[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 26. Authorizing Statute as Permitting Certain Language in Appropriation Bill]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5685-5692]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 26. Authorizing Statute as Permitting Certain Language in 
    Appropriation Bill

Conferral of Discretion as Contemplated by Existing Law

Sec. 26.1 Appropriations for traveling expenses, including expenses of 
    attendance at meetings considered necessary by the National 
    Bituminous Coal Commission, in the exercise of its discretion, for 
    the efficient discharge of its responsibilities were held 
    authorized by a law permitting inclusion of such language in a 
    general appropriation bill.

    On Mar. 14, 1939, (10) the Committee of the Whole was 
considering H.R. 4852, an Interior Department appropriation. The Clerk 
read as follows, and proceedings ensued as indicated below:
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10. 84 Cong. Rec. 2739, 2740, 76th Cong. 1st Sess.
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        Salaries and expenses: For all necessary expenditures of the 
    National Bituminous Coal Commission in performing the duties 
    imposed upon said Commission by the Bituminous Coal Act of 1937, 
    approved April 26, 1937 (50 Stat. 72), including personal services 
    and rent in the District of Columbia and elsewhere; traveling 
    expenses, including expenses of attendance at meetings which, in 
    the discretion of the Commission, are necessary for the efficient 
    discharge of its responsibilities . . . $2,900,000. . . .
        Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
        The Chairman: (11) The gentleman will state it.
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11. Frank H. Buck (Calif.).
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        Mr. Taber: I make a point of order against the paragraph on the 
    ground it delegates additional power and discretion to the 
    Commission, and I call particular attention to lines 23, 24, and 25 
    of page 9, which also contain the words ``in the discretion of the 
    Commission.''
        It seems to me this makes an appropriation and leaves the 
    amount of the appropriation which shall be spent to the discretion 
    of the Commission or gives the Commission power to determine 
    whether the appropriation should be made. It is the same thing as 
    delegating authority to the Commission to make an appropriation, 
    and is clearly legislation.
        Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I desire to be 
    heard in opposition to the point of order.

[[Page 5686]]

        If the distinguished gentleman from New York will read title V, 
    section 83, he will find full and ample authority for the language 
    to which he objects. . . .
        The Chairman: The Chair is ready to rule. The Chair rules that 
    the inclusion of the words ``in the discretion of the Commission'' 
    is probably covered by the citation given by the gentleman from 
    Oklahoma [Mr. Johnson]. Title V, section 83, of the United States 
    Code provides:

            That no money appropriated by any act shall be expended for 
        membership fees or dues of any officer or employee of the 
        United States in any society or association, etc., or for the 
        expenses or attendance of any person at any meeting or 
        convention of members of any society or association unless such 
        fees, dues, or expenses are authorized to be paid by specific 
        appropriations for such purpose and are provided for in express 
        terms in some general appropriation.

        The language in the paragraph under consideration seems to 
    comply with that provision, and the point of order is overruled.

    Parliamentarian's Note: This statutory authority is now contained 
in 5 USC Sec. 5946, and 5 USC Sec. 4110 also specifically authorizes 
appropriations for attendance at any meetings necessary to improve an 
agency's efficiency. Thus, new discretionary authority is not conferred 
by this language, since the law provides for its inclusion in a general 
appropriation bill.

Explicit Waiver of Law; Restrictions on Newspaper Advertisements

Sec. 26.2 Language in the District of Columbia appropriation bill 
    providing that an appropriation shall not be available for costs of 
    advertisements in newspapers published outside the District of 
    Columbia ``notwithstanding the requirement for such advertising 
    provided by existing law'' was held not in order on a general 
    appropriation bill.

    On Apr. 2, 1937, (12) during consideration in the 
Committee of the Whole of the District of Columbia appropriation bill, 
a point of order was raised against the following provision:
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12. 81 Cong. Rec. 3105, 3106, 75th Cong. 1st Sess.
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        The Clerk read as follows:

            For general advertising, authorized and required by law, 
        and for tax and school notices and notices of changes in 
        regulations, $7,000: Provided, That this appropriation shall 
        not be available for the payment of advertising in newspapers 
        published outside of the District of Columbia, notwithstanding 
        the requirement for such advertising provided by existing law.

        Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I make 
    the point of order to the proviso beginning on line 11, page 13:

[[Page 5687]]

            Provided, That this appropriation shall not be available 
        for the payment of advertising in newspapers published outside 
        of the District of Columbia, notwithstanding the requirement 
        for such advertising provided by existing law.

        I make the point of order that that is legislation on an 
    appropriation bill.

        Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, the law 
    provides that all purchases over $1,000 shall be advertised in 
    newspapers outside the District of Columbia. The purpose of this 
    amendment is to save the District a little money, and if the 
    gentleman from Maryland does not want to do that, it suits me.
        Mr. Palmisano: Mr. Chairman, it is not that the gentleman from 
    Maryland does not want to save the District any money. This is a 
    question of whether or not we are going to permit the Committee on 
    Appropriations to come in here and change laws that are now on the 
    statute books. If we are going to permit that in the case of the 
    District of Columbia, we might as well wipe out all legislative 
    committees in this House. That is the question involved.
        The Chairman: (13) The Chair inquires of the 
    gentleman from Maryland whether his point of order is made to the 
    proviso, beginning on line 11 and extending through line 14?
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13. Jere Cooper (Tenn.).
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        Mr. Palmisano: It is.
        The Chairman: The Chair is prepared to rule. The Chair is of 
    opinion that especially the last part of the proviso, beginning 
    with the word ``notwithstanding'' clearly weighs the provisions of 
    existing law, and therefore changes existing law and would be 
    legislation on a general appropriation bill, which is prohibited by 
    the rules of the House. The Chair, therefore, sustains the point of 
    order.

Waiver of Law; Cultural Relations Program

Sec. 26.3 To a bill making appropriations for the Department of State, 
    an amendment providing an appropriation for an information and 
    cultural program to be disseminated in foreign countries was held 
    to be unauthorized.

    On May 14, 1947,(14) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 3311), a 
point of order was raised against the following amendment:
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14. 93 Cong. Rec. 5291, 5292, 80th Cong. 1st Sess.
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        Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Gary: Page 2, line 18, after the 
        semicolon insert ``acquisition, production, and free 
        distribution of informational materials for use in connection 
        with the operation, independently or through individuals, 
        including aliens, or public or private agencies (foreign or 
        domestic), and without regard to section 3709 of the Revised 
        Statutes, of an information program outside of the continental 
        United States, including the purchase of radio time . . . and 
        the purchase,

[[Page 5688]]

        rental . . . and operation of facilities for radio transmission 
        and reception, the acquisition of land and interests in land . 
        . . for radio broadcasting and relay facilities, and the 
        acquisition or construction of buildings and necessary 
        improvements on such lands; purchase and presentation of 
        various objects of a cultural nature suitable for presentation 
        (through diplomatic and consular offices) to foreign 
        governments, schools, or other cultural or patriotic 
        organizations . . . not to exceed $13,000 for entertainment.''

        Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, I make a point 
    of order against the amendment.
        The Chairman: (15) The gentleman will state his 
    point of order.
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15. Carl T. Curtis (Nebr.).
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        Mr. Stefan: Mr. Chairman, I make the point of order this is not 
    authorized by law and it is legislation on an appropriation bill. . 
    . .
        The Chairman: Does the gentleman from Virginia desire to be 
    heard on the point of order?
        Mr. Gary: I do not, Mr. Chairman.
        The Chairman: The Chair is prepared to rule. It is the opinion 
    of the Chair that the amendment does propose legislation on an 
    appropriation bill, the functions therein referred to not being 
    authorized by law.
        The point of order is sustained

Consultant Salaries; Setting Limit on Per Diem Permitted by Law

Sec. 26.4 A provision in a general appropriation bill authorizing 
    expenditures of funds provided in the bill for temporary services 
    of consultants at rates not in excess of $100 per day was held to 
    be in order as a limitation.

    On Apr. 24, 1951,(16) the Committee of the Whole was 
considering H.R. 3790, an Interior Department appropriation bill. The 
following proceedings took place:
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16. 97 Cong. Rec. 4307, 82d Cong. 1st Sess.
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                         Administrative Provisions

        Appropriations of the Bonneville Power Administration shall be 
    available to carry out all the duties imposed upon the 
    Administrator pursuant to law, including not to exceed $40,000 for 
    services as authorized by section 15 of the act of August 2, 1946 
    (5 U.S.C. 55a), including such services at rates not to exceed $100 
    per diem for individuals; purchase of not to exceed 16 passenger 
    motor vehicles of which 12 shall be for replacement only; and 
    purchase (not to exceed 2) of aircraft. . . .
        Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of 
    order against the language appearing in the bill beginning with 
    line 24, page 5, and continuing through to line 12, page 6, on the 
    ground it is legislation on an appropriation bill. . . .
        The Chairman: (17) For the information of the 
    gentleman from Kansas the Chair will read from the United States 
    Code, title 5, on page 79, section 35a:
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17. Wilbur D. Mills (Ark.).
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            Temporary employment of experts or consultants; rate of 
        compensation:

[[Page 5689]]

            The head of any department, when authorized in an 
        appropriation or other act, may procure the temporary (not in 
        excess of 1 year) or intermittent services of experts or 
        consultants or organizations thereof, including stenographic 
        reporting services, by contract and in such cases such service 
        shall be without regard to the civil service and classification 
        laws (but as to agencies subject to sections . . . at rates not 
        in excess of the per diem equivalent of the highest rate 
        payable under said sections, unless other rates are 
        specifically provided in the appropriation or other law) and 
        except in the case of stenographic reporting services by 
        organizations without regard to section 5 of title 41. . . .

        As the Chair understands, there is no per diem ceiling fixed in 
    the provision to which the Chair has alluded. The gentleman from 
    New York mentions a ceiling, and then the authority of the 
    committee to place a limitation under that ceiling. Does the 
    gentleman from New York know of some ceiling provided in law for 
    per diem pay?
        Mr. [John] Taber [of New York]: I do not, but there is 
    legislation to fix the rate of pay, and the authority contained in 
    the legislation would not give the Committee on Appropriations 
    jurisdiction because the jurisdiction of the committee is governed 
    by the rules of the House. You cannot change the rules of the House 
    by legislation.
        The Chairman: The gentleman from New York is correct that you 
    cannot change the rules of the House by legislation, but the 
    language referred to by the Chair seems to authorize beyond any 
    doubt the per diem payment by this service to individuals. There 
    does not appear to be any ceiling fixed upon what the payment per 
    day may be. So it appears to the Chair that the language contained 
    in the bill in line 4 through ``individuals'' in line 5 on page 6 
    is actually in the form of a limitation. Therefore, the Chair 
    overrules the point of order made by the gentleman from Kansas.

Restrictions on Authority of Executive

Sec. 26.5 In an appropriation bill provisions limiting certain housing 
    starts, prohibiting the use of an appropriation unless certain 
    regulations are adopted, requiring that expenditures of such 
    appropriation be subject to audit, and requiring the performance of 
    duties by local housing authorities were held to be legislation.

    On Mar. 30, 1954,(18) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 8583), a point of order was raised against the following 
provision:
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18. 100 Cong. Rec. 4123, 4124, 83d Cong. 2d Sess.
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        The Clerk read as follows:

            Annual contributions: For the payment of annual 
        contributions to public housing agencies . . . 
        $63,950,000: Provided, That except for payments required on 
        contracts entered into prior to April 18, 1940, no part of this 
        appropriation shall be available for payment to any public 
        housing agency for expenditure in

[[Page 5690]]

        connection with any low-rent housing project, unless the public 
        housing agency shall have adopted regulations prohibiting 
        [occupancy by] any person other than a citizen of the United 
        States . . . Provided further, That all expenditures of this 
        appropriation shall be subject to audit and final settlement by 
        the Comptroller General of the United States under the 
        provisions of the Budget and Accounting Act of 1921, as 
        amended: Provided further, That unless the governing body of 
        the locality agrees to its completion, no housing shall be 
        authorized by the Public Housing Administration, or, if under 
        construction continue to be constructed, in any community where 
        the people of that community, by their duly elected 
        representatives, or by referendum, have indicated they do not 
        want it, and such community shall negotiate with the Federal 
        Government for the completion of such housing, or its 
        abandonment . . . and shall agree to repay to the Government 
        the moneys expended prior to the vote or other formal action 
        whereby the community rejected such housing project for any 
        such projects not to be completed . . . Provided further, That 
        the record of expenditure of the Public Housing Administration 
        and of the local housing authority on any public housing 
        project shall be open to examination by the responsible 
        authorities of any community in which such project is located, 
        or by the local public housing authority, or by any firm of 
        public accountants retained by either of the foregoing . . . 
        Provided further, That notwithstanding the provisions of the 
        United States Housing Act of 1937, as amended, the Public 
        Housing Administration shall not, with respect to projects 
        initiated after March 1, 1949, authorize during the fiscal year 
        1955 the commencement of construction of in excess of 20,000 
        dwelling units. . . .

        [Points of order were heard.]
        The Chairman: (19) Does the gentleman from 
    California desire to be heard on these points of order?
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19. Louis E. Graham (Pa.).
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        Mr. [John] Phillips [of California]: Mr. Chairman, may I take 
    them up in the order in which they were made.
        The effect of the point of order made against the proviso on 
    page 31, line 12, is this, as the committee understands it. It is 
    to remove the limitation and leave the opinion of the Comptroller 
    General to stand that there could then be built no more than 33,000 
    or 34,000 houses--whatever the exact number is --that were 
    contracted for prior to the adoption of the appropriation bill of 2 
    years ago for the fiscal year 1953. We concede the point of order. 
    . . .
        The Chairman: The Chair is ready to rule.
        The Chair has in mind Public Law 176 of the 83d Congress which 
    has been referred to, and the sections which have been quoted here. 
    The Chair also has in mind the provisos and will pass upon the 
    point of order raised by the gentleman from Virginia [Mr. Smith] 
    and the points of order raised by the gentleman from New York [Mr. 
    Multer] beginning on page 29, line 12 and extending to the end of 
    the paragraph. In the opinion of the Chair, the language is purely 
    legislation on an appropriation bill and the Chair sustains the 
    points of order.

Waiver of Law; Requiring Testimony of Congressmen

Sec. 26.6 To an amendment to a general appropriation bill, an amendment 
    providing

[[Page 5691]]

    that notwithstanding the provisions of any other law, the 
    Constitution or court decisions, no Member of Congress shall refuse 
    to respond to demands for information by executive agencies or 
    private persons or groups was held to be legislation.

    On June 22, 1972,(20) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R 15585), a 
point of order was raised against the following amendment:
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20. 118 Cong. Rec. 22107, 92d Cong. 2d Sess.
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        The Clerk read as follows:

            Amendment offered by Mr. [Garry E.] Brown of Michigan to 
        the amendment offered by Mr. Moorhead: At end of that 
        amendment, insert: ``Provided further, Notwithstanding the 
        provisions of any other law, the Constitution, or any precedent 
        of the courts, no Member of the Congress shall refuse to answer 
        and appropriately respond to any demand for his presence, his 
        papers, or his records, made by any agency, commission, 
        Department or person of the executive branch, or any proper 
        citizen oriented organization or interested person, making such 
        demand.''

        Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of 
    order against the amendment to the amendment, and I do not think I 
    need to argue it.
        The Chairman: (1) Does the gentleman from Michigan 
    (Mr. Brown) desire to be heard on the point of order?
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 1. John S. Monagan (Conn.).
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        Mr. Brown of Michigan: Mr. Chairman, I defer to my very 
    eloquent and intelligent colleague, and I think he makes a good 
    point.
        The Chairman: The point of order is sustained.

Waiver of Provision of Procurement Law

Sec. 26.7 Language in a general appropriation bill waiving the 
    provisions of existing law was held to constitute legislation where 
    the law being waived did not specifically permit exceptions 
    therefrom to be contained in appropriation bills.

    On Nov. 13, 1975,(2) it was held that, while 41 USC 
Sec. 5 provides that ``unless otherwise provided in the appropriation 
concerned or other law, purchases and contracts for supplies or 
services for the government may be made or entered into only after 
advertising a sufficient time previously for proposals'', language in a 
general appropriation bill authorizing the Congressional Budget Office 
to contract without regard to that provision constituted legislation in 
violation of Rule XXI clause 2 based upon a prior ruling of the Chair 
and also upon the language of the statute itself permitting an

[[Page 5692]]

appropriation or other law, but not a bill, to waive its provisions. 
The proceedings are discussed in Sec. 37.13, infra.
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 2. 121 Cong. Rec. 36271, 94th Cong. 1st Sess.
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