[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 33. Increasing Limits of Authorization Set in Law]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5798-5805]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 33. Increasing Limits of Authorization Set in Law

Indefinite Appropriation Where Authorization Requires Definite Amount

Sec. 33.1 A provision in a general appropriation bill making available 
    indefinite sums from the Southwest Power Administration revolving 
    fund to insure continued electric service and use of transmission 
    facilities was ruled out as legislation in violation of Rule XXI 
    clause 2 where existing law provided that a definite amount must be 
    specified for that purpose in annual appropriation bills.

    On June 26, 1972,(3) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 15586), 
the following point of order was raised:
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 3. 118 Cong. Rec. 22428, 22429, 92d Cong. 2d Sess.
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        Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I make a 
    point of order against the language appearing on page 20, beginning 
    with line 8, as follows:

            Provided, That, in addition, such sums as may be necessary 
        shall be available from the Continuing Fund, Southwestern Power 
        Administration (16 U.S.C. 825 S-1) to defray emergency expenses 
        to insure continuity of electric service and continuous 
        operation of Government facilities in the area.

        Mr. Chairman, if I might be heard on the point of order, in the 
    Interior Department appropriation bill in 1943, Public Law 216, 
    there was established a $100,000 continuing fund to insure 
    continuity of power operations for use in emergency.
        Then in the Interior Department Appropriation Act of 1950, 
    Public Law 350, this so-called continuing fund was increased to 
    $300,000 and extended its use to include the purchase of power and 
    rental of transmission lines. Between 1950 and 1952 the Department 
    of the Interior and the Southwest Power Administration interpreted 
    the continuing fund as a revolving fund which replenished itself 
    automatically from the Southwest Power Administration power 
    revenues. Therefore, there was no upper limit on the amount that 
    could be withdrawn from the continuing fund each year except from 
    the Southwest Power Administration gross power receipts in that 
    year.
        Congress recognized that the Southwest Power Administration's 
    use of the continuing fund for the purchase of power and the 
    payment of transmission charges gave the Southwest Power 
    Administration unlimited funds through the back door of the 
    Treasury without going through the congressional appropriation 
    procedure. Therefore in 1951 the Congress added to the continuing 
    fund statute the following provision:

            Provided, That expenditures from this fund to cover such 
        costs in con

[[Page 5799]]

        nection with the purchase of electric power and energy, and 
        rentals for the use of facilities are to be made only in such 
        amounts as may be approved annually in appropriation Acts.

        Congress itself thus closed the back door to the Treasury to 
    the Southwest Power Administration and recaptured its control of 
    Federal expenditures.
        Since 1952 the Southwest Power Administration budgeted the 
    received appropriations for its estimated power purchases and 
    transmission costs which appropriations together with supplemental 
    appropriations as have been required from time to time have 
    permitted SPA to fulfill contract commitments in emergencies.
        If I might simply cite that statute back in July 1952, Public 
    Law 470, the proviso here said:

            Continuing fund, Southwest Power Administration not to 
        exceed $1,000,000 shall be available during the current fiscal 
        year from the continuing fund for all costs in connection with 
        the purchase of electric power and energy and rentals for the 
        use of transmission facilities.

        Ever since that time we have been using varying appropriation 
    language setting a particular figure.
        If I might read from the code, page 4013, title 18, under 
    ``Conservation,'' paragraph 825S-1, the one to which we make 
    reference here and the language to which I object, we read:

            All receipts from the transmission and sale of electric 
        power and energy under the provisions of Sec. 825S of this 
        title, generated or purchased in the Southwest Power Area shall 
        be covered into the Treasury of the United States as 
        miscellaneous receipts, except that the Treasury shall set up 
        and maintain from such receipts a continuing fund of $300,000, 
        including the sum of $100,000 in the continuing fund 
        established under the Administrator of the Southwest Power 
        Administration. . . .

        And so on and so forth.
        Then it goes on and concludes with a proviso:

            Provided, That expenditures from this fund to cover such 
        costs in connection with the purchase of electric power and 
        energy and rentals for the use of facilities are to be made 
        only in such amounts as may be approved annually in 
        appropriation Acts.

        The language on page 20 and beginning on line 8 adds the 
    further proviso to the continuing fund as follows:

            Provided, That, in addition, such sums as may be necessary 
        shall be available from the continuing fund, Southwest Power 
        Administration, (U.S. Code 825S-1,) to defray emergency 
        expenses to insure continuity of electric service and 
        continuous operation of Government facilities in the area.

        In addition to being a double negative or having that effect of 
    double negative, the adoption of this proposed wording would 
    actually be a change in the basic law concerning the use of the 
    continuing fund. It is not merely a change in appropriations, as 
    suggested.
        Mr. Chairman, this change is legislation in an appropriation 
    bill, and I request that my point of order be sustained. . . .
        The Chairman: (4) The Chair is ready to rule. The 
    Chair is of the opinion that the language does permit the transfer 
    of an indefinite sum of money from the continuing or revolving fund

[[Page 5800]]

    and, in fact, changes existing law and, therefore, is legislation 
    on an appropriation bill.
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 4. Wayne N. Aspinall (Colo.).
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        The Chair sustains the point of order. Waiving Limitation in 
    Permanent Law

Sec. 33.2 Where a limitation on the amount of an appropriation to be 
    annually available for expenditure by an agency has become law, 
    language in a subsequent appropriation bill seeking to change this 
    limitation on such funds was conceded to change existing law and 
    therefore to be legislation on an appropriation bill.

    On Mar. 15, 1945,(5) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 2603), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
 5. 91 Cong. Rec. 2305, 79th Cong. 1st Sess.
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        The Clerk read as follows:

            Foreign Service Buildings Fund: For the purpose of carrying 
        into effect the provisions of the act of May 25, 1938, entitled 
        ``An act to provide additional funds for buildings for the use 
        of the diplomatic and consular establishments of the United 
        States'' (22 U.S.C. 295a), including the initial alterations, 
        repair, and furnishing of buildings acquired under said act, 
        $1,466,000, notwithstanding the amount limitation in the act of 
        May 25, 1938 (22 U.S.C. 295a), to remain available until 
        expended: Provided, That expenditures for furnishing made from 
        appropriations granted pursuant to the act of May 7, 1926, and 
        subsequent acts providing funds for buildings for the use of 
        diplomatic and consular establishments of the United States 
        shall not be subject to the provisions of section 3709 of the 
        Revised Statutes.

        Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of 
    order against the paragraph beginning in line 14, page 16, down to 
    and including line 3, page 17, on the ground it is a violation of 
    the basic law.
        Appropriation is asked notwithstanding the amount limitation in 
    the act of May 25, 1938 (22 U.S. Code, sec. 295a), as follows:
        Sections 292 et seq. authorized the acquisition of properties 
    abroad for the State Department, and section 295a authorized ``to 
    be appropriated, in addition to the amount authorized by such act, 
    an amount not to exceed $5,000,000, of which not more than 
    $1,000,000 shall be appropriated for any 1 year,'' and so forth.
        No necessity or reason is shown for the lifting of that 
    $1,000,000 yearly limitation on these appropriations, and the 
    present proposal amounts to, and is, permanent and repealing 
    legislation on an appropriation act.
        The Chairman: (6) Does the gentleman from Michigan 
    [Mr. Rabaut] desire to be heard?
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 6. Wilbur D. Mills (Ark.).
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        Mr. [Louis C.] Rabaut: Mr. Chairman, I think the point of order 
    might

[[Page 5801]]

    apply to the language appearing in lines 20 and 21. That is because 
    of the excesses.
        The Chairman: Permit the Chair to understand the gentleman. The 
    gentleman concedes that the language in lines 20 and 21 is bad and 
    subject to a point of order?
        Mr. Rabaut: Yes.
        The Chairman: Does the gentleman from Kansas [Mr. Rees] insist 
    on his point of order against the entire paragraph?
        Mr. Rees of Kansas: I do.
        Mr. Rabaut: Mr. Chairman, will the gentleman withhold his point 
    of order for a minute?
        Mr. Rees of Kansas: Yes. I reserve the point of order.
        Mr. Rabaut: Mr. Chairman, the citation of the law for that 
    appears in line 18 and the reason for the legislative language in 
    this bill is for the purpose of taking advantage of the situation 
    as it exists today in the money and real estate markets of the 
    world.
        In this bill we had $1,466,000 and a part of those funds are 
    necessary for the purpose of taking advantage, for the benefit of 
    the United States in reestablishing where there has been huge 
    destruction of our own diplomatic posts in the form of buildings 
    and necessities, or at least getting hold of the land in many 
    places, so necessary at this time. If it is the gentleman's idea to 
    frustrate this advantage, of course, the point of order should 
    stand, but for the purpose of really being of assistance to the 
    Treasury of the United States it would be very well if this 
    language were left in the bill. It was placed in the bill to enable 
    the agency to move speedily to any place in the world where it 
    would be to our advantage to reestablish housing for our diplomatic 
    corps.
        Mr. Chairman, I concede the point of order, if the gentleman 
    insists on it, beginning with the word ``notwithstanding'' in line 
    20.
        Mr. Rees of Kansas: I insist on the point of order to the 
    entire paragraph, Mr. Chairman.
        The Chairman: In view of the fact that certain language in the 
    paragraph is conceded to be subject to a point of order, the entire 
    paragraph is subject to a point of order.
        The Chair sustains the point of order.

Increasing Limitation on Rural Telephone Borrowing Authority

Sec. 33.3 A provision in an appropriation bill increasing the loan 
    authorization for the rural telephone program above the amount 
    authorized for that purpose in a prior appropriation law was held 
    to be legislation and not in order.

    On Apr. 22, 1953,(7) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
4664), a point of order was raised against the following provision:
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 7. 99 Cong. Rec. 3613, 83d Cong. 1st Sess.
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        The Clerk read as follows:

[[Page 5802]]

                      Rural Electrification Administration

                              Loan authorizations

            The basic amount authorized by the Department of 
        Agriculture Appropriation Act, 1953, to be borrowed from the 
        Secretary of the Treasury for the rural-telephone program is 
        increased from ``$25 million'' to ``$32,500,000.''

        Mr. [Frederic R.] Coudert [Jr., of New York]: Mr. Chairman, I 
    make a point of order against the language on page 5, from line 7 
    through line 12. Mr. Chairman, on its face the language is out of 
    order because it clearly amends existing law, and, therefore, is 
    legislation upon an appropriation bill.
        Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, may I be 
    heard on the point of order?
        The Chairman: (8) The gentleman may proceed.
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 8. John W. Byrnes (Wis.).
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        Mr. H. Carl Andersen: Mr. Chairman, I believe the point of 
    order is clearly out of order. The language which the subcommittee 
    has placed in the bill simply increases the amount of authorization 
    for these particular loans, and in my opinion, it is perfectly in 
    order as we have written it in the bill.
        The Chairman: Does the gentleman from New York [Mr. Taber] 
    desire to be heard on this point of order?
        Mr. [John] Taber: I do not, Mr. Chairman.
        The Chairman: The Chair is ready to rule. The gentleman from 
    New York [Mr. Coudert] makes a point of order that the language of 
    this paragraph is legislation on an appropriation bill. It is 
    apparent from a reading of the language that a change is made in 
    the basic act of the Department of Agriculture Appropriation Act of 
    1953. The Chair sustains the point of order.

Rural Electrification; Distribution of Funds Above Authorized Limit

Sec. 33.4 To an appropriation bill an amendment providing that 
    additional funds for the rural electrification program ``may be 
    distributed in any State or Territory in addition to any sum which 
    such State may otherwise receive'' was conceded and held to be 
    legislation and not in order.

    On May 20, 1953,(9) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 5227), the following proceedings occurred:
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 9. 99 Cong. Rec. 5270, 5271, 83d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                              Loan authorizations

            For loans in accordance with said act, and for carrying out 
        the provisions of section 7 thereof, to be borrowed from the 
        Secretary of the Treasury in accordance with the provisions of 
        section 3(a) of said act as follows: Rural electrification 
        program, $135 million; and rural telephone program, $50 
        million; and additional amounts, not to exceed $30 million for 
        the rural electrification

[[Page 5803]]

        program, may be borrowed under the same terms and conditions to 
        the extent that such additional amounts are required during the 
        fiscal year 1954, under the then existing conditions, for the 
        expeditious and orderly development of the program.

        Mr. [William R.] Poage [of Texas]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Poage: On page 38, line 2, after 
        the comma strike out the balance of the line and all of line 3 
        [deleting ``for the . . . development of the program''] and 
        insert ``and may be distributed in any State or Territory in 
        addition to any sum which such State may otherwise receive.''

        Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
        The Chairman: (10) The gentleman will state it.
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10. William M. McCulloch (Ohio).
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        Mr. Taber: Mr. Chairman, this is legislation on an 
    appropriation bill and contrary to existing law. . . .
        Mr. Poage: Mr. Chairman, I will have to concede the point of 
    order because I know it is legislation on an appropriation bill.
        The Chairman: The Chair sustains the point of order.

Census Work

Sec. 33.5 An appropriation for carrying on authorized census work, 
    including personal services and rentals, in excess of the limit of 
    cost fixed by law is not in order on an appropriation bill.

    On Feb. 7, 1940,(11) the Committee of the Whole was 
considering H.R. 8319, the Departments of State, Justice, Commerce, and 
the Judiciary appropriation bill. At one point the Clerk read as 
follows:
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11. 86 Cong. Rec. 1195, 76th Cong. 3d Sess.
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        For continuing the work of taking, compiling, and publishing 
    the Sixteenth Census of the United States, as authorized by the act 
    of June 18, 1929 (13 U.S.C. 201-218), and the national census of 
    housing as authorized by the act of August 11, 1939 (53 Stat. 
    1406), and for carrying on other authorized census work, within a 
    limit of cost for the period of July 1, 1939, to December 31, 1942, 
    of $53,250,000, including personal services and rentals in the 
    District of Columbia and elsewhere; the cost of transcribing State, 
    municipal, and other records; contracts for the preparation or 
    monographs on census subjects and other work of specialized 
    character which cannot be accomplished through ordinary employment; 
    per diem compensation of employees of the Department of Commerce 
    and other departments and independent establishments of the 
    Government who may be detailed for field work; expenses of 
    attendance at meetings concerned with the collection of statistics, 
    when incurred on the written authority of the Secretary of 
    Commerce; purchase of books of reference, periodicals, maps, 
    newspapers, manuscripts, first-aid outfits for use in the buildings 
    occupied by employees of the census, maintenance, operation, and 
    repair of

[[Page 5804]]

    a passenger-carrying automobile to be used on official business; 
    construction, purchase, exchange, or rental of punching, 
    tabulating, sorting, and other labor-saving machines, including 
    technical, mechanical, and other services in connection therewith; 
    printing and binding, traveling expenses, streetcar fares, and all 
    other contingent expenses in the District of Columbia and in the 
    field, $17,850,000, of which $2,000,000 shall be available 
    immediately, and the unexpended balance of the appropriation under 
    this title in the Department of Commerce's Appropriation Act, 1940, 
    is hereby continued available until June 30, 1941.
        Mr. [John] Taber [of New York]: Mr. Chairman, I make the point 
    of order against the language on page 37, beginning with the word 
    ``within'', on line 17, running through the word ``elsewhere'', in 
    line 20. It is legislation on an appropriation bill, increasing the 
    limitation that now exists against the expenses of the Census 
    Bureau, and it is unauthorized by law.
        Mr. [Millard F.] Caldwell [of Florida]: Will the gentleman 
    state the particular language to which he makes the point of order?
        Mr. Taber: I shall read it. It is as follows, beginning on line 
    17, page 37:

            Within a limit of cost for the period of July 1, 1939, to 
        December 31, 1942, of $53,250,000, including personal services 
        and rentals in the District of Columbia and elsewhere.

        Mr. Caldwell: Mr. Chairman, I think the point of order is well 
    taken. It is simply an economy measure that the committee wrote in.
        Mr. Taber: Mr. Chairman, it is not an economy measure. It 
    raises the authorizations $150,000 beyond all authorizations now 
    existing.
        The Chairman: (12) The Chair sustains the point of 
    order.
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12. Harry P. Beam (Ill.).
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Housing Assistance, Increase in Contract Authority

Sec. 33.6 To a paragraph in an appropriation bill containing funds for 
    liquidation of contract obligations for homeownership and rental 
    housing assistance, an amendment providing that total payments 
    required by such contracts in any fiscal year shall be increased by 
    a certain amount was ruled out as permanent legislation in 
    violation of Rule XXI clause 2.

    On May 11, 1971,(13) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
8190), the following transpired:
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13. 117 Cong. Rec. 14464, 14465, 92d Cong. 1st Sess.
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                                 Chapter IV

                Department of Housing and Urban Development

                              Mortgage Credit

                homeownership and rental housing assistance

        For an additional amount for ``Homeownership and rental housing 
    assistance'', $32,900,000.

[[Page 5805]]

        Mr. [Edward I.] Koch [of New York]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Koch: On page 5, line 9, insert 
        immediately before the period ``: Provided, That the limitation 
        on total payments that may be required in any fiscal year by 
        all contracts entered into under section 235 of the National 
        Housing Act, as amended, is increased by $25,000,000, and the 
        limitation on total payments under those entered into under 
        section 236 of such Act, is increased by $25,000,000''.

        Mr. [Charles R.] Jonas [of North Carolina]: Mr. Chairman, I 
    make a point of order against the amendment on the ground it is 
    legislation on an appropriation bill.
        The Chairman: (14) The gentleman will state his 
    point of order.
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14. Wayne N. Aspinall (Colo.).
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        Mr. Jonas: Mr. Chairman, as I understand the amendment, it 
    seeks to increase contract authority, and the bill under 
    consideration does not contain any contract authority but merely 
    payments that have accrued and have to be paid in order to 
    liquidate contract authority. Therefore, I think the amendment is 
    subject to a point of order and I so make it.
        Mr. Koch: Mr. Chairman, may I be heard on the point of order?
        The Chairman: The gentleman from New York is recognized on the 
    point of order.
        Mr. Koch: This chapter relates to sections 235 and 236, but 
    provides no new moneys and does not provide the moneys that 
    heretofore have been authorized. I submit to you, Mr. Chairman, 
    that all my amendment will do is to appropriate moneys which 
    heretofore have been authorized for the purpose provided in the 
    amendment.
        The Chairman: The Chair is ready to rule. The amendment does 
    constitute legislation in an appropriation bill and violates clause 
    2 of rule XXI. Therefore, the Chair sustains the point of order.