506

(b) EXCEPTION IN THE HOUSE OF REPRESENTATIVES. Subsection (a) 507 shall not apply in the House of Representatives to any bill, resolution, or amendment which provides new budget authority 508 or new entitlement authority effective during such fiscal year, or to any conference report on any such bill or resolution, if -

(1) the enactment of such bill or resolution as reported;

or

(2) the adoption and enactment of such amendment;

(3) the enactment of such bill or resolution in the form recommended in such conference report,

would not cause the appropriate allocation of new discretionary budget authority510 or new entitlement authority made pursuant to section 302(a)511 for such fiscal year, for the committee within whose jurisdiction such bill, resolution, or amendment falls, to be exceeded.

(c) DETERMINATION OF BUDGET Levels. For purposes of this section, the levels of new budget authority, 512 budget outlays,513 new entitlement authority,514 and revenues for a fiscal

506 This subsection provides what some call the "Fazio exception."

508 Section 3(2) defines "budget authority." See supra pp. 11-13.

509 Section 3(9) (see supra p. 18) defines "entitlement authority" to mean that authority described in section 401(c)(2)(C) (see infra p. 204).

510

Section 3(2) defines "budget authority." See supra pp. 11-13.

511 See supra pp. 70-71.

512 Section 3(2) defines "budget authority." See supra pp. 11-13.

year shall be determined on the basis of estimates made by the Committee on the Budget515 of the House of Representatives or of the Senate, as the case may be.

514 (...continued)

514 Section 3(9) (see supra p. 18) defines "entitlement authority" to mean that authority described in section 401(c)(2)(C) (see infra p. 204).

515 This subsection reflects the normal scorekeeping convention that Congress turns to its Budget Committees to assess the costs of legislation. See also section 201(g), supra p. 32; section 302(g), supra p. 82; section 310(d)(4), supra p. 142; section 313(e), infra p. 182;

EFFECTS OF POINTS OF ORDER

SEC. 312.516 [(a)]517 POINTS OF ORDER IN THE SENATE AGAINST AMENDMENTS BETWEEN THE HOUSES. -- Each provision of this Act that establishes a point of order against an amendment also establishes a point of order in the Senate against an amendment between the Houses. If a point of order under this Act is raised in the Senate against an amendment between the Houses, and the Presiding Officer sustains the point of order, the effect shall be the same as if the Senate had disagreed to the amendment.

518

516 Section 13207(b)(1) of the Budget Enforcement Act added section 312. See infra p. 640.

517 The original lacks this initial letter, but the presence of subsection (b) below makes it apparent that this should be "(a)."

518 Section 13207(b)(1) of the Budget Enforcement Act added section 312(a). See infra p. 640. The statement of managers accompanying the conference report on the Budget Enforcement Act explains subsection (a) briefly: "The conference agreement... corrects a precedent in the Senate that effectively kills amendments between Houses if points of order under the Congressional Budget Act are sustained against them (see Senate Precedent PRL19860313-003 (Mar. 13, 1986) (LEGIS, Rules database)) . . . ." H.R. CONF. REP. No. 101-964, 101st Cong., 2d Sess. 1,170 (1990).

The precedent to which the managers referred reflects the ruling of the chair on a point of order on March 13, 1986. On that date, the Presiding Officer correctly ruled that points of order under the Congressional Budget Act apply to amendments between the Houses, as they apply by their terms to "amendments." The Presiding Officer went on to advise, however, that the effect of sustaining such a point of order is that the amendment of the House is no longer before the Senate, but retains its status as a House message at the desk. This result would effectively stop any further action on the bill. The Parliamentarian's notation of the precedent appears as follows:

SENATE PRECEDENT PRL19860313-003

CALENDAR DATE = 1986-03-13

HEADNOTE(S)

If the concurrent resolution on the budget for a fiscal year has been adopted, a point of order will lie against an amendment of the House to an amendment of the Senate to an appropriations bill, if that amendment increases outlays at a time when the appropriate level of outlays for that

518(...continued)

fiscal year has been breached, and the effect of sustaining such a point of order is that the amendment of the House is no longer before the Senate, but retains its status as a House message at the desk.

STATEMENT OF FACT

On March 13, 1986, the Senate was considering the conference report in disagreement on H.J.Res. 534, making urgent supplemental appropriations for the Department of Agriculture (relative to the Commodity Credit Corporation), which was accompanied by an amendment of the House to the amendment of the Senate reported in disagreement. The Senator from Texas (Mr. Gramm) moved to waive section 311 of the Budget Act of 1974, as amended by the Balanced Budget and Emergency Deficit Control Act of 1985 (the Gramm-Rudman-Hollings Act), and after that motion was defeated and the conference report agreed to, the following occurred:

Mr. GRAMM. Mr. President, I raise a point of order under section 311, as amended by the Balanced Budget and Emergency Deficit Control Act, that the amendment of the House to the amendment of the Senate will exceed the appropriate level of budget authority and outlays set forth in the concurrent resolution on the budget for fiscal year 1986 and, therefore, is not in order.

The PRESIDING OFFICER (Mr. Trible of Virginia).
The point of order is well taken.

Mr. Cochran of Mississippi appealed the ruling of the chair, and Mr. Domenici of New Mexico successfully moved to table that appeal, 61 yeas, 33 nays.

Shortly thereafter, the majority leader (Mr. Dole of Kansas) made the following inquiry which, with the response of the Chair (Mr. Pressler of South Dakota), is as follows:

Mr. DOLE. Mr. President, a parliamentary inquiry.
What is the status of the conference report?

The PRESIDING OFFICER. The conference report was agreed to. The House message is no longer before the Senate.

CONGRESSIONAL RECORD : (99-2) pp. S 2642-56.

PARLIAMENTARIAN'S NOTE(S)

Since the point of order under section 311 of the Budget Act precluded consideration of the House amendment, it was not construed to "kill" the amendment (the Senate not having the authority to negate the action of the House in adopting it), but simply to prevent Senate consideration.

(b) EFFECT OF A POINT OF ORDER ON A BILL IN THE SENATE. -In the Senate, if the Chair sustains a point of order under this Act against a bill, the Chair shall then send the bill to the committee of appropriate jurisdiction for further consideration.519

Consequently, the message was not interpreted as having been "considered" and therefore could not be sent back to the House. The only status it could have was that it be back at the desk where it was before the Senate attempted to consider it.

Senate Precedent PRL19860313-003 (Mar. 13, 1986) (LEGIS, Rules database).

Under this precedent, at least in cases where there was only one amendment in disagreement, the amendment would remain at the desk and it would not be in order for the Senate to consider it. The Senate would then be powerless to complete action on the vehicle received from the House because it could not act on the piece remaining at the desk. This led to the perverse result that a point of order raised against an amendment (and an amendment only) resulted in effectively killing the entire measure. This result is contrary to the intent of the drafters of the Congressional Budget Act, who wanted to make points of order available in an effective manner to address violations. The result dictated by this precedent, however, renders the point of order of limited value: A Senator would only raise it when the Senator opposed the entire bill, and a Senator would feel constrained not to raise the point of order against an offending provision even if the Senator opposed the provision -- if the Senator valued the passage of the bill as a whole.

Section 312(a) remedies this anomaly by setting forth a new rule: If a point of order against an amendment between the Houses is raised and sustained, then the effect will be the same as if the Senate had disagreed with the amendment. The Senate will then be able to work its will on the balance of the bill and send the measure back to the House.

519 Section 13207(b)(1) of the Budget Enforcement Act added section 312(b). See infra p. 640. The statement of managers accompanying the conference report on the Budget Enforcement Act explains subsection (b) briefly: "The conference agreement . . . makes clear that if a point of order under the Act is sustained against a bill, the bill should be sent back to committee instead of the calendar, so that the committee may then take corrective action to improve the bill." H.R. CONF. REP. No. 101-964, 101st Cong., 2d Sess.

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