Principles of Federal Appropriations Law - US Government ...

Chapter 1
Introduction
In addition, rather than expressly prohibiting a given item, legislation may
provide that it shall not be in order for the Senate or House to consider a
bill or resolution containing that item. An important example from the
Congressional Budget Act of 1974 57 is 2 U.S.C. § 651(a), which provides that
it shall not be in order for either house to consider any bill, resolution, or
amendment containing certain types of new spending authority, such as
contract authority, unless that bill, resolution, or amendment also provides
that the new authority is to be effective for any fiscal year only to the extent
provided in appropriation acts.
The effect of these rules and of statutes like 2 U.S.C. § 651(a) is to subject
the noncomplying bill to a “point of order.” A point of order is a procedural
objection raised on the House or Senate floor or in committees by a
Member alleging a departure from a rule or statute governing the conduct
of business. See U.S. General Accounting Office, A Glossary of Terms Used
in the Federal Budget Process (Exposure Draft), GAO/AFMD-2.1.1
(Washington, D.C.: Jan. 1993). It differs from an absolute prohibition in that
(a) it is always possible that no one will raise it and (b) if raised, it may or
may not be sustained. Also, some laws, like the Congressional Budget Act,
authorize points of order to be raised, and some measures may be
considered under special resolutions waiving points of order. 58 If a point of
order is raised and sustained, the offending provision is effectively killed
and may be revived only if it is amended to cure the noncompliance.
The potential effect of a rule or statute subjecting a provision to a point of
order is limited to the pre-enactment stage. If a point of order is not raised,
or is raised and not sustained, the provision, if enacted, is no less valid. To
restate, a rule or statute subjecting a given provision to a point of order has
no effect or application once the legislation or appropriation has been
enacted. 65 Comp. Gen. 524, 527 (1986); 57 Comp. Gen. 34 (1977); 34 Comp.
Gen. 278 (1954); B-173832, supra; B-123469, Apr. 14, 1955; B-87612, July 26,
1949.
57 Pub. L. No. 93-344, 88 Stat. 297 (July 12, 1974).
58 Usually, a point of order may be waived by a simple majority vote. See GAO/AFMD-2.1.1.
However, in the Senate, waiver of some points of order requires a three-fifths vote. See
Congressional Research Service, No. 97-865, supra. For example, waiver of the prohibition
against consideration of nongermane amendments to budget resolutions requires a threefifths
vote of all members of the Senate. Pub. L. No. 93-344, § 305(b)(2).
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