[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[A. Introductory Matters]
[§ 4. The Holman Rule]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 5317-5334]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
A. INTRODUCTORY MATTERS
Sec. 4. The Holman Rule
The Holman rule (Rule XXI clause 2), which had its inception in
the 44th Congress, underwent various modifications between 1876 and
1911. At times it was dropped completely. The formulation of Rule
XXI clause 2, from 1911 until the 98th Congress, and under which
most of the decisions contained in this section were made, was as
follows: (14)
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14. House Rules and Manual Sec. 834 (1973). See also the note following
Sec. 834, House Rules and Manual, for history of the rule.
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No appropriation shall be reported in any general appropriation
bill, or be in order as an amendment thereto, for any expenditure
not previously authorized by law, unless in continuation of
appropriations for such public works and objects as are already in
progress. Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States, by the reduction of the compensation
of any person paid out of the Treasury of the United States, or by
the reduction of amounts of money covered by the bill: Provided,
That it shall be in order further to amend such bill upon the
report of the committee or any joint commission authorized by law
or the House Members of any such commission having jurisdiction of
the subject matter of such amendment, which amendment being germane
to the subject matter of the bill shall retrench expenditures.
The second sentence of the clause comprises the Holman rule
exception to Rule XXI, and permits legislative provisions in general
appropriation bills or amendments, provided the stated conditions are
met. The exception, of course, is to the prohibition against ``changing
existing law,'' not to the prohibition against unauthorized
appropriations.
A distinction should be noted between provisions meeting the
[[Page 5318]]
criteria of the Holman rule and ``limitations'' of the kind discussed
in the latter part of this chapter.(15) Under the Holman
rule, a provision that is admittedly ``legislative'' in nature is
nevertheless held to fall outside the general prohibition against such
provisions, because it accomplishes specified ends. The ``limitations''
discussed in later sections are not ``legislation'' and are permitted
on the theory that Congress is not bound to appropriate funds for every
authorized purpose.
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15. See Sec. 64-79, infra.
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Paragraph (b) of Rule XXI clause 2, as amended in the 98th Congress
narrowed the ``Holman rule'' exception so that it covered only
retrenchments reducing amounts of money covered by the bill, and not
retrenchments resulting from reduction of the number and salary of
officers of the United States or of the compensation of any person paid
out of the U.S. Treasury. Paragraph (b) also eliminated separate
authority conferred upon legislative committees or commissions with
proper jurisdiction to report amendments retrenching expenditures, and
permitted legislative committees to recommend such retrenchments to the
Appropriations Committee for discretionary inclusion in the reported
bill. Paragraph (d) as added in the 98th Congress provides a new
procedure for consideration of all retrenchment amendments only when
reading of the bill has been completed and only if the Committee of the
Whole does not adopt a motion to rise and report the bill back to the
House.(16)
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16. See Rule XXI clause 2, House Rules and Manual Sec. 834 (1983).
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In applying the Holman rule, care should be taken, of course, in
assessing the relevance of those decisions which involved
interpretation of that rule but which did not reflect the current form
or interpretation of the rule.(17)
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17. Some of the precedents which would now be found to be inapplicable,
for example, are those at 4 Hinds' Precedents Sec. 3846, 3885-
92; 7 Cannon's Precedents Sec. Sec. 1484, 1486-92, 1498, 1500,
1515, 1563, 1564, 1569; and the decision of June 1, 1892, found
at 23 Cong. Rec. 4920, 52d Cong. 1st
Sess. -------------------
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Generally; Abolishing Offices
Sec. 4.1 Legislation to be in order under the Holman rule must be
germane, must retrench expenditures, and the language used must be
essential to the accomplishment of that retrenchment.
On Feb. 29, 1932,(18) the Treasury and Post Office
Departments
[[Page 5319]]
appropriation bill (19) as under consideration. A provision
was read as follows:
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18. 75 Cong. Rec. 4957, 4958, 72d Cong. 1st Sess.
19. H.R. 9699.
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The offices of comptrollers of customs, surveyors of customs,
and appraisers of merchandise (except the appraiser of merchandise
at the port of New York), 29 in all, with annual salaries
aggregating $153,800, are hereby abolished. The duties imposed by
law and regulation upon comptrollers, surveyors, and appraisers of
customs, their assistants and deputies (except the appraiser, his
assistants and deputies at the port of New York) are hereby
transferred to, imposed upon, and continued in positions, now
established in the Customs Service by or pursuant to law, as the
Secretary of the Treasury by appropriate regulation shall specify.
. . .
A point of order was then made:
Mrs. [Florence P.] Kahn [of California]: Mr. Chairman, I make a
point of order against the section, beginning in line 16, page 11,
and running through line 8, on page 12, that it is legislation on
an appropriation bill and therefore out of order.
In responding to the point of order, Mr. Joseph W. Byrns, of
Tennessee, stated:
Mr. Chairman, the committee acknowledges that the provision to
which the point of order has been made, abolishing these offices of
appraisers, comptrollers, and surveyors of customs, is legislation
on an appropriation bill and changes existing law.
Under the provisions of clause 2 of Rule XXI, known as the
Holman rule, legislation is in order upon an appropriation bill if
it conforms to that rule.
The pertinent portion of clause 2 of that rule is as follows:
No appropriation shall be reported in any general
appropriation bill, or be in order as an amendment thereto, for
any expenditure not previously authorized by law, unless in
continuation of appropriations for such public works and
objects as are already in progress. Nor shall any provision in
any such bill or amendment thereto changing existing law be in
order, except such as being germane to the subject matter of
the bill shall retrench expenditures by the reduction of the
number and salary of the officers of the United States, by the
reduction of the compensation of any person paid out of the
Treasury of the United States, or by the reduction of amounts
of money covered by the bill. . . .
The committee contends that the paragraph in this bill to which
objection has been raised is in order under the provisions of the
Holman rule.
Under previous decisions legislation to be in order under this
rule must be germane to the bill and must retrench expenditures in
one of the three methods set forth in the rule, namely (1) by
reduction of the number and salary of officers of the United
States, (2) by the reduction of the compensation of any person paid
out of the Treasury of the United States, or (3) by the reduction
of the amounts of money covered by the bill.
Under previous decisions of the House it has also been held
that it is not enough merely to reduce the number and compensation
of officers of the United States or the compensation of any person
paid out of the Treasury, but the legislation must retrench ex
[[Page 5320]]
penditures in doing that. On this point Chairman Saunders, in a
decision on December 9, 1922, said:
The many rulings on this question are fairly uniform. They
all hold that when, on the face of the bill, the proposed new
legislation retrenches expenditures in one of three ways the
point of order should be overruled, and the rule is generally
laid down that the construction should be liberal in favor of
retrenchment of government expenditures.
Under previous decisions it has also been held that the
retrenchment in expenditures must not be conjectural or speculative
but must show on the face of the legislation. In this connection
Speaker Kerr held:
In considering the question whether an amendment operates
to retrench expenditures, the Chair can only look to what is
properly of record before him--that is, the pending bill, the
specific section under consideration, the law of the land, so
far as it is applicable, and the parliamentary rules and
practice of the House; and beyond these he is not permitted to
go in deciding the question.
In discussing the question of the saving, Chairman Saunders
also said:
The Chair can only act upon the proposition which is
presented on the face of that proposition.
In presenting this paragraph under the Holman rule the
committee believes that it answers all of the requirements laid
down under sound decisions:
(1) It is germane; (2) it reduces the number and salary of
officers of the United States; (3) it retrenches expenditures; (4)
the retrenchment is not speculative or argumentative but is
specific; (5) every part of the legislation is essential.
1. Germaneness: The bill makes appropriations for the Customs
Service, and customarily carries salaries for the offices proposed
to be abolished.
2. Reduction of offices and salaries: The paragraph provides
for the abolition of 29 offices established by law and now in
existence, with salaries aggregating annually $153,800. Under the
provisions of the paragraph these offices are eliminated commencing
with the date of approval of this bill. The incumbents in them will
at that time be removed from the pay roll.
3. Retrenchment of expenditures: The paragraph retrenches
expenditures by the elimination of these offices and the saving of
the salaries. That is complete on the face of the legislation.
4. The retrenchment is not speculative: The definiteness of the
saving can not be controverted. The bill abolishes the 29
positions. They will be gone. The duties are transferred
specifically to other positions in the service. The work will be
continued. No added expense will come from this transfer, because
the paragraph provides that the Secretary of the Treasury shall
make the transfer and carry out the legislation without adding any
new positions. The retrenchment is specific, definite, and
complete. There is no escape from saving $153,800, and in making up
this bill the committee has taken out that amount.
5. Every part of the legislation proposed is necessary to the
reduction: The legislation is divided into the following parts:
(a) Abolition of the positions; (b) transfer of the duties to
positions now
[[Page 5321]]
in the service; (c) change in title of existing positions after the
transfer to make the title accord to the new duties transferred to
them; (d) require the Secretary to administer the transfer of
duties in such a way as not to establish any new position.
The necessity of all portions of the legislation and its
intimate relationship to the effectiveness and conclusiveness of
the retrenchment must be apparent. Without all of the parts the
legislation would not be effective.
The Chairman, Edgar Howard, of Nebraska, ruled as follows:
I am afraid the Chair is not in harmony with the position of
the lady from California. It would seem to the Chair that this
paragraph is safely enfolded in the embrace of the Holman Rule. For
the benefit of the lady from California the Chair will say that to
be in order under the Holman Rule three things must concur--first,
it must be germane; second, it must retrench expenditures; and,
third, the language embodied in the paragraph must be confined
solely to the purpose of retrenching expenditures.
The Chair finds upon examination of the paragraph that it is
germane to the portion of the bill wherein it is inserted. The
paragraph on its face definitely reduces the number of officers of
the United States by 29 and thereby saves $153,800, thus
retrenching expenditures.
The remaining question for the Chair to determine is whether
there is any language in the paragraph that is legislation which
does not contribute to the retrenchment of the $153,800.
The Chair has examined the paragraph with considerable care in
order to determine whether the legislation is coupled up with and
essential to the reduction of money. The Chair finds that the
paragraph abolishes a number of positions, that it transfers the
duties heretofore performed by the officers holding those positions
to positions now in the service, that in order to accomplish that
it confers upon the Secretary of the Treasury authority to
designate the titles of the employees now in the service who are to
perform the additional duties, that it requires the Secretary to
administer the transfer of duties in such a way as not to establish
any new positions. It is apparent to the Chair that all the
legislation to be found in the paragraph is necessary to accomplish
the purpose of retrenching expenditures. The Chair thinks that the
paragraph clearly comes within the provisions of the Holman Rule
and overrules the point of order.
Sec. 4.2 A provision in an appropriation bill abolishing the offices of
the surveyor of customs at the Port of New York and seven
comptrollers of customs and transferring the duties of these
officers to positions already established in the Customs Service,
was held to be in order under the Holman rule.
On Feb. 27, 1939,(20) during consideration in the
Committee of the Whole of the Treasury and Post
[[Page 5322]]
Office Departments appropriation bill (H.R. 4492), a point of order was
raised against the following proviso, and proceedings then followed as
indicated below:
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20. 84 Cong. Rec. 1961, 1962, 76th Cong. 1st Sess.
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Salaries and expenses: For collecting the revenue from customs,
for the detection and prevention of frauds upon the customs
revenue, and not to exceed $100,000 for the securing of evidence of
violations of the customs laws . . . Provided further, That the
offices of the surveyor of customs at the port of New York and
seven comptrollers of customs, with annual salaries aggregating
$51,600, are hereby abolished. The duties imposed by law and
regulations upon the surveyor of customs at the port of New York
and comptrollers of customs, their assistants and deputies are
hereby transferred to, imposed upon, and continued in positions now
established in the Customs Service by or pursuant to law, as the
Secretary of the Treasury by appropriate regulations shall specify;
and he is further authorized to designate the titles by which such
positions shall be officially known hereafter. The Secretary of the
Treasury, in performing the duties imposed upon him by this
paragraph, shall administer the same in such a manner that the
transfer of duties provided hereby will not result in the
establishment of any new positions in the Customs Service.
Mr. [James M.] Fitzpatrick [of New York]: A point of order, Mr.
Chairman.
The Chairman: (21) The gentleman will state it.
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21. John W. Boehne, Jr. (Ind.).
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Mr. Fitzpatrick: Mr. Chairman, I make a point of order against
the language on page 16, line 14, beginning with the words
``Provided further,'' and extending down to line 5, on page 17, as
legislation on an appropriation bill, especially that part of the
language beginning in line 23, which states ``and he is further
authorized to designate the titles by which such positions shall be
officially known hereafter.''
To me this seems to be purely legislation on an appropriation
bill. . . .
The Chairman: Does the gentleman from Indiana wish to be heard?
Mr. [Louis] Ludlow [of Indiana]: Yes, Mr. Chairman. I do not
believe there is any necessity for extended comment on this point
of order.
In 1932 a provision in substantially identical language was
included in the Treasury-Post Office appropriation bill. The
gentlewoman from California [Mrs. Kahn] made a point of order
against the provision. The Chair ruled that the five considerations
essential to the application of the Holman rule were present in the
language proposed, namely, (1) that it was germane, (2) that it
reduced the number and salaries of officers of the United States,
(3) that it retrenched expenditures, (4) that the retrenchment was
not speculative or argumentative but was specific, and (5) that
every part of the legislation was essential.
The point of order was, therefore, overruled and I submit it
should be in the instant case.
May I say further there is no doubt about the application of
the Holman rule in cases where it is ascertainable that there will
be a substantial saving, whether or not any specific amount of
saving is indicated. However, in the instant case we have the
peculiarly ad
[[Page 5323]]
vantageous position of being able to certify to the exact amount in
dollars and cents that will be saved, namely, $51,600. Therefore, I
submit to the Chair this comes clearly within the Holman rule. I
direct the Chair's attention to the fact that we have complied
scrupulously with the Ramseyer rule, and he will find set forth on
page 47 of our report the text of existing legislation and the text
of the legislation we propose in place of it. Having done this, we
have only to comply with the Holman rule to make the provision
invulnerable to a point of order, and this we have done. I ask for
the ruling of the Chair.
Mr. Fitzpatrick: Mr. Chairman, the gentleman from Indiana
states there will be a saving of $51,000. If the Chair will refer
to page 18 of the report he will see that new positions involving a
total of $51,600 will be created in the same department so the
saving is just $600. Therefore, any claim that there will be a
saving of $51,000 is just not so. The report shows new positions
are being created in the same department.
Mr. [Vito] Marcantonio [of New York]: If the gentleman will
yield, may I say that this particular proviso takes powers away
from one branch of a department and confers them on another, which
clearly is legislation.
Mr. Ludlow: Of course, the one has no connection, relation, or
relevancy to the other. All that is necessary for us to say is that
in this transaction by abolishing certain positions we make a
saving of $51,600. If we appropriate a similar amount of money to
another branch for some other purpose, what connection does that
have with this?
Mr. Fitzpatrick: The money is to be appropriated to the same
department for men to perform the same duties as the comptrollers
whose positions you are abolishing.
The Chairman: The Chair is ready to rule.
The gentleman from New York [Mr. Fitzpatrick] makes the point
of order against the proviso on page 16 on the grounds that it
embraces legislation in an appropriation bill. The gentleman from
Indiana contends that although it is legislation on an
appropriation bill it comes within the Holman rule and is therefore
in order. The Holman rule may be found in the second sentence of
clause 2 of rule XXI, and is as follows:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States by the reduction of the
compensation of any person paid out of the Treasury of the
United States, or by the reduction of amounts of money covered
by the bill.
In order to justify language in an appropriation bill under the
Holman rule three things must concur: First, it must be germane;
second, it must retrench expenditures in one of the ways enumerated
in the rule; and, third, the language embodied in the provision
must be confined solely to the purpose of retrenching expenditures.
The Chair has carefully examined the proviso to which the point
of order is directed and is of the opinion that the language is
germane and that on its face it definitely shows a reduction of the
officers of the United States and a retrenchment of expenditures in
the amount of $51,600.
[[Page 5324]]
It is also apparent to the Chair that all the legislation to be
found in the paragraph is necessary to accomplish the purpose of
retrenching expenditures. The Chair has been fortified in his
opinion on this proposition by a decision made by Chairman Howard
on February 29, 1932, on a proposition almost identical with the
pending proviso. In that instance the Chair overruled the point of
order on the ground that the provision came clearly within the
Holman rule.
For the reasons stated the Chair is of the opinion that the
language to which the point of order has been directed clearly
comes within the provisions of the Holman rule, and, therefore,
overrules the point of order.
Parliamentarian's Note: In both of the decisions cited above, an
argument might have been advanced that a permanent change in law (the
abolishment of an office) rendered the amendment or provision not
germane to a one-year appropriation bill. In another ruling, in 1966,
an amendment providing that appropriations ``herein and heretofore
made'' shall be reduced by $70 million through the reduction of federal
employees as the President determines was held to be legislative and
not germane to the bill, since it went to funds other than those
carried therein, and was therefore not within the Holman rule
exception.(1)
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1. See 112 Cong. Rec. 27424, 27425, 89th Cong. 2d Sess., Oct. 18,
1966. See also Sec. 5.9, infra.
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Thus, one of the criteria frequently cited (2) as
essential for application of the Holman rule was not met. Moreover, the
Chair in the 1966 instance ruled that a reappropriation of unexpended
balances, prohibited by Rule XXI clause 5 (now clause 6),(3)
is not in order on a general appropriation bill under the guise of a
Holman rule exception to Rule XXI clause 2.
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2. See, in addition to the above 1939 ruling, Sec. 4.1, supra.
3. See the discussion of this rule in Ch. 25, Sec. 3, supra.
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Reduction in Number of Naval Officers
Sec. 4.3 An amendment reducing the number of naval officers and
providing the method by which the reduction should be accomplished
was allowed under the Holman rule.
On Jan. 20, 1938, during consideration in the Committee of the
Whole of the Navy Department appropriation bill (H.R. 8993), a
provision was read as follows: (4)
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4. 83 Cong. Rec. 853, 75th Cong. 3d Sess.
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Pay of naval personnel: For pay and allowances prescribed by
law of officers on sea duty and other duty, and officers on waiting
orders, pay--$35,461,649 . . .; pay and allowances of the Nurse
Corps, including assistant
[[Page 5325]]
superintendents, directors, and assistant directors--pay, $560,020;
rental allowance, $24,000; subsistence allowance, $23,871; pay,
retired list, $271,976; in all $879,867; rent of quarters for
members of the Nurse Corps; . . . reimbursement for losses of
property as provided in the act approved October 6, 1917 (34 U.S.C.
981, 982) . . . $10,000; . . . in all, $176,-845,282; and no part
of such sum shall be available to pay active-duty pay and
allowances to officers in excess of nine on the retired list,
except retired officers temporarily ordered to active duty as
members of retiring and selection boards as authorized by law:
Provided, That, except for the public quarters occupied by the
Chief of Office of Naval Operations . . . and messes temporarily
set up on shore for officers attached to seagoing vessels, to
aviation units based on seagoing vessels including officers' messes
at the fleet air bases, and to landing forces and expeditions . . .
no appropriation contained in this act shall be available for the
pay, allowances, or other expenses of any enlisted man or civil
employee performing service in the residence or quarters of an
officer or officers on shore as a cook, waiter, or other work of a
character performed by a household servant.
An amendment was then offered, and a point of order made, as
indicated: (5)
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5. Id. at pp. 854, 855.
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The Clerk read as follows:
Amendment offered by Mr. [Byron N.] Scott [of California]:
Page 26, line 8, after the word ``Provided'', insert ``That
commissioned line officers of the active list of the line of
the Navy (Marine Corps) carried by law as additional numbers or
passed over, shall be counted within the authorized total
number of such commissioned officers of the active list of the
line of the Navy: Provided further.''
Mr. [William B.] Umstead [of North Carolina]: Mr. Chairman, I
make a point of order against the amendment offered by the
gentleman. I am willing to reserve the point of order if the
gentleman would like to be heard.
The Chairman: (6) The gentleman will state his point
of order.
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6. R. Ewing Thomason (Tex.).
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Mr. Umstead: Mr. Chairman, I make the point of order that it is
legislation upon an appropriation bill, that it is contrary to
existing law, and that it does not and will not result in any
reduction in expenditures under this section.
The Chairman: Does the gentleman from California [Mr. Scott]
care to be heard?
Mr. Scott: Mr. Chairman, I expect the amendment will be held
germane under the exception known as the Holman rule.
I call attention to the fact the act of July 22, 1933, fixes
the maximum commissioned line officers' strength of the Navy-- that
is, the number of line officers that we can have in the Navy at any
one time--at 6,531. This is exclusive of those officers who are
known as additional numbers in grade or additional numbers.
On page 84 of the hearings had by the subcommittee of the
Appropriations Committee and in the second table thereon, it will
be seen that in
[[Page 5326]]
cluding additional numbers the line officers' strength after the
commissioning of the class graduating from the Naval Academy in
June, 1938, would [be] 6,562 and after the commissioning of the
graduating class in June 1939, which is within the fiscal year for
which this bill makes appropriation, the number will be 6,824.
The amendment does change existing law by providing that
officers in additional numbers category shall be included in the
authorized line-officer strength of the Regular Navy. At the
present time additional numbers are not counted as a part of the
authorized line-officer strength, which, as I have said, is 6,531.
If the amendment which I have offered is agreed to, the effect
would be--that is, if no counteracting legislation passes in the
meantime--to deny commissions to at least 293 midshipmen. It would
deny commissions to at least 293 midshipmen graduating in June
1939. This would make a difference between 6,824 and the 6,531
which is the line strength authorized by law.
The table on page 91 of the hearings indicates there will be
591 graduates in June 1939. This would mean a reduction of 293
officers who otherwise would have to be appropriated for and would
retrench expenditures by reduction of the number and salary of the
officers of the United States as follows:
For pay, subsistence, and transportation in the Navy, $44,975
in pay, including subsistence allowance, and $1,418 in
transportation, which is borne out by the figures on pages 236, 242
and 275, page 236 providing for pay, page 242 subsistence and
allowance, and page 275 for transportation. This would show the
exact amount that would be saved by denying commissions to 293
midshipmen graduating in June 1939.
If the amendment is ruled in order I shall later offer
amendments carrying into effect the reduction of amounts that would
be caused if we commissioned the 293 graduates of the academy to
whom I expect to deny commissions. . . .
The Chairman: The Chair is ready to rule, unless the gentleman
from North Carolina would like to be heard further.
In the opinion of the Chair, there is no question about the
germaneness of the amendment. It seems to resolve itself largely
into a question of facts and figures as to whether or not the
amendment comes within the Holman rule. The part of the Holman
rule, with which the members of the Committee are familiar, that is
relevant here, is subsection 2 of rule XXI, which reads as follows:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States by the reduction of the
compensation of any person paid out of the Treasury of the
United States, or by the reduction of amounts of money covered
by the bill.
Section 1511 of volume VII of Cannon's Precedents of the House,
reads as follows:
A proposition reducing the number of Army officers and
providing the method by which the reduction should be
accomplished was held to come within the exceptions under
[[Page 5327]]
which legislation retrenching expenditure is in order on an
appropriation bill.
A reading of the amendment, together with the facts stated by
the gentleman from California which, in the opinion of the Chair,
have not been successfully controverted, that the amendment will
actually reduce the number of officers as well as effect a
retrenchment of expenditures thereby brings the amendment within
the Holman rule cited by the Chair, and therefore the point of
order is overruled.
Ceiling on Employment
Sec. 4.4 To an appropriation bill, an amendment providing that no part
of any appropriation therein shall be used to pay the compensation
of any incumbent appointed to any position which may become vacant
during the year, except when the agency involved has reduced its
number of personnel in a specified manner, was held to be in order
under the Holman rule as a reduction in the number and salary of
the officers of the United States.
On Mar. 21, 1952,(7) after an amendment had been offered
to the independent offices appropriation bill (H.R. 7072), the
following point of order was raised, and the decision of the Chair was
as indicated above. The amendment was as follows:
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7. 98 Cong. Rec. 2696, 82d Cong. 2d Sess.
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Amendment offered by Mr. Jensen: Page 64, after line 21, insert
a new section as follows:
``No part of any appropriation or authorization contained in
this act shall be used to pay the compensation of any incumbent
appointed to any civil office or position which may become vacant
during the fiscal year beginning on July 1, 1952: Provided, That
this inhibition shall not apply--
``(a) to not to exceed 25 percent of all vacancies;
``(b) to positions filled from within a department, independent
executive bureau, board, commission, corporation, agency or office,
provided for in this act. . . . Provided further, That when any
department, independent executive bureau, board, commission,
corporation, agency or office, contained in this act shall, as the
result of the operation of this amendment reduce its personnel to a
number not exceeding 90 percent of the total number provided for in
this act, such amendment may cease to apply and said 90 percent
shall become a ceiling for employment during the fiscal year 1953,
and if exceeded at any time during fiscal year 1953 this amendment
shall again become operative.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is legislation on
an appropriation bill, and on the further ground that it places
extra burdens and duties on the various boards, agencies, and
bureaus.
[[Page 5328]]
The Chairman: (8) Will the gentleman point out the
specific language in the amendment to which he refers?
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8. Wilbur D. Mills (Ark.).
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Mr. Thomas: Yes, it is near the end:
As the result of the operation of this amendment reduce its
personnel to a number not exceeding 90 percent of the total
number provided for in this act, such amendment may cease to
apply and said 90 percent shall become a ceiling for employment
during the fiscal year 1953, and if exceeded--
There is an alternative there, as the Chair will see--
at any time during fiscal year 1953 this amendment shall again
become operative.
Somebody has got to make some decisions there; it places extra
duties in order to arrive at decisions; and on top of that it is
legislation.
The Chairman: The Chair will be glad to hear the gentleman from
Iowa briefly if he desires to be heard on the point of order.
[Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, the best
evidence that this amendment is germane to the bill and is not
legislation is the fact that the amendment was adopted by the House
last year and was held to be germane by the Chair. Points of order
were raised against it at that time, as I recall.
The amendment is not mandatory in the sense that the word
``may'' is used where the additional burdens and responsibilities
might be placed on the agencies other than the 10 percent reduction
that must be made which is purely a limitation on an appropriation
bill and comes within the language and the intent of the Holman
rule.
Mr. [Albert A.] Gore [of Tennessee]: Mr. Chairman, may I be
heard on the point of order?
The Chairman: The Chair will hear the gentleman.
Mr. Gore: Mr. Chairman, the amendment offered by the gentleman
from Iowa is legislation on an appropriation bill for the following
reasons: As stated in the next to the fourth line from the bottom,
upon the attainment of that condition under operation of the
amendment, thereupon the amendment affirmatively legislates in the
following language:
Said 90 percent shall become a ceiling for employment
during the fiscal year 1953.
That language, I respectfully submit, Mr. Chairman, is
legislation, it is affirmatively fixing a legal ceiling upon the
employment upon the attainment of a condition in the amendment;
therefore I respectfully suggest it is legislation on an
appropriation bill.
The Chairman: . . . The gentleman from Tennessee says that the
language contained in the amendment ``said 90 percent shall become
a ceiling for employment during the fiscal year 1953'' is
legislation.
The Chair is of the opinion that even if that language is
legislation, it is clearly within the Holman rule, as suggested by
the gentleman from Iowa (Mr. Jensen). This, in the opinion of the
Chair, is a limitation within the meaning of the Holman rule by
limiting the number of employees within these agencies of
Government covered by this bill and the amount of money to be made
available under this bill.
. . . The Chair is of the opinion that the amendment is in
order and there
[[Page 5329]]
fore overrules the point of order made by the gentleman from Texas.
Reduction of Total Appropriation
Sec. 4.5 To a general appropriation bill, an amendment providing that
total appropriations therein be reduced by a specified amount was
held in order (even though legislative in form) since it provided
for a retrenchment of expenditures and thus came within the Holman
rule.
On Apr. 5, 1966, (9) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 14215), the following proceedings took place:
---------------------------------------------------------------------------
9. 112 Cong. Rec. 7689, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
[Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Bow: On page 46, after line 21,
insert a new section as follows:
``Sec. 302. Appropriations made in this Act are hereby
reduced in the amount of $7,293,000.''
Mr. [Winfield K.] Denton [of Indiana]: Mr. Chairman, I make a
point of order against the amendment, but will reserve the point of
order. . . .
Mr. Chairman, there are numerous agencies covered by this
appropriation bill. While the executive branch has discretion not
to spend this money, the proposed amendment would force the
Executive to assign priorities to the various agencies. It would
place discretionary action with the President and, it is the
Congress who determines how funds shall be appropriated. The
amendment would take that authority from the Congress and give it
to the Executive.
The Chairman: (10) I understand that the gentleman
from Indiana is insisting on his point of order?
---------------------------------------------------------------------------
10. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Denton: Yes, Mr. Chairman.
The Chairman: The Chair is prepared to rule. The amendment
would reduce the appropriations in this bill in the amount of
$7,293,000. The so-called Holman rule provides:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States, by the reduction of the
compensation of any person paid out of the Treasury of the
United States, or by the reduction of amounts of money covered
by the bill.
Therefore, the Chair overrules the point of order.
Reducing Funds, Prohibiting Particular Use
Sec. 4.6 An amendment reducing an amount in a general appropriation
bill for the Postal Service and providing that no funds therein be
used to
[[Page 5330]]
implement special bulk third-class rates for political committees
was held in order either as a negative limitation not specifically
requiring new determinations or as a retrenchment of expenditures
under the ``Holman Rule'' even assuming its legislative effect,
since the reduction of the amount in the bill would directly
accomplish the legislative result.
On July 13, 1979,(11) during consideration in the
Committee of the Whole of H.R. 4393 (Treasury Department, Postal
Service and general government appropriation bill) a point of order
against an amendment was overruled as indicated below:
---------------------------------------------------------------------------
11. 125 Cong. Rec. 18453-55, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (12) The Clerk will read.
---------------------------------------------------------------------------
12. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
The Clerk read as follows:
For payment to the Postal Service Fund for public service
costs and for revenue foregone on free and reduced rate mail,
pursuant to 39 U.S.C. 2401 (b) and (c), and for meeting the
liabilities of the former Post Office Department to the
Employees' Compensation Fund and to postal employees for earned
and unused annual leave as of June 30, 1971, pursuant to 39
U.S.C. 2004, $1,697,558,000.
[Mr. [Dan] Glickman [of Kansas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Glickman: On page 9, line 3,
delete ``$1,697,558,000.'' and insert in lieu thereof
``$1,672,810,000: Provided, That no funds appropriated herein
shall be available for implementing special bulk third-class
rates for `qualified political committees' authorized by Public
Law 95-593.''. . .
[Mr. [Robert C.] Eckhardt [of Texas]: My point of order is that
the amendment places a burden on the Postal Department which would
not exist but for this amendment. . . . [I]f the amendment is
passed, it does not merely withhold funds, but it requires the
Postal Department to adjust the rates of the Postal Department in
order to comply with the limitation contained in this amendment.
Therefore, this is not a mere limitation on an appropriation but it
is a limitation which requires the Postal Department, as the
gentleman has stated in his letter, to adjust all rates, determine
which rates need adjustments, which ones qualify or would not
qualify under the provision, and, thus, reduce those rates to the
figures that would permit the reduction in revenue. Therefore, it
seems clear to me that this affords an extremely heavy burden on
the Postal Department which would not otherwise exist but for the
passage of the amendment. If this were not true, the situation
would create an anomalous condition which I had pointed out in my
initial question to the gentleman in the well and the author of the
amendment. It would create a situation in which the benefits
provided under section 3626 of title 39 would still be enjoyed by
qualifying political committees, and yet the Postal Department
would not
[[Page 5331]]
be able to receive the adjustment due to the additional costs. It
seems to me that in effect if the gentleman is correct and if
adjustments are made in the rate, there is another change in
substantive law occasioned by the adjustment in rates. That is, the
adjustment in rates substantively changes Public Law 95-593 so as
to deprive qualified political committees, including the Democratic
Committee and the Republican Committee, and all others that
qualify, of the benefits that we have enacted in another piece of
legislation, not one that deals with the Postal Department but
deals generally with the rates of political parties with respect to
the use of the mails.
Mr. Glickman: . . . The amendment is strictly one of
limitation. It reduces funding by $25 million and limits the use of
that funding with respect to the charging of postal rates. I would
state for the gentleman and for the Chair that section 3627 of
title 39, United States Code is discretionary authority to adjust
rates if the appropriation fails and is not mandatory authority
and, therefore, I do believe that the amendment is merely a
limitation and is germane. . . .
The Chairman: The Chair is prepared to rule on the point of
order.
In the opinion of the Chair, the amendment constitutes a
negative limitation on how funds in the bill are spent rather than
being legislation on an appropriations bill. No new determinations
are required. Even if the amendment should be considered as
constituting legislation, it constitutes a retrenchment because it
cuts the amounts in the bills and the legislative effect directly
contributes to that reduction.
The Chair, therefore, overrules the point of order.
Exception From a Retrenchment
Sec. 4.7 To an amendment in order under the Holman rule containing
legislation but retrenching expenditures by a formula reduction for
every agency funded by the bill, an amendment exempting from that
reduction several specific programs does not add further
legislation and is in order.
On July 30, 1980, (13) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill (H.R. 7591), a point of order against an amendment was not
sustained, as indicated below:
---------------------------------------------------------------------------
13. 126 Cong. Rec. 20503, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I offer
an amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Whitten to the amendment offered
by Mr. (Herbert E.) Harris (of Virginia): Strike (out the)
period and add: ``, except that this limitation shall not apply
to emergency or disaster programs of the Farmers Home
Administration and the Agricultural Stabilization and
Conservation Service and programs for the control of infectious
or contagious diseases of hu
[[Page 5332]]
mans and animals carried out by the Food and Drug
Administration and the Animal and Plant Health Inspection
Service.''.
Mr. Harris: Mr. Chairman, I would like to make a point of order
on that amendment. . . .
I feel the amendment is clearly legislation on an
appropriation bill and does in fact do violence to my amendment. .
. .
Mr. Whitten: . . . Deschler's Procedure, chapter 25, section
9.7 (states):
An exception to a valid limitation in a general
appropriation bill is in order, providing the exception does
not add language legislative in effect.
I do not consider that this adds legislative language to the
amendment. It is an exception to the limiting provision as offered.
I respectfully submit that it is in order and should be considered.
The Chairman: (14) The Chair is ready to rule.
---------------------------------------------------------------------------
14. James C. Corman (Calif.).
---------------------------------------------------------------------------
An exception to a limitation or a retrenchment which does not
add legislation is clearly in order under the precedents, and the
point of order is not sustained.
Exception From a Limited Use
Sec. 4.8 To an amendment retrenching expenditures in a general
appropriation bill by reducing amounts therein and prohibiting
their availability to particular recipients, an amendment lessening
the amount of the reduction and also providing an exception from
the limitation may be in order as a perfection of the retrenchment
if funds contained in the bill remain reduced thereby.
On July 13, 1979,(15) it was held that, to an amendment
to a general appropriation bill limiting the use of funds for the
Postal Service to implement special mail rates for qualified political
committees as authorized by law, an amendment lessening the amount of
the reduction of funds in the original amendment and also excepting
from the limitation certain congressional political committees as
defined in law was in order either as an exception from a valid
limitation which did not add legislation (since the determinations as
to which political committees fit those descriptions were already
required by law of the Postal Service) or as perfecting a retrenchment
amendment while still reducing funds in the bill. The proceedings were
as follows:
---------------------------------------------------------------------------
15. 125 Cong. Rec. 18456, 18457, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [William D.] Ford of Michigan: Mr. Chairman, I offer an
amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Ford of Michigan to the amendment
offered
[[Page 5333]]
by Mr. [Dan] Glickman [of Kansas]: On page 9, line 3, delete
``$1,697,558,000.'' and insert in lieu thereof
``$1,676,810,000'' and strike the period after ``Public Law 95-
593'' and insert the following: ``, other than the national,
state or congressional committee of a major or minor party as
defined in Public Law 92-178, as amended.''. . .
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, the Ford
amendment, is, indeed legislation on an appropriations act, because
by limiting the amount available under the bill, the Postal Service
will be required to establish two different rates; one for major
and minor political parties entitled under the bill and another
rate for political parties which do not qualify.
Unlike the discretionary authority under section 3627, this
adjustment would be mandatory.
I would like to point out that the reference in the bill is to
Public Law 92-178, which in its title VII deals with certain tax
incentives for contributions to candidates for public office and
which sets out certain definitions with respect to national
committees of national political parties and State committees of a
national political party as designated by the national committee of
such party. . . .
Now, there are definitions here and those definitions must be
addressed by another body besides the Post Office Department; but
here the Post Office Department is going to have to determine
whether a committee is a State committee of a national political
party as designated by the national committee of such party and
must apply the definitions as the result of additional duties
attributed and ascribed to the Postal Department that are not
previously attributable to that Department; so there is, indeed, an
additional burden with respect to defining or establishing and
applying the definition of a major or minor party as defined under
this law and also with respect to establishing two separate rates
in order to accomplish the objective sought here. . . .
Mr. Ford of Michigan: . . . First, I believe that the gentleman
from Texas (Mr. Eckhardt) confuses the addition of duties to the
executive branch that require the exercise of discretion and the
imposition of an obligation to make determinations that would not
otherwise have to be made.
What our amendment does is it simply refers them to a clearly
defined interpretation, consistent with virtually everything else
that is contained in the postal code, with respect to qualifying
and nonqualifying people. . . .
The second point is that I would refer to the gentleman's
argument against the amendment offered by the gentleman from Kansas
(Mr. Glickman) on this point of order in which he pointed out that
the effect of not adopting the amendment offered by the gentleman
from Kansas (Mr. Glickman) would be that the law would not be
changed, and that the Post Office Department would have a
continuing duty to determine whether a political party was a
political party for the purpose of giving them a subsidy, even
without the Glickman amendment. I suggest that the effect of
knocking out my amendment will be to leave the duty of the Postal
Service to make that determination much broader and much more
complex then it would with the narrowing effect of our amendment
which requires that they need only
[[Page 5334]]
pick up the telephone and call the Federal Election Commission and
ask, ``Who, if anyone, qualifies for this class of mail? We have
got some people who are applying for a permit. Shall we grant them
the permit?''
The way this discretion is exercised is not that you mail a
letter and wait to see if the Post Office catches you; you go down
to the Post Office first and you say, ``I am representing the
Democratic''--or the Republican--``National Committee. We wish to
have a permit with a number assigned to us so that our mail is
clearly identified and to entitle us to mail as a nonprofit
organization third class bulk mail.''
At that point the Postal Service makes a determination as to
whether or not you qualify. They do not make a determination as to
whether the Democratic Party or the Republican Party qualifies;
they simply pick up the phone and call the FEC and find out. . . .
The Chairman: (16) The Chair is prepared to rule.
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16. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
Exceptions to limitations or retrenchments permitted to remain
in the bill are permitted if not constituting additional
legislation. In the opinion of the Chair, the law already imposes a
duty on the Postal Service, under Public Law 95-593, to determine
whether any political committee is a National, State, or
congressional committee of a political party.
Public Law 95-593 provides definitions of what constitutes
political parties. Since these standards exist in the law, it is
the opinion of the Chair that no additional burden is imposed by
the amendment, or, in any event, the amendment remains a
retrenchment, and the point of order is overruled.