[Deschler-Brown Precedents, Volume 15, Chapter 31]
[Chapter 31. Points of Order; Parliamentary Inquiries]
[A. Points of Order]
[Â§ 8. Burden of Proof on Points of Order]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 12242-12291]
 
                               CHAPTER 31
 
                Points of Order; Parliamentary Inquiries
 
                           A. POINTS OF ORDER
 
Sec. 8. Burden of Proof on Points of Order

    When a point of order is stated on the floor, the Speaker or the 
Chairman of the Committee of the Whole has the obligation under the 
rules (18) to decide the question presented.
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18. See House Rules and Manual (1997) Rule I clause 4 Sec. Sec. 624 and 
        627; and Rule XXIII clause 1a Sec. 861b.
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    He may be guided in making the decision by argument on the point of 
order, which is for the Chair's information. In deciding questions of 
order, the Chair is constrained to give precedent its proper respect, 
for one of the duties of the Chair is to preserve and enforce the 
authority of parliamentary law.(19)
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19. See Rule I clause 4, House Rules and Manual Sec. 627 (1997).
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    Under the precedents interpreting various rules which create or 
permit a point of order, certain precepts about which party to a 
dispute has the burden of proof have been established.(20) 
When a point of order is directed at the germaneness of an amendment, 
for example, the burden is on the proponent of the amendment to show 
its relationship to the pending text.(1) On a general 
appropriation bill, the burden of proof that an appropriation carried 
in the bill has proper authorization in law falls on the 
committee.(2) The proponent of an amendment carrying an 
appropriation has the burden of showing authorization.(3) 
Similarly, where an amendment is offered and supported as a 
``limitation'' on funds, it is for the proponent of the amendment to 
show that it does not change existing law.(4) On the other 
hand, a Member challenging an amendment under Rule XXI clause 
5(b),(5) as a ``tax measure'' must show the inevitability of 
tax consequences to support his contention that the cited rule has been 
violated.(6)
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20. See, for example, Rule XVI clause 7, House Rules and Manual 
        Sec. 794 (1997); see also Sec. 8.15, infra.
 1. See 8 Cannon's Precedents Sec. 2995; and Sec. 8.1, infra.
 2. See Sec. 8.4, infra.
 3. See Sec. 8.11, infra.
 4. See Rule XXI clause 2(f), House Rules and Manual Sec. 835 (1997); 
        and see Sec. Sec. 8.4, 8.5, and 8.7, infra.
 5. See House Rules and Manual Sec. 846b (1997).
 6. See Sec. 8.15, infra.
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    Under some parts of the Congressional Budget Act, the Chair is 
guided in making a decision by

[[Page 12243]]

estimates of costs provided by the Committees on the 
Budget.(7)
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 7. See Sec. 8.14, infra.                          -------------------
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Burden of Proof on Question of Germaneness

Sec. 8.1 When a point of order is raised against an amendment on the 
    ground that it is not germane, the burden of proof is on the 
    proponent of the amendment to sustain the germaneness.

    Where an amendment is challenged by a point of order on the ground 
that it is not germane, and the amendment is ambiguous and susceptible 
to an interpretation that would render it not germane, the Chair will 
sustain the point of order. Proceedings in the Committee of the Whole 
on June 20, 1975,(8) when an amendment was offered by Mr. 
Barry Goldwater, Jr., of California, illustrate the importance of 
drafting an amendment precisely so that it cannot be read and 
interpreted more broadly than intended.
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 8. 121 Cong. Rec. 19934, 19966, 19967, 94th Cong. 1st Sess.
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            Sec. 307. The Federal Nonnuclear Energy Research and 
        Development Act of 1974 (88 Stat. 1878; 42 U.S.C. 5901) is 
        amended by adding at the end thereof the following new section:
            ``Sec. 17. The Administrator shall establish, develop, 
        acquire, and maintain a central source of information on all 
        energy resources and technology, including proved and other 
        reserves, for research and development purposes. This 
        responsibility shall include the acquisition of proprietary 
        information, by purchase, donation, or from another Federal 
        agency, when such information will carry out the purposes of 
        this Act. In addition the Administrator shall undertake to 
        correlate, review, and utilize any information available to any 
        other Government agency to further carry out the purposes of 
        this Act. The information maintained by the Administrator shall 
        be made available to the public, subject to the provisions of 
        section 552 of title 5, United States Code, and section 1905 of 
        title 18, United States Code, and to other Government agencies 
        in a manner that will facilitate its dissemination.'' . . .

        Mr. Goldwater: Mr. Chairman, I offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Goldwater: Page 43, line 6, before 
        the period, insert the following ``: Provided That any such 
        proprietary information obtained by compulsory process by any 
        Federal agency shall not be subject to the mandatory disclosure 
        provisions of 5 U.S.C. 552 and further, where the Administrator 
        so finds, any proprietary information obtained by other means 
        shall be deemed to qualify for exemption from mandatory 
        disclosure under 5 U.S.C. 552(b)(4)''.

        Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I reserve a 
    point of order against the amendment offered by the gentleman from 
    California (Mr. Goldwater).

[[Page 12244]]

        The Chairman: (9) The gentleman from California (Mr. 
    Goldwater) is recognized for approximately 1 minute.
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 9. J. Edward Roush (Ind.).
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        Mr. Goldwater: Mr. Chairman, would it be possible for us not to 
    take up the time of this body to have the ruling on the point of 
    order?
        The Chairman: Does the gentleman from Michigan (Mr. Dingell) 
    wish to pursue his point of order?
        Mr. Dingell: Mr. Chairman, if the gentleman wishes, I will 
    pursue the point of order at this time.

                               point of order

        Mr. Dingell: Mr. Chairman, I make a point of order against the 
    amendment.
        Mr. Chairman, the amendment is, among other things, not 
    germane.

        The Chairman: The Chair would advise the gentleman from 
    Michigan that the time limit pertains to the clock, and not to 
    minutes.
        Mr. Dingell: Mr. Chairman, I have asked to be heard on the 
    point of order.
        The Chairman: And the Chair recognizes the gentleman on the 
    point of order, and in doing so gently reminds the gentleman of the 
    factor of time.
        Mr. Dingell: Mr. Chairman, the amendment offered by the 
    gentleman from California (Mr. Goldwater) is not germane to the 
    legislation before us, and I am prepared to be heard on the point 
    of order at the pleasure of the Chair.
        The Chairman: The Chair has recognized the gentleman from 
    Michigan to make his point of order.
        Mr. Dingell: The point of order is that the amendment is not 
    germane. The amendment appears to relate to the language of the 
    bill at page 43, line 6. In point of fact, the amendment seeks to 
    amend the Freedom of Information Act, 5 United States Code 552, 
    which is cited therein. It might appear that the amendment is 
    subject to a number of different meanings. I can think of at least 
    two at the moment, and perhaps three or four others. The first 
    instance is that any proprietary information received by compulsory 
    process by any Federal agency shall not be subject to the mandatory 
    disclosure provisions of 5 United States Code 552--and I am 
    literally quoting from the language of the amendment--and that 
    being so, the amendment is defective as seeking to amend 
    legislation not presently before the House and not within the 
    jurisdiction of the particular committee that is presenting the 
    legislation before us, and relating to entirely different matters.
        It is possible that it refers to earlier legislation or, 
    rather, refers to earlier clauses and sentences of the legislation 
    before us. It is also possible that the legislation that the 
    amendment would have the law amended is that once proprietary 
    information had fallen into the hands of the Federal Government by 
    compulsory process and had, through any methodology whatsoever, 
    arrived in the hands of ERDA, that the original Federal agency 
    which had ownership or custody of that information would thereupon 
    be sterilized in making that information available pursuant to the 
    provisions of 5 United States Code 552, the Freedom of Information 
    Act.
        In either the first instance or in the second instance the 
    amendment seeks to amend legislation not properly be

[[Page 12245]]

    fore us at this time, the Freedom of Information Act, which is not 
    under the jurisdiction of the committee or which, by notice, has 
    not properly been available to the Members as to the offer of this 
    amendment.
        The amendment is, therefore, in my view, on at least two of the 
    three interpretations violative of the rules of the House, and 
    violative of the rules of germaneness, and is subject to a point of 
    order.
        The Chairman: Does the gentleman from California (Mr. 
    Goldwater), desire to be heard upon the point of order?
        Mr. Goldwater: I do, Mr. Chairman. I rise in opposition to the 
    point of order.
        Mr. Chairman, I would point out to the gentleman from Michigan 
    that if the gentleman will read the amendment it refers to not all 
    proprietary information, but any such proprietary information, 
    specifically narrowing it to ERDA as this particular bill addresses 
    itself.
        This amendment does not seek to amend the Freedom of 
    Information Act, but merely to apply the Freedom of Information 
    Act. It is, in essence, a limitation upon ERDA and as specifically 
    authorized by the Freedom of Information Act under subsection (d), 
    subsection (3). That this section, in other words, the Freedom of 
    Information Act, does not apply to matters that are specifically 
    exempted from disclosure by statute. The other statute is what, in 
    essence, I am speaking. It is not an amendment to the Freedom of 
    Information Act, but in essence is a limitation on the activities 
    of ERDA, and merely applies the regulations of the Freedom of 
    Information Act.
        The Chairman: Does the gentleman from Texas (Mr. Eckhardt) 
    desire to be heard upon the point of order?
        Mr. [Bob] Eckhardt [of Texas]: I do, Mr. Chairman. I rise to 
    speak on the point of order.
        The amendment states that any such proprietary information 
    obtained by a compulsory process by a Federal agency shall not be 
    subject to mandatory disclosure under the Freedom of Information 
    Act. Such information refers back to the sentence immediately 
    preceding the amendment in the bill on page 43, beginning in line 
    2:

            This responsibility shall include the acquisition of 
        proprietary information, by purchase, donation, or from another 
        Federal agency.

        So if information is obtained from another Federal agency, and 
    that Federal agency has obtained such by compulsory process, such 
    purports to say that such information, wherever it may appear, is 
    excluded from the effect of the Freedom of Information Act. The 
    Freedom of Information Act provides that each agency in accordance 
    with published rules shall make available for public inspection and 
    copying any information of the type described here which appears in 
    a final opinion or statement of policy on administrative staff 
    manual or instructions to staff, et cetera. If that information has 
    ultimately found its way to ERDA, it becomes such information, and 
    under the terms of the amendment would, thus, be insulated from the 
    Freedom of Information Act wherever it might appear. That, I think, 
    clearly alters the Freedom of Information Act which specifically 
    states in its last clause that the exceptions to the Freedom of 
    Infor

[[Page 12246]]

    mation Act do not authorize withholding of information or limit the 
    availability of records to the public except as specifically stated 
    in this section.
        This adds another exception, and that is the exception of 
    information that has passed into the hands of ERDA.
        If the language is ambiguous, or if it is reasonably subject to 
    more than one construction, and if a reasonable construction of the 
    language alters another act, then it is the burden of the person 
    offering the amendment to clarify the amendment to make absolutely 
    certain that the amendment does not affect the other act.
        The gentleman has not done so. The language is, therefore, 
    subject reasonably to the construction of changing processes of 
    other agencies and is, therefore, not germane.
        The Chairman: The Chair is prepared to rule on this rather 
    difficult question which confronts the committee at this time.
        The burden of sustaining the ger-maneness of the amendment lies 
    with the author. In the opinion of the Chair, the author of the 
    amendment has not sustained that burden, and it does appear to the 
    Chair that the amendment as presently offered would possibly mean 
    that this restriction on the information would apply wherever the 
    information might reside not just within ERDA. The amendment is, 
    therefore, ambiguous and could be construed to go beyond the scope 
    of the bill before the committee at this time.
        The point of order is sustained.

In Ruling on Germaneness, the Chair Relies on the Text of the Amendment

Sec. 8.2 In ruling on the ger-maneness of an amendment, the Chair 
    confines his analysis to its text and should not be guided by 
    conjecture as to other legislation and administrative actions, 
    within the jurisdiction of other committees, which might but are 
    not required to result from adoption of the amendment.

    On July 27, 1977,(10) the Committee of the Whole had 
under consideration the bill H.R. 7171, the Agricultural Act of 1977. 
An amendment was offered by Mr. Jeffords dealing with the recovery of 
excess food stamp benefits paid to persons whose income exceeded 
certain minimum requirements. During the argument on a point, Mr. 
Stark, a member of the Committee on Ways and Means, argued that the 
administration of the amendment would fall on the Internal Revenue 
Service, within the jurisdiction of his Committee. A portion of the 
argument on the germaneness point of order and

[[Page 12247]]

the Chair's response are indicated below.
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10. 123 Cong. Rec. 25249, 25252, 95th Cong. 1st Sess.
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        Mr. [James M.] Jeffords [of Vermont]: Mr. Chairman, I offer an 
    amendment to the amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Jeffords to the amendment offered 
        by Mr. Foley:
            In title XIII, page 28, insert after line 8 the following 
        new section:

        ``recovery of benefits where individual's adjusted gross income 
                      for year exceeds twice poverty level

            ``Sec. 1210. (a)(1) If--
            ``(A) any individual receives food stamps during any 
        calendar year after 1977, and
            ``(B) such individual's adjusted gross income for such 
        calendar year exceeds the exempt amount,

    then such individual shall be liable to pay the United States the 
    amount determined under subsection (b) with respect to such 
    individual for such calendar year. Such amount shall be due and 
    payable on April 15 of the succeeding calendar year and shall be 
    collected in accordance with the procedures prescribed pursuant to 
    subsection (g). . . .

            ``(2) In the case of any individual whose taxable year is 
        not a calendar year, this section shall be applied under 
        regulations prescribed by the Secretary.
            ``(f) All funds recovered pursuant to the provisions of 
        this section shall be deposited as miscellaneous receipts of 
        the Treasury and shall be available to the Secretary of the 
        Treasury to defray administrative costs incurred in carrying 
        out the provisions of this section and shall be available to 
        the Secretary of Agriculture to carry out the provisions of 
        this Act in such amounts as may be specified in appropriation 
        Acts.
            ``(g) The Secretary of the Treasury shall collect any 
        liability imposed by this section in accordance with 
        regulations prescribed by him (after consultation with the 
        Secretary).
            ``(h) Nothing in this section shall be construed to affect 
        . . . the application of any provision of the Internal Revenue 
        Code of 1954.'' . . .

        The Chairman: (11) Does the gentleman from 
    California (Mr. Stark) insist on his point of order?
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11. Frank E. Evans (Colo.).
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        Mr. [Fortney Hl (Pete)] Stark [of California]: Mr. Chairman, I 
    reserve a point of order. I would like to engage the author of the 
    amendment in colloquy.
        Mr. Chairman, will the gentleman yield?
        Mr. Jeffords: I yield to the gentleman from California.
        Mr. Stark: Mr. Chairman, I would like to ask the distinguished 
    gentleman from Vermont who or what branch of Government the 
    gentleman feels would collect this money from the people?
        Mr. Jeffords: Under the amendment, the Department of the 
    Treasury would be required to collect the money.
        Mr. Stark: It would be the Treasury Department and in no way 
    did the gentleman intend that the Internal Revenue Service 
    participate in any of the collection or in collecting the forms or 
    collecting revenue?
        Mr. Jeffords: No, on the contrary, it is my understanding and 
    belief that the Internal Revenue Service would be charged with and 
    do the collecting.

[[Page 12248]]

        Mr. Stark: They would do the collecting?
        Mr. Jeffords: Yes, that is correct.
        Mr. Stark: Mr. Chairman, I would press my point of order.
        The Chairman: The gentleman will state the point of order.
        Mr. Stark: Mr. Chairman, I make a point of order that the 
    jurisdiction of the Internal Revenue Service lies wholly within the 
    jurisdiction of the Committee on Ways and Means.
        This amendment, as the gentleman has stated it, would be 
    counting on the Internal Revenue Service to perform the functions 
    as put down under this amendment. The amendment would not be in 
    order and would not be within the jurisdiction of this committee.

        The Chairman: Does the gentleman from Vermont wish to be heard?
        Mr. Jeffords: I certainly do, Mr. Chairman.
        As I understand the rules here, I can ask for an amendment that 
    can be proposed, as can anybody, to the collection. We could make 
    the State Department or anyone else do the collection, but we 
    cannot do what I have not done, and very specifically have not done 
    in this amendment, which is to change any statute of the way it is 
    done, which is under the jurisdiction of the Committee on Ways and 
    Means. If I am wrong on this, there are so many places in this bill 
    where the same thing is done that I do not know why a number of 
    Members have not raised points of order.
        We have asked the Postal Service to do something; we have asked 
    the social security office to do things; we have mandated different 
    agencies all over the place. We do not interfere with any statutes 
    which are under committee jurisdiction of other committees. I have 
    not done so here. The question is, do we change any statute which 
    is under the jurisdiction of the Ways and Means Committee, and we 
    do not. They are the guardian over those statutes, but they are not 
    the guardian over any agency which happens to be involved with 
    those statutes.
        Mr. Stark: Mr. Chairman, I think it is quite clear that the 
    gentleman, in terms of both the committee report and in his 
    response to questions here, in his statement on the floor that this 
    amendment, although it really says that the Secretary of the 
    Treasury shall collect any liability, clearly the intention is that 
    the Internal Revenue Service shall collect W-2 forms, match them 
    against income figures which are now under the law not to be given 
    even to the Secretary of the Treasury, but are for collecting 
    income tax and Internal Revenue matters.
        Clearly, the intent of the amendment is to direct the Internal 
    Revenue Service to participate in that. The jurisdiction of the 
    Internal Revenue Service and all matters pertaining thereto is 
    under the Committee on Ways and Means. I would ask that this 
    amendment be ruled out of order on that basis.
        The Chairman: The Chair is ready to rule.
        The gentleman from California makes the point of order that the 
    amendment offered by the gentleman from Vermont (Mr. Jeffords) is 
    not germane to the food stamp title of the pending bill. The thrust 
    of the gentleman's point of order is that the collection procedure 
    for overpayments of

[[Page 12249]]

    food stamp benefits to persons above the poverty level involves 
    responsibilities of the Treasury Department, and in effect mandates 
    the establishment of regulations which would involve the disclosure 
    of tax returns and tax information and utilization of the Internal 
    Revenue Service--all matters within the jurisdiction of the 
    Committee on Ways and Means.
        The Chair notes that the amend-ment does contain the provision 
    that ``nothing in this section shall be construed to affect in any 
    manner the application of any provision of the Internal Revenue 
    Code of 1954,'' and it seems to the Chair to follow that, under the 
    explicit provisions of the amendment. Secretary of the Treasury 
    would therefore have to establish an independent collection 
    procedure separate and apart from the mandated use of the Internal 
    Revenue Service. The Chair does not have to judge the germaneness 
    of the amendment by contemplating possible future legislative 
    actions of the Congress not mandated by the amendment.
        In the opinion of the Chair, the authority of the Secretary of 
    the Treasury under the rules of the House as collector of 
    overpayments of any sort is not subject explicitly and exclusively 
    within the jurisdiction of the Committee on Ways and Means under 
    rule X, and even if this were true, committee jurisdiction is not 
    an exclusive test of germaneness where, as here, the basic thrust 
    of the amendment is to modify the food stamp program--a matter now 
    before the Committee of the Whole.
        The Chair overrules the point of order.

Burden of Proof on Whether Amendment Is Germane

Sec. 8.3 The burden of proof is on the proponent of an amendment to 
    establish that it is germane, and where the proponent admits to an 
    interpretation which would render it not germane, the Chair will 
    rule it out of order.

    Argument on a point of order sometimes determines whether a point 
of order will be sustained or overruled by the Chair. An example of the 
Chair's reliance on an explanation of an amendment offered by its 
proponent is found in the proceedings of Dec. 11, 1979,(12) 
when the Committee of the Whole had under consideration the bill H.R. 
4962, a bill providing Medicare services to low-income children and 
pregnant women. A pertinent part of the bill text follows:
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12. 125 Cong. Rec. 35425, 35438, 35439, 96th Cong. 1st Sess.
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       study and report on effectiveness of health assurance program

            Sec. 14. (a)(1) The Secretary shall conduct or arrange 
        (through grants or contracts) for the conduct of an ongoing 
        study of the effectiveness of the child health assurance 
        program under section 1913 of the Social Security Act. Not 
        later than two years after the effective date prescribed by 
        section 16(a)(1) and each two years thereafter, the Secretary 
        shall report

[[Page 12250]]

        to Congress the results of the study and include in the report 
        (1) the effect of preventive and primary care services on the 
        health status of individuals under the age of 21 assessed under 
        such program, (2) the incidence of the various disorders 
        identified in assessments conducted under the program, and (3) 
        the costs of identifying, in such program, such disorders.
            (2) The authority of the Secretary to enter into contracts 
        under paragraph (1) shall be effective for any fiscal year only 
        to such extent or in such amounts as are provided in advance in 
        appropriations Acts.
            (b) For the fiscal year ending September 30, 1981, and for 
        each fiscal year thereafter there are authorized to be 
        appropriated for purposes of carrying out subsection (a) an 
        amount equal to one-eighth of 1 percent of the amount 
        appropriated in the preceding fiscal year for payments to 
        States under title XIX of the Social Security Act for the 
        provision of ambulatory services for individuals under the age 
        of 21 . . . 

                  amendment offered by mr. philip m. crane

        Mr. Philip M. Crane [of Illinois]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Philip M. Crane: On page 38, 
        following line 15, insert the following new subsection:
            (2)(a) No officer, employee, or agent of the Federal 
        Government or of an organization conducting medical reviews for 
        purposes of carrying out the study provided for in subsection 
        (a)(1) of this section shall inspect (or have access to) any 
        part of an individually identifiable medical record (as 
        described in subsection (c)) of a patient which relates to 
        medical care not provided directly by the Federal Government or 
        paid for (in whole or in part) under a Federal program or under 
        a program receiving Federal financial assistance, unless the 
        patient has authorized such disclosure and inspection in 
        accordance with subsection (b).
            (b) A patient authorizes disclosure and inspection of a 
        medical record for purposes of subsection (a) only if, in a 
        signed and dated statement, he--
            (1) authorizes the disclosure and inspection for a specific 
        period of time;
            (2) identifies the medical record authorized to be 
        disclosed and inspected; and
            (3) specifies the agencies which may inspect the record and 
        to which the record may be disclosed.
            (c) For purposes of this section:
            (1) The term ``individually identifiable medical record'' 
        means a medical, psychiatric, or dental record concerning an 
        individual that is in a form which either identifies the 
        individual or permits identification of the individual through 
        means (whether direct or indirect) available to the public.
            (2) The term ``medical care'' includes preventive and 
        primary medical, psychiatric, and dental assessments, care and 
        treatment.

        Mr. [Henry A.] Waxman [of California]: Mr. Chairman, I reserve 
    a point of order on the amendment. . . .
        The Chairman: (13) Does the gentleman from 
    California (Mr. Waxman) insist upon his point of order?
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13. Bruce F. Vento (Minn.).
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        Mr. Waxman: I would like a clarification, Mr. Chairman, if I 
    might, before I pursue whether I have a point of order.
        The Chairman: The gentleman from California reserves his point 
    of order, and the gentleman is recognized for his remaining time 
    under the allocation.

[[Page 12251]]

        Mr. Waxman: I would like to make an inquiry of the gentleman 
    from Illinois (Mr. Philip M. Crane) who has offered the amendment, 
    if I might. The section (2)(a) on page 38 following line 15 as it 
    would be inserted by this amendment says:

            No officer, employee, or agent of the Federal Government or 
        of an organization conducting medical reviews for purposes of 
        carrying out the study provided for in subsection (a)(1) of 
        this section shall inspect (or have access to). . . .

        Is this a parenthetical clause: ``Or of an organization 
    conducting medical reviews for purposes of carrying out the study 
    provided for,'' or are we also referring only to the officers, 
    employees, or agents of the Federal Government who are conducting 
    medical reviews for purposes of carrying out the study?
        Mr. Philip M. Crane: If the gentleman will yield, the reason 
    for the seeming redundancy of language was to guarantee that there 
    would not be any commission or what I would classify as an agent, 
    but which might be open to some debate, or group of private 
    individuals performing a function under the auspices of the Federal 
    Government. I would define that as an agent and, therefore, that 
    language would be, then, redundant to that extent. My concern is 
    quibbling over fine points of definitions, and to the extent that 
    there is a potential here for some private group with the full 
    authority of the Federal Government to conduct these kinds of 
    studies, I want to make sure that those do not in any way have the 
    possibility of falling into the hands of Government officials 
    without the written consent of the patient involved.
        Mr. Waxman: If I might further inquire, is it fair to say that 
    the limitation, ``No officer, employee, or agent of the Federal 
    Government'' pertains specifically to the carrying out of the study 
    provided for in subsection (a)(1)? Is it specifically addressed to 
    carrying out that study?
        Mr. Philip M. Crane: In the process of carrying out the study, 
    my understanding is there is a potential for examination, 
    obviously, of medical records, and to the extent there is, then I 
    think if they are identifiable medical records, the potential 
    exists for those to come into the hands of Government officials 
    unbeknownst to the patient.
        Mr. Waxman: But I am trying to ascertain whether it is limited 
    to carrying out the study provided for in subsection (a)(1) and the 
    medical records are viewed only for the purpose of carrying out 
    that study.
        Mr. Philip M. Crane: Does the gentleman mean is it confined to 
    that?
        Mr. Waxman: Yes.
        Mr. Philip M. Crane: No, it is not. That would not be my 
    understanding of the amendment.
        The Chairman: Does the gentleman from California (Mr. Waxman) 
    insist on his point of order?
        Mr. Waxman: Mr. Chairman, I am going to pursue my point of 
    order, then.
        The Chairman: The gentleman will state his point of order.
        Mr. Waxman: Mr. Chairman, as I read this section without the 
    limitation that I tried to determine was included there, I believe 
    it is overly broad and, therefore, not germane, and I make a point 
    of order of the fact that it is not germane to the bill before us.
        The Chairman: Does the gentleman from Illinois (Mr. Philip M. 
    Crane) wish to be heard on the point of order?

[[Page 12252]]

        Mr. Philip M. Crane: I do, Mr. Chairman. I think it is, indeed, 
    germane because, Mr. Chairman, the language of the amendment, I 
    think, addresses the specific narrow concern that the Chairman has 
    upon which he bases his point of order, but, on the other hand, 
    there are implications in the language of the bill that I think 
    this additional language in this paragraph addresses, and that is 
    the potential to go beyond those narrow constraints that I think 
    the gentleman, the Chairman, would presume exist within this 
    legislation.
        I am less sure and less confident that those restraints are 
    there. I would argue that the specificity of the first part of this 
    sentence that ``No officer, employee, or agent of the Federal 
    Government or of an organization conducting medical reviews for 
    purposes of carrying out the study provided for in'' that 
    subsection indicated is language narrow enough to be germane to the 
    intent of the bill.
        The Chairman: Are there further Members who wish to be heard on 
    the point of order? If not, the Chair is prepared to rule.
        The Chair, in listening to and weighing the arguments, finds 
    that the point of order is well taken. The argument seems to 
    establish that the amendment offered by the gentleman from Illinois 
    (Mr. Philip M. Crane) could go to confidentiality of other medical 
    records that would not otherwise be covered by the pending 
    legislation and as such represents, then, too broad an amendment. 
    The records could deal with additional information that would 
    usually be under the confidentiality of physician-and-patient 
    relationship, that would be outside the services rendered through 
    this program if the conduct of Federal officers is not to be 
    confined to the carrying out of the study in section 14. Therefore, 
    the Chair states that the point of order is well taken.
        Mr. Philip M. Crane: Mr. Chairman, may I direct a question to 
    the chairman of the committee?
        The Chairman: The point of order is sustained. The amendment is 
    ruled out of order.

Burden of Proof, Point of Order Against Content of Bill

Sec. 8.4 The burden falls on the proponents of a provision in a general 
    appropriation bill to show that it does not constitute legislation, 
    and the Chair will sustain the point of order if the committee or 
    other Members do not fulfill this responsibility.

    During debate under the five-minute rule during consideration of 
the Labor and Health, Education, and Welfare appropriation bill for 
fiscal 1978, a provision in the bill was read by the Clerk, and a point 
of order was then raised against the proviso carried in the paragraph. 
The point of order was raised by a member of the Committee on Ways and 
Means, Mr. James C. Corman, of California, who argued that the proviso 
created new and additional duties for officials administering the 
welfare programs

[[Page 12253]]

funded in the paragraph. The rather elaborate arguments for and against 
the point of order illustrate the complexities which sometimes confront 
the Chair in determining the effect of a so-called ``limitation'' in a 
general appropriation bill. The proceedings of June 16, 
1977,(14) were as follows:
---------------------------------------------------------------------------
14. 123 Cong. Rec. 19362-64, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

          grants to states for unemployment insurance and employment 
                                    services

            For grants for activities authorized by the Act of June 6, 
        1933, as amended (29 U.S.C. 49-49n; 39 U.S.C. 3202(a)(1)(E); 
        Veterans' Employment and Readjustment Act of 1972, as amended 
        (38 U.S.C. 2001-2013); title III of the Social Security Act, as 
        amended (42 U.S.C. 501-503); sections 312 (e) and (g) of the 
        Comprehensive Employment and Training Act of 1973, as amended; 
        and necessary administrative expenses for carrying out 5 U.S.C. 
        8501-8523, 19 U.S.C. 1941-1944, 1952, and chapter 2, title II, 
        of the Trade Act of 1974, including, upon the request of any 
        State, the payment of rental for space made available to such 
        State in lieu of grants for such purpose, $53,600,000, together 
        with not to exceed $1,529,000,000, which may be expended from 
        the Employment Security Administration account in the 
        Unemployment Trust Fund, and of which $174,400,000 shall be 
        available only to the extent necessary to meet increased costs 
        of administration resulting from changes in a State law or 
        increased salary costs resulting from changes in insurance 
        claims filed and claims paid or increased salary costs 
        resulting from changes in State salary compensation plans 
        embracing employees of the State generally over those upon 
        which the State's basic grant was based, which cannot be 
        provided for by normal budgetary adjustments: Provided That any 
        portion of the funds granted to a State in the current fiscal 
        year and not obligated by the State in that year shall be 
        returned to the Treasury and credited to the account from which 
        derived: Provided further, That none of the funds appropriated 
        or otherwise made available in this paragraph shall be 
        obligated or expended to pay Federally funded unemployment 
        compensation to an individual who refuses employment which pays 
        at least the prevailing wage and which meets the labor 
        standards specified in section 3304(a)(5) of the Internal 
        Revenue Code of 1954, as amended, after having received 
        unemployment compensation for 26 or more consecutive weeks, 
        unless such individual is enrolled in a training program under 
        the Comprehensive Employment and Training Act of 1973, as 
        amended.

        Mr. Corman: Mr. Chairman, I have a point of order.
        The Chairman: (15) The gentleman will state his 
    point of order.
---------------------------------------------------------------------------
15. Richard Bolling (Mo.).
---------------------------------------------------------------------------

        Mr. Corman: Mr. Chairman, I make a point of order with respect 
    to the proviso on page 5, beginning with the words ``Provided 
    further'' on line 6 and continuing through line 16. This proviso is 
    in violation of clause 2 of rule XXI, of the Rules of the House.
        Clause 2 of rule XXI provides that no provision in an 
    appropriation bill that changes existing law will be in order.

[[Page 12254]]

        The proviso on page 5 would prohibit the use of these 
    appropriated funds for any administrative costs associated with the 
    payment of federally funded unemployment compensation benefits to 
    an individual who had refused a job paying the prevailing wage, 
    after that individual had collected 26 or more weeks of 
    unemployment compensation.
        In order to be in compliance with this proviso, unemployment 
    compensation agencies will have to either deny benefits to such 
    individuals, or pay for the administrative costs associated with 
    the payment of benefits to such individuals out of State or other 
    Federal funds. Either alternative will impose new duties and 
    require additional determinations, not required under present 
    Federal law, on the part of the administrators of the unemployment 
    compensation program.
        Specifically, both of these alternatives would require the 
    administering agency, with regard to every claimant who had 
    collected 26 or more weeks of unemployment compensation, to 
    determine whether or not the individual had refused a job paying 
    prevailing wages. This determination would have to be made either 
    for the purpose of denying benefits to such individuals or to 
    identify that portion of a State's administrative costs that could 
    not be paid out of Federal funds provided in this appropriation 
    bill.
        Such a determination is not required under present Federal law. 
    This proviso changes present law in that it requires this new and 
    costly determination on the part of UC administrators. Furthermore, 
    there are no funds provided to cover the costs associated with this 
    additional determination and responsibility.
        It has been argued that this proviso requires no new duties or 
    determinations beyond those required under section 3304(a)(5) of 
    the Internal Revenue Code. This argument is incorrect.
        Section 3304(A)(5) prohibits a State from denying benefits to 
    an individual who has refused a job that pays less than prevailing 
    wages. This section of present law, in other words, prohibits a 
    State from taking certain actions. It does not require a State to 
    do anything, unless a claimant appeals a prior State action. In 
    fact, a State can comply with this section of present law by never 
    denying UC benefits to anyone on grounds of a refusal to accept 
    work.
        The proviso on page 5 of the appropriation bill before us is 
    just the reverse. It requires unemployment compensation 
    administrators to make certain determinations and take certain 
    actions based on those determinations. Specifically, for every 
    claimant who has collected 26 or more weeks of UC benefits, the 
    administrator must determine whether or not he has refused any job 
    that paid prevailing wages, and, if so, the administrator must 
    either deny him any additional benefits or recover costs associated 
    with the processing and payments of additional benefits from a new 
    source of funds.
        Furthermore, the proviso is in conflict with the work 
    requirement provisions of the Emergency Unemployment Compensation 
    Act of 1977, Public Law 95-19, as it applies to individuals who 
    apply for or are collecting Federal supplemental benefits. This 
    law, enacted in April of this year, prohibits the payment of 
    Federal supplemental benefits to an individual who refuses a job, 
    if the job:

[[Page 12255]]

        Is within his capabilities;
        Pays the minimum wage and gross wages equal to the individual's 
    unemployment benefits, including any supplemental unemployment 
    benefits for which the individual is entitled because of agreements 
    with previous employers;
        Is offered in writing or listed with the employment service;
        Meets other requirements of Federal and State law pertaining to 
    suitable or disqualifying work that are not inconsistent with the 
    three conditions just stated.
        The effect of the proviso would be that, in the 20 States where 
    Federal supplemental benefits are presently being paid, there will 
    be two different and inconsistent Federal work requirements for 
    claimants of Federal supplemental benefits who have collected 26 or 
    more weeks of benefits.
        Present Federal law pertaining to the Federal supplemental 
    benefits program denies supplemental benefits to an individual who 
    refuses a job paying the minimum wage, and provides a number of 
    carefully worked out conditions, protections, and procedures 
    necessary for the proper and effective administration of this kind 
    of a Federal standard. Whereas, the proviso on page 5 of the bill 
    before us refers to ``prevailing'' rather than ``minimum'' wages, 
    which can be substantially different. Also the proviso would appear 
    to negate all the other conditions, procedures, and protections 
    contained in present law and carefully developed by the Committee 
    on Ways and Means. This clearly constitutes a change in present 
    Federal law pertaining to the Federal supplemental benefits 
    program.
        As I have explained, the proviso on page 5 imposes a new 
    responsibility on the part of the agencies that administer the 
    unemployment compensation program. It requires a costly 
    determination not required under present law and provides no funds 
    to cover the costs of this additional determination.
        With respect to the Federal supplemental benefits program, it 
    changes, or is in conflict with, a provision that, over a period of 
    many weeks, was very carefully formulated and specified.
        Consequently, this provision is in violation of clause 2 of 
    rule XXI of the Rules of the House.
        The Chairman: Does the gentleman from Pennsylvania (Mr. Flood) 
    desire to be heard on the point of order?
        Mr. [Daniel J.] Flood [of Pennsylvania]: I do, Mr. Chairman.
        We believe that this language is simply a limitation on the use 
    of the appropriated funds in the bill. It gives no affirmative 
    direction to the executive branch, in our judgment. It imposes no 
    new or additional duties and requires no determination that would 
    not normally be made.
        Therefore, Mr. Chairman, we ask the Chair to overrule the point 
    of order.
        The Chairman: Does the gentleman from Illinois (Mr. Michel) 
    desire to be heard on the point of order?
        Mr. [Robert H.] Michel [of Illinois]: Yes, Mr. Chairman, I 
    would like to be heard on the point of order.

            Nor shall any provision in any such bill or amendment 
        thereto changing existing law be in order, . . .

        This appears to be the real question involved in the point of 
    order raised by the gentleman from California (Mr.

[[Page 12256]]

    Corman). But I would like to ask the present occupant of the chair, 
    who is so well skilled in the rules and parliamentary procedures 
    and the precedents of the House, to examine the rest of that 
    clause.
        Historically this provision has been amended many times. At one 
    time the Committee on Rules could not agree as to the proper 
    position after questions arose of increased power which some said 
    would come to the Committee on Appropriations.
        I mention this for a special reason. Our appropriations process 
    has now been modified by enactment of the Budget Act and is 
    constantly challenged, as we will no doubt find during 
    consideration of the present bill. The challenge to the 
    appropriation process is currently in the form of limitation 
    amendments such as the one on this subject, and upon which the 
    Chair is constantly being called upon for a ruling as to whether it 
    is a proper limitation under this rule and the existing precedents 
    and statutes.
        Having said that, the question again is whether the language 
    does in effect change the existing law. I contend it does not 
    change existing law and does not place an additional duty upon the 
    executive officer as a result of this position. I do not believe 
    that the gentleman from California (Mr. Corman) has adequately 
    demonstrated that the language does change existing law.
        The rationale behind the precedent on the rule for limitations 
    in appropriation bills, is that this body has the right to decline 
    to appropriate for any purpose which they deem improper, although 
    that purpose may be authorized by law. Based on this premise, there 
    are many rulings that if the House has the right not to appropriate 
    funds for a specific purpose authorized by law, then it has the 
    right to appropriate for only a part of that purpose and prohibit 
    the use of money for the rest of the purpose authorized by law.

        This language, I contend, is not a change of law but rather a 
    restriction on the use of funds to pay federally funded 
    unemployment compensation to those who do not meet certain 
    qualifications.
        If the Chair will indulge us a few further moments, 
    specifically, as the chairman of the subcommittee, the gentleman 
    from Pennsylvania (Mr. Flood) has said, the language is simply a 
    limitation. It was written as such. It is limited to the funds 
    appropriated in this bill. It does not change existing law. It is 
    very similar in nature to the Findley OSHA limitation 3 years ago 
    and to the OSHA and busing limitations we considered in connection 
    with the Labor-HEW bill last year, all of which were subject to 
    points of order and overruled then by the Chair.
        This limitation, like the others, is simply a negative 
    restriction on the moneys contained in this bill.
        As to those supposedly additional duties imposed upon the 
    executive branch that my friend the gentleman from California (Mr. 
    Corman) alludes to, let me say:
        Prevailing wages are already determined by the Labor 
    Department. They are determined under Davis-Bacon for construction 
    jobs, under the Service Contracts Act for jobs involved in such 
    contracts, as part of the certification process for the employment 
    of aliens, and for in-season agricultural jobs. In

[[Page 12257]]

    addition, and most importantly, when an employer lists a job with 
    the Employment Service, the Employment Service must determine 
    whether or not the wages paid are ``substandard.'' The Employment 
    Service considers standard wages as prevailing wages and 
    substandard wages are thus those wages falling below prevailing 
    wages. If substandard wages are paid, the job listing is so 
    designated, and the Employment Service does not refer applicants to 
    such jobs.
        We can refer further for authority to the employment security 
    manual on that item. Furthermore, under the requirements of the 
    Federal Unemployment Tax Act, an individual cannot be recruited for 
    employment, and unemployment benefits cannot be denied to an 
    individual who refuses to accept work, ``if the wages, hours, or 
    other conditions of the work offered are substantially less 
    favorable to the individual than those prevailing for similar work 
    in the locality.''
        On that we have authority again from the head, Mr. Weatherford, 
    of the Unemployment Compensation Office in the Department of Labor. 
    Both of these last two standards, in other words, require the 
    Employment Service to determine the prevailing wage in order to 
    carry out the standards, and this is being done. Under regulations 
    prescribed by the Secretary of Labor, individuals receiving 
    unemployment benefits are required to register with the Employment 
    Service. The limitations in the bill thus apply to individuals 
    registered with the Employment Service and jobs listed with the 
    Employment Service. Since a determination of the prevailing wage is 
    made for the jobs listed and to which individuals are referred, 
    there will be no extra effort required on the part of the 
    Department then to carry out the limitation language.
        Let me address myself now to the 26 weeks the gentleman 
    referred to. The limitation does not apply to any benefits until 
    after an individual has received benefits for 26 weeks. The 
    Unemployment Insurance Office keeps track of how long each 
    individual has received benefits. In addition, when a recipient of 
    unemployment benefits registers with the Employment Service, the 
    Unemployment Insurance Office tells the Employment Service the date 
    when the individual started receiving benefits. So the information 
    as to the length of time benefits have been received and, thus, the 
    point when 26 weeks have passed is readily available and will not 
    require any extra effort.
        As to when the Federal benefits begin, after the State has 
    concluded its obligation or there is a shared benefit, the 
    Unemployment Insurance Office retains separate accounts for 
    benefits paid by different sources of funds, so that when there is 
    a change in the source of funding for an individual's benefits such 
    as after 26 weeks when the Federal Government in most cases pays 
    half, a new bookkeeping transaction takes place. It is a simple 
    matter for the unemployment insurance arm to notify the Employment 
    Service arm of this without any increased effort, since both are 
    part of the same State employment security agency and most of the 
    time are located in the same suite or facility around the country.
        I think there are some other specific points to which we might 
    make ref

[[Page 12258]]

    erence, but I think that pretty well ought to give the Chair good 
    grounds upon which he could overrule the point of order raised by 
    the gentleman from California.
        The Chairman: Does the gentleman from California (Mr. Corman) 
    desire to be heard further?
        Mr. Corman: I would like to be heard for just a moment. There 
    seems to be some confusion in some minds about how unemployment 
    compensation works. The first 26 weeks is not necessarily the State 
    program. The first half of one's entitlement is that. We have just 
    spelled out in substantial detail the work requirements under FSB. 
    About 25 percent of those who draw FSB draw it within the first 26 
    weeks in which they work. After that period of time we would have 
    legislated to separate inconsistent work requirements, and that is 
    clearly legislation on an appropriation bill. It would be next to 
    impossible for an administrator to administer because the job 
    requirements would be inconsistent.
        The Chairman: The gentleman from California has made a very 
    scholarly and thorough point of order, and he has received a very 
    scholarly and thorough reply. This is a very complicated matter and 
    a difficult one for the Chair to rule on.
        The Chair feels that the crux of the matter lies in whether or 
    not the Federal officials who now process unemployment compensation 
    claims are presently required to make a judgment with regard to the 
    refusal of work paying the prevailing wage.
        The Chair does not believe that the arguments on either side 
    have done anything to demonstrate that this would not be an 
    additional duty for those particular officials. Therefore the Chair 
    feels that on this ground and some that he would like to read the 
    point of order is valid and the Chair will sustain the point of 
    order at the conclusion of his statement.
        The gentleman from California makes a point of order against 
    the proviso in the bill on the grounds that it constitutes 
    legislation on an appropriation bill.
        The proviso prohibits the use of funds in the bill for 
    processing of unemployment compensation benefits after 26 weeks to 
    individuals refusing work which pays the prevailing wage. As 
    indicated by the argument of the gentleman from California, the 
    executive officials administering the program are not under a 
    responsibility as they process claims pursuant to existing Federal 
    law, to make case-by-case determinations as to the prevailing wage 
    for positions of employment. The proviso in the bill would place 
    affirmative duties on persons whose salaries are paid by funds in 
    this bill to make such determinations.
        Despite the excellence of the argument of the gentleman from 
    Illinois, the Chair still feels that the weight of the argument 
    lies on the side of the gentleman from California, and therefore 
    the Chair, for those reasons and the reasons that he has suggested, 
    sustains the point of order and the proviso is stricken.

Burden of Proof That Appropriation Authorized

Sec. 8.5 The burden of proving that an item carried in a gen

[[Page 12259]]

    eral appropriation bill is in fact authorized by law falls to the 
    Committee on Appropriations, which must cite specific authority for 
    the appropriation.

    On Aug. 3, 1978,(16) during consideration of the Foreign 
Aid Appropriation bill for fiscal 1979, an item was read allowing 
certain funds in the bill to be used for entertaining expenses. When an 
amendment was raised against the paragraph as legislation, the manager 
of the bill responded in an imprecise manner. The proceedings were as 
follows:
---------------------------------------------------------------------------
16. 124 Cong. Rec. 24252, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 111. Of the funds appropriated or made available 
        pursuant to this Act, not to exceed $73,900 shall be for 
        entertainment expenses relating to the Military Assistance 
        Program, International Military Education and Training, and 
        Foreign Military Credit Sales during fiscal year 1979: 
        Provided, That appropriate steps shall be taken to assure that, 
        to the maximum extent possible, United States-owned foreign 
        currencies are utilized in lieu of dollars.

        Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, a point of 
    order.
        The Chairman: (17) The gentleman will state it.
---------------------------------------------------------------------------
17. Abraham Kazan, Jr. (Tex.).
---------------------------------------------------------------------------

        Mr. Bauman: Mr. Chairman, I make a point of order against the 
    total section 111 on the grounds it is not authorized in law and 
    lines 17 through 19 constitute legislation on an appropriation 
    bill.
        The Chairman: Does the gentleman from Maryland (Mr. Long) 
    desire to speak to the point of order?
        Mr. [Clarence D.] Long of Maryland: Mr. Chairman, I oppose the 
    point of order being made by the gentleman.
        The language the gentleman refers to is not legislation in that 
    it does not direct nor does it require a U.S. Government official 
    to use U.S.-owned foreign currencies. It merely states that steps 
    should be taken, where possible, to utilize U.S.-owned foreign 
    currencies in lieu of dollars.
        In addition, in section 612(b) of the Foreign Assistance Act of 
    1961, as amended, which is the paragraph that authorizes the use of 
    foreign currencies, the following language appears:

            The President shall take all appropriate steps to assure 
        that, to the maximum extent possible, United States-owned 
        foreign currencies are utilized in lieu of dollars.

        Therefore, the language the gentleman is raising a point of 
    order against is merely a restatement of the language contained in 
    the authorizing legislation and does not constitute legislation in 
    an appropriation bill. I ask for a ruling by the Chair.
        The Chairman: Does the gentleman from Maryland (Mr. Bauman) 
    desire to be heard further on the point of order?
        Mr. Bauman: Mr. Chairman, the language of section 111 goes well 
    beyond assigning duties by the President and assumes by its proviso 
    that the duties are assigned to anyone that

[[Page 12260]]

    might have the appropriate authority and that certainly goes beyond 
    the scope which the gentleman has cited as legislative authority 
    for that amount of money, which is entertainment expenses.
        The Chairman: The Chair feels that the question of 
    authorization may be a valid point of order. The Chair will call on 
    the chairman of the committee to show that this sum is authorized. 
    Can the gentleman from Maryland (Mr. Long) make such a showing?
        Mr. Long of Maryland: Mr. Chairman, we have no specific 
    authorization, merely citations.
        The Chairman: The Chair then will sustain the point of order 
    and the entire section is stricken.

Sec. 8.6 A Member wishing to make a point of order against a pending 
    paragraph of a bill being read for amendment must specify the 
    precise text to which he objects, and a generalized point of order 
    against ``anything in the paragraph which is not authorized'' will 
    not be entertained by the Chair.

    On June 7, 1991,(18) during the consideration in 
Committee of the Whole of the Defense appropriation bill for fiscal 
1992, the bill manager, Mr. John P. Murtha, of Pennsylvania, asked that 
the title of ``Operation and Maintenance'' be considered read and open 
for amendment. Following agreement to this request, the Chairman 
invited points of order. Mr. James A. Traficant, Jr., of Ohio, then 
raised a generalized inquiry as follows:
---------------------------------------------------------------------------
18. 137 Cong. Rec. 13973-76, 102d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                      TITLE II--OPERATION AND MAINTENANCE

                        Operation and Maintenance, Army

                         (including transfer of funds)

            For expenses, not otherwise provided for, necessary for the 
        operation and maintenance of the Army, as authorized by law; 
        and not to exceed $14,437,000 can be used for emergencies and 
        extraordinary expenses, to be expended on the approval or 
        authority of the Secretary of the Army, and payments may be 
        made on his certificate of necessity for confidential military 
        purposes; $18,-362,945,000: . . .

                        Operation and Maintenance, Navy

            For expenses, not otherwise provided for, necessary for the 
        operation and maintenance of the Navy and the Marine Corps, as 
        authorized by law; . . .

                    Operation and Maintenance, Marine Corps

            For expenses, not otherwise provided for, necessary for the 
        opera-tion and maintenance of the Marine Corps, as authorized 
        by law; $2,082,500,000; . . .

                      Operation and Maintenance, Air Force

            For expenses, not otherwise provided for, necessary for the 
        operation and maintenance of the Air Force, as authorized by 
        law; . . .

[[Page 12261]]

        Mr. Murtha (during the reading): Mr. Chairman, I ask unanimous 
    consent that title II be considered as read, printed in the Record, 
    and open to amendment at any point.
        The Chairman: (19) Is there objection to the request 
    of the gentleman from Pennsylvania?
---------------------------------------------------------------------------
19. James L. Oberstar (Minn.).
---------------------------------------------------------------------------

        There was no objection.

                          parliamentary inquiries

        Mr. Traficant: Mr. Chairman, I have a parliamentary inquiry. I 
    would like to inquire of the Chairman if it is in order to ask if 
    there is any legislating on this section of the bill that has not 
    been, in fact, waived from such legislating or allowed to legislate 
    by the Rules Committee. I would then be forced to object to any 
    legislating language that is appropriating in title II of the bill.
        Mr. Murtha: Mr. Chairman, if the gentleman will yield, the only 
    thing that it protected in the language is the normal appropriation 
    paragraph protection that we afford to the bill or to parts of the 
    bill when there is no final authorization. . . .
        Mr. Traficant: Further reserving my right to object, I am not 
    so sure I have an answer. I want to know if there is any 
    legislation in title II that has not been specifically protected 
    from objection on the floor.
        Mr. Murtha: Sure.
        Mr. Traficant: If there are some that have not been protected 
    by the Rules Committee, then I will object to any section of title 
    II that is not officially protected by the Rules Committee as in 
    fact legislating on an appropriation bill.
        The Chairman: The Chair would advise the gentleman from Ohio 
    that the gentleman must be specific as to the provisions against 
    which he makes points of order.
        Mr. Traficant: Is the Chair instructing the Member that a 
    Member cannot request a blanket prohibition of legislation on an 
    appropriation bill in title II of the defense bill?
        The Chairman: The gentleman is correct. The Chair is advising 
    the gentleman that a point of order may be made but it must specify 
    the provision of the bill against which it is made.
        Mr. Traficant: The specificity is, in fact, that any part of 
    the legislation that has not been in fact protected from objection 
    and to be stricken by the Rules Committee.
        The Chairman: The Chair would restate for the gentleman from 
    Ohio that he must specify the provisions in the bill to which he 
    objects and on which he wishes to make a point of order.
        Mr. Traficant: So the Chair then has ruled that a Member must 
    be specific in stating what legislative language there is?
        The Chairman: Those are the rules of the House. The gentleman 
    may not enter a general objection to ``such legislation as may be 
    unprotected by waiver.'' His point of order must identify text and 
    articulate grounds.
        Mr. Traficant: That he cannot ask for a specific blanket 
    objection for all legislative language on an appropriation bill 
    that has not been protected under the rule? Is that what the 
    Chair's ruling is?
        The Chairman: The Chair will elaborate further for the 
    gentleman.
        The Chair cannot accept the gentleman's assumption that 
    language may

[[Page 12262]]

    be objectionable merely because there is not a waiver provided for 
    it. That is why the practice and precedents of the House require 
    that such points of order be specific.
        Mr. Traficant: Would it be in order then, Mr. Chairman, for the 
    gentleman to read each section of title II and object to them 
    officially and to, in fact, reserve the right to object on each 
    specific section for, in fact, legislating on an appropriation 
    bill?
        The Chairman: If the gentleman objects to opening this title, 
    then the Clerk will read by paragraph. . . .
        Mr. Murtha: This is the operation and maintenance title for the 
    entire armed services. This title provides the training money for 
    the services that you are deleting. This is training money and 
    operation and maintenance money for the services.
        Mr. Traficant: Mr. Chairman, I certainly would like to have a 
    Buy American in that section. . . .
        The Chairman: Is there objection to opening up title II of the 
    bill?
        There was no objection.
        The Chairman: Are there any points of order against title II?

                              points of order

        Mr. Traficant: Mr. Chairman, I bring a point of order against 
    title II of the bill on page 9, line 10, Operation and Maintenance 
    of the Navy, for language which is, in fact, specifically 
    legislation on an appropriation bill.
        The Chairman: Will the gentleman restate his point of order? 
    The gentleman makes a point of order against which line?
        Mr. Traficant: Reserving my right to further object, on page 9, 
    line 10, the section under title II, Operation and Maintenance, 
    Navy, that, in fact, that section from page 9, line 10, through, in 
    fact, page 10, line 17, constitutes legislating on an appropriation 
    bill. I say it should be stricken unless specifically protected by 
    the rule.
        The Chairman: The Chair will advise the gentleman that the text 
    from page 9, line 10 through the first portion of page 9, line 23 
    is protected under the rule. The balance, beginning with ``Provided 
    further'' on line 23 through line 17 on page 10 is not protected.
        Mr. Traficant: The gentleman then officially objects to title 
    II, starting on page 9, line 23, through and continuously through 
    page 10, line 17, for, in fact, being legislating on an 
    appropriation bill that has not passed through an authorizing 
    committee, and it should be stricken.
        The Chairman: Does the gentleman from Pennsylvania [Mr. Murtha] 
    wish to be heard on the point of order?
        Mr. Murtha: We concede it is legislation. However, we want the 
    gentleman to know that he is very seriously harming the defense of 
    this country by making these deletions which he admits himself he 
    is not aware of the impact that they are having on the bill. . . . 
    But I have to concede the point of order. If you want to knock it 
    out, it would be knocked out under the point of order. . . .
        The Chairman: The gentleman from Ohio will refrain from 
    debating the merits of the bill on his point of order.
        The Chair wishes to advise, again, that the point of order is 
    made against the two provisos, one beginning on line 23, on page 9, 
    and the other beginning on line 11 on page 10.

[[Page 12263]]

        The gentleman from Pennsylvania has conceded the point of 
    order. Accordingly, the two provisos are stricken. . . .
        Mr. Traficant: The point of order is legislating on an 
    appropriation bill, page 11, line 1, through line 11, of the 
    section of Operation, Maintenance, Marine Corps, and I ask that it 
    be stricken for legislating on an appropriation bill.
        The Chairman: The gentleman is advised that on page 11, only 
    lines 1 through 8, after ``September 1, 1992,'' are unprotected.
        Mr. Traficant: Mr. Chairman, I move that language be stricken.
        The Chairman: Does the gentleman from Pennsylvania wish to be 
    heard on the point of order?
        Mr. Traficant: Mr. Chairman, I would like an answer on this.
        The Chairman: The gentleman has made his point of order. The 
    Chair has inquired of the chairman of the committee whether he 
    wishes to be heard on the point of order.
        Mr. Murtha: Mr. Chairman, I concede the point of order. . . .
        I agree with what the gentleman is trying to do, but what the 
    gentleman is doing here is decimating things under the normal 
    procedure that are important to the defense of this country.
        Mr. Traficant: Continuing my point of order, Mr. Chairman, and 
    to respond----
        The Chairman: The Chair will hear argument on the point of 
    order, not on collateral issues.
        Mr. Traficant: Continuing on my point of order, Mr. Chairman, 
    this gentleman is not here on any ego trip. I think the procedures 
    of the House have finally brought us to this.
        The Chairman: Does the gentleman insist on his point of order?
        Mr. Traficant: I insist on my point of order, Mr. Chairman.
        The Chairman: The point of order has been conceded and is 
    sustained, and accordingly, the language on line 1 of page 11 
    beginning with ``Provided further,'' through line 8, concluding 
    with ``decision:'' is stricken.
        Are there other points of order against the provisions of title 
    II?

Burden of Proof Where Point of Order Is Made Against ``Legislation'' in 
    a General Appropriation Bill

Sec. 8.7 The proponent of an amendment to a general appropriation bill 
    has the burden of refuting a point of order accompanied by argument 
    that the amendment-although phrased as a limitation on funds-
    changes existing law, and the Chair will sustain the point of order 
    where the proponent of the amendment does not cite law or precedent 
    supporting her position.

    On July 17, 1975,(20) during consideration of the 
Treasury, Postal Service and general government appropriations for 
fiscal 1976, an amendment was offered in the form of a limitation on 
funds in

[[Page 12264]]

the bill. The chairman of the Subcommittee on Treasury, Post Office 
Appropriations, Mr. Tom Steed, of Oklahoma, who was managing the bill, 
raised a point of order that the limitation in fact interfered with the 
discretionary authority of the Postal Rate Commission. The proponent of 
the amendment declined to be heard on the point of order, and the Chair 
then ruled based on the argument presented by Mr. Steed.
---------------------------------------------------------------------------
20. 121 Cong. Rec. 23239, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mrs. [Millicent] Fenwick [of New Jersey]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mrs. Fenwick: Add a new section 613 on 
        page 45, line 21: ``None of the funds appropriated under this 
        Act shall be available to permit Parcel Post to be handled at 
        less than its attributable cost.''

        Mr. Steed: Mr. Chairman, I reserve a point of order against the 
    amendment.
        The Chairman: (1) The gentleman from Oklahoma 
    reserves a point of order. . . .
---------------------------------------------------------------------------
 1. B. F. Sisk (Calif.).
---------------------------------------------------------------------------

        The Chairman: Does the gentleman from Oklahoma insist on his 
    point of order?
        Mr. Steed: I insist on my point of order, Mr. Chairman. This 
    amendment would have the effect of changing existing law. The 
    Congress enacted the Postal Service Corporation bill and created 
    the Rate Commission and delegated to the Rate Commission the sole 
    and final authority on all postal rates. The impact of this 
    amendment would be to limit and change that postal ratemaking power 
    that is inherent in the law creating the Postal Corporation.
        If the amendment here is permitted to prevail then all sorts of 
    amendments affecting the operation of the Postal Service would be 
    applicable and the whole purpose of the Postal Service Corporation 
    law would be destroyed. So I think it is very imperative since this 
    does change the law and the powers invested in the Rate Commission 
    that we hold it is obviously legislation on an appropriation bill.
        The Chairman: Does the gentlewoman from New Jersey desire to be 
    heard on the point of order?
        Mrs. Fenwick: No, Mr. Chairman.
        The Chairman: Permit the Chair to direct a question to the 
    gentleman from Oklahoma.
        Is the gentleman's position such that in his opinion this 
    amounts to a change in law? Would the gentleman speak to that 
    point?
        Mr. Steed: Yes. The sole authority to determine what will be 
    charged for parcel post, whether it is more or less than cost, is 
    vested in the Postal Rate Commission and to accept this amendment 
    here would limit that authority which would change the law which 
    vests that total power in that Commission. So it would require an 
    action on the part not only of the ratemaking Commission but the 
    Postmaster General in that he does not now have to abide by this 
    sort of demand.
        The whole purpose of the corporation was to take the power to 
    do that sort of thing out of Congress and leave it in the Postal 
    Corporation for the postal rate commitment.

[[Page 12265]]

        The Chairman: The Chair is prepared to rule. The gentleman from 
    Oklahoma makes a point of order against the amendment offered by 
    the gentlewoman from New Jersey dealing with the availability of 
    funds in connection with the matter of parcel post where the Postal 
    Service permits parcel post to be handled at less than attributable 
    costs.
        The Chair feels that the point of order made by the gentleman 
    from Oklahoma to the effect that, in essence, this changes basic 
    law, must be sustained in light of the fact that the Chair does not 
    feel that the gentlewoman from New Jersey has made a sufficient 
    case that it would be otherwise.
        Therefore, the Chair is constrained to sustain the point of 
    order.

    Parliamentarian's Note: Subsequent analysis of the law surrounding 
the responsibilities of the Postal Rate Commission (39 USC 3622 (b)(3)) 
and precedents dealing with limitation language which may curtail 
discretion suggest that a well-documented argument against the point of 
order might have been successful.
    Before the proceedings reported above there was a paucity of strong 
precedent on who has the burden of proof where an amendment is 
challenged as being legislative. But by analogy to the precedents under 
Rule XXI clause 2, requiring the committee or Member offering an 
amendment to show an authorization for a proposed appropriation, it 
seems that the proponent of an amendment should at least have the 
burden to come forward with some showing that the language offered is 
not legislative in effect.

Burden of Proof, Amendment to General Appropriation Bill

Sec. 8.8 The burden of proof is on the proponent of an amendment to a 
    general appropriation bill to show that the amendment does not have 
    the effect of changing existing law.

    On June 16, 1977,(2) Chairman Bolling, presiding in 
Committee of the Whole during the consideration of the Labor and 
Health, Education, and Welfare appropriation bill for fiscal 1978, 
having ruled out a proviso in the bill as legislative in effect, was 
faced with an amendment which addressed the same issue but with a 
modified approach. Again, the burden of proof was on the advocates of 
the amendment and the Chair ruled that the burden was not met.
---------------------------------------------------------------------------
 2. 123 Cong. Rec. 19364, 19365, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        MR. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an 
    amendment.
        The Chairman: (3) The Chair feels that under the 
    circumstances he must recognize the gentleman from Illinois.
---------------------------------------------------------------------------
 3. Richard Bolling (Mo.).

---------------------------------------------------------------------------

[[Page 12266]]

        The Clerk will report the amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Michel: On page 5, line 6, after 
        ``derived'', strike the period and insert in lieu thereof, ``: 
        Provided further, That none of the funds appropriated or 
        otherwise made available in this paragraph shall be obligated 
        or expended to pay federally funded unemployment compensation 
        to an individual who refuses employment which pays the higher 
        of the minimum wage or the average unemployment benefit in a 
        state and which meets the labor standards specified in Section 
        3304(a)(5) of the Federal Unemployment Tax Act after having 
        received unemployment compensation for 26 or more consecutive 
        weeks, unless such individual is enrolled in a training program 
        under the Comprehensive Employment and Training Act of 1973, as 
        amended.''

        Mr. [James C.] Corman [of California]: Mr. Chairman, I reserve 
    a point of order.
        The Chairman: The gentleman from California has reserved a 
    point of order, and the gentleman from Illinois is recognized for 5 
    minutes.
        Mr. Michel: Mr. Chairman, in view of the ruling by the Chair, I 
    am offering amended language which seeks to overcome the point of 
    order problem. Instead of using the prevailing wage as the 
    standard, I am using the minimum wage or the average State 
    unemployment benefit payment level, whichever is higher.
        This is the language which is already in the law for recipients 
    of Federal supplemental benefits. That standard applies to 
    recipients after 39 weeks of benefits, and I am simply proposing to 
    extend it to all Federal benefits after 26 weeks of having received 
    unemployment benefits. This standard is consistent with the 
    authorizing legislation, and certainly does not result in any 
    additional effort because it is already determined by the 
    Department of Labor.
        I offer this amendment because I believe it is particularly 
    important that we zero in on the problem whereby many of the long-
    term unemployed seem to find it more comfortable to continue to 
    receive unemployment benefits rather than take a job that may be a 
    couple of cuts below what they may desire. . . .
        The Chairman: Does the gentleman from California make the point 
    of order and insist on the point of order?
        Mr. Corman: Mr. Chairman, I insist on the point of order.
        The Chairman: The Chair will listen to the gentleman, of 
    course, to make the point of order and the argument for it; but the 
    Chair, while no expert on unemployment, is concerned about having 
    the argument go to the question of when the Federal official, who 
    must make a determination on the payment of unemployment 
    compensation, has to make a determination with regard to a job that 
    has been refused, that pays a certain level of wage. The Chair is 
    interested in knowing the timing on that in the discussion that 
    will come forth.
        Mr. Corman: Mr. Chairman, I thank the Chairman for that 
    guidance.
        There is considerable confusion as to what periods of time, 
    which programs pay an unemployed worker. Those who are entitled to 
    the maximum period of unemployment insurance have 26

[[Page 12267]]

    weeks of regular insurance paid for out of State employer taxes, 
    the adminis-tration for which is paid for out of Federal employer 
    taxes.
        At the end of that 26 weeks, if he has not been employed, he 
    has an additional 13 weeks called extended unemployment benefits. 
    That is paid, one-half out of State employer tax, one-half out of 
    Federal employer tax, and the administration for which is paid out 
    of Federal funds. During all of that period of time the suitability 
    of work requirement is based on State law, with a Federal minimum 
    below which suitability may not fall.
        After that 39-week period there is a Federal supplemental 
    benefit program which has been triggered in some 22 States. In 
    those States where the unemployment rate is over 6 percent, one 
    draws an additional 13 weeks financed totally out of the Federal 
    Treasury. For that 13 weeks, there is a Federal suitability of work 
    requirement which was adopted by this House this year. It is a 
    reasonably good one; it is not the one read by the gentleman from 
    Illinois; it is very different from that.
        Now, the dilemma is that about a third of the employees who are 
    drawing benefits do not draw the maximum benefit, and so in that 
    first 26 weeks some would be totally under the State program; some 
    for a portion of the time would be under State and State/Federal; 
    and some would be under State, State/Federal and totally Federal. 
    There is nothing that can disclose at what period of time one 
    triggers in, because whatever his entitlement may be, it is one-
    half State, a quarter State/Federal, and a quarter Federal.
        The greatest problem of all for the administrator would be 
    attempting to apply suitability of work requirement, which is 
    totally inconsistent, but was the direction of the Congress for 
    those people drawing FSB within the first 23 weeks. There is no 
    question but that there would be an additional requirement on 
    administrators to ascertain the suitability of work inconsistent 
    with and different from their own State requirements and the 
    recently-passed Federal requirement. That is my point of order.
        The Chairman: Does the gentleman from Illinois desire to be 
    heard?
        Mr. Michel: Only to say, Mr. Chairman, that what the gentleman 
    is saying about what conditions do prevail, other than the wage, 
    after 39 weeks, we are simply seeking to impose at the expiration 
    of the 26 weeks. All that information is at hand, and there are 
    absolutely no additional duties required. We are simply tightening 
    up 13 weeks on what the gentleman's position is with respect to 
    what flows after 39 weeks.
        It is perfectly in order that what we are doing here again, I 
    say, is a limitation. Under chapter 25, section 10, Deschler's 
    Procedure, it is not in order in an appropriation bill to insert by 
    way of amendment a proposition which places additional duties on 
    the executive officer, but the mere requirement that the executive 
    officer be the recipient of information is not considered as 
    imposing upon him any additional burdens, and is in order. There 
    are, of course, ample precedents for that. I rest my case.
        Mr. Corman: I may just respond to the one point, Mr. Chairman, 
    by saying that the amendment proposed is not consistent with the 
    Federal supple

[[Page 12268]]

    mental benefit requirements. Even if it were, I believe a point of 
    order would lie, but it is not consistent.
        The Chairman: The Chair will state again that this is a very 
    difficult and complicated problem. The Chair feels that, although 
    the gentleman from Illinois has made a strong argument, that the 
    Chair is required by the precedents to construe limitations 
    strictly. The weight of the argument, in the Chair's opinion, falls 
    on the side of the gentleman from California, and the Chair, for 
    the reasons stated in his prior ruling (4) and after 
    hearing the additional argument made by the gentleman from 
    California, sustains the point of order against the amendment.
---------------------------------------------------------------------------
 4. See Sec. 8.4, supra.
---------------------------------------------------------------------------

Construing the Rule Against Legislating in Appropriation Bill

Sec. 8.9 Where an amendment to a general appropriation bill is subject 
    to two interpretations, one of which would render the amendment 
    subject to a point of order, the Chair strictly construed the rule 
    against legislating in an appropriation bill and sustained a point 
    of order against the amendment.

    Where an amendment was offered to a general appropriation bill, 
similar to one held in order in a previous Congress as a proper 
limitation, the Chair was convinced by the argument on the point of 
order that the language was intended to impose new du-ties and 
sustained a point of order that the amendment violated Rule XXI clause 
2. The proceedings of June 14, 1978,(5) relevant to the 
amendment and the Chair's ruling are carried below.
---------------------------------------------------------------------------
 5. 124 Cong. Rec. 17650, 17651, 17667, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [R. Lawrence] Coughlin [of Pennsylvania]: Mr. Chairman, I 
    offer an amendment, my amendment No. 2.
        The Clerk read as follows:

            Amendment offered by Mr. Coughlin: On page 6, after line 
        23, insert the following new section:
            Sec. 102. (a) None of the funds appropriated by any 
        provision described in subsection (b) shall be expended or 
        obligated for any purpose specified in such provision unless 
        such funds so expended or obligated are subject to audit by the 
        Comptroller General of the United States.
            (b) For purposes of subsection (a), any provision in Title 
        I of this Act following the provision relating to 
        ``COMPENSATION OF MEMBERS'' and preceding the heading ``JOINT 
        ITEMS'' is a provision described in this subsection. . . .

        (Mr. Coughlin asked and was given permission to revise and 
    extend his remarks.)
        Mr. [George E.] Shipley [of Illinois]: Mr. Chairman, may I make 
    an inquiry? I was unable to determine which amendment this is.
        Mr. Coughlin: The amendment No. 2, which I believe the 
    gentleman has.
        Mr. Shipley: I might want to reserve a point of order, but I am 
    not sure which amendment the gentleman is offering.

[[Page 12269]]

        The Chairman Pro Tempore: (6) The Clerk will again 
    report the amendment.
---------------------------------------------------------------------------
 6. Dan Rostenkowski (Ill.).
---------------------------------------------------------------------------

        The Clerk rereported the amendment.
        Mr. Coughlin: I raise a point of order, Mr. Chairman. I thought 
    that we were on my 5 minutes.
        The Chairman Pro Tempore: The gentleman from Pennsylvania had 
    not proceeded to his debate.
        Mr. Shipley: Mr. Chairman, I reserve a point of order on the 
    amendment.
        Mr. Coughlin: Mr. Chairman, this is identical to an amendment 
    offered last year by the gentlewoman from Massachusetts (Mrs. 
    Heckler) and the gentlewoman from New York (Mrs. Chisholm) to 
    provide for a GAO audit of Members and committee accounts. It is 
    the identical amendment that was raised at that time. It was not 
    objected to on a point of order. . . .
        Mr. Shipley: Mr. Chairman, I would like to ask exactly what 
    would take place in this type of audit.
        Mr. Coughlin: Mr. Chairman, I yield to the gentlewoman from 
    Massachusetts (Mrs. Heckler).
        Mrs. [Margaret M.] Heckler [of Massachusetts]: Mr. Chairman, 
    the operations of the Comptroller General under this amendment 
    would continue as under existing circumstances in that site at the 
    Capitol where the office is presently located. The authority would 
    provide an audit of Members' accounts and committee accounts. It 
    would provide that authority to be utilized by the GAO.
        Mr. Shipley: Mr. Chairman, if the gentleman will yield further, 
    does it extend in any way the present audit system that we have now 
    in the House?
        Mr. Coughlin: Mr. Chairman, I yield to the gentlewoman from 
    Massachusetts.
        Mrs. Heckler: Mr. Chairman, it extends the authority that now 
    exists in law but is not necessarily a change in existing law. It 
    affirms the authority of the GAO which presently exists in the 
    House; however, I do not believe that the GAO is able to examine 
    Members' accounts and this amendment clarifies that authority. 
    However, it does not mandate audits across the board of every 
    Member at any particular time.
        Mr. Shipley: Mr. Chairman, would the gentlewoman answer another 
    question for me again. I am not quite clear in my own mind what 
    exactly would this amendment require the Comptroller General to do 
    specifically?
        Mrs. Heckler: I believe that this amendment would provide an 
    expansion of the number of accounts which the GAO is presently 
    auditing including the tax-funded accounts of Members of Congress 
    and our legislative committees, as covered by the general 
    legislative appropriation bill. We are in this bill dealing with an 
    appropriation of $992 million. I believe that these public funds 
    should be subject to audit. This amendment merely affirms the legal 
    authority to the GAO to conduct such audits.
        Mr. Shipley: Mr. Chairman, I still reserve my point of order. . 
    . .
        Mr. Chairman, I would like to be heard on the point of order.
        Mr. Chairman, I insist on my point of order.
        Mr. Chairman, I object to the amendment and make a point of 
    order

[[Page 12270]]

    against it on the grounds that it imposes additional duties on the 
    Comptroller General and, as such, is in violation of clause 2, rule 
    XXI of the House. The additional duties implied by the amendment 
    might involve the Comptroller General insisting that time and 
    attendance reporting systems be set up in Members and committee 
    offices and may require setting up annual and sick leave systems 
    and involve examination of Members' personal diaries, perhaps even 
    their personal financial records. These are duties and procedures 
    clearly beyond the offices of the Comptroller General's present 
    audit authority. Under paragraph 842 of clause 2, rule XXI:

            An amendment may not impose additional duties, not required 
        by law, or make the appropriation contingent upon the 
        performance of such duties . . . then it assumes the character 
        of legislation and is subject to a point of order.

        Mr. Coughlin: Mr. Chairman, may I be heard further on the point 
    of order?
        The Chairman Pro Tempore: The gentleman from Pennsylvania (Mr. 
    Coughlin) is recognized.
        Mr. Coughlin: Mr. Chairman, let me say that the amendment 
    imposes no additional duties on the General Accounting Office. It 
    proposes that these accounts be subject to audit by the GAO.
        Title 31, section 67, of the United States Code annotated says 
    as follows:

            . . . the financial transactions of each executive, 
        legislative, and judicial agency, including but not limited to 
        the accounts of accountable officers, shall be audited by the 
        General Accounting Office in accordance with such principles 
        and procedures and under such rules and regulations as may be 
        prescribed by the Comptroller General of the United States.

        In a memorandum to the Comptroller General from the general 
    counsel of the General Accounting Office, the following language 
    appeared:

            Our authority under the Budget and Accounting Act, 1921, to 
        investigate all matters relating to the receipt, disbursement, 
        and application of public funds also extends to the Congress.

        I continue to quote from the memorandum, as follows:

            Similarly, our authority in the Accounting and Auditing Act 
        of 1950 to audit all financial transactions, not limited to 
        accountable officer transactions, extends to legislative 
        agencies . . .

        Mr. Chairman, it is very clear that the General Accounting 
    Office already has the authority and the duty to audit the accounts 
    of the legislative branch, and this amendment in no way expands or 
    extends that authority. The General Accounting Office has taken a 
    position that it is interested in having an expression of the will 
    of the legislative branch as to whether it wishes the General 
    Accounting Office to carry out that function. This amendment would 
    be an expression of that will.
        Mr. Chairman, the amendment would in no way expand the 
    authority of the General Accounting Office or impose additional 
    duties on the General Accounting Office; it would only make these 
    accounts subject to audit.
        Mr. Shipley: Mr. Chairman, may I be heard further on my point 
    of order?
        The Chairman Pro Tempore: The Chair will hear the gentleman.

[[Page 12271]]

        Mr. Shipley: Mr. Chairman, in the colloquy with the gentlewoman 
    from Massachusetts (Mrs. Heckler), she stated that the amendment 
    would extend the present authority of the GAO.
        Again, Mr. Chairman, I press my point of order.
        Mr. Coughlin: Mr. Chairman, if I may be heard further on the 
    point of order, I will say in answer to the gentleman from Illinois 
    (Mr. Shipley) that I do not think the amendment would extend the 
    present authority of the GAO.
        The Chairman Pro Tempore: The Chair is ready to rule.
        The Chair certainly agrees that the language in the amendment 
    is ambiguous. The Chair takes into account, however, the debate, 
    and the debate as observed by the Chair indicates the amendment 
    certainly does extend the authority of the Comptroller General and 
    is subject to a point of order.
        The Chair does recognize that there are conflicting 
    interpretations of the amendment under discussion. However, the 
    Chair has a duty under the precedents to construe the rule against 
    legislation strictly where there is an ambiguity. The Chair feels 
    he must sustain the point of order based on the interpretations 
    given the amendment during the debate.
        Mr. Coughlin: Mr. Chairman, may I inquire, is the debate 
    subject to a point of order?
        The Chairman Pro Tempore: The Chair will state that it has to 
    make a determination based on the debate, and the Chair sustains 
    the point of order.
        Mrs. Heckler: Mr. Chairman, may I be heard?
        The Chairman Pro Tempore: The Chair sustains the point of 
    order. . . .
        Mr. Coughlin: Mr. Chairman, I offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Coughlin: On page 6, after line 
        23, insert the following new section:
            Sec. 102. None of the funds appropriated on pages 2 through 
        6 of this Act shall be made available for obligation unless 
        such funds are subject to audit by the Comptroller General of 
        the United States in accordance with the provisions of title 
        31, section 67 of the U.S.C.A.

Burden of Proof Where Language Is Susceptible to More Than One 
    Interpretation

Sec. 8.10 The proponent of an amendment to a general appropriation bill 
    has the burden of proving that the amendment does not change 
    existing law and, if in the form of a ``limitation'' falls within 
    the categories of permissible limitations delineated in the 
    precedents arising under Rule XXI clause 2; and if the amendment is 
    susceptible to more than one interpretation, it is incumbent on the 
    proponent to show that it is not in violation of the rule.

    On July 28, 1980,(7) the Committee of the Whole had 
under

[[Page 12272]]

consideration the Housing and Urban Development-independent agencies 
appropriation bill, fiscal 1981. An amendment offered by Mr. Herbert E. 
Harris, II, of Virginia, to the bill was a restriction, not on the 
amount of funds in the bill, but on the timing of their obligation.
---------------------------------------------------------------------------
 7. 126 Cong. Rec. 19924, 19925, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Harris: Mr. Chairman, I offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Harris: Page 45, after line 23, 
        insert the following:
            Sec. 413. No more than an amount equal to 20 percent of the 
        total funds appropriated under this Act for any agency for any 
        fiscal year and apportioned to such agency pursuant to section 
        3679 of the Revised Statutes of the United States (31 U.S.C. 
        665) may be obligated during the last two months of such fiscal 
        year.

    The point of order raised against the amendment by Mr. John T. 
Myers, of Indiana, the ranking member of the subcommittee bringing the 
bill to the floor, and the response to the point of order by the 
proponent of the amendment, as well as the Chair's ruling are carried 
below.

        The Chairman: (8) Does the gentleman from Indiana 
    (Mr. Myers) insist on his point of order?
---------------------------------------------------------------------------
 8. Elliott H. Levitas (Ga.).
---------------------------------------------------------------------------

        Mr. Myers of Indiana: I do, Mr. Chairman.
        Mr. Chairman, the gentleman has offered an amendment to limit 
    the appropriations to a specific time; but I respectfully suggest 
    that the fact the gentleman has added the words, ``No more than'' 
    is still not, in fact, a limitation.
        The House has long established and the Committee has long 
    established that Congress does have the right to limit how money 
    shall be spent for a specific purpose. I quote:

            The House's practice has established the principle that 
        certain ``limitations'' may be admitted. It being established 
        that the House under its rules may decline to appropriate for a 
        purpose authorized by law, so it may by limitation prohibit the 
        use of money for part of the purpose, while appropriating for 
        the remainder of it.

        The first precedent that I want to cite is Hinds' Precedents, 
    volume IV, section 3936, where on January 17, 1896, the Chairman of 
    the Committee of the Whole, Nelson Dingley, ruled:

            The House in Committee of the Whole has the right to refuse 
        to appropriate for any object which it may deem improper, 
        although that object may be authorized by law; and it has been 
        contended, and on various occasions sustained by the Committee 
        of the Whole, that if the Committee has the right to refuse to 
        appropriate anything for a particular purpose authorized by 
        law, it can appropriate for only a part of that purpose and 
        prohibit the use of the money for the rest of the purpose 
        authorized by law.

        Mr. Chairman, it has been firmly established a number of times, 
    I could go on and quote, on January 31, 1925, the Chairman of the 
    Committee of the Whole, John Tilson of Connecticut, ruled:

            Congress may appropriate for one subject authorized by law 
        and refuse

[[Page 12273]]

        to appropriate for another object authorized by law.

        This firmly establishes the principle that a limitation must 
    apply to a specific purpose or an object.
        Mr. Chairman, this does not do that.
        I further cite that on June 25, Chairman Sharp of Indiana 
    sustained a point of order that was asked by this gentleman on an 
    appropriation bill, that he limits the discretionary power of the 
    executive.
        Now, this particular amendment has been remedied somewhat, or 
    there has been an attempt to remedy, in citing section 3679 of the 
    revised statutes of United States Code 31 U.S. 665.
        Now, Mr. Chairman, the rules of the House of Representatives, 
    rule XXI, section 843, says this:

            In construing a proposed limitation, if the Chair finds the 
        purpose to be legislative, in that the intent is to restrict 
        executive discretion to a degree that it may be fairly termed a 
        change in policy rather than a matter of administrative detail 
        he should sustain the point of order.

        The key here, Mr. Chairman, is that if the intent is to 
    restrict executive discretion to agree that it may be fairly termed 
    a change in policy rather than a matter of administrative detail he 
    should sustain the point of order.
        Mr. Chairman, the fact that you are limiting here, not 
    directing, but limiting the authority to the last 2 months how much 
    may be spent takes away the discretionary authority of the 
    Executive which might be needed in this case. It clearly is more 
    than an administrative detail when you limit and you take away the 
    right of the Executive to use the funds prudently, to take 
    advantage of saving money for the Executive, which we all should be 
    interested in, and I certainly am, too; but Mr. Chairman, rule 843 
    provides that you cannot take away that discretionary authority of 
    the Executive.
        This attempt in this amendment does take that discretionary 
    authority to save money, to wisely allocate money prudently and it 
    takes away, I think, authority that we rightfully should keep with 
    the Executive, that you can accumulate funds and spend them in the 
    last quarter if it is to the advantage of the taxpayer and the 
    Executive.
        Mr. Chairman, this clearly is in violation of the rules of the 
    House.
        The Chairman: Does the gentleman from Virginia desire to be 
    heard?
        Mr. Harris: I do, Mr. Chairman.
        Mr. Chairman, let me first address the last point, probably 
    because it is the weakest that the gentleman has made with respect 
    to his point of order.
        With respect to the discretion that we are in any way limiting 
    the President, we cannot limit the discretion which we have not 
    given the President directly through legislation. There is no 
    discretion with regard to legislation that we have overtly 
    legislated and given to the President.
        Mr. Chairman, section 665(c)(3) of title 31 of the United 
    States Code, which states the following:

            Any appropriation subject to appointment shall be 
        distributed as may be deemed appropriate by the officers 
        designated in subsection (d) of this section to make 
        apportionments and reapportionments.

        Clearly grants agency budget officers the discretionary 
    authority to appor

[[Page 12274]]

    tion the funds in a manner they deem appropriate. My amendment 
    would not interfere with this authority to apportion funds. On the 
    contrary, my amendment reaffirms this section of the United States 
    Code, as Deschler's Procedures, in the U.S. House of 
    Representatives, chapter 26, section 1.8, states:

            The provision of the rule forbidding in any general 
        appropriation bill a ``provision changing existing law'' is 
        construed to mean the enactment of law where none exists, or a 
        proposition for repeal of existing law. Existing law may be 
        repeated verbatim in an appropriation bill, but the slightest 
        change of the text causes it to be ruled out.

        My amendment, Mr. Chairman, as the Chair will note, 
    specifically restates by reference the existing law, which in no 
    way gives discretion as to spending, but gives discretion as to 
    apportionment.
        Mr. Chairman, as the Chair knows, the budget execution cycle 
    has many steps. Whereas the Chair's earlier ruling related to the 
    executive branch authority to apportion, my amendment addresses the 
    obligation rate of funds appropriated under the fact. As OMB 
    circular No. A-34 (July 15, 1976) titled ``Budget Execution'' 
    explains:

            Apportionment is a distribution made by OMB.
            Obligations are amounts of orders placed, contracts 
        awarded, services received, and similar transactions.

        Mr. Chairman, my amendment proposes some additional duties, but 
    only a very minimal additional duty upon the executive branch.
        Deschler's chapter 26, section 11.1 says:

            The application of any limitation on an appropriation bill 
        places some minimal extra duties on Federal officials, who, if 
        nothing else, must determine whether a particular use of funds 
        falls within that prohibited by the limitation.

        The fact of the matter, Mr. Chairman, is that this is a very 
    carefully drawn limitation on appropriations. It is consistent with 
    a number of previous rulings of the Chair.
        Mr. Chairman, I would urge my colleague to withdraw his point 
    of order, because even a narrow interpretation of the rules will 
    not satisfy the other body on this. The other body has made it 
    clear that this restriction will go into the appropriation bill.
        I think it is a shame, after this House has voted this past 
    week 350 to 52, that it not go ahead and enact this type of 
    provision on the HUD bill. I think the Members want to vote for it. 
    I think the Members should be permitted to vote for it. I think it 
    is a shame to just allow the other body to take the initiative on 
    what I think is an extraordinarily important reform in our 
    budgetary process.
        The Chairman: Does the gentleman from Indiana desire to be 
    heard further?
        Mr. Myers of Indiana: I do, Mr. Chairman.
        The citation cited by the gentleman from Virginia points to the 
    fact that this amendment, if adopted, would cause the Executive to 
    unwisely allocate and spend money in quarters earlier or in the 
    year earlier when it might not be wise to spend it. This amendment, 
    while the intent I do not disagree with, the spirit that would be 
    carried out would cause the Executive

[[Page 12275]]

    to allocate and spend money unwisely because it was forced by this 
    amendment to allocate a portion according to this. But the 
    amendment does not do what the gentleman aspires for it to do.
        The Chairman: Does the gentleman from Texas desire to be heard?
        If not, the Chair is prepared to rule based upon the arguments 
    made with respect to the point of order.
        In the first instance, the Chair would observe that it is not 
    the duty of the Chair or the authority of the Chair to rule on the 
    wisdom or the legislative effect of amendments.
        Second, the Chair will observe that the gentleman from 
    Virginia, in the way in which his amendment has been drafted, 
    satisfies the requirements of the Apportionment Act, which was the 
    subject of a prior ruling of the Chair in connection with another 
    piece of legislation.
        The Chair agrees with the basic characterization made by the 
    gentleman from Indiana that the precedents of the House relating to 
    limitations on general appropriation bills stand for the 
    proposition that a limitation to be in order must apply to a 
    specific purpose, or object, or amount of appropriation. The 
    doctrine of limitations on a general appropriation bill has emerged 
    over the years from rulings of Chairmen of the Committee of the 
    Whole, and is not stated in clause 2, rule XXI itself as an 
    exception from the prohibition against inclusion of provisions 
    which ``change existing law.'' Thus the Chair must be guided by the 
    most persuasive body of precedent made known to him in determining 
    whether the amendment offered by the gentleman from Virginia (Mr. 
    Harris) ``changes existing law.'' Under the precedents in 
    Deschler's Procedure, chapter 26, section 1.12, the proponent of an 
    amendment has the burden of proving that the amendment does not 
    change existing law.
        The Chair feels that the basic question addressed by the point 
    of order is as follows: Does the absence in the precedents of the 
    House of any ruling holding in order an amendment which attempts to 
    restrict not the purpose or object or amount of appropriation, but 
    to limit the timing of the availability of funds within the period 
    otherwise covered by the bill require the Chair to conclude that 
    such an amendment is not within the permissible class of amendments 
    held in order as limitations? The precedents require the Chair to 
    strictly interpret clause 2, rule XXI, and where language is 
    susceptible to more than one interpretation, it is incumbent upon 
    proponent of the language to show that it is not in violation of 
    the rule (Deschler's chapter 25, section 6.3).
        In essence, the Chair is reluctant, based upon arguments 
    submitted to him, to expand the doctrine of limitations on general 
    appropriation bills to permit negative restrictions on the use of 
    funds which go beyond the amount, purpose, or object of an 
    appropriation, and the Chair therefore and accordingly sustains the 
    point of order.

Burden of Proving Authorization for Appropriation

Sec. 8.11 The burden of proof to cite the authorization to sustain an 
    appropriation for a

[[Page 12276]]

    project is on the proponent of the amendment.

    On Oct. 29, 1991,(9) when an amendment dealing with an 
environmental study was offered to the dire emergency appropriation 
bill in 1991, a point of order against the amendment was sustained 
where no authorization was cited.
---------------------------------------------------------------------------
 9. 137 Cong. Rec. 28791, 28792, 28802, 102d Cong. 1st Sess.
---------------------------------------------------------------------------

                     amendment offered by mr. gilchrest

        The Clerk read as follows:

            Amendment offered by Mr. Gilchrest: Page 10, after line 20, 
        insert the following new paragraph:

                        Environmental Protection Agency

                         study of wetlands delineation

            For necessary expenses for entering into an arrangement 
        with the National Academy of Sciences to conduct a study to 
        examine the scientific basis for methods used in identifying 
        and delineating wetlands (including the Federal manual for 
        Identifying and Delineating Jurisdictional Wetlands, published 
        January 10, 1989, revisions to such manual proposed by the 
        Environmental Protection Agency on August 14, 1991, and 
        previous manuals and methodologies), $500,000.

        Mr. [Wayne T.] Gilchrest [of Maryland] (during the reading): 
    Mr. Chairman, I ask unanimous consent that the amendment be 
    considered as read and printed in the Record.
        The Chairman: (10) Is there objection to the request 
    of the gentleman from Maryland?
---------------------------------------------------------------------------
10. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------

        There was no objection.
        Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I 
    reserve a point of order against the amendment.
        Mr. [James A.] Hayes of Louisiana: Mr. Chairman, I reserve a 
    point of order, as well, against the amendment.
        Mr. Gilchrest: . . . The point of order is not well taken.
        Mr. Chairman, just before I came to the House floor, someone 
    told me, and it was an interest group, that wetlands should not be 
    a science issue. It should be a political issue. Well, I take issue 
    with that statement. We need the science. We need wetlands 
    determination. We need a policy based on fact, not a policy based 
    on politics.

                               point of order

        The Chairman: Does the gentleman from Louisiana [Mr. Hayes] 
    insist on his point of order?
        Mr. Hayes of Louisiana: Mr. Chairman, yes, I do.
        I make a point of order against the amendment, because it 
    proposes to change existing law, constituting legislation in an 
    appropriation bill, therefore, violating clause 2 of rule XXI, the 
    rule which states in pertinent part that no amendment to a general 
    appropriation bill shall be in order if changing existing law.
        This amendment imposes additional duties. It, in fact, 
    instructs the EPA to make and enter into an arrangement with the 
    National Academy of Sciences all of this to include, by specific 
    ref

[[Page 12277]]

    erence of this amendment, the Federal manual for identifying and 
    delineating jurisdictional wetlands, all of which comes under 
    section 404 of the Clean Water Act, the appropriate jurisdiction of 
    which belongs with the Committee on Merchant Marine and Fisheries 
    and the Committee on Public Works and Transportation.
        There is no doubt but that this is, in fact, imposing 
    legislative intent upon an appropriation bill, and I ask for a 
    ruling from the Chair.
        The Chairman: Does the gentleman from Maryland [Mr. Gilchrest] 
    wish to be heard on the point of order.
        Mr. Gilchrest: Mr. Chairman, we are not legislating an 
    appropriation.
        Mr. Hayes of Louisiana: Mr. Chairman, I have a question for the 
    gentleman.
        The question would be: Is it not that the exact language says 
    that the Environmental Protection Agency will have the expenses for 
    entering into an arrangement with the National Academy of Sciences? 
    I am reading directly from the amendment. Therefore, this is an 
    appropriation of $500,000 for the express and sole purpose of 
    entering into an arrangement with the National Academy of Sciences 
    which is, in fact, legislating on an appropriation bill and 
    imposing the additional duties on the EPA, duties which are not in 
    existence now.
        Mr. Gilchrest: We are appropriating money for a study. We are 
    not legislating here.
        Mr. Hayes of Louisiana: Mr. Chairman, I would just proceed to 
    ask the Chair for a ruling.
        The Chairman: The Chair is prepared to rule.
        The Chair is unaware of any current statutory authorization for 
    the activities called for in the amendment and, consequently, the 
    reasons stated by the gentleman from Louisiana constitute a 
    violation of clause 2, rule XXI.
        The Chair sustains the point of order. . . .

                     amendment offered by mr. gilchrest

        Mr. Gilchrest: Mr. Chairman, I offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Gilchrest: Page 15, after line 20, 
        insert the following new chapter:

                         study of wetlands delineation

            For necessary expenses for entering into an arrangement 
        with the National Academy of Sciences to conduct a study to 
        examine the scientific basis for methods used in identifying 
        and delineating wetlands, for purposes of the conservation of 
        fish and wildlife resources and their habitat, as authorized by 
        16 U.S.C., 742f. $500,000.

        Mr. Gilchrest: Mr. Chairman, this is the same amendment that I 
    offered earlier. We have cleared up some of the problems with the 
    amendment. The purpose of the amendment is for a study, I am asking 
    for this study for the purposes of conservation, fish and wildlife 
    resources, and their habitat.

Chair's Ability To Look Behind Proponents Characterization of Motion

Sec. 8.12 Where a motion to concur in a Senate amendment with an 
    amendment was of

[[Page 12278]]

    fered as ``preferential,'' the Speaker Pro Tempore, without the 
    benefit of a point of order from the floor, on his own initiative 
    declared that the motion did not in fact qualify for that status 
    and recognized another Member to offer a motion to concur with an 
    amendment. On appeal, the Chair was sustained.

    On July 2, 1980,(11) the House had under consideration a 
series of amendments reported in disagreement from conference. A motion 
offered by Mr. Jamie L. Whitten, of Mississippi, to disagree with a 
particular Senate amendment was pending. The manager of the conference 
report, Mr. Clarence D. Long, of Maryland, then offered a preferential 
motion to concur in the Senate amendment with a further amendment. This 
motion was also rejected. At this point, Mr. Robert E. Bauman, of 
Maryland, offered a ``preferential'' motion to concur with an 
amendment. The proceedings following the rejection of Mr. Long's motion 
were then as indicated below.
---------------------------------------------------------------------------
11. 126 Cong. Rec. 18357, 18359-61, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

                 preferential motion offered by mr. bauman

        Mr. Bauman: Mr. Speaker, I offer a preferential motion.
        The Clerk read as follows:

            Mr. Bauman moves to recede and concur in the amendment of 
        the Senate, (No. 95) with an amendment as follows: In lieu of 
        the matter stricken and inserted by said amendment insert the 
        following:

                                   CHAPTER VI

                               FOREIGN OPERATIONS

                      Funds Appropriated to the President

                       international disaster assistance

            For an additional amount to carry out the provisions of 
        Section 491 of the Foreign Assistance Act of 1961, as amended, 
        $43,000,000 to remain available until expended.

         payment to the foreign service retirement and disability fund

            For an additional amount for ``Payment to the Foreign 
        Service Retirement and Disability Fund'', $1,020,000.

                               operating expenses

            For an additional amount for ``Operating Expenses of the 
        Agency for International Development'', $2,000,000, to remain 
        available until expended.

        Mr. Bauman (during the reading): Mr. Speaker, that happens to 
    be the end of the motion. I am not sure why the gentleman is 
    reading further. That is the end of the motion I sent to the desk.

                           parliamentary inquiry

        Mr. [Allen E.] Ertel [of Pennsylvania]: Mr. Speaker, I have a 
    parliamentary inquiry.

[[Page 12279]]

        The Speaker Pro Tempore: (12) The gentleman will 
    state his parliamentary inquiry.
---------------------------------------------------------------------------
12. Paul Simon (Ill.).
---------------------------------------------------------------------------

        Mr. Ertel: Mr. Speaker, how is this particular amendment a 
    preferential motion?
        The Speaker Pro Tempore: The gentleman rose and was recognized 
    to offer a preferential motion. The Clerk has not completed the 
    reading of the motion.
        Mr. Bauman: The gentleman from Maryland would advise the 
    Speaker that the Clerk has completed reading the motion that I sent 
    to the desk. I am not sure what the Clerk is now reading.
        The Speaker Pro Tempore: Has the Clerk finished reading the 
    motion?
        The Clerk will rereport the motion.
        Mr. Ertel (during the reading): Mr. Speaker, I reserve a point 
    of order.
        The Speaker Pro Tempore: The gentleman from Pennsylvania 
    reserves a point of order.

                          parliamentary inquiries

        Mr. Ertel: Mr. Speaker, I have a parliamentary inquiry.
        The Speaker Pro Tempore: The gentleman will state his 
    parliamentary inquiry.
        Mr. Ertel: Mr. Speaker, inasmuch as the motion was partially 
    read before, how is this a preferential motion which the gentleman 
    has been recognized for; on what basis?
        The Speaker Pro Tempore: The Long amendment having been to 
    concur with an amendment and being defeated, another motion to 
    concur with an amendment is a preferential motion.
        Mr. Ertel: Mr. Speaker, I have an additional parliamentary 
    inquiry.
        The Speaker Pro Tempore: The gentleman from Pennsylvania will 
    state his additional parliamentary inquiry.
        Mr. Ertel: Mr. Speaker, did we not though vote to recede and 
    concur in the Senate amendment previously?
        The Speaker Pro Tempore: The House has, on reconsideration 
    refused to concur in the Senate amendment No. 95 with an amendment.
        The Clerk will continue to read the motion.
        The Clerk read as follows:

            Mr. Bauman moves to concur in the amendment of the Senate 
        (No. 95) with an amendment as follows: In lieu of the matter 
        stricken and inserted by said amendment insert the following:

                                   CHAPTER VI

                               FOREIGN OPERATIONS

                      Funds Appropriated to the President

                       international disaster assistance

            For an additional amount to carry out the provisions of 
        Section 491 of the Foreign Assistance Act of 1961, as amended, 
        $43,000,000 to remain available until expended.

         payment to the foreign service retirement and disability fund

            For an additional amount for ``Payment to the Foreign 
        Service Retirement and Disability Fund'', $1,020,000.

                               operating expenses

            For an additional amount for ``Operating Expenses of the 
        Agency for International Development'',

[[Page 12280]]

        $2,000,000, to remain available until expended. . . .

        The Speaker Pro Tempore: The gentleman from Maryland is 
    recognized.

                           parliamentary inquiry

        Mr. Bauman: Mr. Speaker, under the rules, does not the 
    gentleman from Mississippi have the time? I would like for him to 
    yield to me, but I believe he has the time.
        Mr. Long of Maryland: Mr. Speaker, I have a preferential 
    motion.
        Mr. Bauman: Mr. Speaker, I have been recognized, I believe.
        Mr. Long of Maryland: Mr. Speaker, I was on my feet.

                               point of order

        Mr. Bauman: Mr. Speaker, a point of order.
        The Speaker Pro Tempore: The gentleman will state the point of 
    order.
        Mr. Bauman: Mr. Speaker, I have the floor and I do not yield.
        Mr. Long of Maryland: Mr. Speaker, I was on my feet for a 
    preferential motion.
        The Speaker Pro Tempore: On this motion the gentleman from 
    Maryland (Mr. Bauman) has the time.
        Mr. Bauman: Mr. Speaker, I would like to take my time at this 
    point.
        The Speaker Pro Tempore: The gentleman from Maryland (Mr. 
    Bauman) is recognized.
        Mr. Bauman: Mr. Speaker, I do not want to complicate an already 
    complicated situation. The motion which I have just offered, and 
    the Members should at least try and understand it because we are 
    apparently going to have to vote on it, in essence returns the 
    House to the position that we went to the conference with on the 
    foreign aid issue. It provides amounts of money for three funds 
    that the administration informed the House was necessary for 
    inclusion in the supplemental appropriation bill. It does not 
    include any of the funding which was added by the other body and, 
    therefore, amounts to roughly about $46 million. . . .
        Mr. Speaker, for purposes of debate only I yield to the 
    gentleman from New York (Mr. McEwen).
        Mr. [Robert C.] McEwen [of New York]: Mr. Speaker, I thank the 
    gentleman for yielding.
        The Speaker Pro Tempore: For what purpose does the gentleman 
    from Massachusetts rise?
        Mr. [Thomas P.] O'Neill [Jr., of Massachusetts]: Mr. Speaker, 
    in view of the fact that the gentleman from Maryland did not offer 
    a preferential motion, I offer a preferential motion that is at the 
    desk.
        Mr. Bauman: Mr. Speaker, I did not yield to the gentleman to 
    offer a motion.
        Mr. O'Neill: I was recognized.
        Mr. Bauman: Well, I did not yield for that purpose, Mr. 
    Speaker. I control the time, do I not?
        The Speaker Pro Tempore: The gentleman from Maryland (Mr. 
    Bauman) has 30 minutes, the majority side has 30 minutes.
        Does the gentleman from Maryland wish to use more time?
        Mr. Bauman: I do and I was in the course of using the time when 
    I was interrupted. I do not believe I can be interrupted unless I 
    yield.

[[Page 12281]]

        The Speaker Pro Tempore: The gentleman from Maryland may 
    proceed.
        Mr. Bauman: I do not yield for that purpose. I yield for debate 
    only to the----
        Mr. O'Neill: I want the House to know that I reserve my right 
    and before the previous question is put, I will offer for a 
    preferential motion.
        Mr. Bauman: Mr. Speaker, I yield to the gentleman from New York 
    for the purpose of debate only. . . .
        My parliamentary inquiry is that the Chair stated a moment ago 
    that the time on a preferential motion to concur with an amendment 
    is divided between the majority and the minority. Is it not 
    controlled by the maker of the motion? Only amendments in 
    disagreement are divided.
        The Speaker Pro Tempore: The practice of the House is clearly 
    on a motion of this type after an initial motion has been rejected 
    on an amendment reported from conference in disagreement that the 
    time is divided between the majority and the minority parties.
        Mr. Bauman: The second question I have is, has not the 
    gentleman from Maryland made a preferential motion which is now 
    pending?
        The Speaker Pro Tempore: The gentleman from Maryland made a 
    motion which was in form a preferential motion. Upon examination by 
    the Chair, it is in fact a motion to insist upon the original House 
    position rather than a motion to amend the Senate amendment.
        Mr. Bauman: A further parliamentary inquiry. The House's 
    previous action on this amendment was a vote to recede from the 
    position of the House. At that point----
        The Speaker Pro Tempore: If the Chair could--the House has not 
    voted to reconsider the motion to recede----
        Mr. Bauman: Precisely. That is what the gentleman from Maryland 
    is observing, that the House has voted to recede from its position. 
    At that point a preferential motion to concur with an amendment is 
    in order. That is what the gentleman from Maryland has offered.
        The Speaker Pro Tempore: What the House has done is to recede 
    from its initial disagreement, not from the House position.
        Mr. Bauman: Well, is not the gentleman from Maryland's motion a 
    preferential motion under the rule?
        The Speaker Pro Tempore: In form it is but upon examination it 
    is in fact a motion to insist upon the House position.
        Mr. Bauman: Well, does not the Chair have to be subjected to a 
    point of order at an appropriate time in order to make that ruling? 
    Does the Chair on its own inquire behind the form of motion?
        The Speaker Pro Tempore: The Chair is responding to a 
    parliamentary inquiry of the gentleman from Maryland.
        Mr. Bauman: Well, but the Chair made a statement a few moments 
    ago, unsolicited by anyone that my motion was not a preferential 
    motion. This gentleman would like to ask upon what authority the 
    Chair is able to rule a preferential motion offered in proper form 
    is nonpreferential when no one has raised the issue.
        The Speaker Pro Tempore: The Chair has not ruled out the motion 
    of

[[Page 12282]]

    the gentleman from Maryland. It is still pending. The parliamentary 
    inquiry was whether it was a preferential motion.
        Mr. Bauman: Mr. Speaker, further using my time on parliamentary 
    inquiry of the Chair, who controls the preferential motion on the 
    previous question under these circumstances?
        The Speaker Pro Tempore: Is the gentleman asking if another 
    motion is made?
        Mr. Bauman: I am asking the Chair, under the parliamentary 
    inquiry, who controls the preferential motion of the previous 
    question? Who may move the previous question on this motion?

        The Speaker Pro Tempore: If a motion is privileged it may be 
    offered by any Member of the House.
        Mr. Bauman: Mr. Speaker, I move the previous question on the 
    motion.
        The Speaker Pro Tempore: For what purpose does the gentleman 
    from Massachusetts (Mr. O'Neill) seek recognition?

                 preferential motion offered by mr. o'neill

        Mr. O'Neill: Mr. Speaker, I offer a preferential motion.
        Mr. Bauman: Mr. Speaker, a point of order. I moved the previous 
    question on the pending motion.
        The Speaker Pro Tempore: The motion for the previous question 
    does not rule out a preferential motion, if moved while time is 
    remaining to the opposite party. The previous question is not yet 
    in order.
        The Clerk will read the preferential motion.
        The Clerk read as follows:

            Mr. O'Neill moves that the House concur in the amendment of 
        Senate numbered 95 with an amendment as follows:
            In lieu of the matter deleted and inserted by said 
        amendment, insert the following:

                      Funds Appropriated to the President

                       international disaster assistance

            For an additional amount to carry out the provisions of 
        section 491 of the Foreign Assistance Act of 1961, as amended, 
        $43,000,000 to remain available until expended.

                                disability fund

            For an additional amount for ``Payment to the Foreign 
        Service Retirement and Disability Fund,'' $1,020,000.

                               operating expenses

            For an additional amount for ``Operating Expenses of the 
        Agency for International Development,'' $2,000,000, to remain 
        available until expended.

                             economic support fund

            For an additional amount of $80,000,000 for necessary 
        expenses to carry out the provisions of sections 531 through 
        535, provided that these funds shall not be available for 
        obligation or expenditure until October 1, 1980.

                               point of order

        Mr. Bauman: Mr. Speaker, I make a point of order against the 
    motion.
        The Speaker Pro Tempore: The gentleman will state his point of 
    order.
        Mr. Bauman: Mr. Speaker, I make a point of order that this 
    motion is not a preferential motion. It is, in fact, an amendment 
    to the pending motion of the gentleman from Maryland, which sought 
    to concur in the Senate amend

[[Page 12283]]

    ment with an amendment. This is simply another motion seeking to 
    concur in the Senate amendment with a slightly different amendment, 
    and therefore it has no preference over my pending motion.
        I make a point of order against it on that ground.

    The Chair, stating that the motion to concur with an amendment took 
precedence over a motion to insist on the House position, overruled the 
point of order. Mr. Bauman then made another point of order as 
indicated below:

        Mr. Bauman: A point of order, Mr. Speaker.
        The gentleman from Maryland has offered a motion to concur in 
    the amendment of the Senate with an amendment, and now another 
    motion to concur in the amendment of the Senate with an amendment 
    is being offered. That additional motion is not in order at this 
    point.
        The Speaker Pro Tempore: The gentleman from Maryland has 
    offered an amendment which in form was a motion to concur with an 
    amendment. In fact, it is a motion to insist on the original House 
    language.
        Mr. Bauman: I make a point of order against the pending motion 
    by the gentleman from Massachusetts (Mr. O'Neill) that it is not 
    preferential because it is, in form, simply a motion to insist on 
    the House position and is not, in fact, a preferential motion. If 
    my motion is not [in] order, his is not either.
        The Speaker Pro Tempore: The gentleman from Maryland is not 
    correct. The point is not well taken.
        Mr. Bauman: Mr. Speaker, I appeal the ruling of the Chair.
        If that is the way you are going to play the game, let us fight 
    it to the end.
        The Speaker Pro Tempore: The gentleman appeals the ruling of 
    the Chair. The question is, shall the Chair's decision stand as the 
    judgment of the Committee.

                   motion to table offered by mr. bolling

        Mr. [Richard] Bolling [of Missouri]: Mr. Speaker, I move to lay 
    the appeal from the Chair on the table.
        Mr. Bauman: And that the motion be reduced to writing.
        Mr. Bolling: It is at the desk. It is at the desk.
        The Speaker Pro Tempore: The Clerk will report the motion.
        The Clerk read as follows:

            Mr. Bolling moves to lay the appeal on the table.

        The Speaker Pro Tempore: The question is on the motion to 
    table.
        The question was taken; and the Speaker Pro Tempore announced 
    that the ayes appeared to have it.
        Mr. Bauman: Mr. Speaker, on that I demand the yeas and nays, so 
    that we can go on record on the fairness in this House.
        The yeas and nays were ordered.
        The vote was taken by electronic device, and there were--yeas 
    222, nays 140, answered ``present'' 1, not voting 70, as follows: . 
    . .
        So the motion to table was agreed to.
        The result of the vote was announced as above recorded.
        The Speaker Pro Tempore: The gentleman from Massachusetts (Mr.

[[Page 12284]]

    O'Neill) is recognized in support of his preferential motion.

Chair's Role in Clarifying Amendment

Sec. 8.13 In attempting to construe an ambiguous amendment, the Chair 
    may inquire of the author the meaning of certain language therein, 
    and then rely on those responses, and additional debate, in 
    rendering a decision on a point of order.

        On Oct. 29, 1991,(13) Chairman Gerry E. Studds, of 
    Massachusetts, presiding over the dire emergency appropriation 
    bill, 1991, was faced with an amendment and a point of order that 
    it was legislation in violation of Rule XXI clause 2. The Chair 
    elicited some debate on the matter to help clarify the meaning of 
    the amendment.
---------------------------------------------------------------------------
13. 137 Cong. Rec. 28818, 28819, 102d Cong. 1st Sess.
---------------------------------------------------------------------------

                      amendment offered by mr. boehner

        Mr. [John A.] Boehner [of Ohio]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Boehner: At the appropriate place 
        in the bill, add the following new chapter:

                          Chapter--Legislative Branch

          house of representatives committee on house administration--
                           house information systems

            For an additional amount for ``Committee on House 
        Administration, House Information Systems'', $1.00 to cancel 
        the contract with Aristotle Industries for the CD-ROM Voter 
        Registration Lists project.

        Mr. [Vic] Fazio [of California]: Mr. Chairman, I reserve a 
    point of order on the gentleman's amendment. . . .
        The Chairman: The gentleman will state his point of order.
        Mr. Fazio: Mr. Chairman, I believe this language is legislation 
    on an appropriation bill. It seems to direct that the Committee on 
    House Administration should cancel a contract, and, if that is the 
    thrust of the amendment, and that is the Chairman's interpretation 
    of it, I would suggest that this is language that should be 
    removed.
        Mr. Chairman, I object and insist on my point of order.
        The Chairman: Does the gentleman from Ohio wish to be heard on 
    the point of order? . . .
        The Chair would inquire of the author of the amendment whether 
    it is his intention and understanding with respect to his amendment 
    that it directs the Committee on House Administration to cancel the 
    contract.
        Mr. Boehner: That is correct.
        The Chairman: This is his intention?
        Mr. Boehner: Yes. . . .
        The Chairman: Does the gentleman from Pennsylvania [Mr. Walker] 
    wish to be heard on the point of order?
        Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, as I 
    read the amendment, the amendment reads that House Administration 
    is given $1 to cancel the contract of Aristotle Industries. This is 
    not an absolute mandate upon the committee. That $1 may be 
    sufficient to do that job, it may not

[[Page 12285]]

    be, so it seems to me the language of the amendment is such that 
    there is an optional nature to it. It is not a mandate under the 
    terms of the amendment and so, therefore, it should be in order in 
    the House for offering before the House.
        Mr. Fazio: Mr. Chairman, may I be heard further on the point of 
    order?
        The Chairman: The Chair will hear the gentleman from California 
    [Mr. Fazio].
        Mr. Fazio: Mr. Chairman, I think the author of the amendment 
    has stated his purpose. He said it did direct the committee to 
    cancel the contract. Others who have attempted to intervene and 
    reinterpret this statement have no standing. The gentleman who 
    offered the amendment is accurate in his purpose. He stated it very 
    clearly, and I would further insist that this point of order be 
    upheld.
        The Chairman: The Chair will inquire of the author of the 
    amendment as to whether or not he intends to direct the committee 
    to cancel the contract.
        Mr. Boehner: My intent, Mr. Chairman, is that the contract be 
    canceled. That is my intent. We do not direct that, though, in the 
    amendment.
        The Chairman: The Chair is prepared to rule.
        Under existing law and procedures the Committee on House 
    Administration is clearly authorized to cancel contracts into which 
    it has entered on behalf of the House. Thus the funds in the 
    amendment are authorized by law. Whether the amendment constitutes 
    legislation depend on whether the amendment directs the committee 
    to do that which it merely has discretion to do or not to do, the 
    amendment on its face does not state such a direction, and that is 
    why the Chair inquired twice of the author of the amendment as to 
    his intention.

        The Chair has no alternative other than to rely on the more 
    recent assurance of the gentleman from Ohio [Mr. Boehner] that it 
    is not his intention to direct the committee, but merely to 
    appropriate funds authorized by law, and, consequently, the point 
    of order is overruled.

Basis for Rulings on Points of Order Under Budget Act

Sec. 8.14 Under some provisions of the Congressional Budget Act, the 
    Chair must be guided in his rulings by estimates of costs provided 
    by the Committee on the Budget (see sections 302 and 311); in other 
    cases, particularly where a point of order is raised under section 
    303 of the Act, the Chair's judgment is shaped by the text of the 
    bill and not bound by Budget Committee estimates.

    Many factors help shape the Chair's decision on a point of order: 
the rule under which the point of order is brought, its legislative 
history, precedents, and prior interpretations of the rule in question. 
The Congressional Budget Act, adopted by the House as an exercise of 
its rulemaking

[[Page 12286]]

authority, specifies in several instances that estimates furnished by 
the Committee on the Budget are dispositive when a question is raised 
about the cost of legislation. Language of the following type is found 
in several sections of the Act: ``For purposes of this section, levels 
of new budget authority, spending authority . . . outlays . . . for a 
fiscal year shall be determined on the basis of estimates made by the 
Committee on the Budget. . .''.
    On Mar. 26, 1992,(14) during consideration of the Higher 
Education Amendments of 1992, an amendment was offered by Mr. Scott 
Klug, of Wisconsin, which had the effect of enlarging the class of 
borrowers under student loan provisions. The Committee on the Budget 
had told Mr. Klug that there were no costs associated with his 
amendment. The Chair held to the contrary and sustained a point of 
order raised under section 303 of the Act.
---------------------------------------------------------------------------
14. 138 Cong. Rec. 7185, 7186, 102d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Chairman: (15) The Clerk will report the 
    amendment.
---------------------------------------------------------------------------
15. Don J. Pease (Ohio).
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. Klug: Page 169, line 23, and page 
        170, line 16, strike ``and'' and on page 170 after line 5 and 
        after line 23, insert the following new clauses:

        ``(iii) not in excess of 3 years during which the borrower is 
    engaged as a full-time teacher in a public or nonprofit private 
    elementary or secondary school in a teacher shortage area 
    established by the Secretary pursuant to paragraph (4) of this 
    subsection;

            Page 177, strike lines 13 through 16 and redesignate the 
        succeeding subsections accordingly.
            Page 177, line 18, strike ``428(b)(4) of the Act as 
        redesignated)'' and insert ``428(b)(5) of the Act''.
            Page 178, line 4, and page 179, lines 14 and 23, 
        redesignate paragraphs (6), (7), and (8) as paragraphs (5), 
        (6), and (7), respectively.

        Mr. Klug (during the reading): Mr. Chairman, I ask unanimous 
    consent that the amendment be considered as read and printed in the 
    Record.
        The Chairman: Is there objection to the request of the 
    gentleman from Wisconsin?
        There was no objection.

                               point of order

        Mr. [William D.] Ford of Michigan: Mr. Chairman, I am 
    constrained to and must make a point of order on this amendment.
        The Chairman: The gentleman will state his point of order.
        Mr. Ford of Michigan: Mr. Chairman, I would have reserved a 
    point of order, but what just happened when we tried to do that is 
    an illustration that we will never get finished here if we use the 
    reservation of a point of order for unlimited debate. For that 
    reason I make the point of order without a reservation.
        Mr. Chairman, in section 303(a) of the Congressional Budget Act 
    it is not in order to consider any measure

[[Page 12287]]

    which creates entitlement authority or directs spending authority 
    first effective in the fiscal year prior to the budget resolution 
    for that fiscal year.
        The amendment would require the Government to pay an interest 
    subsidy for an extended period of time for individuals not 
    otherwise subsidized by the bill.
        The amendment expands the class of individuals entitled to an 
    interest subsidy in repayment of their student loans. Consequently, 
    the amendment establishes a beneficiary and a right to the benefit 
    in the subsidy satisfying the definition of new entitlement 
    authority under the Budget Act.
        While the Congressional Budget Office did not credit the 
    committee with savings for changes in the deferment terms of the 
    student loan programs in the act, the present amendment expands the 
    class of individuals entitled to the economic benefit of loan 
    principal repayment deferments and interest subsidies. . . .
        The Chairman: Does the gentleman from Wisconsin wish to be 
    heard on the point of order?
        Mr. Klug: Yes, very briefly, I might add, Mr. Chairman.
        The Chairman: The gentleman may proceed.
        Mr. Klug: First of all, Mr. Chairman, this amendment, like the 
    amendment offered by my colleague, the gentlewoman from Hawaii just 
    a few minutes ago, attempts to expand the higher education 
    authority to also allow deferments for teachers involved in teacher 
    shortage areas. In fact, right now, 34 States have made application 
    to the Federal Government because of shortages of teachers, much 
    like the shortage of physicians in rural areas across the United 
    States.
        I accept the gentleman's point of order, but let me tell you, 
    there is some frustration that I feel in that we in good faith went 
    to the Congressional Budget Office last week and asked for an 
    analysis, only to have now today an indication that the CBO 
    estimate no longer holds. They told us there would be no additional 
    expense. We come to the floor and suddenly find out that in this 
    case the Congressional Budget Office, which happens to support our 
    position, no longer holds.
        I think that is a very dangerous precedent. If we are going to 
    ask the CBO to do an analysis, then my sense is the CBO analysis 
    should be the rule of law on this floor.
        The Chairman: Does anyone else wish to be heard on the point of 
    order?
        Mr. [Robert S.] Walker [of Pennsylvania]: Yes, Mr. Chairman.
        The Chairman: The gentleman from Pennsylvania may proceed.
        Mr. Walker: Mr. Chairman, I am very troubled with what is 
    happening here. In previous iterations of this kind of challenge, 
    the Parliamentarians have ruled that the Congressional Budget 
    Office determinations with regard to the cost of an amendment would 
    in fact hold.
        Now under this particular challenge, we have the 
    Parliamentarians overruling the Congressional Budget Office in what 
    the Congressional Budget Office feels is the true nature of the 
    situation. As I understand it, the Congressional Budget Office has 
    said that the category of people that the gentleman from Wisconsin 
    [Mr. Klug] wishes to cover in his amendment were already

[[Page 12288]]

    assumed by them to be included, and so therefore there is no cost 
    involved in extending this particular benefit. . . .
        Mr. Ford of Michigan: Mr. Speaker, may I be heard further on 
    the point of order?
        The Chairman: The gentleman from Michigan may proceed.
        Mr. Ford of Michigan: Mr. Chairman, the gentleman from 
    Pennsylvania apparently was not on the floor when the previous 
    ruling was made by the Chair on precisely the same point of order, 
    and the point of order was raised from that side of the aisle. . . 
    .
        The Chairman: Does anyone else desire to be heard on the point 
    of order? If not, the Chair is prepared to rule.
        The Chair would observe that the fact that CBO assumed the 
    inclusion of these borrowers in its estimating model is not 
    dispositive to the question of order under section 303. Moreover, 
    under section 303 the Chair must be guided by the text and, unlike 
    sections 302 and 311, is not required to accept Budget Committee 
    estimates as conclusive.
        Having said that, the Chair would point out that the issue here 
    is identical to what it was in the amendment raised by the 
    gentlewoman from Hawaii, and based on the same reasoning the Chair 
    sustains the point of order.

Burden of Proof on Points of Order

Sec. 8.15 In response to most points of order against provisions in an 
    appropriation bill or against amendments, the burden is on those 
    supporting the provision or amendment to prove that it does not 
    violate the pertinent rule; but where a limitation of funds 
    amendment is challenged as being a ``tax provision'' in violation 
    of Rule XXI clause 5(b), the person advocating the point of order 
    must show the inevitability of tax consequences in or- der to 
    successfully press the point of order.

    The proceedings of June 18, 1991,(16) show the 
difficulty of carrying the burden of proof where a point of order is 
raised under rule XXI clause 5(b), especially where the tax measure is 
a provision in or amendment to an appropriation bill.
---------------------------------------------------------------------------
16. 137 Cong. Rec. 15189-91, 102d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. Obey: Page 13, line 7, insert 
        before the period the following:
        : Provided further, That additional amounts above fiscal year 
        1991 levels for the information reporting program shall be used 
        instead for the examination of the tax returns of high-income 
        and high-asset taxpayers.

                               point of order

        Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I make 
    a point of order against the amendment.
        The Chairman: (17) The gentleman will state his 
    point of order.
---------------------------------------------------------------------------
17. Gerry E. Studds (Mass.).

---------------------------------------------------------------------------

[[Page 12289]]

        Mr. Walker: Mr. Chairman, I make a point of order against the 
    amendment of the gentleman from Wisconsin on grounds that it 
    violates clause 5(b) of House rule XXI and ask to be heard on my 
    point of order.
        The Chairman: The gentleman will state his point of order.
        Mr. Walker: Mr. Chairman, clause 5(b) of rule XXI states at the 
    relevant part that, and I quote:
        No amendment in the House or proposed by the Senate carrying a 
    tax or tariff measure [shall] be in order during the consideration 
    of a bill or joint resolution reported by a committee not having 
    that jurisdiction.
        The proposed amendment would transfer the increased funds in 
    the bill over last year's appropriation for the Information 
    Reporting Program to be used instead for the examination of the tax 
    returns of high-income and high-asset taxpayers.
        It is my contention, Mr. Chairman, that under the precedents 
    surrounding clause 5(b) of rule XXI, this amendment constitutes a 
    tax measure to a bill not reported by the committee having 
    jurisdiction over tax measures-the House Ways and Means Committee.
        In this regard, I cite the footnote at section 846(b) of the 
    House Rules and Manual for the 101st Congress, and I quote:
        In determining whether a limitation in a general appropriation 
    bill constitutes a tax or tariff measure proscribed by this clause, 
    the Chair will consider argument as to the certainty of impact on 
    revenue collections and tax status or liability.
        That particular reference was to a point of order raised on 
    August 1, 1986, against a provision in a Treasury, Postal Service 
    appropriations bill to prohibit the use of funds in the bill to 
    implement certain specified Treasury regulations. Those regulations 
    required taxpayers to maintain detailed information to substantiate 
    the deductibility of certain expenses on their tax returns.
        . . . And while new regulations could be promulgated, there 
    would be a necessary delay in doing so, and this would, and I 
    quote, ``necessarily result in a direct loss of revenue to the 
    Federal Treasury.''
        The Chair concluded that the progression of decisions under 
    clause 5(b), rule XXI, support the proposition that a provision 
    constitutes a tax or tariff measure, and again I quote the Chair:

            Where it can be conclusively shown that the imposition of 
        the restriction on IRS funding for the fiscal year will 
        effectively and inevitably either preclude the IRS from 
        collecting revenues otherwise due and owing under provisions of 
        the Internal Revenue Code or require collection of revenue not 
        legally due and owing. . . .

        But all we are concerned with in this point of order is whether 
    shifting funds from the information matching system to audits will 
    be a revenue gainer or loser in fiscal 1992. And the testimony of 
    the IRS commissioner is that keeping that money in the Information 
    Reporting System is more efficient and will yield a larger revenue 
    return.

        Finally, Mr. Chairman, while I think I have provided ample 
    proof that this amendment will deprive the IRS of net revenues it 
    would otherwise receive in the coming fiscal year, under 
    parliamentary practice, the burden of

[[Page 12290]]

    proof is on the proponent of the amendment to show that the 
    amendment does not violate the rule. In other words, it is up to 
    the gentleman from Missouri to prove that his amendment will not 
    ``inevitably preclude the IRS from collecting revenues otherwise 
    due and owing under the provision of the Internal Revenue Code.''
        I therefore urge that my point of order be sustained.
        The Chairman: The proponent of the amendment is entitled to be 
    recognized on the point of order.
        Mr. [David R.] Obey [of Wisconsin]: . . . There is no way to 
    ascertain whether an audit of a taxpayer will or will not result in 
    increased revenue or lowered revenue to the Treasury of the United 
    States. And to suggest otherwise, I think, would be to suggest that 
    this subcommittee could take virtually no action which would impact 
    the rules of the IRS or any other agency that either audits or 
    imposes fines.
        The Chairman: Does the gentleman from California [Mr. Roybal] 
    wish to be heard on the point of order?
        Mr. [Edward R.] Roybal [of California]: Mr. Chairman, I just 
    wanted to add that the rule protects this amendment. The rule 
    states as follows:

            It shall be in order to consider the amendment printed in 
        the report of the Committee on Rules accompanying this 
        resolution, and all points of order against said amendment for 
        failure to comply with the provisions of clause 2 of rule XI 
        are hereby waived.

        I ask the Chair to rule on it.
        Mr. Walker: Mr. Chairman, may I be heard further on the point 
    of order?
        The Chairman: The gentleman from Pennsylvania may be heard 
    further.
        Mr. Walker: I thank the Chair.
        First of all, my point of order does not relate to clause 2 of 
    rule XI. I am making my point of order based upon clause 5(b) of 
    rule XXI. . . .
        Finally, Mr. Chairman, I would quote from section 835 of the 
    House Rules and Manual relating to points of order on 
    appropriations bills:

            If the amendment is susceptible to more than one 
        interpretation, it is incumbent upon the proponent to show that 
        it is not in violation of the rule.

        Moreover, it might be advisable here to apply the principle 
    used for germaneness points of order, since clause 5(b) of rule XXI 
    is very similar. To quote from section 594 of the manual:

            The burden of proof is on the proponent of the amendment to 
        establish its germaneness, and where an amendment is equally 
        susceptible to more than one interpretation, one of which will 
        render it not germane, the Chair will rule it out of order.

        I would submit in conclusion, Mr. Chairman, that even if the 
    proponent were able to claim that his amendment is a revenue gainer 
    rather than a net revenue loser, the existence of clear evidence to 
    the contrary should compel the Chair to rule against the amendment 
    on grounds that it is susceptible to more than one interpretation. 
    . . .
        The Chairman: The Chair is prepared to rule.
        Whether greater scrutiny of certain tax returns will, by the 
    use of funds contained in this bill will, in fact, lead to a loss 
    or a gain in tax liability and in tax collection is a matter of 
    conjecture as was pointed out by the gentleman from Wisconsin [Mr. 
    Obey].

[[Page 12291]]

        The amendment itself goes only to funding in the bill. It does 
    not necessarily result in a loss or gain of revenues, as was shown 
    to be the case in the arguments on the points of order cited by the 
    gentleman from Pennsylvania.
        The test here is certainty and inevitability of such a tax gain 
    or loss, and just to complete the record, the gentleman from 
    Pennsylvania cited a ruling by Chairman Beilenson on August 1, 
    1986.
        Let the Chair read fully from that paragraph:

            A limitation on the availability of funds for the Internal 
        Revenue Service otherwise in order under clause 2(c), rule XXI 
        may still be construed as a tax measure in violation of clause 
        5(b), rule XXI where it can be shown that the imposition of the 
        restriction on IRS funding for the fiscal year will effectively 
        and inevitably--

        And I underline the words ``effectively and inevitably,''--
        preclude the IRS from collecting revenues otherwise due and 
        owing by law or require collection of revenue not legally due 
        or owing.

        Absent a showing of inevitable or absolutely inevitable certain 
    effects, the test is not met with respect to funding restrictions 
    on annual appropriation bills and the point of order is overruled.

                           parliamentary inquiry

        Mr. Walker: Mr. Chairman, I have a parliamentary inquiry.
        The Chairman: The gentleman will state his parliamentary 
    inquiry.
        Mr. Walker: The Chair did not refer to the rulings, however, 
    where it is clear that the Chair is prepared to sustain points of 
    order where the amendment is equally susceptible to more than one 
    interpretation which clearly this particular amendment is. I did 
    not hear the Chair rule on the point of order that I raised in that 
    regard.
        The Chairman: The Chair will simply remind and repeat to the 
    gentleman that in this line of precedent on funding restrictions on 
    appropriation bills the test of inevitability of a tax increase or 
    decrease is consistent through all the precedents. For that reason, 
    again, the Chair rules the point of order out of order.
        Under the rule, debate on this amendment and all amendments 
    thereto shall not exceed 1 hour.
        The Chair recognizes the gentleman from Wisconsin [Mr. Obey] 
    for 5 minutes.