Points of Order in the Congressional Budget Process
Released: 2015-10-20T00:00:00

Introduction

The Congressional Budget Act of 1974 established the basic framework that is used today for congressional consideration of budget and fiscal policy. The act provided for the adoption of a concurrent resolution on the budget (budget resolution) as a mechanism for coordinating congressional budgetary decision making. This process supplements other House and Senate procedures for considering spending and revenue legislation by allowing Congress to establish and enforce parameters with which those separate pieces of budgetary legislation must be consistent. The parameters are established each year when Congress adopts the budget resolution, setting forth overall levels for new budget authority, outlays, revenues, deficit, and debt.

These overall spending levels are then allocated to the various committees in the House and Senate responsible for spending legislation. The overall levels and allocations are then enforced through the use of points of order, and through implementing legislation, such as that enacted through the reconciliation process. Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point of order against legislation that is alleged to violate these rules when it is considered by the House or Senate. Points of order are not self-enforcing. A point of order must be raised by a Member on the floor of the chamber before the presiding officer can rule on its application, and thus for its enforcement.

Although the congressional budget process encompasses myriad procedures dealing with spending, revenue, and debt legislation, this report focuses only on that portion of the process that stems from the Congressional Budget Act. The tables below list the points of order included in the Congressional Budget Act, as amended through the Bipartisan Budget Act of 2013 ( P.L. 113-67 ) ( Table 1 ), as well as related points of order established in various other measures. These points of order include provisions in the FY2010 budget resolution ( Table 3 ); the FY2008 budget resolution ( Table 4 ); the Budget Enforcement Act of 1990 ( Table 5 ); the rules of the House and separate orders adopted under H.Res. 5 (114 th Congress) ( Table 6 ); and the provisions of the Statutory Pay-As-You-Go Act of 2010 ( Table 7 ) that pertain to the consideration, contents, implementation, or enforcement of budgetary decisions.

Points of order are typically in the form of a provision stating that "it shall not be in order" for the House or Senate to take a specified action or consider certain legislation that is inconsistent with the requirements of the Budget Act. Other provisions of the act, formulated differently, establish various requirements or procedures, particularly concerning the contents and consideration of the budget resolution or reconciliation legislation. These provisions, however, are not typically enforced through points of order, and are not included here.

As amended through the Bipartisan Budget Act of 2013, points of order in the Congressional Budget Act are permanent. None of the provisions listed in Table 1 is scheduled to expire, although several points of order have limited applicability or have been rendered moot by the expiration of limits they were intended to enforce. The freestanding point of order protecting the Social Security trust fund in the House established in the Budget Enforcement Act (see Table 5 ) is also permanent. However, other points of order established under recent budget resolutions have various sunset provisions or limited application.

Application of Points of Order

Most points of order in the Budget Act apply to measures as a whole, as well as to motions, amendments, or conference reports to those measures. When a point of order is sustained against consideration of some matter, the effect is that the matter in question falls.

The application of points of order in the House is clarified in Section 315 of the Budget Act. This provision states that for cases in which a reported measure is considered pursuant to a special rule, a point of order against a bill "as reported" would apply to the text made in order by the rule as original text for the purpose of amendment or to the text on which the previous question is ordered directly to passage. In this way, no point of order would be considered as applying (and no waiver would be required) if a substitute resolved the problem. In addition, the Rules of the House for the 111 th Congress include a provision further specifying that for measures considered pursuant to a special rule, points of order under Title III of the Budget Act apply without regard to whether the measure considered is actually that reported from committee. Under Rule XXI, clause 8, points of order apply to the form of a measure recommended by the reporting committee where the statute uses the term "as reported" (in the case of a measure that has been reported), the form of the measure made in order as an original text for the purpose of amendment, or the form of the measure on which the previous question is ordered directly to passage.

The effect of a point of order in the Senate is clarified under Section 312(f), which provides that when a point of order against a measure is sustained, the measure is recommitted to the appropriate committee for any further consideration. This allows the Senate an opportunity to remedy the problem that caused the point of order. Section 312(d) is also designed to provide the Senate with the opportunity to remedy a problem that would provoke a point of order. This provision states that a point of order may not be raised against a measure, amendment, motion, or conference report while an amendment or motion that would remedy the problem is pending.

Section 312(e) clarifies that any point of order that would apply in the Senate against an amendment also applies against amendments between the houses. Further, this section also states that the effect would "be the same as if the Senate had disagreed to the amendment." This would allow the Senate to keep the underlying measure pending, and thus retain the ability to resolve their differences with the House. This provision therefore means that any resolution of the differences between the House- and Senate-passed versions of a measure, whether it is in the form of a conference report or not, must adhere to the provisions of the Budget Act.

There are exceptions to the general principle of applying points of order to a measure as a whole. The most salient is probably Section 313, the so-called Byrd Rule. This section applies to matter "contained in any title or provision" in a reconciliation bill or resolution (or conference report thereon), as well as any amendment or motion. If a point of order is sustained under this section, only the provision in question is stricken, or the amendment or motion falls. Several of the points of order in the Senate subsequently established under budget resolutions have been written so that they too apply to individual provisions rather than the measure as a whole, in the same manner as provided in Section 313(e) of the Budget Act. In particular, this construction is applied to the points of order against emergency spending designations (Section 403(e)(1) of S.Con.Res. 13 (111 th Congress), Section 314(e) of the Budget Act, and Section 4(g)(3) of the Statutory Pay-As-You-Go Act of 2010). These sections further provide that, if sustained, the effect of the point of order is that the provision making an emergency designation shall be stricken, and may not be offered as an amendment from the floor.

Procedures for Waiving Points of Order

The Congressional Budget Act sets forth certain procedures, under Section 904, for waiving points of order under the act. These waiver procedures apply in the Senate only. Under these procedures, a Senator may make a motion to waive the application of a point of order either preemptively before it can be raised, or after it is raised, but before the presiding officer rules on its merits.

In the Senate, most points of order under the Budget Act may be waived by a vote of at least three-fifths of all Senators duly chosen and sworn (60 votes if there are no vacancies) (see Table 1 ). The three-fifths waiver requirement was first established for some points of order under the Balanced Budget and Emergency Deficit Control Act of 1985. Beginning with the Balanced Budget Act of 1997, this super-majority threshold was applied to several additional points of order on a temporary basis. These points of order are identified in Section 904(c)(2), and the three-fifths requirement is currently scheduled to expire September 30, 2025. The three-fifths threshold has also been required for the Senate to waive the application of many of the related points of order established in budget resolutions and other measures, such as the Statutory Pay-As-You-Go Act of 2010. As with other provisions of Senate rules, Budget Act points of order also may be waived by unanimous consent.

In the House, Budget Act points of order are typically waived by the adoption of special rules, although other means (such as unanimous consent or suspension of the rules) may also be used. A waiver may be used to protect a bill, specified provision(s) in a bill, or an amendment from a point of order that could be raised against it. Waivers may be granted for one or more amendments even if they are not granted for the underlying bill. The House may waive the application of one or more specific points of order, or they may include a "blanket waiver," that is, a waiver that would protect a bill, provision, or amendment from any point of order.