these restrictions are not as stringent as they may seem on their face. The House often waives its rules that restrict the authority of conferees, and the Senate has developed precedents that grant its conferees considerable latitude in reaching agreements with the House, especially when they are in conference with a bill from one house and a single amendment from the other house that proposes to replace the entire text of the bill. Rulings and practices in the Senate have left the chamber with a body of precedents that allow the inclusion of new matter as long as it is reasonably related to the matter sent to conference. Senators can also choose not to raise a scope point of order against a conference report, allowing it to be considered regardless of its content.

	Senate Rule XLIV, Paragraph 8: New Directed Spending Provisions

Paragraph 8 of Senate Rule XLIV places an additional restriction on the content of conference reports. Under the rule, a Senator can raise a point of order against provisions of a conference report if they constitute "new directed spending provisions," which are defined as
any item that consists of a specific provision containing a specific level of funding for any specific account, specific program, specific project, or specific activity, when no specific funding was provided for such specific account, specific program, specific project, or specific activity in the measure originally committed to the conferees by either House.
It is worth emphasizing that Paragraph 8 of Rule XLIV applies only to the conference report and not to the joint explanatory statement (also known as the statement of managers ) that accompanies it. Joint explanatory statements are signed by the conferees but, like reports of standing committees, are not voted on by the House or the Senate and cannot be changed through any formal amendment process. It is the conference report that contains the formal legislative language that will become law if both chambers agree to the report and the President then signs the measure.
In contrast to Rule XXVIII, which applies to the full text of every conference report, Paragraph 8 of Senate Rule XLIV applies only to provisions of conference reports that would provide for actual spending. In other words, it applies only to discretionary and mandatory spending provisions and not to authorizations of appropriations. Discretionary spending is provided in appropriations acts, and generally funds routine operations of the federal government. Mandatory spending, also referred to as direct spending, is provided in substantive law and generally funds entitlement programs, such as Social Security and Medicare.
A hypothetical example can illustrate the difference between the Rule XXVIII "scope" point of order and the Rule XLIV, Paragraph 8, "new directed spending" point of order. The House might pass an appropriations bill providing funding for several specific projects. The Senate might pass this bill with an amendment in the nature of a substitute, and the two houses then could agree to a conference. The conferees might agree to include in the conference report funding for several similar projects that were not listed in the House bill or in the Senate substitute. Under Rule XXVIII, the provision including funding for additional projects would likely be considered to be reasonably related to the matter sent to conference and therefore not subject to a point of order. Under Rule XLIV, Paragraph 8, however, provisions of this kind would likely be interpreted to be "new directed spending provisions" and therefore subject to a point of order.

	Disposing of the Point of Order

The procedure for disposing of a Rule XXVIII or a Rule XLIV point of order allows the Senate to strike "new matter" or "new directed spending provisions" from the conference report but agree to the rest of the terms of the compromise. Because it is not in order for either chamber to alter the text of a conference report, the rule creates a process that converts the text of the conference compromise minus the "new matter" or "new directed spending provisions" into an amendment between the houses. If the Senate agrees to this amendment, it is then sent to the House for consideration in that chamber.
Under the process, a Senator can make a point of order against one or more provisions of a conference report. If the point of order is not waived (see below), the presiding officer rules on whether the provision is in violation of the rule. If a point of order is raised against more than one provision, the presiding officer can make separate decisions regarding each provision.
If the presiding officer sustains a point of order against a conference report on the grounds that it violates either the prohibition of "new matter" or "new directed spending provisions," the matter is stricken from the conference recommendation. After all points of order raised under this procedure are disposed of, the Senate will proceed to consider a motion to send to the House, in place of the original conference agreement, a proposal consisting of the text of the conference agreement minus the "new matter" or "new directed spending provision" that was stricken. Amendments to this motion are not in order. The motion to agree to the bicameral compromise with the "new matter" or "new directed spending provision" stricken is debatable "under the same debate limitation as the conference report." Under the regular rules of the Senate, debate on conference reports is not limited. It is limited only if the Senate agrees to limit debate by unanimous consent, if cloture has been successfully invoked on the conference report, or if the Senate is considering the report under expedited procedures established by law (such as the procedures for considering budget resolutions and budget reconciliation measures under the Budget Act). In short, the terms for consideration of the motion to send to the House the proposal without the offending provisions are the same as those that would have applied to the conference report itself.
If the Senate agrees to the motion, the conference recommendation as altered by the deletion of the "new matter" or "new directed spending provision" would be returned to the House in the form of an amendment between the houses. The House would then have an opportunity to act on the amendment. The prohibition against amendments to a conference report does not apply to amendments between the houses. Accordingly, the House could, under its procedures, agree to the modified compromise version as it was received from the Senate or offer further amendment(s) thereto. The House could also request a further conference with the Senate or choose to take no action at all on the new compromise language.
The procedure for disposing of points of order under either Rule XXVIII or Paragraph 8, Rule XLIV, is similar to that currently followed for disposing of points of order against conference reports under the "Byrd rule" (Section 313(d) of the Congressional Budget Act). The Byrd rule applies only to reconciliation measures, however.

	Waiving the Rule

Senate rules also create a mechanism for waiving the restrictions on the content of conference reports. The points of order under Rule XXVIII and Paragraph 8 of Rule XLIV can be waived with the support of three-fifths of all Senators duly chosen and sworn (60 Senators if there are no vacancies). Senators can move to waive points of order against one or several provisions, or they can make one motion to waive all possible points of order under either rule. Under these procedures, a motion to waive all points of order is not amendable, but a motion to waive points of order against specific provisions is. As a result, it is possible for a Senator to ensure a vote on waiving all points of order under each rule, and, if successful, no separate motions to waive points of order against individual provisions would be necessary.
Time for debate on the motion to waive is limited to one hour and is divided equally between the majority leader and the minority leader or their designees. If the motion to waive garners the necessary support, the Senate is effectively agreeing to keep the matter that is potentially in violation of the rule in the conference report. Motions to waive "scope" (Rule XXVIII) points of order are made and considered separately from motions to waive "new directed spending" (Rule XLIV, Paragraph 8) points of order.
The rules further require a three-fifths vote to sustain an appeal of the ruling of the chair and limit debate on an appeal to one hour, equally divided between the party leaders or their designees. The purpose of these requirements is to ensure that either method by which the Senate could choose to apply these rules—through a motion to waive or through an appeal of the ruling of the chair—requires a three-fifths vote of the Senate (usually 60 Senators). A simple majority (51 Senators if there are no vacancies and all Senators are voting) cannot achieve the same outcome. The effect of overturning a ruling of the chair on appeal is quite different from the effect of agreeing to a motion to waive a rule. The decision on an appeal stands as the judgment of the Senate and becomes a precedent for the Senate to follow in future proceedings. A decision to waive the rule, in contrast, does not change the interpretation of the rule in future practice.

Summary:
Two Senate rules affect the authority of conferees to include in their report matter that was not passed by the House or Senate before the conference committee was appointed. Colloquially, such provisions are sometimes said to have been "airdropped" into the conference report. First, Rule XXVIII precludes conference agreements from including policy provisions that were not sufficiently related to either the House or the Senate version of the legislation sent to conference. Such provisions are considered to be "out of scope" under long-standing Senate rules and precedents. Second, Paragraph 8 of Rule XLIV establishes a point of order that can be raised against "new directed spending provisions," or provisions in a conference report that provide specific items of appropriations or direct spending that were not committed to the conference committee in either the House or Senate versions of the legislation. Both of these restrictions can be enforced on the Senate floor if any Senator chooses to raise a point of order against one or more provisions in a conference report.
The process for disposing of either a Rule XXVIII or a Rule XLIV point of order allows the Senate to strike "out of scope matter" or "new directed spending provisions" from the conference report but agree to the rest of the terms of the compromise. It is not in order, however, for either chamber to alter the text of a conference report, and therefore the process converts the text of the conference compromise minus the "new matter" or "new directed spending provisions" into an amendment. If the Senate agrees to this amendment, it is then sent to the House for consideration in that chamber. The points of order under Rule XXVIII and Paragraph 8 of Rule XLIV can be waived with the support of three-fifths of all Senators duly chosen and sworn (60 Senators if there is no more than one vacancy). A figure at the end of the report outlines the procedural steps for disposing of these points of order when they are raised against conference reports.