Regular Appropriations Bills: Terms of Initial Consideration and Amendment in the House, FY1996-FY2015
Released: 2015-03-06T00:00:00

Introduction

Each year, Congress considers appropriations measures that provide funding for various federal government activities. Such measures are commonly referred to as "regular" appropriations bills. Because of the importance of these measures, the standing rules of the House establish special terms for their consideration, including making them privileged for consideration and providing restrictions on the amendment process to which they are subject. In practice, however, the extent to which these procedures are applicable to a specific regular appropriations bill is often dependent on whether the House chooses to consider it under these standing rules or to adopt alternate procedures for the individual case.

In recent years, the House has typically considered a regular appropriations bill only after first reaching agreement on the procedural terms of its consideration. Since at least the mid-1990s, the House has provided for consideration of nearly all regular appropriations bills under special rule s , which are simple resolutions reported by House Rules Committee that set the terms for considering a measure. During this period, the House has also occasionally initiated consideration under the terms of unanimous consent agreement s (UCAs), which have typically resembled special rules in form and effect. Rarely have regular appropriations bills been considered under their status as privileged business.

House Rule XIII allows a motion to be made to provide for consideration of a general appropriations bill. When regular appropriations bills are brought to the floor as privileged business by this method, there are no restrictions on the amendments that may be offered beyond what is provided in the standing rules of the House. Such rules affect both the content and timing of amendments but do not provide significant restrictions on debate or the number of amendments that may be offered. Consequently, the consideration of a regular appropriations bill under its privileged status may be time consuming. Since about the 80 th Congress (1947-1948), special rules that govern proceedings on regular appropriations bills have generally also allowed any amendments to be offered that would otherwise be in order under House rules. During the period covered by this report, particularly during the 111 th Congress (2009-2010), regular appropriations bills have occasionally been considered under special rules that also placed further restrictions on the amending process.

Special rules and UCAs have also been used frequently to waive House rules that could prevent or delay the consideration of regular appropriations bills as reported by the committee. These standing rules have included both those that would prevent consideration of the measure itself and those barring certain kinds of provisions it might contain, but the coverage of such waivers has changed over the period studied. In earlier years, waivers of rules precluding consideration tended to specify those rules waived, but more recent special rules have often contained a blanket waiver. One of the most frequently waived standing rules barring specific kinds of provisions has been of House Rule XXI, clause 2, which prohibits appropriations not authorized by law and the inclusion of "legislative" provisions. Such waivers may include exceptions for certain portions of the bill, leaving those portions vulnerable to a point of order. Since the 110 th Congress (2007-2008), however, the special rules or UCAs initiating consideration have provided a blanket waiver of Rule XXI, clause 2, in almost all instances.

This report examines the terms under which the regular appropriations bills are typically brought up and initially considered on the House floor, as well as the practices of the House with regard to amendment opportunities and waivers, for FY1996 to FY2015 (104 th -114 th Congresses). It focuses exclusively on initial consideration of regular appropriations bills and does not address the consideration of conference reports or amendments between the houses. It also does not address the few instances where an appropriations bill was first considered on the House floor combined with one or more other appropriations bills (so-called omnibus or minibus bills). Similarly, this report does not cover the initial consideration of supplemental appropriations bills or continuing appropriations measures, as such measures tend to be considered under different terms than is typical of regular appropriations bills. It also does not discuss special rules prior to the 104 th Congress (1995-1996), as the structure of those rules and the floor consideration of regular appropriations bills differed significantly from current practice. For example, regular appropriations bills were often brought up using their privileged status in combination with a special rule that waived points of order.

Examination of the practices of the House for considering regular appropriations bills shows that consideration was sometimes further structured once it had been initiated through an additional special rule or unanimous consent agreement. For the purposes of consistency, the data presented in this report for each bill include only the terms under which consideration was initiated. The practice of further structuring those terms after consideration has begun is discussed below in the report section " Limiting Debate and Amendments ."

This report proceeds in three sections. The first section provides a general overview of how the consideration of regular appropriations bills has been initiated between FY1996 and FY2015. The second section discusses the floor consideration of amendments to regular appropriations bills and the types of amending processes that have been established at the beginning of consideration. The third section discusses waivers of points of order both against consideration and of Rule XXI, clause 2, and how the form of those waivers has evolved during this period.

Initiating Consideration of Regular Appropriations Bills in the House

For the FY1996 to FY2015 regular appropriations bills, the frequency of each method through which floor consideration was initiated is illustrated in Table 1 . During the earlier part of this period, all of the regular appropriations bills received individual floor consideration in all but one fiscal year. Since the FY2003 appropriations cycle, however, all regular appropriations bills received floor consideration in only four fiscal years, most recently for FY2010. Over the entire period, special rules were used to initiate consideration of regular appropriations bills in almost all instances. Unanimous consent agreements and consideration as privileged measures were also used on some occasions, in 5 of the 20 fiscal years during this period.

Consideration as Privileged

House Rule XIII, clause 5, allows a regular appropriations bill to be brought to the floor for consideration by a privileged motion to proceed to its consideration after it has been reported by the Appropriations Committee and certain other reporting and layover conditions have been satisfied. Such a motion may not be debated, so that initiating consideration in this matter requires only as much floor time as is necessary to agree to the motion. Consideration of a regular appropriations bill under its privileged status does not, however, provide a mechanism for House rules to be waived or altered to structure the debate and amending process. Thus, the legislative process in the standing rules of the House governs, unless superseded by unanimous consent or the adoption of a special rule, either prior to or after consideration has begun.

Only three regular appropriations bills were brought to the floor during this period under their status as privileged business, two for FY1998 and one for FY2004 (see Table 1 ). In all other instances, the House first agreed to the terms of consideration and then brought the bill to the floor.

Special Rules

Special rules can be used to regulate the consideration of regular appropriations bills in several important respects. First, special rules can provide waivers for any parts of the measure that might otherwise violate House rules and prevent the measure's consideration. In addition, special rules may structure the terms of consideration by specifying the length of time the measure will be considered, the amount and type of debate that will be allowed, and any amendments that might be eligible for consideration. The amendment process may be further affected by a special rule that grants waivers to permit amendments to be considered that would otherwise not be in order under House rules.

In current practice, the process of considering a regular appropriations bill on the House floor typically begins with the consideration of a special rule reported by the Committee on Rules. Once the committee reports the rule in the form of a simple resolution, it is considered on the House floor under the "hour rule," pursuant to which one hour of debate is managed by the majority party Member of the Rules Committee who called up the rule. Customarily, the majority floor manager yields one-half of this time to a minority Member of the Rules Committee for the purposes of debate only. During this hour of debate, the rule may be amended only by (or with the consent of) the majority floor manager, and typically no amendments are offered. At the end of the hour of debate, the floor manager moves the previous question to prevent further debate and any amendments from being offered. If the previous question is ordered by an affirmative vote of a simple majority, the House proceeds to a final vote on the special rule. Special rules are almost always approved by the House.

For FY1996 to FY2015, special rules were used to initiate consideration of 178 out of 194 regular appropriations bills (see Table 1 ). Special rules were the only method by which consideration was initiated for 15 of 20 fiscal years, including the seven most recent fiscal years (FY2009-FY2015). Although alternative methods have been used periodically, special rules have been used over half the time for each fiscal year during this period.

Unanimous Consent Agreements

Like special rules, UCAs may be used to bring up a measure, waive any points of order against it, and structure the terms of its consideration. Unlike special rules, however, such agreements are orally propounded on the floor by a Member and entered into if no Member objects on the floor at that time. Consequently, initiating consideration through a UCA may be advantageous because it requires little floor time when compared to a special rule. The ability of a single Member to prevent such agreement by objecting, however, may preclude the use of a UCA in some circumstances.

UCAs were used to initiate consideration of regular appropriations bills for FY1996 to FY2015 in 10 instances during five fiscal years (see Table 1 ). The frequency with which UCAs were used ranged from once for FY1997 to three times for FY2004. Most recently, UCAs were used to initiate consideration twice for FY2008.

Amending Regular Appropriations Bills in the House

When a regular appropriations bill is considered as a privileged measure, this procedure generally permits consideration of any amendments to the bill that comply with the rules of the House (called an "open" amending process). Providing for consideration by a special rule or UCA, however, allows this amending process to be altered. Such alterations can place preconditions on the offering of amendments, directly prescribe the specific amendments that will be in order, waive points of order against amendments, or place time limits on their consideration.

For FY1996 to FY2015, the means used for consideration of most regular appropriations bills provided for some type of "open" amending process allowing an unrestricted number of amendments to be offered that comply with House rules. Such processes often waived points of order against certain amendments and, less frequently, required that amendments be preprinted in the Congressional Record in advance of consideration. An exception to this has been the Legislative Branch appropriations bill. On all but one occasion during this period, the means used for initiating consideration of Legislative Branch bills provided for a "structured" amendment process, which specified a list of amendments that could be offered and waived points of order against those amendments. Structured processes were used for other types of bills on 3 occasions through the 110 th Congress, 13 occasions during the 111 th Congress, and one occasion during each of the 113 th and 114 th Congresses. A closed process, which allowed no amendments, was used on only one occasion, for consideration of the FY2004 Legislative Branch appropriations bill. Other practices during this period have included the imposition of time caps on consideration of the bill, sections of the bill, or amendments.

In some cases, the House may choose to structure the amendment process subsequent to initiating consideration, either by unanimous consent or by adopting an additional special rule.

Consideration of Amendments to Regular Appropriations Bills

Under the standing rules of the House, regular appropriations measures are considered in the Committee of the Whole under the "five-minute rule" for amendment. Following general debate, the bill is read by paragraph. All amendments must be timely, meaning they may only be offered, if in order, to the paragraph that is currently being read for amendment. Because the House Appropriations Committee almost always reports an original bill, floor amendments considered to that bill are to the reported text. The five-minute rule allows five minutes of debate in favor and five minutes of debate against each amendment that is offered. "Pro forma amendments," which enable Members to speak for five minutes not allotted through the five-minute rule, may also be offered. All amendments must be germane to the provision being amended, and additional restrictions in House rules and the Congressional Budget Act that apply to general appropriations bills, such as the prohibitions on unauthorized appropriations and legislation in Rule XXI, clause 2, limit the content and timing of any amendments that may be considered. When the amending process is concluded, the Committee of the Whole rises and reports back to the House. At this stage, the House must affirm the amendments to the measure recommended by the Committee of the Whole. The House may also vote on a motion to recommit, if offered, with or without amendatory instructions. At the end of consideration, a final vote on the measure, as amended, occurs.

Limiting Debate and Amendments

Debate and amendment of regular appropriations bills can be time consuming. When consideration of a regular appropriations bill is initiated as privileged, the House routinely agrees by unanimous consent to limit general debate to one hour. The standing rules of the House also place no direct limits on the number of amendments that Members may offer. As a result, consideration and debate on large numbers of amendments may slow the floor process. Members may also choose to offer pro forma amendments to extend debate on the measure, moreover, which can prolong the process even further.

In anticipation of the practices discussed above, the House often chooses to initiate consideration of regular appropriations bills through a special rule or UCA that limits general debate. Although the process of agreeing to special rules and UCAs differs, both afford a parallel range of options for structuring consideration. In addition to limiting general debate, special rules and UCAs may specify the number or type of amendments that may be offered to sections of the bill or the entire bill. For example, the UCA that initiated consideration of the FY2008 Military Construction Appropriations bill limited amendments to a list of 24, plus pro forma amendments offered by the Appropriations Committee chair and ranking Member or their designees. Consideration can also be limited by a special rule or UCA that places a time cap on consideration of sections of the bill for amendment, consideration of individual amendments, or the total amount of time for consideration. For example, H.Res. 484 (106 th Congress), which provided for consideration of the FY1999 Defense Appropriations bill, limited consideration of a particular section of the bill to one hour.

The terms of consideration may be determined as consideration is initiated and then further elaborated after the amending process has begun. During the earlier part of the previous decade, the consideration of amendments to regular appropriations bills was often initiated by a special rule that did not limit amendments, and then structured by a UCA once consideration was underway. For example, after the House took up the FY2008 State and Foreign Operations Appropriations bill, a UCA was entered into at the end of the first day of consideration that limited further amendments to a list of 55 and specified a time cap for debate on each amendment. This use of UCAs can enable the House to conclude the amending process in a more predictable manner than might otherwise occur under an open rule. This practice was less frequent starting in the 110 th Congress.

As an alternative to a UCA after consideration has been initiated under an open rule, the House can adopt a second special rule to limit the consideration of subsequent amendments. Although additional special rules are rarely used in current practice, the House may resort to them in instances when a UCA cannot be obtained. For example, during consideration of the FY2010 Commerce, Justice, Science appropriations bill, a second special rule was adopted ( H.Res. 552 , 111 th Congress) that limited further amendments to a list of 23 plus up to 10 from an additional list.

Structuring the Consideration of Amendments Prior to Initial Consideration

As was discussed above, special rules and UCAs may provide for consideration of amendments to regular appropriations bills in different ways. Prior to 1973, most special rules used to initiate consideration of regular appropriations bills tended to place no restrictions on amendments. In other cases during this period in which they did place restrictions, they tended to preclude amendments entirely. Since that time, however, special rules have been used to regulate the amending process in a variety of ways that place some limits on amendments but still allow them to be offered under certain conditions. The Rules Committee has concurrently developed additional categories to distinguish rules in this respect. These categories have varied over the years. For the purposes of analytic consistency, this report divides the amendment processes provided by special rules and UCAs into six categories relevant to House practice when taking up regular appropriations bills.

1. Regular Open allows any amendment to be offered that would be in order under the standing rules of the House and the Budget Act. 2. Open Plus makes in order one or more specified amendments by waiving House Rules (either specifically or generally) but does not otherwise restrict the opportunities available for amendment. This type of process may also place time caps on the consideration of specified amendments or provide that no second degree amendments to those amendments will be in order. 3. Open with a Preprinting Requirement provides that amendments to the bill must be preprinted in the Congressional Record before being offered but otherwise allows any preprinted amendments that comply with House rules. No pro forma amendments to the bill are in order when a preprinting requirement is in effect, but pro forma amendments to the preprinted amendments are allowed, unless otherwise specified. 4. Open with a Time Cap on Amendments places a time limit on the debate of each amendment. 5. Structured specifies the amendments that may be offered to the bill or to a portion of the bill. This form of consideration also includes processes that close part of the bill to amendment or limit amendments on specific topics. This process may also waive points of order against such specified amendments or place time caps on their consideration. 6. Closed allows no amendments to be offered and at least one motion to recommit.

Using these categories, Table 2 presents a breakdown of the type of amending process provided in special rules and UCAs for FY1996 to FY2015 regular appropriations bills. The few rules that do not conform to these categories are noted in the "other" column and are discussed separately.

Open Amending Processes

For regular appropriations bills for FY1996 to FY2015, 77.1% of special rules and UCAs that initiated consideration provided some type of open amending process. In addition, some type of open process was used the majority of the time for each fiscal year during this period, except during the 111 th Congress (2009-2010).

The type of open amending process varied. In total, 72.8% of open processes were "regular open" and allowed any amendment to be offered that was in order under the standing rules of the House and the Budget Act. In addition, 24.3% were "open plus" and included waivers that made one or more specified amendments in order. Open plus rules and UCAs were used frequently during the earlier part of this period; for FY1996 to FY2000, open plus processes were used to initiate consideration for 41.9% of regular appropriations bills. The frequency of this approach subsequently declined for consideration of the FY2001 to FY2004 bills; no open plus amending processes have been used to initiate consideration of regular appropriations bills since that time.

The open plus processes used during this period, at a minimum, regulated consideration by waiving points of order against one or more specified amendments. Although seven amendments were provided waivers on one occasion, open plus processes typically waived points of order against only one or two amendments. Most of these processes also included time caps on the debate of such amendments. For example, H.Res. 245 (107 th Congress), the special rule initiating consideration of the FY2002 District of Columbia Appropriations bill ( H.R. 2944 , 107 th Congress), provided that an amendment specified in the report would be debatable for only 10 minutes. Some of these open plus processes also protected the amendments specified in the report from being amended on the floor by second degree amendments. For example, H.Res. 263 (106 th Congress), the special rule initiating consideration of the FY2000 Foreign Operations, Export Financing, and Related Programs Appropriations bill ( H.R. 2606 , 107 th Congress), stipulated that the amendments printed in the report would "not be subject to amendment." Effectively, this meant that while Members could generally offer amendments to the bill that complied with House rules, they could only give an up or down vote to those specified amendments.

Clause 8(b) of Rule XVIII provides procedures for amendments to be submitted to the Congressional Record for printing prior to consideration. Generally, however, the practice of requiring amendments to be preprinted in the Congressional Record before being offered has been rare for FY1996 to FY2015. Only four special rules and no UCAs initiating consideration of regular appropriations bills contained such provisions, most recently for consideration of an FY2010 measure. In all four of these instances, the special rule explicitly allowed pro forma amendments.

In the 113 th Congress, the last four FY2015 regular appropriations bills that received initial floor consideration received open rules that included additional provisions limiting the time for debate of each amendment. These special rules allowed any amendments that complied with the rules of the House but provided that they could be debated for only 10 minutes. In addition, these special rules prohibited pro forma amendments, except that the chair and ranking Member of the Appropriations Committee would be allowed to offer 10 such amendments each.

Structured and Closed Amending Processes

Structured and closed amendment processes for the FY1996 to FY2015 regular appropriations bills have been implemented at the time consideration was initiated almost entirely through special rules. Structured UCAs were used on only two occasions.

The structured rules and UCAs during this period have been largely consistent with regard to time caps and waivers for the consideration of amendments. All structured rules and UCAs have placed time caps on the consideration of each amendment. In addition, all structured rules, but none of the UCAs, have waived points of order against the allowed amendments.

The primary use of structured and closed rules during this period has been to initiate consideration of the Legislative Branch Appropriations bill, with some exceptions. In all but one instance that the Legislative Branch bill was initially considered in the House, it was considered under a structured rule. In addition, the one closed rule during this period initiated consideration of the FY2004 Legislative Branch Appropriations bill. In general, the number of amendments to Legislative Branch bills that were allowed by structured rules increased during the 112 th Congress. Prior to this time, the number of amendments allowed ranged from one to 12, with an average of about four per rule. The rules for the consideration of the FY2012, FY2013, and FY2015 Legislative Branch Appropriations bills ( H.Res. 359 and H.Res. 679 , 112 th Congress; H.Res. 557 , 113 th Congress) allowed a list of 16, 7, and 8 amendments, respectively.

In recent Congresses, the use of structured rules to provide for the consideration of regular appropriations bills has been the subject of some controversy. In particular, structured rules were used to initiate consideration of all but one such bill during the 111 th Congress, rather than an open rule supplemented by an amendment roster included in a subsequent UCA, as had generally been the practice of the House. Prior to this time, a structured rule was used to initiate consideration of an appropriations measure other than a Legislative Branch bill on only one occasion, the FY1998 District of Columbia Appropriations bill ( H.Res. 264 , 105 th Congress). More recently, structured UCAs were used on two occasions: to initiate consideration for the FY2008 Defense Appropriations bill ( H.R. 3222 , 110 th Congress) and the FY2008 Military Construction/Veterans Affairs Appropriations bill ( H.R. 2642 , 110 th Congress).

The use of structured rules during the 111 th Congress began with the consideration of the FY2010 Commerce/Justice/Science Appropriations bill ( H.R. 2847 ). The House initiated consideration under H.Res. 544 (111 th Congress), an open rule that required amendments to be preprinted in the Congressional Record prior to a specified deadline and allowed an unlimited number of pro forma amendments. More than 100 amendments were prefiled before the deadline in the rule, and the House was unable to agree to a UCA further structuring consideration two days after that deadline. Instead, the House passed a second special rule, H.Res. 552 (111 th Congress), that limited consideration to a list of 23 amendments, plus up to an additional 10 amendments. The special rule imposed a time cap of 10 minutes of debate per amendment and waived points of order against the listed amendments. Proponents of these and subsequent structured rules during the 111 th Congress argued that they were a necessary response to the number of amendments prefiled to assure that appropriations could be completed in a timely manner. Others claimed that structured rules on appropriations bills undermine the ability of Members to influence the content of bills and represent their constituents by offering amendments.

There were no structured rules for the consideration of appropriations measures other than Legislative Branch bills in the 112 th Congress. However, a structured rule was used in the 113 th Congress for the consideration of the FY2014 Department of Defense Appropriations bill ( H.R. 2397 ). Prior to floor consideration of the bill, the House Republican leadership announced that such consideration would occur under the terms of a structured rule, reportedly due to concerns related to possible amendments on Syria, Egypt, and the National Security Agency. After the special rule was reported by the Rules Committee ( H.Res. 312 ; H.Rept. 113-170 ), the House adopted the rule, which limited consideration of amendments to a list of 100, provided time caps for debate on each amendment, and waived points of order against those amendments. A structured rule was also used to initiate consideration of the FY2015 Homeland Security Appropriations bill ( H.R. 240 ) at the beginning of the 114 th Congress. As introduced, H.R. 240 reflected the negotiations that had previously occurred between the House and Senate Appropriations Committees on FY2015 annual appropriations for that department. The special rule for floor consideration of this measure ( H.Res. 27 ) prohibited any amendments thereto except five that were to address certain immigration-related executive actions. The special rule also waived points of order against those amendments.

In general, the number of amendments allowed by structured rules initiating consideration for appropriations measures other than Legislative Branch bills has increased in recent years. While only two amendments were allowed for the FY1998 District of Columbia Appropriations bill, the UCAs initiating consideration for the FY2008 Defense and Military Construction/Veterans Affairs bills allowed 18 and 24 amendments, respectively. The structured rules for consideration of appropriations measures other than Legislative Branch bills during the 111 th Congress allowed a range of five to 24 amendments, with an average of about 13 per rule. Most recently, the structured rule for consideration of the FY2014 Department of Defense Appropriations bill allowed 100 amendments, while the rule for consideration of the FY2015 Department of Homeland Security Appropriations bill allowed five amendments.

Other Amending Processes

Three special rules for initiating consideration of regular appropriations bills were not aligned with the categories discussed in the previous sections.

H.Res. 252 (104 th Congress), the special rule for consideration of the FY1996 District of Columbia Appropriations bill ( H.R. 2546 ), contained elements of an open plus amending process, with some exceptions. It provided that the amendment printed in the committee report ( H.Rept. 104-302 ) be considered prior to any other amendment, waived all points of order against that amendment, prohibited any second degree amendments to that amendment, and placed a 10-minute time cap on debate of that amendment. In addition, if that amendment were adopted, debate on each further amendment to the bill and any second degree amendments thereto would be limited to 30 minutes. The rule also waived points of order against four other amendments and specified that they could not be not subject to any second degree amendments.

H.Res. 484 (105 th Congress), the special rule for consideration of the FY1999 Department of Defense Appropriations bill ( H.R. 4103 ), contained elements of a regular open rule but imposed a one-hour time cap on the amendment process for Section 8106.

H.Res. 542 (105 th Congress), the special rule for consideration of the FY1999 Foreign Operations, Export Financing and Related Programs appropriations bill ( H.R. 4569 ), contained elements of both open plus and open with preprinting. The rule waived points of order against five amendments printed in the committee report ( H.Rept. 105-725 ), specified a debate limit for each amendment, and provided that three of these amendments would not be subject to second degree amendments. It also required that all other amendments to the bill be preprinted in the Congressional Record but explicitly allowed pro forma amendments. Finally, the rule provided that the amendment process for this bill be limited to five hours.

Waiving House Rules Prior to Consideration of Regular Appropriations Bills

The standing rules of the House place certain restrictions on when a measure is eligible for consideration and what content may be considered. Specifically, House rules may require that a measure be brought to the floor only during certain time periods or after certain conditions have been satisfied. Rules may also restrict the content of measures, so that certain types of matters cannot be considered or must be considered in certain types of legislative vehicles. These rules are enforced on the floor through points of order and are in effect when consideration of a measure is initiated through privilege, and also (unless altered) by a special rule or UCA.

The House sometimes chooses to "waive" or set aside its standing rules or restrictions in the Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344 , 2 U.S.C. 601-688) during the consideration of certain measures though a special rule or UCA. This is because these rules could potentially prevent the House from taking up legislation that it wishes to consider or require it to be considered in a less preferable form. In setting aside these rules, the House can choose to waive only specific rules or broad categories of rules. The House can also choose to waive rules only for specified provisions in the measure or for the entire measure. Alternatively, waivers of rules can also be framed as covering the entire measure excepting specified provisions, which would consequently remain vulnerable to a point of order.

House rule waivers provided through special rules and UCAs prior to initial consideration of regular appropriations bills for FY1996 to FY2015 are illustrated in Table 3 and Table 4 . During this period, the practice of providing broad waivers for "points of order against consideration" evolved—from providing no waivers or waivers only for specific rules to providing blanket waivers of all points of order against consideration or blanket waivers with exceptions. This change in procedural practice, however, does not necessarily reflect changes in the content of the bills. The practice of providing waivers for Rule XXI, clause 2, with exceptions for specified language in the bill increased during this period until the FY2008 regular appropriations bills. For the FY2008 to FY2011 bills, only waivers that covered the entire measure were used. Most recently, waivers with specified exceptions were provided on five occasions in the 112 th and 113 th Congresses for the consideration of FY2012, FY2013, and FY2014 measures.

Consideration Waivers

When a bill is subject to a point of order against its consideration, House action on the bill requires that a waiver be granted, because if such a point of order is raised from the floor and sustained by the chair, the House will be unable to take the bill up for consideration. As previously mentioned, special rules initiating consideration for regular appropriations bills have often included provisions that waive points of order against consideration stemming from restrictions in specific House rules or the Congressional Budget Act. For example, H.Res. 213 (107 th Congress), which provided for consideration of the FY2002 Legislative Branch Appropriations bill, contained the following provision: "Points of order against consideration of the bill for failure to comply with clause 4(c) of rule XIII are waived."

During this period, special rules providing for consideration of regular appropriations bills have also included provisions that provided a blanket waiver of points of order against consideration of the bill. For example, H.Res. 300 (112 th Congress), which provided for consideration of the FY2012 Agriculture appropriations bill, contained the following provision: "All points of order against consideration of the bill are waived."

Such provisions have the effect of waiving all points of order that would prevent the bill from being taken up by the House.

Broad waivers of points of order provided by special rules are typically addressed in the accompanying committee report, as required under Rule XIII clause 6(g). In instances where a special rule contains a general waiver of points of order against consideration, the committee report accompanying the rule often identifies specific sections of House rules that would be violated by the bill's consideration. In other instances, the committee report indicates that the waiver provided is "prophylactic," in that the consideration of the bill is not believed to violate House rules, but the waiver is included in the event that it does. Unanimous consent agreements that initiate consideration may similarly provide waivers of points of order against consideration in any of the forms discussed above.

Table 3 contains a breakdown of the special rules and UCAs initiating consideration of regular appropriations bills that provided a blanket waiver of all points of order against consideration, waived all such points of order with exceptions, waived specific points of order of this kind, or had no waiver. During this period, special rules and UCAs have trended in a similar direction with respect to the form of waiver provided. Prior to the FY2001 bills, waivers tended to be either for specific points of order against consideration or not provided at all. Waivers of all points of order were the least common when initiating consideration of regular appropriations bills. Since the FY2001 bills, however, waivers of all points of order against consideration have generally predominated, with the bills for FY2004 being the most recent for which a special rule or UCA provided either a specific waiver or none at all.

During the 110 th and 111 th Congresses, the waiver of points of order against consideration provided in special rules initiating consideration of regular appropriations bills contained an exception for Rule XXI, clauses 9 and 10. Such exceptions were typically included in all special rules that waived points of order against consideration during this period. The two UCAs initiating consideration of regular appropriations bills followed a similar pattern. One included an exception to the waiver of all points of order against consideration for both of these clauses ; the other included an exception for Rule XXI, clause 10.

Clauses 9 and 10 were added to Rule XXI at the beginning of the 110 th Congress. Clause 9 provides requirements related to earmark disclosure in the committee report accompanying a regular appropriations bill, and a point of order may be raised against any special rule that waives clause 9. In instances where such a point of order is raised, the House votes on that waiver through a question of consideration. Clause 10 contained the PAYGO point of order against direct spending and revenue legislation. Because regular appropriations bills primarily involve discretionary spending, it would be unusual for a point of order under clause 10 to be raised during consideration, even if allowed.

No points of order were raised pursuant to clause 9 or 10 when the regular appropriations bills were initially brought to the floor during the 110 th and 111 th Congresses. Beginning in the 112 th Congress, the practice returned to providing a blanket waiver of all points of order against consideration in the special rule; no points of order under clause 9 have been raised against these special rules.

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, 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. Clause 2 also prohibits appropriations for programs, projects, or activities "not previously authorized by law." This rule stems from the principle that the process through which the activities of government are chosen should be 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.

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 (112 th 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. This practice has generally been recognized as the "Armey Protocol" since the 104 th Congress. 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. 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.

Table 4 displays a breakdown of the number of special rules and UCAs initiating consideration of regular appropriations bills that provided a blanket waiver of Rule XXI, clause 2, a blanket waiver with exceptions, a waiver for only specific provisions, or no waiver. Almost all bills were provided some type of clause 2 waiver at the time consideration was initiated; in only one instance was no waiver of clause 2 provided when consideration was initiated through a special rule or UCA. In this instance ( H.Res. 770 , 108 th Congress), points of order were raised and sustained during subsequent consideration of the bill. Similarly, in the one instance where a waiver of clause 2 was provided for only a specified provision in the bill ( H.Res. 498 , 105 th Congress), points of order were raised and sustained against other provisions when the bill was considered.

For both blanket waivers of Rule XXI, clause 2, and waivers with exceptions, special rules and UCAs have trended in a similar direction in the form of waiver provided. For all but four of the fiscal years between FY1996 and FY2007, at least half of the clause 2 waivers had specified exceptions, allowing those provisions to be stricken by a point of order during subsequent consideration. For the bills between FY2008 and FY2011, however, waivers included no exceptions, and so protection against such points of order was provided for the entire measure. During the 112 th Congress, the practice of providing waivers with exceptions was again applied in a few instances. For consideration of bills during the 112 th Congress, waivers with exceptions were provided for the FY2012 Department of Homeland Security ( H.R. 2017 ) and Agriculture, Rural Development, Food and Drug Administration, and Related Agencies ( H.R. 2112 ) appropriations bills, and the FY2013 Department of Defense ( H.R. 5856 ) and Transportation, Housing and Urban Development, and Related Agencies ( H.R. 5972 ) appropriations bills. For consideration of bills in the 113 th Congress, a waiver with exceptions was provided for the Department of Homeland Security appropriations bill ( H.R. 2217 ).