[Deschler-Brown Precedents, Volume 15, Chapter 31]
[Chapter 31. Points of Order; Parliamentary Inquiries]
[A. Points of Order]
[Â§ 9. Waiver]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 12291-12316]
 
                               CHAPTER 31
 
                Points of Order; Parliamentary Inquiries
 
                           A. POINTS OF ORDER
 
Sec. 9. Waiver

    The rules of the House are enforced by points of order, usually 
raised by a Member calling the attention of the Chair and his 
colleagues to what the Member perceives to be an infraction of a rule. 
On some occasions, the Speaker or Member presiding will move to bring a 
violation of a rule before the body. The Chair will, for example, on 
his own initiative, call a Member to order for remarks uttered in 
debate which violate proper decorum.(18)
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18. See Sec. Sec. 9.17, 9.18, infra.

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[[Page 12292]]

    Since the House is given ``rule-making'' authority by the 
Constitution (19) and creates its procedural and 
parliamentary code anew in each Congress, it can also use this same 
authority to change or waive a rule. A rule can be waived, mooted, or 
by-passed by unanimous consent,(20) by suspension of the 
rules, or by adoption of a special order reported from the Committee on 
Rules. Even a rule based on a provision of a statute can be waived 
under the House's ``rule-making'' authority.(1) A waiver can 
be put in place after consideration of a bill has 
commenced.(2)
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19. See Art. 1, Sec. 5, House Rules and Manual Sec. 58 (1997).
20. See Sec. 9.4, infra.
 1. See Sec. 9.2, infra.
 2. See Sec. 9.7, infra.
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    The requirement that points of order be made at the proper time 
also may be waived by agreement in the House or in the Committee of the 
Whole.(3) The requirement may also be waived by the adoption 
of a special rule from the Committee on Rules,(4) or by the 
granting of unanimous consent by the House.(5) On one 
occasion, the proceedings whereby a provision in a bill was stricken by 
a valid point of order was later vacated by unanimous consent and the 
provision was reinserted in the text.(6) Sometimes, too, the 
effect of earlier proceedings is such that a point of order is 
considered waived and cannot later be asserted against the proposition 
in question. Thus, if a motion that is susceptible to a point of order 
is agreed to by the House, no point of order being raised against it, 
the point is deemed waived.(7) Where the scope of a rule 
waiving points of order is questioned, the Chair may be called upon to 
interpret the language.(8) It should also be noted that a 
House Rule may

[[Page 12293]]

specify that a particular type of point of order may be in order at any 
time. For example, under the provisions of Rule XXI clause 5, a point 
of order against an amendment proposing an appropriation on a bill 
reported by a committee not having that jurisdiction is in order at any 
time.(9) However, even under this rule the precedents 
dictate that the point of order must be timely, i.e., during the five-
minute rule in Committee of the Whole or before the amendment is 
adopted.(10)
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 3. See Ch. 19, supra; and Sec. 9.5, infra.
 4. See Sec. 9.1, infra.
            For more complete discussion of special rules from the 
        Committee on Rules waiving points of order, see Sec. 10 of this 
        chapter and Ch. 21, supra.
 5. See Sec. 9.3, infra. But where points of order againstconsideration 
        of a bill are not specifically waived as part of a unanimous-
        consent request for immediate consideration, a point of order 
        that a quorum of the committee was not present when the bill 
        was ordered reported will lie despite the unanimous-consent 
        request. See the proceedings at 114 Cong. Rec. 30751, 90th 
        Cong. 2d Sess., Oct. 11, 1968, wherein such a point of order 
        was sustained against consideration of S. 1507 although 
        unanimous consent for immediate consideration of the bill had 
        been granted.
 6. See Sec. 9.19, infra.
 7. See Sec. Sec. 9.6, 9.16, infra.
 8. See Sec. 9.8, infra.
 9. Rule XXI clause 5, House Rules and Manual Sec. 846 (1997). For 
        further discussion, see Chs. 25, 26, supra.
10. See 92 Cong. Rec. 2365, 79th Cong. 2d Sess., Mar. 18, 
        1946.                          -------------------
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In General

Sec. 9.1 Special ``rules'' or resolutions from the Committee on Rules 
    often contain provisions expressly waiving points of order against 
    certain language in the bill rather than against all provisions in 
    the bill.

    On May 8, 1968,(11) Mr. William M. Colmer, of 
Mississippi, called up House Resolution 1164, which provided:
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11. 114 Cong. Rec. 12220, 12221, 90th Cong. 2d Sess.
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            Resolved, That during the consideration of the bill (H.R. 
        17023) making appropriations for sundry independent executive 
        bureaus, boards, commissions, corporations, agencies, offices, 
        and the Department of Housing and Urban Development for the 
        fiscal year ending June 30, 1969, and for other purposes, all 
        points of order against the provisions contained under the 
        heading ``National Aeronautics and Space Administration'' 
        beginning on page 19, line 17, through page 21, line 8, are 
        hereby waived.

    Mr. Colmer advised that the Committee on Rules in this instance had 
waived the points of order against certain specific items in the 
appropriations bill, rather than for all items in the bill.

        Mr. Colmer: . . . I might add also for the information of the 
    gentleman--and of the Members of the House--that the Committee on 
    Rules has recently adopted a course of procedure where these rules 
    waiving points of order will be limited to specific items, as has 
    been done in this instance.

    Parliamentarian's Note: Points of order were waived against the 
provisions of the bill pertaining to the National Aeronautics and Space 
Administration since the annual authorization bill for that agency had 
not yet become law.

Motion To Suspend Application of a Statutory Rule

Sec. 9.2 A motion to suspend the rules and pass a bill suspends all 
    rules, including statutory provisions of law

[[Page 12294]]

    enacted under the rulemaking power of the House, and since under 
    article I, section 5 of the Constitution, each House may make and 
    change its rules, the House is not precluded from waiving a rule 
    enacted as a statute.

    On Nov. 1, 1977,(12) Mr. Stephen J. Solarz, of New York, 
moved to suspend the rules and pass the Congressional Salary Deferral 
Act, H.R. 9282. Mr. Robert E. Bauman, of Maryland, raised a point of 
order against the suspension motion on the ground that it infringed the 
jurisdiction of the Committee on the Budget, in violation of section 
306 of the Budget Act. The arguments on the point of order and the 
ruling of Speaker Pro Tempore George E. Brown, Jr., of California, are 
shown in the Record of that date.
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12. 123 Cong. Rec. 36309-11, 95th Cong. 1st Sess.
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                       Congressional Salary Deferral

        Mr. Solarz: Mr. Speaker, I move to suspend the rules and pass 
    the bill (H.R. 9282) to provide that adjustments in the rates of 
    pay for Members of Congress shall take effect at the beginning of 
    the Congress following the Congress in which they are approved, and 
    for other purposes.
        The Clerk read as follows:

                                   H.R. 9282

            Be it enacted by the Senate and House of Representatives of 
        the United States of America in Congress assembled, That (a)(1) 
        paragraph (2) of section 601(a) of the Legislative 
        Reorganization Act of 1946 (2 U.S.C. 31), relating to 
        congressional salary adjustment, is amended by striking out 
        ``Effective at the beginning of the first applicable pay period 
        commencing on or after the first day of the month in which'' 
        and inserting in lieu thereof ``Effective at the beginning of 
        the Congress following any Congress during which''. . . .
            Sec. 2. (a) It shall not be in order in either the House of 
        Representatives or the Senate to consider any appropriation 
        bill, budget, resolution, or amendment thereto, which directly 
        or indirectly prevents the payment of increases in pay rates 
        resulting from a pay adjustment deferred under the amendments 
        made by the first section of this Act.
            (b) For purposes of subsection (a), the term ``budget 
        resolution'' means any concurrent resolution on the budget, as 
        such term is defined in section 3(a)(4) of the Congressional 
        Budget and Impoundment Control Act of 1974.
            (c) The provisions of subsection (a) are enacted by the 
        Congress--
            (1) as an exercise of the rulemaking power of the House of 
        Representatives and the Senate, respectively, and as such they 
        shall be considered as part of the rules of each House, 
        respectively, and such rules shall supersede other rules only 
        to the extent that they are inconsistent therewith; and
            (2) with full recognition of the constitutional right of 
        either House to change such rules (so far as relating to such 
        House) at any time, in the same manner, and to the same extent 
        as in the case of any other rule of such House.
            Sec. 3. The provisions of this Act shall take effect on the 
        date of the enactment of this Act.

[[Page 12295]]

        The Speaker Pro Tempore: Is a second demanded?
        Mr. Bauman: Mr. Speaker, I have a point of order.
        The Speaker Pro Tempore: The gentleman will state his point of 
    order.
        Mr. Bauman: Mr. Speaker, I make a point of order against the 
    present consideration of the bill under suspension on the ground 
    that the bill itself and the manner in which it was considered is 
    in violation of Public Law 93-344, the Congressional Budget Act, 
    specifically section 306.
        Section 306 of the Budget Act says as follows:

            No bill or resolution and no amendment to any bill or 
        resolution dealing with any matter which is within the 
        jurisdiction of the Committee on the Budget of either House 
        shall be considered in that House unless it is a bill or 
        resolution which has been reported by the Committee of the 
        Budget of that House or from the consideration of which such 
        committee has been discharged, or unless it is an amendment to 
        such bill or resolution.

        Mr. Speaker, the bill before us specifically, in section 2, 
    seeks to repeal part of the jurisdiction of the Committee on the 
    Budget. Specifically it says the following:

            Sec. 2. (a) It shall not be in order in either the House of 
        Representatives or the Senate to consider any appropriation 
        bill, budget resolution, or amendment thereto, which directly 
        or indirectly prevents the payment of increases in pay rates 
        resulting from a pay adjustment deferred under the amendments 
        made by the first section of this Act.

        Mr. Speaker, the Budget Act is very clear that so far as the 
    rules of procedure governing the Budget Act itself are concerned, 
    that is within the jurisdiction of the Committee on Rules. This 
    bill was reported by the Committee on Post Office and Civil 
    Service, the committee of original jurisdiction, and I understand 
    the jurisdiction was waived by the Committee on Rules. 
    Nevertheless, section 306 makes it plain that since this bill, if 
    it becomes statutory law, repeals part of the jurisdiction of the 
    Committee on the Budget, it should have also been considered, in 
    the opinion of the gentleman from Maryland, by the Committee on the 
    Budget or their jurisdiction should have been waived. This was not 
    done.
        I would say further, Mr. Speaker, that if in fact any committee 
    of the House is able to report a bill which prevents the Committee 
    on the Budget from dealing with subject matters under that 
    reporting committee's jurisdiction, then the Committee on the 
    Budget in fact could be, over a period of time, destroyed as far as 
    its capability of dealing with the Budget Act.
        For all of those reasons, I make a point of order against 
    consideration of this bill. I would further point out that section 
    306 does not deal with reporting or with whether or not the House 
    can suspend the rules, but it forbids consideration by the House at 
    any time of any legislation that repeals or changes the 
    jurisdiction of the Committee on the Budget without that 
    committee's acting upon it.
        The Speaker Pro Tempore: Does the gentleman from New York 
    desire to be heard on the point of order?
        Mr. Solarz: I do, Mr. Speaker.
        I have unbounded admiration for the parliamentary sagacity of 
    my good

[[Page 12296]]

    friend, the gentleman from Maryland. Who am I, after all, to 
    challenge the validity of this rather sophisticated parliamentary 
    analysis? But may I suggest, Mr. Speaker, that the substantive 
    merits of the gentleman's objection notwithstanding, the fact is 
    that from a procedural point of view I do believe it has to be 
    found wanting. The reason for that is that under the suspension of 
    the rules, which are the terms under which the legislation is being 
    considered, all existing rules of the House are waived, and to the 
    extent that the provision to which the gentleman from Maryland 
    referred is itself incorporated in the rules of the House, which 
    do, after all, provide for the consideration of these budget 
    resolutions, I would suggest that his objection is not relevant to 
    this resolution and, therefore, is not germane.
        Mr. Bauman: Mr. Speaker, may I be heard further?
        The gentleman makes the contention that by making a motion to 
    suspend the rules of the House, this wipes out a rule against 
    consideration in any form, including the suspension of the 
    requirements of the Budget Act. There is ample precedent in the 
    House for situations in which the Chair has ruled that a bill may 
    not even be brought up under suspension if it has not in fact been 
    considered by the committee of proper jurisdiction. I refer the 
    Chair to Hinds' Precedents, volume 5, section 6848, page 925, in 
    which it was ruled by the Chair that a committee, the Committee on 
    the Census, could not bring up for consideration under a motion to 
    suspend the rules a bill relating to the printing of a compendium 
    of a census, because it had not been brought before the Committee 
    on Printing.
        It is quite obvious that this is a question of consideration. 
    It is written into the statutory law that no such bill can be 
    considered, and I am not aware that that rule of consideration can 
    be suspended or repealed by a simple motion to suspend the rules. 
    If, in fact, that is the case, the Budget Act is meaningless.
        Mr. [Robert N.] Giaimo [of Connecticut]: Mr. Speaker, may I be 
    heard on the point of order?

        The Speaker Pro Tempore: The Chair recognizes the gentleman 
    from Connecticut.
        Mr. Giaimo: Mr. Speaker, the charge has been made and the 
    objection has been raised that this legislation, particularly 
    section 2, invades the jurisdiction of the Budget Committee in that 
    it purports to prohibit the Budget Committee from exercising its 
    jurisdiction over budget resolutions insofar as they would apply to 
    pay raises and cost-of-living increases. I must submit that that is 
    a proper interpretation.
        However, I do believe that the argument of the gentleman from 
    New York that this matter is being brought up under suspension of 
    the rules is a very valid one and that the House of Representatives 
    can in its wisdom by a two-thirds vote suspend the rules and 
    deprive the Budget Committee and in fact the Appropriations 
    Committee of jurisdiction in effecting pay raises or cost-of-living 
    increases by a two-thirds vote.
        The Speaker Pro Tempore: Are there any other Members who desire 
    to be heard on the point of order? If not, the Chair is prepared to 
    rule.
        The gentleman from Maryland makes a point of order against the 
    con

[[Page 12297]]

    sideration of the bill H.R. 9282 under suspension of the rules on 
    the grounds that section 306 of the Congressional Budget Act states 
    that no bill or resolution nor amendment to any bill or resolution 
    dealing with any matter which is within the jurisdiction of the 
    Committee on the Budget of either House shall be considered in that 
    House unless it is a bill or resolution which has been reported by 
    the Committee on the Budget of that House or from consideration of 
    which such committee has been discharged or unless it is an 
    amendment to such a bill or resolution.
        The Chair need not rule on the jurisdictional issue raised by 
    the gentleman and points out to the gentleman from Maryland that 
    under the specific provisions of section 904 of the Budget Act, the 
    provisions of title III including section 306, which he cites, are 
    stipulated as being an exercise of the rulemaking power of the 
    House of Representatives with full recognition of the 
    constitutional right of either House to change such rules so far as 
    relating to such House at any time in the same manner and to the 
    same extent as in the case of any other rule of such House. It is 
    the opinion of the Chair therefore that it is within the discretion 
    of the Chair under rule XXVII to entertain a motion to suspend the 
    rules and to consider the bill at this time. Of course, the 
    precedent cited by the gentleman from Maryland applies only to a 
    provision which is no longer in rule XXVII relating to motions to 
    suspend the rules made by committees. Accordingly the point of 
    order is overruled.
        Mr. Bauman: Mr. Speaker, may I be heard further, at the 
    sufferance of the Chair?
        The Speaker Pro Tempore: The Chair will hear the gentleman.
        Mr. Bauman: I thank the Speaker for permitting me to be heard 
    further.
        I would just point out that the Speaker has pointed out that it 
    is within the prerogatives of the House to change the rules of the 
    House, but this is not a rule of the House. It is a provision of a 
    statute which is being waived, and while I would not appeal the 
    ruling, I do not think that is a proper basis for the ruling.
        The Speaker Pro Tempore: The specific provision which the 
    gentleman states has the status of a rule of the House of 
    Representatives under the statute and under the Constitution.
        Is a second demanded?
        Mr. [Edward J.] Derwinski [of Illinois]: Mr. Speaker, I demand 
    a second.

Interpreting What Waiver Covers

Sec. 9.3 Instance where a unanimous-consent waiver of all points of 
    order against a bill combined with a unanimous-consent agreement to 
    consider the bill on a day certain was held to waive all points of 
    order against the consideration of the bill for failure of the 
    accompanying report to be available or to be sufficient under the 
    rules.

    On July 19, 1947,(13) Speaker Joseph W. Martin, Jr., of 
Massa

[[Page 12298]]

chusetts, ruled on the effect of a waiver on several points of order 
raised against a bill. The points of order had been waived pursuant to 
a unanimous-consent request which had been agreed upon three days 
previously.(14) The unanimous-consent agreement provided as 
follows:
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13. 93 Cong. Rec. 9396, 80th Cong. 1st Sess. Under consideration was 
        the National Security Act of 1947.
14. 93 Cong. Rec. 9095, 80th Cong. 1st Sess., July 16, 1947.
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        Mr. [Charles A.] Halleck [of Indiana]: Mr. Speaker, I ask 
    unanimous consent that it may be in order on Friday next and 
    thereafter to consider the bill H.R. 4214, that all points of order 
    against the said bill be considered as waived, and that there be 
    not to exceed 5 hours of general debate, to be confined to the bill 
    and to be equally divided and controlled by the chairman and 
    ranking minority member of the Committee on Expenditures in the 
    Executive Departments; and further, Mr. Speaker, I ask unanimous 
    consent that after the passage of the bill H.R. 4214 the Committee 
    on Expenditures shall be discharged from the further consideration 
    of the bill S. 758, and it shall then be in order in the House to 
    move to strike out all after the enacting clause of the Senate bill 
    and insert in lieu thereof the provisions contained in H.R. 4214 as 
    passed.

    The proceedings on July 19 were as follows:

        Mr. [Clare E.] Hoffman [of Michigan]: Mr. Speaker, I move that 
    the House resolve itself into the Committee of the Whole House on 
    the State of the Union for the consideration of the bill (H.R. 
    4214) to promote the national security by providing for a Secretary 
    of Defense; for a National Military Establishment; for a Department 
    of the Army, a Department of the Navy, and a Department of the Air 
    Force; and for the coordination of the activities of the National 
    Military Establishment with other departments and agencies of the 
    Government concerned with the national security; and pending that, 
    Mr. Speaker, I ask unanimous consent that all those who may speak 
    on the bill may include in their remarks any relevant material, and 
    that all Members who so desire may have five legislative days in 
    which to extend their remarks in the Record on this subject.
        The Speaker: Is there objection to the request of the gentleman 
    from Michigan?
        There was no objection.
        Mr. [W. Sterling] Cole of New York: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Cole of New York: My parliamentary inquiry is whether it 
    would be in order at this time to make a point of order against the 
    motion upon the ground that at least 24 hours have not intervened 
    between the time the bill was available and the time the bill was 
    called up.
        The Speaker: In reply to the inquiry of the gentleman from New 
    York, the Chair would say that under the unanimous-consent 
    agreement which was reached on July 16, appearing in the 
    Congressional Record at page 9095, all points of order against the 
    bill were waived.

[[Page 12299]]

        Mr. Cole of New York: Mr. Speaker, a further parliamentary 
    inquiry. I am further advised that although the bill is available 
    this morning, the report accompanying the bill is not. Would it be 
    in order to raise a point of order against the motion of the 
    gentleman from Michigan [Mr. Hoffman] upon the ground that the 
    report is not now available?
        The Speaker: It would not be in order because the same ruling 
    would apply. All points of order were waived under the unanimous-
    consent agreement.
        Mr. Cole of New York: Mr. Speaker, a further parliamentary 
    inquiry. I am informed that the report does not comply with the 
    rules of the House in that it does not set forth the alterations 
    proposed by the bill to existing law. My inquiry is whether the 
    request of the gentleman from Indiana, the majority leader, that 
    points of order against the bill be waived also carried with it the 
    waiving of points of order against the report which is supposed to 
    accompany the bill.
        The Speaker: The Chair is compelled to make the same ruling in 
    this instance also. All points of order were waived under the 
    unanimous-consent agreement and, therefore, the raising of that 
    point of order at this time would not be in order.
        Mr. Cole of New York: Mr. Speaker, without undertaking to 
    dispute the decision, I call your attention to the fact that the 
    request for waiving points of order was directed to the bill 
    itself. Does the Speaker rule that the waiving of points of order 
    against the bill carried with it the waiving of points of order 
    against the report?
        The Speaker: Yes.

    Parliamentarian's Note: Under the modern practice, points of order 
based upon insufficiency or unavailability of the accompanying report 
or upon certain Budget Act violations go to the question of 
consideration and not to the bill itself and must be separately waived. 
If points of order against the consideration of a bill are waived by 
unanimous consent, such waiver applies to the committee report on the 
bill.

Unanimous Consent for Consideration of a Bill; What It Waives

Sec. 9.4 A unanimous-consent agreement ``to consider a bill in the 
    House on tomorrow or any day thereafter'' may waive the three-day 
    availability requirement but does not waive other points of order 
    against consideration when the bill is called up under the 
    agreement.

    Where a non-privileged appropriation bill (not a general bill) was 
reported from the Committee on Appropriations, the chairman of that 
committee made a unanimous-consent request so the bill could be called 
up without meeting the three-day layover requirement. In response to an 
inquiry,

[[Page 12300]]

the Speaker indicated that if the request were granted, points of order 
under the Budget Act could still be raised when the bill was called up. 
The proceedings of Feb. 4, 1982,(15) were as follows:
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15. 128 Cong. Rec. 844, 845, 97th Cong. 2d Sess.
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        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Speaker, I ask 
    unanimous consent that it may be in order on tomorrow or any day 
    thereafter to consider in the House the joint resolution (H.J. Res. 
    391) making an urgent supplemental appropriation for the Department 
    of Labor for the fiscal year ending September 30, 1982.
        The Speaker: (16) Is there objection to the request 
    of the gentleman from Mississippi?
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16. Thomas P. O'Neill, Jr. (Mass.).
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        Mr. [Trent] Lott [of Mississippi]: What about section 311(a) of 
    the Budget Act? Is there a budget problem of hitting the ceiling?
        Mr. Whitten: In the first place, I do not know how that 
    applies. It is my information that technically we are not in excess 
    of the budget right now. That might be open to question on this, 
    that, or the other thing. My purpose in offering this is so we 
    could move ahead regardless. What I had in mind was the 3-day rule.
        The Speaker: May I answer the gentleman? It does not waive all 
    points of order.
        Mr. Lott: Mr. Speaker, that is what I wanted to ask.
        The Speaker: I say to the gentleman from Mississippi that it 
    does not waive all points of order but makes it in order to call 
    the bill up under the conditions stated.
        Mr. Lott: If I could, Mr. Speaker, I would address the question 
    to the chairman, or perhaps the Chair could respond.
        The Speaker: The Chair understands the gentleman is speaking, 
    of course, with regard to the Budget Act, the budget authority. 
    This request, as stated, does not waive a point of order, if some 
    Member would get on the floor to offer a point of order under the 
    Budget Act.
        Mr. Lott: Mr. Speaker, is it my understanding a point of order 
    would lie on this point of the Budget Act when it comes to the 
    House?
        The Speaker: The Chair would state that a proper point of order 
    at that time would be entertained.

Unanimous Consent for Protection of a Specific Section

Sec. 9.5 The House may by unanimous consent agree to consider a section 
    of a general appropriation bill without the intervention of a point 
    of order.

    On May 4, 1948,(17) as an alternative to obtaining a 
rule waiving points of order from the Committee on Rules, the House 
granted unanimous consent to consider a section [containing legislation 
in

[[Page 12301]]

an appropriation bill] without that section being vulnerable to a point 
of order.
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17. 94 Cong. Rec. 5264, 80th Cong. 2d Sess. Under consideration was 
        H.R. 6430, a District of Columbia appropriations bill for 
        fiscal 1949.
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        Mr. Horan, from the Committee on Appropriations, reported the 
    bill (H.R. 6430) making appropriations for the government of the 
    District of Columbia. . . .
        Mr. Fogarty reserved all points of order on the bill.
        Mr. [Walter F.] Horan [of Washington]: Mr. Speaker, I ask 
    unanimous consent that in the consideration of the bill making 
    appropriations for the District of Columbia for the fiscal year 
    1949 it may be in order to consider without intervention of a point 
    of order a section which I send to the desk and ask to have read.
        The Clerk read as follows:

            Sec. 2. Except as otherwise provided herein, all vouchers 
        covering expenditures of appropriations contained in this act 
        shall be audited before payment by or under the jurisdiction 
        only of the Auditor for the District of Columbia and the 
        vouchers as approved shall be paid by checks issued by the 
        Disbursing Officer without countersignature.

        The Speaker: (18) Is there objection to the request 
    of the gentleman from Washington?
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18. Joseph W. Martin, Jr. (Mass.).
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        There was no objection.

Where Valid Point of Order Is Not Pressed Against an Amendment

Sec. 9.6 An amendment which is not in order because it is not germane 
    to a pending amendment may, by unanimous consent, be offered and 
    considered notwithstanding this infirmity.

    On occasion, the Committee of the Whole may proceed to consider and 
debate an amendment notwithstanding a decision that it is not germane. 
For example, on Oct. 31, 1975,(19) the proponent of an 
amendment not otherwise in order was permitted to offer it although it 
was not germane.
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19. 121 Cong. Rec. 34563, 34564, 94th Cong. 1st Sess.
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        Mr. [Robert G.] Stephens [Jr., of Georgia]: Mr. Chairman, I 
    offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Stephens: Section 306 of title III 
        of H.R. 10024 as reported is amended by striking the word 
        ``person'' on line 22, page 15 and substituting therefor the 
        phrase ``state chartered depository institution'' and by adding 
        the words ``state chartered'' before the words ``depository 
        institution'' on line 12, page 16. . . .

        Mr. [Albert W.] Johnson of Pennsylvania: Mr. Chairman, I offer 
    an amendment to the amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Johnson of Pennsylvania to the 
        amendment offered by Mr. Stephens: Insert at the end of section 
        306(b) the following language: ``Notwithstanding any other 
        provision of this subsection, compliance with the requirements 
        imposed under this subsection shall be enforced under--

[[Page 12302]]

            ``(1) Section 8 of the Federal Deposit Insurance Act in the 
        case of national banks, by the Comptroller of the Currency; and
            ``(2) Section 5(d) of the Home Owners Loan Act of 1933 in 
        the case of any institution subject to that provision, by the 
        Federal Home Loan Bank Board.''

        The Chairman: (20) The Chair observes that this is 
    not a proper amendment to the pending amendment and should be 
    offered separately.
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20. Spark M. Matsunaga (Ha.).
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        The Chair will recognize the gentleman after the amendment of 
    the gentleman from Georgia (Mr. Stephens) has been disposed of.
        Mr. Johnson of Pennsylvania: Mr. Chairman, I have a 
    parliamentary inquiry.
        The Chairman: The gentleman will state his parliamentary 
    inquiry.
        Mr. Johnson of Pennsylvania: Mr. Chairman, would it be in order 
    to tack them together by unanimous consent at this point?
        The Chairman: By unanimous consent, yes. Is the gentleman 
    making that request?
        Mr. Johnson of Pennsylvania: Mr. Chairman, I ask unanimous 
    consent that my amendment be offered as an amendment to the pending 
    amendment.
        The Chairman: Is there objection to the request of the 
    gentleman from Pennsylvania?
        There was no objection.

Time of Adoption of Resolution of Waiver

Sec. 9.7 A resolution waiving points of order against a certain 
    provision in a general appropriation bill has been considered and 
    agreed to by the House after the general debate on the bill has 
    been concluded and reading for amendment has begun in the Committee 
    of the Whole.

    On May 21, 1969,(1) a waiver of the points of order 
against a particular section of a bill was adopted after the first 
paragraph of the bill was read for amendment. The proceedings on the 
resolution waiving points of order were as follows:
---------------------------------------------------------------------------
 1. 115 Cong. Rec. 13246, 13251, 91st Cong. 1st Sess. Under 
        consideration was H. Res. 414, waiving points of order against 
        title IV, H.R. 11400, supplemental appropriation bill of 1969.
---------------------------------------------------------------------------

        Mr. [William M.] Colmer [of Mississippi]: Mr. Speaker, by 
    direction of the Committee on Rules, I call up House Resolution 414 
    and ask for its immediate consideration.
        The Clerk read the resolution, as follows:

                                  H. Res. 414

            Resolved, That during the consideration of the bill (H.R. 
        11400) making supplemental appropriations for the fiscal year 
        ending June 30, 1969, and for other purposes, all points of 
        order against title IV of said bill are hereby waived.

        Mr. Colmer: Mr. Speaker, I yield the customary 30 minutes to 
    the minority, to the very able and distin

[[Page 12303]]

    guished gentleman from California (Mr. Smith). Pending that I yield 
    myself such time as I may consume.
        Mr. Speaker, I shall not use all the time on this resolution. 
    This is a rather unusual situation that we find ourselves in, 
    parliamentarily speaking. We have debated the supplemental 
    appropriation bill at some length under the privileged status of 
    the Appropriations Committee. Now we come in with a resolution from 
    the Rules Committee for one purpose and one purpose alone; that is, 
    to waive points of order against a particular section of the bill. 
    . . .
        The language that the rule waives the point of order against is 
    found in title IV of the bill. Title IV of the bill places a 
    ceiling upon the amount of the expenditures that the Chief 
    Executive can make within the fiscal year. Now, that amount is, 
    roughly, $192 billion. . . .
        Mr. Colmer: Mr. Speaker, I move the previous question on the 
    resolution.
        The previous question was ordered.
        The Speaker Pro Tempore: (2) The question is on the 
    resolution.
---------------------------------------------------------------------------
 2. Edmond Edmondson (Okla.).
---------------------------------------------------------------------------

        The question was taken; and the Speaker pro tempore announced 
    that the ayes appeared to have it.

Interpretation of Resolution Providing Waiver

Sec. 9.8 In construing a resolution waiving certain points of order, 
    the Chairman of the Committee of the Whole may examine debate on 
    the resolution in the House in determining the scope of the waiver.

    On June 22, 1973,(3) Chairman James G. O'Hara, of 
Michigan, was called upon to interpret the intention of the Committee 
on Rules in the adoption of language waiving certain provisions of a 
House rule in the consideration of an appropriation bill.
---------------------------------------------------------------------------
 3. 119 Cong. Rec. 20983, 93d Cong. 1st Sess. Under consideration was 
        H.R. 8825, the HUD-independent agencies appropriations for 
        fiscal 1974.
---------------------------------------------------------------------------

        The Chairman: The Chair is prepared to rule.
        The Chair feels that it will be necessary first to speak on the 
    contention raised by the gentleman from Rhode Island (Mr. Tiernan) 
    and amplified upon by the gentleman from Connecticut (Mr. Giaimo) 
    with respect to the provisions of the resolution under which the 
    bill is being considered, and whether or not the provisions of that 
    resolution have an effect on the point of order made by the 
    gentleman from Massachusetts (Mr. Boland).
        The gentleman from Connecticut (Mr. Giaimo) is correct in 
    asserting that if the amendment offered by the gentleman from Rhode 
    Island (Mr. Tiernan) is out of order at all it is out of order 
    because of the second sentence of clause 2 of Rule XXI, which 
    contains the provisions that ``nor shall any provision in any such 
    bill or amendment thereto changing existing law be in order,'' and 
    so forth setting forth exceptions. But the gentleman from Con

[[Page 12304]]

    necticut (Mr. Giaimo) contends, and the gentleman from Rhode Island 
    (Mr. Tiernan) concurs, that the resolution providing for the 
    consideration of the bill waives the provisions of that rule. The 
    Chair has again read the rule. It says:

            Resolved, That during the consideration of the bill (H.R. 
        8825) making appropriations for the Department of Housing and 
        Urban Development . . . the provisions of clause 2, rule XXI 
        are hereby waived.

        It does not say that points of order are waived only with 
    respect to matters contained in the bill. It says ``During the 
    consideration of the bill'' the provisions of clause 2 of Rule XXI 
    are waived.
        The Chair was troubled by that language and has examined the 
    statements made by the members of the Committee on Rules who 
    presented the rule to see if their statements in any way amplified 
    or explained or limited that language. The Chair has found that 
    both the gentleman from Louisiana (Mr. Long) and the gentleman from 
    Ohio (Mr. Latta) in their explanations of the resolution did, 
    indeed, indicate that it was their intention, and the intention of 
    the committee, that the waiver should apply only to matters 
    contained in the bill and that it was not a blanket waiver.
        Therefore whatever ambiguity there may have been in the rule as 
    reported, the Chair is going to hold, was cured by the remarks and 
    legislative history made during the presentation of the rule, which 
    were not disputed in any way by the gentleman from Connecticut or 
    anyone else. However, the Chair recognizes that it is a rather 
    imprecise way of achieving that result and would hope that in the 
    future such resolutions would be more precise in their application.

    The Chair then sustained the point of order raised against the 
amendments offered by Mr. Tiernan.

Waiver Against Bill Does Not Cover Amendments

Sec. 9.9 Where the House has adopted a resolution waiving points of 
    order against a bill, no immunity is granted to Members to offer 
    amendments which are not germane.

    On June 15, 1948,(4) Mr. Leo E. Allen, of Illinois, 
called up House Resolution 671, which provided as follows:
---------------------------------------------------------------------------
 4. 94 Cong. Rec. 8340, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

        Resolved, That upon the adoption of this resolution it shall be 
    in order to move that the House resolve itself into the Committee 
    of the Whole House on the State of the Union for consideration of 
    the bill (H.R. 6401) to provide for the common defense by 
    increasing the strength of the armed forces of the United States 
    and for other purposes, and all points of order against said bill 
    are hereby waived. That after general debate, which shall be 
    confined to the bill and continue not to exceed 3 hours, to be 
    equally divided and controlled by the chairman and ranking minority 
    member of the Committee on Armed

[[Page 12305]]

    Services, the bill shall be read for amendment under the 5-minute 
    rule. At the conclusion of the reading of the bill for amendment, 
    the Committee shall rise and report the same to the House with such 
    amendments as may have been adopted, and the previous question 
    shall be considered as ordered on the bill and amendments thereto 
    to final passage without intervening motion except one motion to 
    recommit. After the passage of the bill (H.R. 6401) it shall be in 
    order in the House to take from the Speaker's table the bill, S. 
    2655, and to move to strike out all after the enacting clause of 
    said Senate bill and to insert in lieu thereof the provisions 
    contained in H.R. 6401 as passed.
The resolution was agreed to.(5)
---------------------------------------------------------------------------
 5. Id.
---------------------------------------------------------------------------

    On June 17, 1948,(6) an amendment to the bill was 
offered by Mr. Edward H. Rees, of Kansas.
---------------------------------------------------------------------------
 6. 94 Cong. Rec. 8685, 8686, 80th Cong. 2d Sess. Under consideration 
        was H.R. 6401, Selective Service Act of 1948.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. Rees: At the end of line 12, page 
        23, add the following and number the succeeding sections 
        accordingly:
            ``Sec. 8. (a) The training under this act shall be 
        administered and carried out on the highest possible moral, 
        religious, and spiritual plane.
            ``(b) It shall be unlawful within such reasonable distance 
        of any military camp, station, fort, post, cantonment, or 
        training or mobilization place, where training under this act 
        is being given, as the Secretary of National Defense may 
        determine to be necessary to the protection of the health, 
        morals, and welfare of such persons who are receiving training 
        under this act and shall designate and publish in general 
        orders or bulletins, to establish or keep houses of ill fame, 
        brothels, bawdy houses, or places of entertainment which are 
        public nuisances, or other like facilities detrimental to the 
        health and morals of persons who are being trained under this 
        act, or to receive or permit to be received for immoral 
        purposes any person in any vehicle, place, structure, or 
        building used for the purpose of lewdness, assignation, or 
        prostitution within said distance determined by the Secretary 
        of Defense or to knowingly rent, lease, or permit the use of 
        any property for such purposes. Any person, corporation, 
        partnership, or association violating any of the provisions of 
        this subsection shall be deemed guilty of a misdemeanor and 
        upon conviction thereof shall be punished by a fine of not more 
        than $1,000 or imprisonment for not more than 12 months, or 
        both.
            ``(c) The sale of or dealing in, beer, wine, or any 
        intoxicating liquors by any person in any post exchange, 
        canteen, ship's store, or Army, Navy, or Marine transport or 
        upon any premises used for military or naval purposes by the 
        United States is hereby prohibited. The Secretary of Defense is 
        authorized and directed to take appropriate action to carry out 
        the provision of this subsection.''

        Mr. [Walter G.] Andrews of New York: Mr. Chairman, I make the 
    point of order against the amendment that the provisions thereof 
    are not germane to the provisions of this bill.
        The Chairman (Mr. Francis H. Case of South Dakota): The Chair 
    is ready to rule.
        The gentleman from New York [Mr. Andrews] has made the point of 
    order that the amendment offered by the

[[Page 12306]]

    gentleman from Kansas [Mr. Rees] is not germane to the bill. 
    Several of the Members who have spoken have called attention to 
    other provisions in the bill. The Chair must remind the committee 
    that the provisions in the bill as reported by the committee were 
    made in order by a special rule adopted by the House of 
    Representatives. There may be provisions in the bill which would 
    not be germane if offered as an amendment by individual Members, 
    but are in order in the bill because they were made in order by the 
    rule adopted by the House.
        So every amendment offered must stand on its own bottom as to 
    whether or not it is germane.

        The Chair invites attention to the fact that the amendment 
    includes such language as ``It shall be unlawful to maintain 
    certain institutions,'' and further on says, ``Any person, 
    corporation, partnership, or association violating any of the 
    provisions of this subsection shall be deemed guilty of a 
    misdemeanor'' and so forth. In that respect it seems to the Chair 
    that the amendment goes beyond the provisions of the bill, imposing 
    penalties and sanctions on persons outside the armed forces.
        Therefore, the Chair is constrained to sustain the point of 
    order.

Effect on Amendments

Sec. 9.10 Where a resolution providing for the consideration of a bill 
    specifies that ``all points of order against said bill are hereby 
    waived,'' the waiver is applicable only to the text of the bill and 
    not to amendments.

    On May 1, 1968,(7) Speaker Pro Tempore Carl Albert, of 
Oklahoma, advised Mr. Durward G. Hall, of Missouri, as to whether 
points of order would lie against amendments to a bill after the 
adoption of a House resolution waiving points of order against the 
bill.
---------------------------------------------------------------------------
 7. 114 Cong. Rec. 11304-06, 90th Cong. 2d Sess. Being discussed was H. 
        Res. 1150, providing for consideration of H.R. 16729, extending 
        the higher education student loan program.
---------------------------------------------------------------------------

        Mr. [Claude D.] Pepper [of Florida]: Mr. Speaker, by direction 
    of the Committee on Rules, I call up House Resolution 1150 and ask 
    for its immediate consideration.
        The Clerk read the resolution, as follows:

                                  H. Res. 1150

            Resolved, That upon the adoption of this resolution it 
        shall be in order to move that the House resolve itself into 
        the Committee of the Whole House on the State of the Union for 
        the consideration of the bill (H.R. 16729) to extend for two 
        years certain programs providing assistance to students at 
        institutions of higher education, to modify such programs, and 
        to provide for planning, evaluation, and adequate leadtime in 
        such programs, and all points of order against said bill are 
        hereby waived. . . .

        The Speaker Pro Tempore: The gentleman from Florida [Mr. 
    Pepper] is recognized for 1 hour. . . .
        Mr. Hall: Mr. Speaker, a parliamentary inquiry.

[[Page 12307]]

        The Speaker Pro Tempore: The gentleman will state it.
        Mr. Hall: Mr. Speaker, in view of our colloquy and our 
    understanding of House Resolution 1150, which says, on lines 8 and 
    9, that ``all points of order against such bill are hereby 
    waived,'' my parliamentary inquiry is whether or not amendments 
    submitted--inasmuch as on line 1, page 2, the resolution states 
    ``the bill shall be read for amendment under the 5-minute rule''--
    could not be subject to a point of order or a point of order made 
    and lie against such amendments if they were nongermane or 
    otherwise did not come under a rule of the House? A mirror image of 
    my question is, does a point of order lie against all amendments 
    that might be offered?
        The Speaker Pro Tempore: The resolution does not apply to 
    amendments that might be offered. . . .
        There is nothing in the resolution which would provide for a 
    waiver of points of order against any amendment which might be 
    offered to the bill, if such amendment were not germane under the 
    rules of the House.

Sec. 9.11 Where the House by adoption of a resolution waives all points 
    of order against any provisions in an appropriation bill, such 
    action does not waive points of order against amendments offered 
    from the floor.

    On Aug. 20, 1951,(8) the Chairman (9) held 
that points of order would lie against amendments offered from the 
floor, despite a rule waiving points of order against the bill.
---------------------------------------------------------------------------
 8. 97 Cong. Rec. 10408, 82d Cong. 1st Sess. [H.R. 5215, a supplemental 
        appropriation bill for fiscal 1952]; Id. at p. 11682 [H.R. 
        2982, to readjust postal rates]; 100 Cong. Rec. 9629, 83d Cong. 
        2d Sess., July 2, 1954 [H.R. 9680, Agricultural Act of 1954].
 9. Edward J. Hart (N.Y.).
---------------------------------------------------------------------------

        Mr. [John J.] Dempsey [of New Mexico]: Mr. Chairman, a point of 
    order.
        The Chairman: The gentleman will state it.
        Mr. Dempsey: The amendment is not germane to this section, and 
    in addition to that, it is purely legislation on an appropriation 
    bill.
        The Chairman: Does the gentleman from Michigan desire to 
    address himself to the point of order?
        Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, in reply to 
    the point of order made by the gentleman from New Mexico, I would 
    like to say first that under the rule adopted at the time this 
    legislation came to the floor all points of order were waived. 
    Secondly, I think that the amendment is germane. . . .
        Mr. Dempsey: Mr. Chairman, the Committee on Rules waived points 
    of order to the bill, but they certainly cannot waive points of 
    order to an amendment which might be offered, which the gentleman 
    is proposing to do.

[[Page 12308]]

        The Chairman: The Chair is ready to rule.
        With respect to the question of waiving all points of order, 
    that runs only to the provisions of the bill and not to amendments 
    offered to the bill. A proposition in an appropriation bill 
    proposing to change existing law but permitted to remain, may be 
    perfected by germane amendments, provided they do not add further 
    legislation. The Chair is of the opinion that this amendment does 
    add further legislation, and, therefore, sustains the point of 
    order.

Sec. 9.12 Where points of order have not been waived against committee 
    amendments in a bill, such committee amendments occupy the same 
    status as those offered from the floor with respect to points of 
    order.

    On Aug. 9, 1954,(10) absent a special rule waiving 
points of order, a committee amendment was ruled nongermane.
---------------------------------------------------------------------------
10. 100 Cong. Rec. 13807, 83d Cong. 2d Sess. Under consideration was S. 
        3506, amending the District of Columbia Alley Dwelling Act.
---------------------------------------------------------------------------

        Mr. [Joseph P.] O'Hara of Minnesota: Mr. Speaker, I make a 
    point of order against the amendment on the ground that it is not 
    germane to the bill as passed by the Senate. . . .
        Mr. [Arthur L.] Miller of Minnesota: Mr. Speaker, this 
    amendment was offered not here today in the House but . . . was 
    voted and written into the bill when a full quorum was present in a 
    regularly constituted meeting of the District of Columbia 
    Committee. I am not sure what the vote was, but it was a 
    substantial vote. Therefore it is not being offered here today as a 
    new amendment. . . .
        The Speaker: (11) The Chair is prepared to rule.
---------------------------------------------------------------------------
11. Joseph W. Martin, Jr. (Mass.).
---------------------------------------------------------------------------

        In response to the parliamentary inquiry propounded by the 
    gentleman from Nebraska [Mr. Miller] the Chair may say that the 
    committee amendment assumes the same status in the House as any 
    other amendment that might be offered from the floor. That is why 
    the Committee on Rules is sometimes asked to report special rules 
    waiving points of order against committee amendments. Those points 
    of order usually involve questions of germaneness. . . .
        The Chair is of the opinion that the amendment is not germane 
    and, therefore, sustains the point of order.

Sec. 9.13 A resolution adopted by the House waiving points of order 
    against a committee substitute does not waive such points against 
    amendments to the substitute.

    On Aug. 31, 1944,(12) the Committee of the Whole 
considered S. 2051 pursuant to a House Resolution (H. Res. 627), 
adopted two days previously by the House. This resolution provided: 
(13)
---------------------------------------------------------------------------
12. 90 Cong. Rec. 7463, 7464, 78th Cong. 2d Sess.
13. 90 Cong. Rec. 7350, 78th Cong. 2d Sess., Aug. 29, 1944.

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

[[Page 12309]]

        Resolved, That upon the adoption of this resolution it shall be 
    in order to move that the House resolve itself into the Committee 
    of the Whole House on the State of the Union for the consideration 
    of the bill S. 2051, an act to amend the Social Security Act, as 
    amended, to provide a national program for war mobilization and 
    reconversion, and for other purposes, and all points of order 
    against said bill are hereby waived. That after general debate, 
    which shall be confined to the bill and continue not to exceed 2 
    days to be equally divided and controlled by the chairman and 
    ranking minority member of the Committee on Ways and Means, the 
    bill shall be read for amendment under the 5-minute rule. It shall 
    be in order to consider without the intervention of any point of 
    order the substitute amendment recommended by the Committee on Ways 
    and Means now in the bill, and such substitute for the purpose of 
    amendment shall be considered under the 5-minute rule as an 
    original bill. At the conclusion of such consideration, the 
    committee shall rise and report the bill to the House with such 
    amendments as may have been adopted, and any Member may demand a 
    separate vote in the House on any of the amendments adopted in the 
    Committee of the Whole to the bill or committee substitute. The 
    previous question shall be considered as ordered on the bill and 
    amendments thereto to final passage without intervening motion 
    except one motion to recommit.

    In response to a point of order raised by Mr. John Taber, of New 
York, it was held that the waiver of points of order against a 
committee substitute was limited to these provisions only, and the 
waiver did not apply, according to Chairman Fritz G. Lanham, of Texas, 
to possible amendments to the committee substitute.(14)
---------------------------------------------------------------------------
14. 90 Cong. Rec. 7463, 7464, 78th Cong. 2d Sess., Aug. 31, 1944.
---------------------------------------------------------------------------

        Mr. [Aime J.] Forand [of Rhode Island]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Forand: Page 39, after the period 
        in line 24, add a new section as follows:

               ``unemployment compensation for federal employees

            ``Sec. 403. (a) The Social Security Act, as amended, is 
        further amended by adding at the end thereof the following new 
        title: . . .

        Mr. Taber: Mr. Chairman, I make the point of order against the 
    amendment that it is an appropriation of funds in violation of 
    clause 4 of rule XXI of the House. . . .
        The Chairman: . . . Can the gentleman from Rhode Island show 
    how that is not included in the prohibition in the rule cited by 
    the gentleman from New York?
        Mr. Forand: Mr. Chairman, I have not studied that point. I did 
    not expect it was going to be raised. It has been carried in the 
    Senate bill all the way through without a question, and I contend 
    that title 301(a), under title III, is in the same category. No 
    point of order has been raised against that. So if one is subject 
    to a point of order, I imagine both would be.

[[Page 12310]]

        The Chairman: The Chair will state to the gentleman from Rhode 
    Island that the rule under which we are considering this measure, 
    waives points of order against the committee substitute, but not 
    against the amendments which would be offered to that substitute. . 
    . .

Waiver for Text of Bill Offered as Amendment May Not Cover Portions 
    Thereof Individually

Sec. 9.14 Where a resolution providing for the consideration of a bill 
    makes in order the text of a specific bill as an amendment, points 
    of order are considered as waived only against the complete text of 
    the proposed bill and not against portions thereof.

    On Dec. 10, 1969,(15) Speaker Pro Tempore Carl Albert, 
of Oklahoma, explained the effect of a waiver to Mr. Clark MacGregor, 
of Minnesota.
---------------------------------------------------------------------------
15. 115 Cong. Rec. 38123, 38130, 91st Cong. 1st Sess. Being discussed 
        was H. Res. 714, which provided for the consideration of H.R. 
        4249, extending portions of the 1965 Voting Rights Act.
---------------------------------------------------------------------------

        Mr. [Ray J.] Madden [of Indiana]: Mr. Speaker, by direction of 
    the Committee on Rules, I call up House Resolution 714, and ask for 
    its immediate consideration.
        The Clerk read the resolution, as follows:

                                  H. Res. 714

            Resolved, That upon the adoption of this resolution it 
        shall be in order to move that the House resolve itself into 
        the Committee of the Whole House on the State of the Union for 
        the consideration of the bill (H.R. 4249). . . . It shall be in 
        order to consider, without the intervention of any point of 
        order, the text of the bill H.R. 12695 as an amendment to the 
        bill. At the conclusion of the consideration of H.R. 4249 for 
        amendment, the Committee shall rise and report the bill to the 
        House with such amendments as may have [been] adopted. . . .

        Mr. MacGregor: Mr. Speaker, I have a parliamentary inquiry.
        The Speaker Pro Tempore: The gentleman will state it.
        Mr. MacGregor: Mr. Speaker, under the resolution (H. Res. 714), 
    if adopted, should the bill, H.R. 12695, be considered and 
    rejected, would it then be in order, following rejection of H.R. 
    12695, should that occur, to offer a portion or portions of H.R. 
    12695 as amendments to H.R. 4249?
        The Speaker Pro Tempore: The Chair will state that would be in 
    order subject to the rule of germaneness, if germane to the bill 
    H.R. 4249.

Constructive Waiver

Sec. 9.15 Parliamentarian's Note: Where a motion which might have been 
    subject to a point of order (if a point of order had been raised in 
    a timely fashion) is, in the absence of a point of order, agreed 
    to--it represents the will of the House and governs its proce

[[Page 12311]]

    dure until the House orders otherwise (or until a proper collateral 
    challenge to that procedure is made).

    On Oct. 9, 1968,(16) following the Chair's disclosure of 
the absence of a quorum, the House adopted the following motion made by 
Mr. Brock Adams, of Washington:
---------------------------------------------------------------------------
16. 114 Cong. Rec. 30212-14, 90th Cong. 2d Sess. At the time the Clerk 
        was reading the Journal.
---------------------------------------------------------------------------

        Mr. [Carl] Albert [of Oklahoma]: Mr. Speaker, I move a call of 
    the House.
        Mr. Adams: Mr. Speaker, as a part of the motion of a call of 
    the House, I further move under Rule II, under which a call of the 
    House is in order, that a motion be made for the majority here that 
    those who are not present be sent for wherever they are found and 
    returned here on the condition that they shall not be allowed to 
    leave the Chamber until such time as the pending business before 
    this Chamber on this legislative day shall have been completed.
        The Speaker: (17) The question is on the motion 
    offered by the gentleman from Washington [Mr. Adams].
---------------------------------------------------------------------------
17. John W. McCormack (Mass.).
---------------------------------------------------------------------------

        The motion was agreed to.
        The Clerk proceeded to call the roll.(18) . . .
---------------------------------------------------------------------------
18. 114 Cong. Rec. 30213, 30214, 90th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Speaker: On this rollcall 222 Members have answered to 
    their names, a quorum.

    There was discussion then concerning whether this motion would have 
been subject to a point of order, had one been made. The Speaker stated 
that the motion as adopted expressed the will of the majority of the 
Members present, and indicated that the question was moot.

        Mr. Brock: Mr. Speaker, a parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Brock: Is it not so that the rules of the House provide for 
    the highly unusual procedure of calling in absent Members only in 
    the case of the establishment of a nonquorum? Is that not true? And 
    was the motion not illegal and improper on its face, having been 
    made prior to the establishment of no quorum?
        The Speaker: The Chair will observe that we can always attempt 
    to have Members attend who are not present at this time or actually 
    in the Chamber at some particular time. Further, the Chair might 
    also observe that every effort is being made on the Democratic side 
    in connection with notifying Members of the situation that has 
    existed for the past 12 or so hours.
        Mr. Brock: But the parliamentary inquiry, Mr. Speaker, was to 
    the question of whether or not the motion was in fact outside the 
    normal rules of the House.
        Mr. Albert: Mr. Speaker, will the Chair yield?
        The Speaker: Does the gentleman from Oklahoma desire to be 
    heard on the parliamentary inquiry of the gentleman from Tennessee?

[[Page 12312]]

        Mr. Albert: The gentleman from Oklahoma would only suggest if a 
    point of order would have been eligible as against the motion made 
    by the distinguished gentleman from Washington, it certainly has 
    come too late in view of the action of the House.
        The Speaker: The Chair will state without passing on the 
    question as to whether or not a point of order would lie if made at 
    the proper time when the gentleman from Washington made his motion, 
    that after the motion had been adopted no point of order was made. 
    Therefore, the motion expressing the will of the majority of the 
    Members present will be adhered to.

    Parliamentarian's Note: As indicated in the Parliamentarian's note 
in Chapter 11, Sec. 3.2, supra, this instance does not establish a 
precedent that a ``constructive waiver of a point of order'' may be 
accomplished in the absence of a quorum. In such circumstances, a 
proper collateral challenge to an improper order of the House may be 
made, as the discussion in that chapter indicates.

Where No Point of Order Is Lodged, Proceedings May Continue

Sec. 9.16 Where an amendment is offered and no point of order is raised 
    against its consideration, although a valid point of order could 
    have been raised, the Chair may use his parliamentary discretion to 
    clarify the situation so that the amendment may be debated and 
    voted on.

    The proceedings of Mar. 21, 1975,(19) illustrate the 
discretion that the Chair may sometimes exercise to allow the Committee 
of the Whole to work its will in an ambiguous situation.
---------------------------------------------------------------------------
19. 121 Cong. Rec. 7950, 7952, 7953, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

    Mrs. Millicent Fenwick, of New Jersey, had offered a perfecting 
amendment to the pending section of the Emergency Middle-Income Housing 
Act of 1975, which was being read for amendment under the five-minute 
rule. Her amendment struck out one paragraph of the section under 
consideration and inserted new language. After debate on the Fenwick 
amendment Mr. Les AuCoin, of Oregon, offered ``a perfecting amendment'' 
which was not in order, since only one perfecting amendment can be 
pending at a time. When no point of order was raised, the AuCoin 
amendment was debated. The Chair could have treated the second 
amendment as a substitute for the first but chose to entertain it as a 
perfecting amendment to the text which would be stricken if the Fenwick 
amendment were adopted.(20) The relevant pro

[[Page 12313]]

ceedings are carried in Sec. 15.21, infra.
---------------------------------------------------------------------------
20. See Sec. 469 of Jefferson's Manual, House Rules and Manual (1997), 
        for discussion of the doctrine of perfecting text proposed to 
        be stricken.
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Chair's Initiative in Enforcing Rules

Sec. 9.17 In certain instances, particularly with respect to questions 
    of propriety in debate, the Chair takes the initiative in enforcing 
    the rules and does not await a point of order.

    Jefferson's Manual provides that ``it is the duty of the House, and 
more particularly of the Speaker, to interfere immediately, and not to 
permit expressions to go unnoticed which may give a ground of complaint 
to the other House.'' (1) Because of this admonition from 
Jefferson, the Chair has customarily differentiated between debate 
which engages in personalities toward other House Members, where the 
Chair normally awaits a point of order from the floor, and debate which 
raises the issue of comity between the Houses.
---------------------------------------------------------------------------
 1. House Rules and Manual Sec. 374 (1997).
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    Since the amendment to Rule XIV clause 1, in the 101st Congress, 
the standards of what is permissible debate with reference to the 
Senate has changed. But the duty of the Chair remains as stated by 
Jefferson.
    An example of the Chair tak- ing the initiative is shown in the 
following exchange of Apr. 17, 1975,(2) which predated the 
amendment to Rule XIV mentioned herein.
---------------------------------------------------------------------------
 2. 121 Cong. Rec. 10458, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

        (Mr. Cleveland asked and was given permission to address the 
    House for 1 minute, and to revise and extend his remarks.)
        Mr. [James C.] Cleveland [of New Hampshire]: Mr. Speaker, I am 
    amazed that four Democratic members of the Rules Committee of the 
    other body, reviewing the challenge of Democrat John Durkin to the 
    seating of Senator-elect Louis Wyman, should have yesterday voted 
    to take away from Wyman 10 straight Republican ballots that had 
    been properly counted for him in New Hampshire. These critically 
    important votes belong to Mr. Wyman by settled New Hampshire law in 
    a contest with an existing margin of two votes.
        As even Durkin's counsel acknowledged before the committee, the 
    ballots were and would have consistently been counted for Wyman in 
    New Hampshire. On each the voter had voted a cross in the straight 
    Republican circle with no marks on the Democratic side of the 
    ballot. He had also voted a cross in every voting square except Mr. 
    Wyman's. By operation of statute and court decision in New 
    Hampshire for 60 years-as well as in other States

[[Page 12314]]

    having the straight ticket option-a vote in the straight ticket 
    circle is a vote for every candidate under the circle and a vote in 
    every box under the circle by operation of law.
        Worse yet, similar ballots for Durkin in the original New 
    Hampshire recount had not been challenged by Wyman because under 
    settled New Hampshire law they were recognized as valid votes. 
    These remain in the totals relied on by the Senate committee, 
    counted for Durkin.
        On April 9 in this Record I called for a new election in New 
    Hampshire and surely this has now become a compelling necessity, 
    unless we are to witness a legislative Watergate.
        The Speaker: (3) The Chair must ask the gentleman to 
    desist and must call to the attention of the gentleman from New 
    Hampshire that his remarks are in violation of the rules of the 
    House and rules of comity. The Chair has been very lenient, but 
    this goes far beyond the bounds.
---------------------------------------------------------------------------
 3. Carl Albert (Okla.).
---------------------------------------------------------------------------

        It is not proper to criticize the actions of the other body, or 
    any committee of the other body, in any matter relating to official 
    duties.
        Mr. Cleveland: Mr. Speaker, would it be in order for me to 
    quote a Member of the other body who characterized this?
        The Speaker: No, it would not be. The Chair was very lenient by 
    letting the gentleman make his point, but the Chair is going to be 
    strict in observing the rules of comity between the two bodies. 
    Otherwise we cannot function as an independent, separate 
    legislative body under the Constitution of the United States.

Points of Order Against Improper Debate

Sec. 9.18 The Speaker reaffirmed his intention to enforce the provision 
    in Jefferson's Manual which prohibits improper references to the 
    Senate and to exercise his own initiative in calling Members to 
    order where infractions occur.

    On June 16, 1982,(4) Speaker Thomas P. O'Neill, of 
Massachusetts, anticipating that the House would shortly be considering 
an amendment directed at activities of the Senate, cautioned Mem- bers 
against violating the provision of Jefferson's Manual. The announcement 
and subsequent inquiries are carried below.
---------------------------------------------------------------------------
 4. 128 Cong. Rec. 13843, 13873, 97th Cong. 2d. Sess.
---------------------------------------------------------------------------

        The Speaker: The Chair appreciates the fact that there is an 
    amendment that will be offered very shortly concerning the Senate.
        The Chair deems it necessary to make a statement at this time 
    to firmly establish an understanding that improper references to 
    the other body or its Members during debate are contrary to the 
    rules and precedents of the House and will not be tolerated. The 
    Chair will quote from section 374 of Jefferson's Manual which is a 
    part of the rules of the House:

            It is the duty of the House, and more particularly of the 
        Speaker, to

[[Page 12315]]

        interfere immediately, and not to permit expressions to go 
        unnoticed which may give a ground of complaint to the other 
        House, and introduce proceedings and mutual accusations between 
        the two Houses, which can hardly be terminated without 
        difficulty and disorder.

        Traditionally when a Member inadvertently transgresses this 
    rule of the House, the Chair upon calling the Member to order 
    prevails upon that Member to remove the offending remarks from the 
    Record. With the advent of television, however, the Chair is not 
    certain that such a remedy is sufficient. Henceforth, where a 
    Member's references to the other body are contrary to the important 
    principle of comity stated in Jefferson's Manual, the Chair may 
    immediately deny further recognition to that Member at that point 
    in the debate subject to permission of the House to proceed in 
    order. The Chair requests all Members to abide by this rule in 
    order to avoid embarrassment to themselves and to the House.
        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Speaker, I have a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Conte: Mr. Speaker, in order to abide by the rules, which 
    are very difficult, does the Senate have the same rule? Does the 
    other body?
        The Speaker: No; the Senate does not have the same rule, but it 
    is a rule of our House and we are going to abide by it as long as I 
    am Speaker.
        Mr. Conte: Is it permissible to refer to them as `the other 
    body'?
        The Speaker: That is permissible, the other body . . .
        Mr. [David R.] Obey [of Wisconsin]: If the gentleman will yield 
    on that point, I do not want to behave like the other body. I am 
    fed up with Members of the other body posing for holy pictures on 
    congressional pay and then running around, collecting $60,000 in 
    outside income.

                  announcement by the speaker pro tempore

        The Speaker Pro Tempore: The Chair is constrained to admonish 
    the body, in accordance with the warning of the Speaker earlier, 
    that the Members should be careful in their references to the other 
    body.

Vacating Point of Order Proceedings

Sec. 9.19 Where several items in an appropriation bill had been 
    stricken on points of order, the Committee of the Whole 
    subsequently agreed to vacate the point of order proceedings, 
    thereby causing the stricken language to be reinserted in the bill.

    On June 7, 1991,(5) during the consideration of the 
Defense appropriation bill, fiscal 1992, Mr. James A. Traficant, Jr., 
of Ohio, successfully made several points of order against provisions 
in the Operation and Maintenance title of the bill. He announced his in

[[Page 12316]]

tention to challenge many provisions by raising points of order, but 
reversed his position when promised that an amendment he wished to 
offer, also legislative in concept, would not be opposed by the bill 
managers when offered. He then sought to rectify his actions.
---------------------------------------------------------------------------
 5. 137 Cong. Rec. 13976, 102d Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [John P.] Murtha [of Pennsylvania]: Mr. Chairman, we have 
    an agreement with the gentleman from Ohio that he can offer his 
    amendment at the appropriate place, if he would ask unanimous 
    consent to put back the provisions that he has taken out.
        Mr. Traficant: Mr. Chairman, I would be glad to do that if I 
    could feel that when we got to conference and got everybody in the 
    back room, that when the law is signed by the President the 
    Traficant amendment would be in there . . .
        Mr. Murtha: Mr. Chairman, as the gentleman knows, I will do the 
    best I can with every provision we have put in, including the 
    provisions that the gentleman has put in the bill. We will do the 
    best that we can to hold that provision.
        I agree with the gentleman on the provision. I think it is a 
    very important provision, and I agree with the gentleman completely 
    on it.
        The Chairman: (6) Are there any other points of 
    order against title II?
---------------------------------------------------------------------------
 6. James L. Oberstar (Minn.).
---------------------------------------------------------------------------

        If not, are there any amendments to title II?

     vacating proceedings on previous points of order by mr. traficant

        Mr. Traficant: Mr. Chairman, I ask unanimous consent that any 
    provisions of title II stricken by my objections to such provisions 
    for having constituted legislation on an appropriation bill be 
    vacated and the bill stand as it is.
        The Chairman: The gentleman from Ohio asks unanimous consent to 
    va-cate proceedings under points of order raised by the gentleman 
    from Ohio only, not the gentleman from Indiana, under title II.
        Is there objection to the request of the gentleman from Ohio?
        There was no objection.
        The Chairman: Those provisions, accordingly, are restored to 
    title II of the bill.