[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[E. Provisions as Changing Existing Law; Provisions Affecting Executive Authority; Imposition of New Duties on Officials]
[Â§ 51. Restrictions on or Enlargement of Discretion]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6028-6063]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
    E. PROVISIONS AS CHANGING EXISTING LAW: PROVISIONS AFFECTING 
     EXECUTIVE AUTHORITY; IMPOSITION OF NEW DUTIES ON OFFICIALS
 
Sec. 51. Restrictions on or Enlargement of Discretion


    Propositions in a general appropriation bill that affirmatively 
take away an authority or discretion conferred by law are subject to a 
point of order under the rule prohibiting legislation on appropriation 
bills.
    Where the authorizing law has established the degree of discretion 
officials have in the exercise of their duties, problems may arise when 
an appropriation measure seems to restrict that discretion. As in other 
areas, the appropriation measure cannot ``change existing law,'' but 
can impose limitations by appropriating for only part of an authorized 
purpose.(17) The question will be, then, does the 
appropriation measure merely withhold funds that, if appropriated, 
would be administered by the official, or does it so further and 
actually change the scope of the official's discretion from that set 
forth in the authorizing law?
---------------------------------------------------------------------------
17. See Sec. 64, infra.
---------------------------------------------------------------------------

    A helpful approach in many cases is to determine whether the

[[Page 6029]]

appropriation measure mandates criteria that are within the range of 
choices given to the official by the authorizing law. If the 
authorizing law permits the official to pursue courses A, B, C, and D, 
and the appropriation measure provides funds permitting the official to 
pursue A, B, and C, the measure is a proper limitation because it 
appropriates for ``part of the authorized purpose.'' But if the 
appropriation has the effect of permitting or requiring the official to 
pursue courses A, B, and E, then the measure has changed existing law 
by mandating criteria that were not within the range of choices given 
by the authorizing law which established the degree of the official's 
discretion.
    A limitation may in fact amount to a change in policy, but if the 
limitation is merely a negative restriction on use of funds, it will 
normally be allowed. For example, in one instance (18) 
during consideration of the army appropriation bill in 1931, an 
amendment was allowed which provided that ``none of the funds 
appropriated in this act shall be used for . . . any compulsory 
military course or military training in any civil school or college or 
for the pay of any . . . employee at any civil school or college where 
a military course or military training is compulsory.'' The Chair noted 
that the amendment ``simply refuses to appropriate for purposes which 
are authorized by law and for which Congress may or may not appropriate 
as it sees fit,'' and said that, while the amendment did change a 
policy of the War Department, ``a change of policy can be made by the 
failure of Congress to appropriate for an authorized object.''
---------------------------------------------------------------------------
18. 7 Cannon's Precedents Sec. 1694.
---------------------------------------------------------------------------

    It should be noted that in an earlier ruling (1925) (19) 
the Chair had said that where the purpose of an amendment appeared to 
be a restriction of executive discretion to a degree amounting to a 
change in policy rather than a matter of administrative detail, the 
amendment would not be allowed. A proposed amendment to the War 
Department appropriation bill had in that instance provided, ``No part 
of the moneys appropriated in this act shall be used to pay any officer 
to recruit the Army beyond the limit of 100,000 three-year enlisted 
strength.'' The Chair ruled that the purpose rather than the form of a 
proposed limitation is the criterion by which its admissibility should 
be judged, and held that the purpose in this instance was legislative, 
``in that the intent is

[[Page 6030]]

to restrict executive discretion to a degree that may be fairly termed 
a change in policy.'' Today this ruling would be followed only where a 
proposed limitation is accompanied by language explicitly stating a 
legislative motive or purpose in carrying out the 
limitation.(20) If such intent were merely one that might be 
inferred, as in the 1925 ruling, the proposed limitation would not be 
barred.
---------------------------------------------------------------------------
19. 7 Cannon's Precedents Sec. 1691.
20. See Sec. 66.4, infra.
---------------------------------------------------------------------------

    In a few cases,(1) the issue has arisen as to the effect 
of a proposal seemingly having the purpose of enlarging, rather than 
restricting, an official's discretion. Such proposals, depending on 
circumstances, may also be viewed as changing existing law.
---------------------------------------------------------------------------
 1. See, for example, Sec. 22.19, 
        supra.                          -------------------
---------------------------------------------------------------------------

General Rule

Sec. 51.1 Language in an appropriation bill making mandatory on the 
    part of an executive officer an action within his discretion under 
    existing law, is legislation and not in order: language in an 
    appropriation bill providing that during fiscal 1958, operation of 
    the Army-Navy Hospital at Hot Springs, Ark., and Murphy General 
    Hospital at Boston, Mass., shall be continued, was held to be 
    legislation and not in order.

    On May 28, 1957,(2) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 7665), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 2. 103 Cong. Rec. 7901, 7902, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                           Operation and Maintenance

            For expenses, not otherwise provided for, necessary for the 
        operation and maintenance of the Army, including 
        administration; medical and dental care of personnel entitled 
        thereto by law or regulation (including charges of private 
        facilities for care of military personnel on duty or leave, 
        except elective private treatment), and other measures . . . 
        conclusive upon the accounting officers of the Government; 
        $3,145,200,000: Provided, That during the fiscal year 1958 the 
        maintenance, operation, and availability of the Army-Navy 
        Hospital at Hot Springs National Park, Arkansas, and the Murphy 
        General Hospital in Boston, Mass., to meet requirements of the 
        military and naval forces shall be continued.

        Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I make a 
    point of order against the language on page 8, beginning on line 2 
    and running through line 6.
        The Chairman:(3) Will the gentleman state his point 
    of order?
---------------------------------------------------------------------------
 3. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        Mr. Ford: The point of order, Mr. Chairman, is predicated on 
    the fact

[[Page 6031]]

    that this is legislation on an appropriation bill and contrary to 
    existing law. It is my understanding under the rules of the House 
    that the inclusion of any language in an appropriation bill that 
    imposes an additional burden or duty or authority on the executive 
    branch of the Government, not required by law, makes such language 
    subject to a point of order as legislation on an appropriation 
    bill. . . .
        The Chairman: Does any other gentleman desire to be heard on 
    the point of order? If so, the Chair will be pleased to hear him.
        Mr. Ford: Mr. Chairman, I think the crux of the matter is that 
    without this language in the appropriation bill the executive 
    branch of the Government, in this case the Department of the Army, 
    would have full authority to close these installations. In my 
    opinion, the inclusion of the language which is currently in the 
    Defense Department appropriation bill for the fiscal year 1957, and 
    the language to which I object is an extention of that language in 
    the fiscal year 1958 Department of Defense appropriation bill. But 
    let me just refer as a practical matter to the language in the 
    current appropriation bill and I will carry on from there to show 
    that if this language is included in the fiscal 1958 bill again, 
    there is no question but what it imposes an additional burden, an 
    additional obligation, on the Department of Defense. Let me read 
    testimony from the Department of the Army, and this is Secretary 
    Brucker testifying on page 479 of the Department of Defense 
    hearings for the fiscal year 1958:
        Secretary Brucker: Mr. Ford, the situation is precisely this: 
    Twice we have recommended to the committees of Congress that both 
    of those hospitals be abandoned and that no money be put in for 
    them. The reason is because we do not have need for them, and while 
    the hospitals, of course, have adequate personnel, both nurses and 
    doctors, there is not sufficient patient load in the area for 
    either one of those two hospitals--
        Here is the important language, still quoting Secretary Brucker 
    . . .
        so twice we have recommended against inclusion of those two 
        hospitals, but twice they were placed back into the bill, and 
        we were compelled to retain them.

        There is language, Mr. Chairman, which indicates clearly that 
    the Department of the Army by the inclusion of this language in 
    fiscal 1957 and by the possibility of inclusion of the same 
    language in fiscal 1958 is required to do something it does not 
    want to do and it does not have to do unless this language is 
    included. . . .
        The Chairman: The Chair is ready to rule. . . .
        The language of the proviso in effect imposes upon a department 
    of Government an affirmative and mandatory requirement that the two 
    named installations shall be continued. In the opinion of the 
    Chair, the interposition of that affirmative requirement is 
    legislation on an appropriation bill and the Chair, therefore, 
    sustains the point of order.

Mandating One of Several Choices

Sec. 51.2 To be admissible on an appropriation bill a limitation may 
    not impose addi

[[Page 6032]]

    tional duties on executives or limit their discretion: to an 
    appropriation bill an amendment prohibiting use of an appropriation 
    for regulation of rates ``upon any basis other than actual 
    legitimate cost, less accrued depreciation'' was held to impose 
    additional duties upon officials and to limit their discretion 
    provided in existing law to determine rates.

    On Mar. 30, 1954,(4) 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 
amendment, offered to the portion of the bill providing funds for 
salaries and expenses for the Federal Power Commission:
---------------------------------------------------------------------------
 4. 100 Cong. Rec. 4101, 4102, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. (Sidney R.) Yates (of Illinois): Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Yates: On page 18, line 25, strike 
        the period after the word ``individuals'' and insert 
        ``Provided, That in order to assure efficient, economic, and 
        expeditious regulation, no part of this appropriation shall be 
        used for the regulation of rates or charges of any company 
        subject to the jurisdiction of the Commission, upon any basis 
        other than actual legitimate cost, less accrued depreciation.''

        Mr. [John] Phillips [of California]: Mr. Chairman, a point of 
    order.
        The Chairman: (5) The gentleman will state it.
---------------------------------------------------------------------------
 5. Louis E. Graham (Pa.).
---------------------------------------------------------------------------

        Mr. Phillips: Mr. Chairman, I make a point of order against the 
    amendment on the ground that it is legislation upon an 
    appropriation bill, which I understand we are trying to keep away 
    from.
        Mr. Yates: Mr. Chairman, it is certainly not legislation on an 
    appropriation bill. It is in fact a limitation of the type that has 
    been recognized as valid many times in the past. I submit that it 
    is perfectly proper, that it is a limitation on the appropriations 
    for a specific purpose and is entirely in order. . . .
        The Chairman: The Chair is ready to rule.
    The gentleman from Illinois [Mr. Yates] has offered an amendment as 
follows:

            On page 18, line 25, ``provided that in order to assure 
        efficient, economic, and expeditious regulation, no part of 
        this appropriation shall be used for the regulation of rates or 
        charges of any company subject to the jurisdiction of the 
        Commission--

        And the Chair notes these words particularly--
        upon any basis other than actual legitimate cost less accrued 
        depreciation.

        Although presented in the form of a limitation on an 
    appropriation, since it would impose additional duties upon 
    officials and limit the exercise of their discretion, the amendment 
    contains legislation, and the Chair sustains the point of order.

Sec. 51.3 Although a law may give an executive officer author

[[Page 6033]]

    ity to do a certain thing, a proposition directing him so to do is 
    legislative in nature and not in order on an appropriation bill: 
    language in the District of Columbia appropriation bill providing 
    that the tax in effect in a certain fiscal year on real estate and 
    certain tangible personal property shall not be increased for a 
    subsequent fiscal year was held to be legislation where existing 
    law gave officials authority to fix the tax rate on an annual 
    basis.

        On Apr. 2, 1937,(6) 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:
---------------------------------------------------------------------------
 6. 81 Cong. Rec. 3096-98, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        Be it enacted, etc., That in order to defray the expenses of 
    the District of Columbia for the fiscal year ending June 30, 1938, 
    any revenue (not including the proportionate share of the United 
    States in any revenue arising as the result of the expenditure of 
    appropriations made for the fiscal year 1924 and prior fiscal 
    years) now required by law to be credited to the District of 
    Columbia and the United States in the same proportion that each 
    contributed to the activity or source from whence such revenue was 
    derived shall be credited wholly to the District of Columbia, and, 
    in addition, $5,000,000 is appropriated, out of any money in the 
    Treasury not otherwise appropriated, to be advanced July 1, 1937, 
    and all of the remainder out of the combined revenues of the 
    District of Columbia, and the tax rate in effect in the fiscal year 
    1937 on real estate and tangible personal property subject to 
    taxation in the District of Columbia shall not be increased for the 
    fiscal year 1938, namely: . . .
        Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I rise to a 
    point of order.
        The Chairman: (7) The gentleman will state it.
---------------------------------------------------------------------------
 7. Jere Cooper [Tenn.).
---------------------------------------------------------------------------

        Mr. Nichols: I make a point of order against that portion of 
    the bill on page 2, beginning after the comma, in line 11, which 
    reads as follows:

            And the tax rate in effect in the fiscal year 1937 on real 
        estate and tangible personal property subject to taxation in 
        the District of Columbia shall not be increased for the fiscal 
        year 1938.

        In support of my point of order I call the Chair's attention to 
    the fact that this provision is contrary to existing law and is 
    legislation. . . .
        The Chairman: The Chair is ready to rule.
        The Chair feels it is appropriate to state that in the broad 
    and general application it is well recognized that the Committee on 
    Appropriations has the authority to exercise the function of 
    appropriating for the activities of the Federal Government under 
    existing law. In other words, there must be authority in existing 
    law to support the appropriation provided in a general 
    appropriation bill.
        It is also well settled that the Appropriations Committee does 
    not have au

[[Page 6034]]

    thority to include legislation in a general appropriation bill.
        It will be recalled that considerable debate occurred at the 
    time of the creation of the Appropriations Committee. Apprehension 
    was voiced at that time that the Committee on Appropriations might 
    encroach upon the functions of the standing legislative committees 
    of the House. For this reason the rules of the House make it 
    certain and definite that the Appropriations Committee has 
    authority only to appropriate or to provide funds pursuant to the 
    authority of existing law.
        The gentleman from Oklahoma [Mr. Nichols] makes a point of 
    order to the following language which appears in the pending bill, 
    found on page 2, line 11:

            And the tax rate in effect in the fiscal year 1937 on real 
        estate and tangible personal property subject to taxation in 
        the District of Columbia shall not be increased for the fiscal 
        year 1938, namely.

        The provision of existing law is as follows:

            That for the purpose of defraying such expenses of the 
        District of Columbia as the Congress may from time to time 
        appropriate for, there hereby is levied for each and every 
        fiscal year succeeding that ending June 30, 1937, a tax at such 
        rate on the aforesaid property subject to taxation in the 
        District of Columbia, and the Commissioners of the District of 
        Columbia hereby are empowered and directed to ascertain, 
        determine, and fix annually such rate of taxation, as will when 
        applied as aforesaid produce the money needed to defray the 
        share of the expenses of the District during the year for which 
        the rate is fixed.

        A question very similar to the pending question was raised when 
    the District of Columbia appropriation bill was under consideration 
    on February 15, 1933.
        The Chair observes that in the course of the argument presented 
    by the gentleman from Mississippi in opposition to the point of 
    order he quoted the identical provision that was involved in the 
    point of order raised at that time. It was on the basis of the 
    language quoted by the gentleman from Mississippi that the ruling 
    of the Chair turned.
        On February 15, 1933, as shown in volume 76, part 4, of the 
    Congressional Record, the following occurred:

            The point of order is directed at the language in the bill 
        on line 10, page 2, which reads as follows: ``And the tax rate 
        in effect for the fiscal year 1933 on real estate and tangible 
        personal property subject to taxation in the District of 
        Columbia shall not be decreased for the fiscal year 1934.''

        The point of order was discussed at some length, after which 
    the Chair ruled as follows:

            The gentleman from Virginia makes the point of order 
        against the language appearing on page 2, line 10, which reads 
        as follows--

        And again quotes the language that has just been quoted.

            The point of order is that this language is legislation on 
        an appropriation bill. The Chair is of the opinion that it is 
        legislation on an appropriation bill, and therefore sustains 
        the point of order.

        The Chair also calls attention to section 3543 of Hinds' 
    Precedents of the House, volume 4, the syllabus of which is as 
    follows:

            Although a law may give an executive officer authority to 
        do a certain

[[Page 6035]]

        thing, a provision directing him so to do is legislative in 
        nature and not in order on a general appropriation bill.

        It is apparent, of course, that if it was not in order in a 
    general appropriation bill to authorize and direct the 
    Commissioners of the District of Columbia to not decrease the tax 
    rate for a certain year, obviously the same logic would require the 
    application of the rule to a proposed increase in the tax rate. In 
    other words, the question here presented is whether or not an 
    executive officer can be directed specifically and definitely not 
    to do a thing he is clearly given discretionary authority to do.
        The Chair feels that the language to which the point of order 
    is made is legislation on an appropriation bill, and therefore 
    sustains the point of order.

Imposing Conditions on Exercise of Discretion

Sec. 51.4 Where existing law authorized the expenditure of funds for 
    the benefit and existence of Indians, under broad supervisory 
    powers given to the Secretary of the Interior, provisions in an 
    appropriation bill which imposed further conditions affecting both 
    the exercise of those powers and the use of funds were ruled out as 
    legislation.

    On May 14, 1937,(8) during consideration in the 
Committee of the Whole of the Interior Department appropriation bill 
(H.R. 6958), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 8. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            For the purpose of encouraging industry and self-support 
        among the Indians and to aid them in the culture of fruits, 
        grains, and other crops, $165,000, which sum may be used for 
        the purchase of seeds, animals, machinery, tools, implements, 
        and other equipment necessary, and for advances to Indians 
        having irrigable allotments to assist them in the development 
        and cultivation thereof, in the discretion of the Secretary of 
        the Interior, to enable Indians to become self-supporting: 
        Provided, That the expenditures for the purposes above set 
        forth shall be under conditions to be prescribed by the 
        Secretary of the Interior for repayment to the United States on 
        or before June 30, 1943, except in the case of loans on 
        irrigable lands for permanent improvement of said lands, in 
        which the period for repayment may run for not exceeding 20 
        years, in the discretion of the Secretary of the Interior: 
        Provided further, That not to exceed $25,000 of the amount 
        herein appropriated shall be expended on any one reservation or 
        for the benefit of any one tribe of Indians: Provided further, 
        That the Secretary of the Interior is hereby authorized, in his 
        discretion and under such rules and regulations as he may 
        prescribe, to make advances from this appropriation to old, 
        disabled, or indigent Indian allottees, for their support, to 
        remain a charge and lien against their lands until paid: 
        Provided further, That not to exceed $15,000 may be advanced to 
        worthy Indian youths to enable them to take educational 
        courses, including courses in nursing, home economics, 
        forestry, and other industrial subjects in colleges,

[[Page 6036]]

        universities, or other institutions, and advances so made shall 
        be reimbursed in not to exceed 8 years, under such rules and 
        regulations as the Secretary of the Interior may prescribe.

        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the paragraph beginning on page 26, line 4. The point 
    of order is that this is legislation on an appropriation bill and 
    it imposes discretionary duties upon the Secretary of the Interior. 
    The language at the bottom of the bill, beginning with ``Provided 
    further'', line 22, and the last proviso are entirely the same. 
    They provide that the Secretary of the Interior shall make rules 
    and regulations and there is no question but what it imposes 
    additional duties upon the Secretary of the Interior all the way 
    through.
        In lines 17 and 18 the terms of repayment are made subject to 
    the discretion of the Secretary of the Interior and in lines 9 and 
    10 it is subject to that same discretion. This is all on page 26. 
    The whole paragraph is subject to discretion and imposes duties 
    upon the Secretary.
        Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, The Committee 
    Feels That This Provision is in Order. It provides only a method by 
    which the appropriation might be expended. I have no further 
    comment to make.
        The Chairman: (9) The Chair would like to inquire of 
    the gentleman from Oklahoma as to the authority for the language 
    appearing in lines 1 and 2, page 27, which the Chair will quote:
---------------------------------------------------------------------------
 9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

            To remain a charge and lien against their land until paid--

        Is there provision in some existing law creating a lien upon 
    these lands, to which this provision refers?
        Mr. Johnson of Oklahoma: I cannot say there is provision in 
    existing law. The only existing law would be the fact this has been 
    in the bill for several years and, of course, that is not 
    controlling.
        The Chairman: The Chair would like to inquire further of the 
    gentleman with reference to the language appearing in lines 7 and 
    8, page 27, reading as follows:

            And advances so made shall be reimbursed in not to exceed 8 
        years under such rules and regulations as the Secretary of the 
        Interior may prescribe.

        Will the gentleman advise the Chair as to any provision of 
    existing law upon which this language is based?
        Mr. Johnson of Oklahoma: Mr. Chairman, this is the exact 
    language that has been used for several years and the gentleman 
    from Oklahoma knows of no specific basis of law for it.
        The Chairman: The Chair is ready to rule.
        The gentleman from New York makes a point of order against the 
    entire paragraph beginning in line 4, page 26, extending down to 
    and including line 9, page 27. The gentleman from New York [Mr. 
    Taber] in making his point of order invited attention to certain 
    language appearing in lines 10 and 11, page 26, with reference to 
    the discretion of the Secretary of the Interior.
    The Chair has examined the act commonly referred to and known as 
the Snyder Act and invites attention to section 13 of that act, in 
which the following appears:

[[Page 6037]]

            Expenditures of appropriations by Bureau of Indian Affairs: 
        The Bureau of Indian Affairs, under the supervision of the 
        Secretary of the Interior, shall direct, supervise, and expend 
        such moneys as Congress may from time to time appropriate for 
        the benefit, care, and assistance of the Indians throughout the 
        United States for the following purposes: General support and 
        civilization, including education; for industrial assistance 
        and advancement and general administration of Indian problems. 
        Further for general and incidental expenses in connection with 
        the administration of Indian affairs.
    It is the opinion of the Chair that the act to which attention has 
been invited confers upon the Secretary of the Interior rather broad 
discretionary authority. The Chair is of opinion that the language to 
which the gentleman invited attention is not subject to a point of 
order, but that the language to which the Chair invited the attention 
of the gentleman from Oklahoma with reference to the provisos does 
constitute legislation on an appropriation bill not authorized by the 
rules of the House. It naturally follows that as the point of order has 
to be sustained as to these two provisos, it has to be sustained as to 
the entire paragraph. The Chair therefore sustains the point of order 
made by the gentleman from New York.

Specific Appropriation Where General Purpose Authorized

Sec.  51.5 While the appropriation of a lump sum for a general purpose 
    authorized by law is in order, a specific appropriation for a 
    particular item included in such general purpose is a limitation on 
    the discretion of the executive charged with allotment of the lump 
    sum and is not in order on an appropriation bill; thus a provision 
    of law giving general authorization for wildlife conservation 
    activities was held not to authorize earmarking part of an 
    appropriation to be expressly ``for the leasing and management of 
    the lands for the protection of the Florida Key deer.''

    On Apr. 28, 1953,(10) the Committee of the Whole was 
considering H.R. 4828, an Interior Department appropriation. A point of 
order was raised against the following amendment:
---------------------------------------------------------------------------
10. 99 Cong. Rec. 4148, 83d Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. Lantaff: On page 20, line 6, 
    immediately following the semicolon and preceding the word ``and'', 
    insert the following: ``not to exceed $10,000 for the leasing and 
    management of the lands for the protection of the Florida Key deer, 
    16 U.S.C. 661.''
        Mr. [John] Taber [of New York]: Mr. Chairman, I hate to do it, 
    but I must make a point of order against this amendment. It is not 
    authorized by law.
        The Chairman: (11) Does the gentleman from Florida 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
11. J. Harry McGregor (Ohio).

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

[[Page 6038]]

        Mr. [William C.] Lantaff [of Florida]: Yes, Mr. Chairman. The 
    reference to the United States Code authorizes the leasing of lands 
    by the Department of Interior and is so cited for that purpose. 
    This specific authorization is to authorize the leasing of land in 
    this particular area for this particular project and classifies it 
    much the same as the authorization contained in the bill for the 
    Wichita Mountains Wildlife Refuge and for the Crab Orchard National 
    Wildlife Refuge. In the bill you will find the statutory authority 
    cited the same as the statutory authority cited in the amendment 
    which I have offered. . . .
        The Chairman: The Chair is ready to rule.
        The Chair has inspected section 661 of title 16 of the United 
    States Code, the provision which the gentleman from Florida cites 
    as authorizing the proposal contained in his amendment. That code 
    section gives fairly broad authorization to the Fish and Wildlife 
    Service for wildlife conservation, but it does not authorize 
    leasing of lands or the protection of key deer. The gentleman's 
    amendment would earmark funds for a narrow, specific purpose, a 
    purpose not mentioned in the code section which is general. 
    Reference is made to volume VII, section 1452, of Cannon's 
    Precedents, under which the Chair sustains the point of order.

Limitation on Hiring Discretion

Sec.  51.6 To an appropriation bill, an amendment providing that the 
    Civil Service Commission shall not impose a maximum age limitation 
    with respect to the appointment of persons to positions in the 
    competitive service who are otherwise qualified, was conceded to be 
    legislation and held not in order.

    On Mar. 30, 1955,(12) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 5240), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
12. 101 Cong. Rec. 4065, 4066, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            The Civil Service Commission shall not impose a requirement 
        or limitation of maximum age with respect to the appointment of 
        persons to positions in the competitive service who are 
        otherwise qualified: Provided, That no person who has reached 
        his 70th birthday shall be appointed in the competitive civil 
        service on other than a temporary basis.

        Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of 
    order to the language on page 4, line 6 to line 12 inclusive, that 
    it is legislation on an appropriation bill. . . .
        . . . Mr. Chairman, I have offered this point of order against 
    certain provisions in title 1 relating to the Civil Service 
    Commission because it contains legislation in an appropriation act. 
    Under this legislative directive contained in the appropriation act 
    you would prohibit the Civil Service Commission from imposing any 
    requirement or limitation of maximum age

[[Page 6039]]

    whatsoever with respect to the appointment of persons in 
    competitive Civil Service. . . .
        The Chairman: (13) Does the gentleman from Texas 
    [Mr. Thomas] desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Albert Rains (Ala.).
---------------------------------------------------------------------------

        Mr. [Albert] Thomas: Mr. Chairman, may I say that our 
    distinguished colleague from Kansas (Mr. Rees) is usually right. 
    This is legislation.
        Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, will the 
    gentleman defer his point of order?
        Mr. Rees of Kansas: No, I shall not.
        The Chairman: The Chair is ready to rule. In the opinion of the 
    Chair, the language is legislation on an appropriation bill and the 
    point of order is sustained.

Mandating an Investigation Which Agency Has Discretion to Make

Sec. 51.7 Language in an appropriation bill directing the Public 
    Utilities Commission to make an investigation where existing law 
    authorized it in its discretion to make such investigation was held 
    to be legislation and not in order on an appropriation bill.

    On Apr. 2, 1937,(14) during consideration in the 
Committee of the Whole of the District of Columbia appropriation bill, 
both Mr. Thomas J. O'Brien, of Illinois, and Mr. Jack Nichols, of 
Oklahoma, raised a point of order against the following provision as 
being legislation:
---------------------------------------------------------------------------
14.  81 Cong. Rec. 3101, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Public Utilities Commission is directed to cause an 
    investigation to be made of the Chesapeake & Potomac Telephone Co. 
    with a view to ascertaining the reasonableness of existing rates, 
    tolls, charges, and services. . . .

    The manager of the bill (Mr. Ross A. Collins, of Mississippi) 
declined to argue the point of order and the Chair (15) 
ruled as follows:
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        The gentleman from Illinois and the gentleman from Oklahoma 
    both make a point of order against the language [above].
        Existing law provides that--

            Upon its own initiative or upon reasonable complaint made 
        against any public utility that any of the rates, tolls, 
        charges, or schedules or services or time and conditions of 
        payment, or any joint rate or rates, schedules or services are 
        in any respect unreasonable or unjustly discriminatory, or that 
        any time schedule, regulation, or act whatsoever affecting or 
        relating to the conduct of any street railway, etc., . . . the 
        Commission may in its discretion proceed, with or without 
        notice, to make such investigation as it may deem necessary or 
        convenient.

        Therefore, it is clearly to be seen that under existing law the 
    Public Utilities Commission has discretionary authority to make the 
    types of investigation that are embraced in the lan

[[Page 6040]]

    guage here upon which a point of order is made.
        This language in the pending bill seeks to direct the Public 
    Utilities Commissioners to do what they have clearly discretionary 
    authority to do. The effect of this language would be to direct the 
    Commissioners to do what they have authority to do within their 
    discretion. Therefore it is legislation on a general appropriation 
    bill and has the effect of changing existing law.
        The Chair would also like to invite attention to the same 
    provision of Hinds' Precedents, section 3853 of volume IV, to which 
    attention was invited in the course of a previous ruling made by 
    the Chair. This provision is as follows:

            Although a law may give an executive officer authority to 
        do a certain thing, a provision directing him so to do is 
        legislative in nature and not in order on a general 
        appropriation bill.

        Therefore the Chair sustains the point of order.

    Parliamentarian's Note: An apparently contrary ruling was made on 
May 10, 1946,(16) but would probably not be followed in 
current practice. On that date, the Chair held in order, as a 
limitation on an appropriation bill, language providing that no part of 
an appropriation for Indian reservation roads be available except on 
the basis of an apportionment among the states made in a specified 
manner. The Chair rejected the argument of Mr. Francis H. Case, of 
South Dakota, that, to make mandatory on the part of an executive 
officer an action within his discretion under existing law, was, in 
fact, to change existing law by interfering with the officer's 
discretion.
---------------------------------------------------------------------------
16. 92 Cong. Rec. 4854, 4855, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

Mandating Uniformity in Mortgage Commitments

Sec. 51.8 To an appropriation bill an amendment providing that no funds 
    in the bill be used for expenses of issuing mortgage commitments 
    under the National Housing Act other than on a basis of issuing 
    such commitments to all segments of the population was held to be 
    legislation.

    On Mar. 31, 1954,(17) 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 
amendment:
---------------------------------------------------------------------------
17. 100 Cong. Rec. 4267, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Sidney R.] Yates [of Illinois]: Page 
    65, line 11, after the colon and the words ``(12 U.S.C. 1701)'', 
    insert the following: ``Provided, That no part of any appropriation 
    or fund in this act shall be used for administrative expenses in 
    connection with the issuance of mort

[[Page 6041]]

    gage commitments under all titles of the National Housing Act, as 
    amended, other than on the basis of the issuance of such mortgage 
    commitments to all segments of the population, including those 
    segments which are unable to obtain adequate housing under 
    established home-financing programs, as nearly as possible on the 
    basis of effective housing demand as determined by market analyses 
    prepared by the Federal Housing Administration.''
        Mr. [John] Phillips [of California]: Mr. Chairman, I make the 
    point of order that the amendment is legislation on an 
    appropriation bill and requires additional duties of an agency.
        Mr. Yates: Mr. Chairman, I ask for a ruling.
        The Chairman: (18) It appears on its face it is an 
    interference with executive discretion; therefore the Chair 
    sustains the point of order.
---------------------------------------------------------------------------
18. Louis E. Graham (Pa.).
---------------------------------------------------------------------------

Limiting Funds, Not Discretion

Sec. 51.9 It is in order on a general appropriation bill to provide 
    that no part, or not more than a specified amount, of an 
    appropriation shall be used in a certain way, even though executive 
    discretion be thereby negatively restricted.

    On Sept. 14, 1972,(19) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 16593), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
19. 118 Cong. Rec. 30749, 30750, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Glenn R.] Davis of Wisconsin: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Davis of Wisconsin: Page 51, line 
        21, insert a new section 743 as follows:
            ``Of the funds made available by this Act for the 
        alteration, overhaul, and repair of naval vessels, not more 
        than $646,704,000 shall be available for the performance of 
        such works in Navy shipyards.''

        Mr. [Louis C.] Wyman [of New Hampshire]: Mr. Chairman, I 
    reserve the point of order on the language of the proposed 
    amendment offered by the gentleman from Wisconsin.
        The Chairman: (20) Does the gentleman reserve his 
    point of order?
---------------------------------------------------------------------------
20. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        Mr. Wyman: Mr. Chairman, I am simply trying to protect my 
    rights on grounds the gentleman from Wisconsin----
        Mr. Davis of Wisconsin: Mr. Chairman, if the gentleman wishes 
    to argue, I wish he would argue it and not take up my time.
        The Chairman: Does the gentleman wish to state his point of 
    order?
        Mr. Wyman: I make the point of order that the amendment 
    proposed by the gentleman from Wisconsin in the form in which it is 
    presently worded does not constitute a limitation, but is rather 
    legislation upon an appropriations bill contrary to the rules of 
    the House.
        The Chairman: Does the gentleman from Wisconsin care to be 
    heard on the point of order?

[[Page 6042]]

        Mr. Davis of Wisconsin: I do, Mr. Chairman. I submit to the 
    Chair that this is definitely a limitation on the amount of money 
    which may be spent for a specific purpose. I would suggest to the 
    Chair that it is clearly within the rules of the House as a 
    limitation on an appropriations bill.
        The Chairman: The Chair has examined the amendment and feels 
    that it is a valid limitation on the funds made available in the 
    bill and overrules the point of order.

    Parliamentarians Note: The persuasive precedent standing for this 
proposition is found in 7 Cannon's Precedents Sec. 1694.

Sec. 51.10 Where, under existing law, federal officials have some 
    discretionary authority to withhold federal funds where the 
    recipients are not in compliance with a federally expressed policy, 
    it is nevertheless in order, by way of a limitation on an 
    appropriation bill, to deny the use of funds for a particular 
    purpose, even though such executive discretion is thereby 
    restricted by implication.
    On July 31, 1969,(1) the Committee of the Whole was 
considering H.R. 13111, a Departments of Labor, and Health, Education, 
and Welfare appropriation bill. Proceedings were as follows:
---------------------------------------------------------------------------
 1. 115 Cong. Rec. 21677, 21678, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

        Sec. 409. No part of the funds contained in this Act shall be 
    used to force busing of students, the abolishment of any school or 
    the attendance of students at a particular school as a condition 
    precedent to obtaining Federal funds otherwise available to any 
    State, school district, or school.
        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I raise 
    the point of order on section 409 on page 56 of the bill that this 
    is legislation on an appropriation bill. It violates section 834 of 
    the House rules. It does not comply with the Holman rule. It is not 
    a retrenchment. In fact, it adds additional burdens and additional 
    duties, just as the Chair ruled against my amendment to section 408 
    because it would require additional personnel to determine whether 
    busing has been used, one, for the abolishing of any school and, 
    two, to require the attendance of any student at any particular 
    school. . . .
        The Chairman: (2) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
 2. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Now, the gentleman from Massachusetts (Mr. Conte) has raised a 
    point of order against section 409 on the ground that it 
    constitutes legislation on an appropriation bill. The gentleman 
    from Mississippi (Mr. Whitten) insists that the language is in 
    order as a limitation.
        The Chair has reviewed the section in question. It prohibits 
    the use of funds in this bill to force first, the busing of 
    students; second, the abolishment of any school; or third the 
    attendance of students at a particular school.
        The clear intent of this section is to impose a negative 
    restriction on the use of the moneys contained in this bill.

[[Page 6043]]

        The Chair has examined a decision in a situation similar to 
    that presented by the current amendment in the 86th Congress during 
    consideration of the Defense Department appropriation bill, an 
    amendment was offered by Mr. O'Hara, of Michigan, which provided . 
    . . (that) no funds appropriated in that bill should be used to pay 
    on a contract which was awarded to the higher of two bidders 
    because of certain Defense Department policies. The Chairman of the 
    Committee of the Whole, Mr. Keogh, of New York, held the amendment 
    in order as a limitation, even though it touched on the policy of 
    an executive department--86th Congress, May 5, 1960; Congressional 
    Record, volume 106, part 7, page 9641. Chairman Keogh quoted, in 
    his decision, the precedent carried in section 3968 of volume IV, 
    Hinds' Precedents, and the Chair thinks the headnote of that 
    earlier precedent is applicable here:

            The House may provide that no part of an appropriation 
        shall be used in a certain way, even though executive 
        discretion be thereby negatively restricted.

        The Chair overrules the point of order.

Requiring Discretionary Action To Be Eligible For Funds

Sec. 51.11 An amendment to a general appropriation bill, prohibiting 
    the use of funds in the bill for the Nuclear Regulatory Commission 
    to issue nuclear powerplant operating licenses in any state which 
    does not have an emergency evacuation plan which has been tested 
    and submitted to the Commission pursuant to law, was ruled out as 
    legislation since requiring the Commission to make the 
    determination, not required by law, whether the plan had been 
    tested by the state.
    On June 18, 1979,(3) during consideration in the 
Committee of the Whole of the energy and water appropriation bill (H.R. 
4399), a point of order against an amendment was sustained as follows:
---------------------------------------------------------------------------
 3. 125 Cong. Rec. 15286, 15287, 96th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [James] Weaver [of Oregon]: On 
        page 27 after line 23, add:
            ``No monies appropriated in this paragraph may be expended 
        by the Nuclear Regulatory Commission for the issuance of an 
        operating license for a nuclear powerplant located in a state 
        which does not have an emergency evacuation plan which has been 
        tested, and submitted to the Commission pursuant to law.''. . .

        Mr. [John T.] Myers of Indiana: Mr. Chairman, the proposed 
    amendment offered by the gentleman from Oregon (Mr. Weaver) is a 
    violation of rule XXI, clause 2. The requirement that a State must 
    adopt and issue an evacuation plan I think is suspect, but the 
    words ``which has been tested'' clearly make it a violation of rule 
    XXI, clause 2, in that it is clearly legislation on an 
    appropriation bill. It requires a duty not now required by law.

[[Page 6044]]

        I cite the precedents from Deschler's Procedure, chapter 26, 
    11.3, which reads:

            It is not in order, in an appropriation bill, to impose 
        additional duties on an executive officer or to make the 
        appropriation contingent on the performance of such duties. May 
        28, 1968 . . . where, to a bill making appropriations for the 
        Department of State, including an item for the U.S. 
        contribution to various international organizations, an 
        amendment providing that none of the funds might be expended 
        until all other members of such organizations have met their 
        financial obligations, was ruled out as legislation which 
        imposed a duty on a Federal official to determine the extent of 
        such obligations.

        In the same chapter, paragraph 11.24:

            To a bill making supplemental appropriations to various 
        agencies, including an additional amount for assistance to 
        refugees in the United States, an amendment specifying that no 
        part of this particular appropriation shall be used until 
        adequate screening procedures are established to prohibit the 
        infiltration of communists posing as Cuban refugees, imposed 
        additional duties and was ruled out as legislation.

        I think that chapter 18.1 is probably more in point of issue. 
    This was a foreign aid program.

            To a general appropriation bill making appropriations for 
        foreign assistance, an amendment prohibiting the use of any 
        funds carried in the bill for certain capital projects costing 
        in excess of $1 million `until the head of the agency involved 
        has received and considered a report, prepared by officials 
        within the agency, on the justification and feasibility of such 
        project' was held to impose additional duties and was ruled out 
        as legislation.

        Mr. Chairman, it is very clear in the rules where an amendment 
    to language in a general appropriations bill implicitly places new 
    duties on officers of the Government or implicitly requires them to 
    make investigations, compile evidence, or make judgments and 
    determinations not required of them by law, such as a judge, was 
    conceded to be legislation and subject to a point of order.
        Mr. Chairman, this clearly places some responsibility of 
    testing on someone, rather vague, but not now required by law, who 
    is to conduct the test, how it is to be conducted, and what 
    criterion. There is no evidence of any so-called laws or rules 
    today. It is clearly a violation of rule XXI, clause 2. . . .
        Mr. Weaver:  . . . The amendment reads very factually, and it 
    reads pursuant to law. It makes no new law, Mr. Chairman.
        As a matter of fact, the law is already there in the Atomic 
    Energy Act, chapter 10, atomic energy licenses, and under section 
    103 (a) and (b), it gives the Nuclear Regulatory Commission 
    complete authority for the public health and safety to do the kind 
    of licensing that is now being done.
        What the amendment does is not like the examples shown by the 
    gentleman from Indiana (Mr. Myers), such as screening or imposing 
    new duties on any Government, any Federal Government official at 
    all. It simply says that if a plant has an emergency evacuation 
    plan that has been tested and submitted to the NRC, pursuant to 
    law; it imposes no new duties on the Federal official. It does not 
    require them to go out implicitly or explicitly and make

[[Page 6045]]

    any investigation of any kind, and just simply go on doing the 
    duties they have been doing under the law that they now act upon. 
    So it is the normal course of duty.
        It just simply says that no new operating license will be 
    granted a plant if this factual situation has not been 
    met. . . .
        The Chairman: (4) . . . The Chair has examined the 
    law with respect to the authority of the NRC to request submission 
    of State emergency evacuation plans, in determining whether to 
    issue an operating license. Under 42 U.S.C. 2133 and 2137, the NRC 
    has virtually total discretionary authority to request or require 
    the submission of any information by a prospective licensee which 
    relates to the public health and safety aspects of the operation of 
    nuclear power plants in any State.
---------------------------------------------------------------------------
 4. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------

        The language of the amendment, however, imposes additional 
    duties on the NRC to determine if a State plan has been tested by 
    the State.
        Consequently, the amendment constitutes legislation on an 
    appropriation bill, and the point of order made by the gentleman 
    from Indiana (Mr. Myers) is sustained.

Affirmative Interference With Discretion

Sec. 51.12 It is not in order in a general appropriation bill under the 
    guise of a limitation to affirmatively interfere with executive 
    discretion by coupling a restriction on the payment of funds for 
    salaries with a positive direction to perform certain duties in a 
    particular manner.

    On Oct. 9, 1974,(5) paragraph of a general appropriation 
bill prohibiting the payment of funds therein for salaries of Federal 
Trade Commission personnel who use, publish, or permit access to 
certain information by designated methods--and also requiring the FTC 
to obtain that information ``under existing practices and procedure or 
as changed by law'' was conceded to change existing law by restricting 
the information-gathering practices of the agency and was ruled out in 
violation of Rule XXI clause 2. The proceedings were as follows:
---------------------------------------------------------------------------
 5. 120 Cong. Rec. 34712, 34713, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Chairman:(6) The Clerk will read.
---------------------------------------------------------------------------
 6. Sam Gibbons (Fla.).
---------------------------------------------------------------------------

        The Clerk read as follows:

                            federal trade commission

            No part of these funds may be used to pay the salary of any 
        employee, including Commissioners, of the Federal Trade 
        Commission who--
            (1) Uses the information provided in the line-of-business 
        program for any purpose other than statistical purposes. Such 
        information for carrying out specific law enforcement 
        responsibilities of the Federal Trade Commission shall be 
        obtained under

[[Page 6046]]

        existing practices and procedures or as changed by law. . . .

        Mr. [Bob] Eckhardt [of Texas]: Mr. Chairman, I make a point of 
    order on the paragraph last read, commencing on page 46, line 17, 
    through page 47, line 6. . . .
        The specific language that violates [Rule XXI clause 2] is the 
    language contained in the last sentence on page 46, reading as 
    follows:

            Such information for carrying out specific law enforcement 
        responsibilities of the Federal Trade Commission shall be 
        obtained under existing practices and procedures or as changed 
        by law.

        Mr. Chairman, rule XXI, under all of the precedents, clearly 
    outlaws a change in substantive law, that is, it clearly outlaws a 
    provision by which an administrator of an agency may after the 
    passage of that clause not do an act which he could have done 
    before.
        This clause says that persons in the Federal Trade Commission 
    shall not alter the existing practices with respect to such 
    gathering of information for law enforcement practices.
        Today that agency might do anything it wants to do within the 
    balance of law and it is not bound to continue its existing 
    practices. It can obtain information in other ways. If this 
    provision were passed, it would restrict it in that respect.
        In this connection, I cite in support of the position I take 
    the provisions of Cannon's Precedents, volume 7, section 1685:

            A limitation to be admissible must be a limitation upon the 
        appropriation and not an affirmative limitation upon official 
        discretion.

        Following that, in section 1686, it says:

            A limitation upon an appropriation must not be accompanied 
        by provisions requiring affirmative action by an Executive in 
        order to render the appropriation available.

        Therefore, under these provisions, the administrator would be 
    bound and confined to his existing practices, whereas presently he 
    might exercise any rational means of gaining such information that 
    is permitted by law. . . .
        Mr. [John D.] Dingell [of Michigan]: Rule XXI, clause 2, is 
    well known, I am sure, to the Chair.
        Rule XXI, clause 2, forbids legislation in appropriation bills.
        The gentleman from Texas has just cited the specific paragraphs 
    and citations in Cannon's Precedents.
        The question is, Is the language referred to by the gentleman 
    from Texas, referring most specifically to page 46, lines 22 and 
    following, reading as follows:

            Such information for carrying out specific law enforcement 
        responsibilities of the Federal Trade Commission shall be 
        obtained under existing practices and procedures or as changed 
        by law--

        A limitation? . . .
        A clear reading of the language before the committee at this 
    particular time that ``Such information for carrying out specific 
    law enforcement responsibilities shall be obtained under existing 
    practices'' is not a limitation, but, rather, is an express 
    direction to the Federal Trade Commission as to how that agency 
    shall conduct its affairs. It does not limit discretion, but,

[[Page 6047]]

    rather, it imposes certain specific duties upon the Federal Trade 
    Commission.
        The language further offends against the law, Mr. Chairman, in 
    that it does require certain other affirmative duties and actions 
    by the Federal Trade Commission. Most specifically, Mr. Chairman, 
    it requires that the Federal Trade Commission engage in an 
    ascertainment of what is the existing law and that they then 
    proceed to act in accordance therewith.
        This does not constitute a limitation, but, rather, constitutes 
    an affirmative mandate. . . .
        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I 
    concede the point of order, and I will offer an amendment.
        The Chairman: The point of order is conceded, and sustained, 
    and the language beginning on line 17, page 46, and continuing 
    through line 6, page 47, is stricken by the point of order.

Limitation of Funds Resulting in Curtailed Discretion

Sec. 51.13 While it is not in order on a general appropriation bill to 
    directly limit executive discretionary authority or to change 
    entitlement benefits or contractual provisions established pursuant 
    to law, it is permissible by a negative restriction on the use of 
    funds to deny availability of funds although resulting 
    circumstances might suggest a change in applicability of law.

    On Aug. 20, 1980,(7) the Chair ruled that an amendment 
to a general appropriation bill denying the use of funds therein to pay 
for an abortion, or administrative expenses in connection with any 
federal employees health benefits plan which provides any benefits or 
coverage for abortions after the last day of contracts currently in 
force, did not constitute legislation, since the amendment did not 
directly interfere with executive discretion in contracting to 
establish such plans. (It is permissible by limitation to negatively 
deny the availability of funds although discretionary authority may be 
indirectly curtailed and contracts may be left unsatisfied.) The 
proceedings are discussed in Sec. 74.5, infra. For general discussion 
of permissible limitations, see Sec. 64, infra.
---------------------------------------------------------------------------
 7. 126 Cong. Rec. 22171, 22172, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 51.14 To language in an appropriation bill containing funds for 
    the Federal Trade Commission for the purpose of collecting line-of-
    business data, an amendment providing that none of those funds 
    shall be used for collecting such data from more than 250 firms was 
    held to constitute a valid limitation

[[Page 6048]]

    on the availability of funds in the bill, rather than an express 
    restriction on the scope of the FTC investigation.

    On June 21, 1974,(8) during consideration in the 
Committee of the Whole of H.R. 15472 (agriculture, environment, and 
consumer appropriation bill), an amendment was held in order as 
follows:
---------------------------------------------------------------------------
 8. 120 Cong. Rec. 20601, 20602, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Jamie L.] Whitten [of 
        Mississippi]: Page 47, line 6, after the word ``data'' add the 
        following: ``Provided, That none of these funds shall be used 
        for collecting line-of-business data from not [sic] more than 
        250 firms, including data presently made available to the 
        Bureau of the Census, the Securities and Exchange Commission 
        and other government agencies where authorized by law.'' . . .

        Mr. [Bob] Eckhardt [of Texas]: Mr. Chairman, the point of order 
    is under House Rule XXI, Clause 2, second sentence. . . .
        Now, under existing law and without the limitations reported to 
    be added in this bill the Federal Trade Commission could and had 
    intended--and, of course, what it actually intended is not material 
    here, because the question is what it could have done--it could 
    have used the funds as appropriated here for either 250 firms or 
    500 firms or any other number of firms. So what is done by this 
    amendment is to restrict the Federal Trade Commission with respect 
    to powers and duties and authorities which it would have but for 
    this limitation.
        The authorities on this point appear in volume VII of Cannon's 
    Precedents, section 1675, which reads:

            A proper limitation does not interfere with executive 
        discretion or require affirmative action on the part of the 
        Government officials. . . .

        It would also require liaison with the Bureau of Census, the 
    Securities and Exchange Commission, and other Government agencies 
    which are not here designated but which would cover the whole gamut 
    of such agencies.
        So it both provides a limitation on executive discretion and 
    affirmative acts on the part of Government officials. . . .
        Mr. [John] Melcher [of Montana]: 
    . . . Public Law 93-153 authorizes line-of-business data to be 
    collected by independent regulatory agencies subject to certain 
    procedures. It did not limit or restrict the collection of this 
    data to any specific number of firms, as the gentleman's amendment 
    would; he would change this policy by arbitrarily limiting the 
    collection of the data specifically to 250 firms.
        In addition, Mr. Chairman, Public Law 93-153 does not authorize 
    the collection of line-of-business data from the Bureau of the 
    Census of the Security and Exchange Commission. This authority was 
    placed in an ``independent regulatory agency.''. . .
        The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
 9. Sam Gibbons (Fla.).
---------------------------------------------------------------------------

        First, let the Chair state that this subject contains a very 
    vexing point,

[[Page 6049]]

    and it is one that has required a lot of attention of the Chair, 
    even prior to the arguments here.
        The words in contest on this point of order are the following 
    words added by the amendment:

            . . . provided that none of the funds shall be used for 
        collecting line-of-business data from not more than 250 firms, 
        including data presently made available by the Bureau of the 
        Census, the Securities and Exchange Commission, and other 
        government agencies where authorized by law.

        It is clear to the Chair that the words ``provided that none of 
    these funds shall be used for collecting line of business data of 
    not more than 250 firms'' may clearly be added as an amendment to a 
    general appropriation bill, and it is in order. The Committee on 
    Appropriations could have refused to bring in any appropriation at 
    all for this agency, and the committee seeks by this amendment to 
    put a limitation upon the use of funds available to the FTC. The 
    limitation is drafted as a restriction on the use of funds, and not 
    as an affirmative restriction on the scope of the FTC 
    investigation, as was the case in the language stricken from the 
    bill on the preceding point of order.
        The remainder of the amendment raises some question, but in the 
    opinion of the Chair, these words are clearly limited by ``where 
    authorized by law,' and do not permit the Census Bureau of the SEC 
    to initiate line of business investigations, so the Chair is going 
    to rule that the amendment is in order and that the points of order 
    are overruled.

Limitation on Funds May Change Announced Policy

Sec. 51.15 While a limitation on a general appropriation bill may not 
    involve changes of existing law or affirmatively restrict executive 
    discretion, it may by a simple denial of the use of funds change 
    administrative policy and be in order; thus, a point of order 
    against a provision prohibiting the use of funds for any reduction 
    in Customs Service regions or for any consolidation of Customs 
    Service offices was overruled.

    On June 27, 1984,(10) during consideration in the 
Committee of the Whole of the Treasury Department and Postal Service 
appropriation bill (H.R. 5798), a point of order against a provision in 
the bill was overruled, as follows:
---------------------------------------------------------------------------
10. 130 Cong. Rec. ---- , 98th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 617. None of the funds made available in this Act may 
        be used to plan, implement, or administer (1) any reduction in 
        the number of regions, districts or entry processing locations 
        of the United States Customs Service; or (2) any consolidation 
        or centralization of duty assessment or appraisement functions 
        of any offices of the United States Customs Service.

        Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I make a point 
    of order

[[Page 6050]]

    against section 617. . . . Section 617 prohibits the use of funds 
    in this appropriation for a reduction in the number of Customs 
    entry processing points and any consolidation of duty assessment or 
    appraisement functions in any of the offices of the Customs 
    Service.
        This negates Public Law 91-271 which gives the President the 
    authority to rearrange or make consolidations at points of entry at 
    the District Offices or at headquarters.
        In addition, in my judgment the language is so broad as to 
    interfere with existing administrative authority to carry out its 
    appraisement functions as required by law. Section 617 goes beyond 
    the limitation of funds which are the subject of this appropriation 
    and constitutes an effort to change existing law under the guise of 
    a limitation. There seems to be in section 617 almost a complete 
    prohibition of executive discretion to make any changes to help the 
    Customs Service carry out its duties. . . .
        Mr. [Edward R.] Roybal [of California]: Mr. Chairman, section 
    617 is a simple limitation again on an appropriation bill. It does 
    not change the application of existing law. It merely prohibits the 
    use of funds to pay for any Government employee who tries to 
    prevent the law from being enforced. . . .
        The Chairman: (11) The Chair is prepared to rule.
---------------------------------------------------------------------------
11. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------

        It is the opinion of the Chair that the section does not 
    mandate spending but rather limits the use of funds to consolidate 
    Customs regions and is as such a negative limitation on the use of 
    funds. And the Chair would cite Mr. Cannons volume 7 of Precedents, 
    section 1694:

            While a limitation may not involve change of existing law 
        or affirmatively restrict executive discretion, it may properly 
        effect a change of administrative policy and still be in 
        order.(12)
---------------------------------------------------------------------------
12. 7 Cannon's Precedents Sec. 1694 is discussed in the introduction to 
        this section (Sec. 51), supra.
---------------------------------------------------------------------------

        Therefore it is the ruling of the Chair that the gentleman's 
    point of order is overruled.

    Parliamentarian's Note: This precedent must be distinguished from 
cases where an amendment, by double negative or otherwise, can be 
interpreted to require the spending of more money--for example, an 
amendment prohibiting the use of funds to keep less than a certain 
number of people employed. (A ``floor'' on employment levels would be 
tantamount to an affirmative direction to hire no fewer than a 
specified number of employees.)

Limiting Funds to Promulgate Regulations

Sec. 51.16 While an agency may have authority to promulgate new 
    regulations which would change existing regulations, it is in order 
    in a general appropriation bill to deny the use of funds therein 
    for agency proceedings relating to changes in regulations.

[[Page 6051]]

    The ruling of the Chair on June 27, 1984,(13) was that 
language in a general appropriation bill prohibiting the use of funds 
therein to eliminate an existing legal requirement for sureties on 
customs bonds was in order as a valid limitation merely denying funds 
to change existing law and regulations. The point of order was as 
follows:
---------------------------------------------------------------------------
13. 130 Cong. Rec.---- , 98th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I make a point 
    of order against section 513 on page 38.
        The portion of the bill to which the point of order relates is 
    as follows:

            Sec. 513. None of the funds made available by this Act for 
        the Department of Treasury may be used for the purpose of 
        eliminating any existing requirement for sureties on customs 
        bonds. . . .

        [This provision] violates rule XXI, clause 2. The section 
    prohibits the use of funds for the continuation of customs 
    rulemaking with respect to existing requirements for sureties on 
    customs bonds.
        The Customs Service has broad administrative authority to 
    establish guidelines for posting bonds for the payment of customs 
    duties.
        The rulemaking process is now underway to determine whether 
    existing requirements for sureties on customs bonds should be 
    modified or replaced altogether.
        Section 513 goes beyond the limitations of funds which are the 
    subject of this appropriation and constitutes an effort to change 
    existing law under the guise of a limitation. . . .
        The Chairman: (14) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
14.  Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------

        The Chair would rule that in fact this section does constitute 
    a proper limitation consistent with the existing law and overrules 
    the gentleman's point of order.

Limiting Funds to Administer Program

Sec. 51.17 A section in a general appropriation bill prohibiting the 
    use of any funds therein by the Environmental Protection Agency 
    ``to administer any program to tax, limit, or otherwise regulate 
    parking facilities'' was held in order as a negative limitation on 
    the use of funds in the bill.

    The ruling on Oct. 9, 1974,(15) supports the principle 
that, although language in a general appropriation bill may not by its 
terms directly curtail a discretionary authority conferred by law, the 
Committee on Appropriations may, by refusing to recommend funds for all 
or part of an authorized executive function, thereby effect a change in 
policy to the extent of its denial of avail

[[Page 6052]]

ability of funds.(16) The proceedings were as follows:
---------------------------------------------------------------------------
15. 120 Cong. Rec. 34716, 34717, 93d Cong. 2d Sess.
16. See 7 Cannon's Precedents Sec. 1694, discussed in the introduction 
        to this section (Sec. 51), supra.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 511. No part of any funds appropriated under this Act 
        may be used by the Environmental Protection Agency to 
        administer any program to tax, limit, or otherwise regulate 
        parking facilities. . . .

        Mr. [Fortney H.] Stark [of California]: I make a point of order 
    in opposition to the section the Clerk has just read, section 511, 
    line 17.
        The point of order is that under rule XXI, clause 2, it is 
    legislation under an appropriation bill. It changes existing law 
    and is not merely a limitation under the appropriation.
        I cite Cannon's Precedents, volume 7, section 1691: 
    (17)
---------------------------------------------------------------------------
17. 7 Cannon's Precedents Sec. 1691 is discussed in the introduction to 
        this section (Sec. 51), supra.
---------------------------------------------------------------------------

            The purpose rather than the form of a proposed limitation 
        is the proper criterion by which its admissibility should be 
        judged, and if its purpose appears to be a restriction of 
        executive discretion to a degree that may be fairly termed a 
        change in policy rather than a matter of administrative detail 
        it is not in order. . . .

        The committee report on H.R. 16901 indicates that the intent of 
    section 511 is to make new law, not to ``retrench expenditures.''. 
    . .
        What is intended is a direct limitation on the exercise of 
    administrative authority, not a limitation on appropriations. The 
    report does not state any intent to save money. It does not state 
    how much money, if any, would be saved. Nor does it explain how 
    this provision would in any way save money. The report's reference 
    to a substantive investigation of the effects of EPA regulations 
    confirms the view that section 511 is purely substantive lawmaking. 
    There is no pretense in the report that this provision is intended 
    to, or actually will have the effect of reducing appropriations or 
    saving any money. Its intent and effect is simply to repeal a 
    portion of the Clean Air Act. . . .
        Mr. [John D.] Dingell [of Michigan]: Mr. Chairman . . . the 
    language referred to does constitute legislation in an 
    appropriation bill, and it is not a limitation upon appropriation 
    but an affirmative limitation upon official discretion, as referred 
    to in section 1685 and also in sections 1684 and 1683 of Cannon's 
    Precedents, referred to by me earlier in the discussion as to 
    previous points of order raised by the gentleman from Texas (Mr. 
    Eckhardt) to earlier portions of the bill. . . .
        The Chairman: (18) The Chair has examined the 
    language on page 51 of the bill, lines 17 through 20. The Chair 
    also has examined the arguments put forth by the gentleman from 
    California (Mr. Stark) who raised the point of order. The Chair has 
    examined the precedents. The Chair finds that this is merely a 
    limitation on an appropriation, and suggests that the Committee on 
    Appropriations could have refused to bring in any appropriation at 
    all for the Environmental Protection Agency. Therefore, negatively 
    denying their making funds available to EPA for

[[Page 6053]]

    some purposes while availability for other purposes is certainly no 
    more than a limitation on the appropriation bill. This is an old, 
    established precedent of the House of Representatives.
---------------------------------------------------------------------------
18. Sam Gibbons (Fla.).
---------------------------------------------------------------------------

        The Chair calls the attention of the Members to the language 
    appearing in Cannon's Precedents on page 686 of volume 7, section 
    1694, in which Mr. Tilson of Connecticut was in the Chair, and made 
    a very similar ruling ``that a change in policy can be made by the 
    failure of Congress to appropriate for an authorized project.'' 
    Therefore the point of order is overruled.

Restriction Not on Funds But on Discretion

Sec. 51.18 While it is in order on a general appropriation bill to 
    limit the availability of funds therein for part of an authorized 
    purpose while appropriating for the remainder of it, language which 
    restricts not the funds but the discretionary authority of a 
    federal official administering those funds may be ruled out as 
    legislation (see 7 Cannon's Precedents Sec. 1673).

    On June 21, 1974,(19) during consideration of H.R. 15472 
(Agriculture Department, environment, and consumer appropriation bill), 
a point of order was sustained against the following paragraph in the 
bill:
---------------------------------------------------------------------------
19. 120 Cong. Rec. 20600, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            $305,000, the amount of the budget request, is hereby 
        appropriated for the purpose of collecting line-of-business 
        data, as approved by General Accounting Office Opinion B-
        180229, issued May 13, 1974, from not to exceed 250 firms, 
        including data presently made available to the Bureau of the 
        Census, the Securities and Exchange Commission and other 
        government agencies where authorized by law. . . .

        Mr. [John] Melcher [of Montana]: Mr. Chairman, rule 21, clause 
    2, clearly provides that no appropriation bill shall contain any 
    provision changing existing law. The language on page 47, beginning 
    at the word ``data,'' on lines 8 through 12, clearly violates this 
    rule in that it significantly alters the effective provisions of 
    section 409(a) of Public Law 93-153--an act dealing with the trans-
    Alaska oil pipeline.
        The purpose of section 409(a) of Public Law 93-153 is to 
    preserve the independence of the regulatory agencies to carry out 
    the quasi-judicial functions which have been entrusted to them by 
    the Congress. We did not intend a broad proliferation of detailed 
    questionnaires to industry and businesses which would result in 
    unnecessary and unreasonable expense, but the provisions of H.R. 
    15472, which are the subject of my point of order, make substantive 
    changes and place arbitrary limitations on the procedures 
    prescribed by Public Law 93-153.
        Mr. Chairman, as you know, in construing the provisions of an 
    appropriation bill, if the intent is to restrict executive 
    discretion to a degree that may be fairly termed a change in policy 
    rather than a matter of administrative detail, then the point of 
    order should be sustained. This provision of H.R.

[[Page 6054]]

    15472 not only restricts executive discretion by its specific 
    terms, but it has the effect of changing existing law in violation 
    of rule 21, clause 2.
        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, may I 
    now concede the point of order and offer my amendment?
        The Chairman: (20) The gentleman concedes the point 
    of order.
---------------------------------------------------------------------------
20. Sam Gibbons (Fla.).
---------------------------------------------------------------------------

        The point of order is sustained.

Double Negative Curtailing Discretion Requiring Affirmative Action

Sec. 51.19 Where existing law directed a federal official to provide 
    for the sale of certain government property to private 
    organizations in ``necessary'' amounts, but did not require that 
    all such property shall be distributed by sale, an amendment to a 
    general appropriation bill providing that no such property shall be 
    withheld from distribution from qualifying purchasers was ruled out 
    as legislation requiring disposal of all property and restricting 
    discretionary authority to determine ``necessary'' amounts and not 
    constituting (as required by the Holman rule) a certain 
    retrenchment of funds in the bill.

    On Aug. 7, 1978,(1) during consideration in the 
Committee of the Whole of the Department of Defense appropriation bill 
(H.R. 13635), a point of order was sustained against the following 
amendment:
---------------------------------------------------------------------------
 1. 124 Cong. Rec. 24707, 24708, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. John T. Myers [of Indiana]: On 
        page 8, after line 10, add the following new section:
            None of the funds appropriated or otherwise made available 
        in this Act shall be obligated or expended for salaries or 
        expenses during the current fiscal year in connection with the 
        demilitarization of any arms as advertised by the Department of 
        Defense, Defense Logistics Agency sale number 31-8118 issued 
        January 24, 1978, and listed as ``no longer needed by the 
        Federal Government'' and that such arms shall not be withheld 
        from distribution to purchasers who qualify for purchase of 
        said arms pursuant to title 10, United States Code, section 
        4308. . . .

        Mr. [Abner J.] Mikva [of Illinois]: Mr. Chairman, I make a 
    point of order on the amendment on the ground that I believe that 
    it is legislation within a general appropriation bill and, 
    therefore, violates the rules of the House. . . .
        Mr. John T. Myers: Mr. Chairman, this is a simple limitation 
    amendment. It merely limits the Secretary of the Treasury to 
    continue to carry out existing law. It does not provide any new 
    law. It simply says that the Secretary of the Treasury shall carry 
    out the prevailing, existing law. . . .

[[Page 6055]]

        Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, rule 21, clause 
    2, of the Rules of the House (House Rules and Manual pages 426-427) 
    specifies that an amendment to an appropriation bill is in order if 
    it meets certain tests, such as:
        First. It must be germane;
        Second. It must be negative in nature;
        Third. It must show retrenchment on its face;
        Fourth. It must impose no additional or affirmative duties or 
    amend existing law.
        First. [The amendment] is germane. As the amendment applies to 
    the distribution of arms by the Defense Logistics Agency, it is not 
    exclusively an Army of civilian marksmanship amendment, so should 
    not be placed elsewhere in the bill. . . .
        Second. It is negative in nature. It limits expenditure of 
    funds by the Defense Department by prohibiting the destruction and 
    scrapping of arms which qualify for sale through the civilian 
    marksmanship program, which is a division of the executive created 
    by statute.
        Third. It shows retrenchment on its face. Retrenchment is 
    demonstrated in that the Department of Defense if prohibited from 
    expending funds to destroy surplus military arms, and that the arms 
    previously earmarked for destruction will be made available in 
    accordance with existing statute. . . . The House, in adding this 
    amendment, will secure additional funds for the Treasury which the 
    General Accounting Office has determined is adequate to pay costs 
    of handling the arms. For example, the M-1 rifles are to be sold at 
    a cost of $110 each. These are the arms most utilized by the 
    civilian marksmanship program. The Defense Department will not be 
    required to spend additional funds to process the sale of 
    additional arms. . . .
        [The amendment] does not impose additional or affirmative 
    duties or amend existing law. . . .
        Regulations issued AR 725-1 and AR 920-20 provide for the 
    issuance of arms by application and qualification through the 
    Director of Civilian Marksmanship. The DCM shall then submit sale 
    orders for the Armament Readiness Military Command (ARCOM) to fill 
    the requests of these qualified civilians. Thus, the amendment 
    simply requires the performance of duties already imposed by the 
    Army's own regulation. . . .
        Mr. Mikva: Mr. Chairman, I particularly call attention of the 
    Chair to the second half of the amendment, which imposes an 
    affirmative duty on the Secretary, saying that such arms shall not 
    be withheld from distribution to purchasers who qualify for 
    purchase of said arms pursuant to title 10, United States Code, 
    section 4308.
        Under the general existing law, there are all kinds of 
    discretions that are allowed to the Secretary to decide whether or 
    not such arms shall be distributed. Under this amendment, the 
    existing law is to be changed and those arms may not be withheld. 
    The practical purpose is to turn lose 400,000 to 500,000 rifles 
    into the body politic.
        But the parliamentary effect is clearly to change the existing 
    law under which the Secretary can exercise all kinds of discretion 
    in deciding whether or not those arms will be distributed.

[[Page 6056]]

    Under this amendment it not only limits the fact that the funds may 
    be obligated but it specifically goes on to affirmatively direct 
    the Secretary to distribute such arms under title X, which is an 
    affirmative obligation, which is exactly the kind of obligation the 
    rules prohibit, and I renew my point of order. . . .

        The Chairman: (2) The Chair is ready to rule.
---------------------------------------------------------------------------
 2. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        The Chair has read the section to which the gentleman refers, 
    title 10, United States Code, section 4308, and is of the opinion 
    that it does not require that all firearms be distributed to 
    qualified purchasers. The Chair further feels that while the first 
    part of the amendment is a limitation, the last part of the 
    amendment is a curtailment of Executive discretion, and the Chair 
    sustains the point of order.

Agency Required to Furnish Information to Subcommittees

Sec. 51.20 Where existing law (7 USC Sec. 12(e)) requires the 
    Commodities Exchange Commission to furnish to committees of 
    Congress upon request certain information relating to commodities 
    traders, an amendment to a general appropriation bill prohibiting 
    the use of funds therein for denial by that commission of requests 
    by congressional committees and subcommittees of any information 
    (including but not limited to that specifically required to be 
    furnished by law) was held to be legislation, being an interference 
    with the discretion of executive officials with respect to 
    responses to broader categories of requests.

    On July 29, 1980,(3) an amendment to a general 
appropriation bill prohibiting the use of funds for the Commodity 
Futures Trading Commission to deny to congressional committees and 
subcommittees, acting within their jurisdiction, any information and 
data, including that described in section 8 of the Commodity Exchange 
Act, requested by such committees or subcommittees, was held to be 
legislation, since section 8 of that act only required certain 
specified information to be submitted to full committees, and not to 
subcommittees. The proceedings were as follows:
---------------------------------------------------------------------------
 3. 126 Cong. Rec. 20098-100, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Benjamin S.] Rosenthal [of New 
        York]: On page 49, line 9, after the ``period'' add the 
        following:
            ``No part of the funds appropriated herein shall be used by 
        the Commission to deny to committees and subcommittees of the 
        House of Representatives or of the Senate, acting within the 
        scope of their jurisdiction,

[[Page 6057]]

        any information and data in the Commission's possession 
        (including that described in section 8 of the Commodity 
        Exchange Act) requested by such committee or subcommittee.''

        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I 
    reserve a point of order against the amendment. . . .
        The Chairman: (4) Does the gentleman from 
    Mississippi (Mr. Whitten) insist on his point of order?
---------------------------------------------------------------------------
 4. James C. Corman (Calif.).
---------------------------------------------------------------------------

        Mr. Whitten: I do insist on my point of order. . . .
        Here is what the law says, if I may read it:

            Upon the request of any committee of either House of 
        Congress, acting within the scope of its jurisdiction. . . .

        So the law clearly says ``any committee.''
        I turn to Webster's dictionary where it says that a 
    subcommittee is, by definition, ``an under committee,'' ``a part or 
    a division of a committee.''
        So while the subcommittee may have a great desire, a great 
    need, to have the information, the law makes it available to the 
    committee, and a subcommittee frequently is--and even usually is--
    greatly outnumbered by the full committee.
        I respectfully submit that this provision would be subject to a 
    point of order because it gives authority that does not exist in 
    law or prohibits the use of that which is preempted by 
    law. . . .
        Mr. Rosenthal: . . . I think, in practical terms, the position 
    espoused by the distinguished chairman of the committee would make 
    it totally unworkable for any investigative committee albeit any 
    subcommittee here in the Congress, to do its work.
        What happens in the beginning in the Committee on Government 
    Operations, the committee meets and assigns general areas and 
    investigative jurisdiction to each of the subcommittees, covering 
    four, five, six or seven various agencies, and in those rules of 
    the Committee on Government Operations it invests the subcommittee 
    with the full authority that the House has given to the full 
    committee. . . .
        Now, the statute clearly says, section 11:

            The CFTC shall give to the committee all the information 
        they have.

        So the only question, the narrowly defined question, is whether 
    the subcommittee is the repository of any statutory authority that 
    the full committee has.
        Let me read to this body, and I really reluctantly burden my 
    colleagues with this, but I think it is relevant and important to 
    read what the court held in Barenblatt v. United States (240 F.2d 
    75, 1957): The U.S. Court of Appeals for the District of Columbia 
    decided that a witness' refusal to answer questions before a 
    subcommittee and pertinent to a subcommittee's investigation, 
    violated the title 2, United States Code, section 192, which 
    provides for criminal sanction against persons who, having been 
    summoned, ``refuse to answer questions before . . . any committee 
    of either House of Congress.''
        We have the exact language--``before . . . any committee of 
    either House of Congress.''

[[Page 6058]]

        A unanimous court held as follows:

            It is also contended that the indictment is fatally 
        defective in that it alleges a refusal to answer questions 
        before a subcommittee of a committee, and that Congress did not 
        intend to make it a crime to refuse to answer questions of a 
        subcommittee. . . . We disagree. Nothing has been shown which 
        reflects that Congress has indicated such belief. We only 
        construe the statute in light of the obvious purpose for its 
        enactment. That purpose was to discourage the impairment of the 
        vital investigative function of Congress. The function Congress 
        sought to protect is as often committed to subcommittees as it 
        is to full committees of Congress, as indeed it must be. 
        Construing the statute in a manner consistent with its obvious 
        purpose . . . we hold that Congress intended the word 
        ``committee'' in its generic sense, which would include 
        subcommittees.

        There are dozens of decisions along the very same lines. . . .
        The Chairman: The Chair believes [that the point of order is 
    correct as to] the use of funds to deny submission of information 
    to the subcommittee, but more importantly that the information to 
    be submitted in the amendment is much broader than the information 
    defined in the statute 7 U.S.C. section 12(e). The point of order 
    is sustained.



Sec. 51.21 Where existing law (7 USC Sec. 12(e)) requires an agency to 
    furnish certain information to congressional committees upon 
    request, it is not in order on a general appropriation bill to make 
    funds for that agency contingent upon its furnishing information 
    upon request to subcommittees.

    On July 30, 1980,(5) an amendment to a general 
appropriation bill prohibiting the use of funds for the Commodity 
Futures Trading Commission to deny congressional subcommittees, acting 
at the direction and as an agent of the full committee, certain 
information required by the Commodity Exchange Act to be submitted to a 
congressional committee upon request, was held to be legislation, in 
the absence of a conclusive showing by the proponent of the amendment 
that changing the specific language of the Commodity Exchange Act 
requirement to cover requests by subcommittees as well as committees, 
did not change existing law. The proceedings were as follows:
---------------------------------------------------------------------------
 5. 126 Cong. Rec. 20475, 20476, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Benjamin S.] Rosenthal [of New York]: 
    On page 49, line 9, after the ``period'' add the following:
        ``No part of the funds appropriated herein shall be used by the 
    Commission to deny to subcommittees of the House of Representatives 
    or of the Senate, acting at the direction of and as an agent of a 
    full committee, any information in the possession of the Commission 
    relating to the amount of

[[Page 6059]]

    commodities purchased or sold by such trader as provided by Sec. 
    8(e) of the Commodity Exchange Act to be made available to any 
    committee of either House of Congress acting within the scope of 
    its jurisdiction.''. . .
        Mr. [Thomas S.] Foley [of Washington]: . . . I make a point of 
    order against the amendment in that it constitutes legislation on 
    an appropriations bill. The amendment of the gentleman from New 
    York does not track the statute which sets out specific conditions 
    under which information may be required of the Commodity Futures 
    Trade Commission.
        Mr. Chairman, the Commission is authorized to release 
    information to any judicial body or congressional committee and is 
    required to do so only at the request of a committee of the House 
    of Representatives or the Senate. What the gentleman from New York 
    seeks to do is to substitute an additional requirement that, when 
    acting at the direction and as an agent of the committee, a 
    subcommittee may request such information.
        Mr. Chairman, all subcommittees act at the direction of and as 
    agents of full committees or they do not act properly because they 
    are creatures of full committees. This in fact does not change the 
    situation that a subcommittee is a subcommittee and not a full 
    committee. It requires an additional limitation on an appropriation 
    other than a limitation of funds and constitutes a violation of the 
    rule against legislation on appropriation bill. . . .
        Mr. Rosenthal: . . .
        Mr. Chairman, I respectfully would like to bring to the 
    attention of the Chair page 342 of Deschler's Procedures, section 
    10.9:

            While it is not in order in an appropriation bill, under 
        the guise of a limitation, to impose additional burdens and 
        duties on an executive of the federal government, amendments 
        requiring the recipients of funds carried in the bill to be in 
        compliance [with] existing law have been permitted, on the 
        theory that the concerned federal officials are already under 
        an obligation to oversee the enforcement of existing law and 
        are thus burdened by no additional duties by the amendment. . . 
        .

        Additionally section 10.13 reads as follows:

            An amendment prohibiting the payment of expenses from funds 
        in an appropriation bill, and containing language descriptive 
        of the persons to whom the restriction applied, was held in 
        order as a limitation on the use of funds in that bill which 
        did not directly impose affirmative duties upon executive 
        officials. 120 Cong. Rec. 21046, 93d Cong., 2d Sess., June 25, 
        1974 (H.R. 15544, Treasury, Postal Service, and executive 
        office appropriations, fiscal 1975), where an amendment 
        providing that ``no funds shall be expended for persons during 
        periods of their refusal to comply with valid congressional 
        subpenas was held in order as a valid limitation which did not 
        directly require executive officials to make determinations as 
        to the validity of those subpenas. . . .

        The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
 6. James C. Corman (Calif.).
---------------------------------------------------------------------------

        The Chair is confronted with the language of a specific 
    statute, and the fact that the amendment deviates from the statute 
    must have some effect, it would be assumed to expand the terms of 
    the law absent a conclusive showing to the contrary and therefore 
    it would be leg

[[Page 6060]]

    islation on an appropriation bill, and the point of order is 
    sustained.

Postal Rate Commission's Authority to Establish Rates; Interference 
    With Discretion

Sec.  51.22 To a general appropriation bill containing funds for the 
    postal service, an amendment to prohibit funds therein from being 
    used to handle parcel post at less than attributable cost was ruled 
    out as in violation of Rule XXI clause 2, when the proponent of the 
    amendment failed to refute the point of order that its effect would 
    directly interfere with the Postal Rate Commission's quasi-
    discretionary authority (contained in 39 USC Sec. 3622, et seq.) to 
    establish postal rates under guidelines in law.

    On July 17, 1975,(7) during consideration in the 
Committee of the Whole of H.R. 8597 (Treasury Department, Postal 
Service, and general government appropriation bill), a point of order 
was sustained against the following amendment:
---------------------------------------------------------------------------
 7. 121 Cong. Rec. 23239, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

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

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

        Mr. [Tom] Steed [of Oklahoma]: I insist on my point of order, 
    Mr. Chairman. This amendment would have the effect of changing 
    existing law. The Congress enacted the Postal Service Corporation 
    bill and created the Rate Commission and delegated to the Rate 
    Commission the sole and final authority on all postal rates. The 
    impact of this amendment would be to limit and change that postal 
    ratemaking power that is inherent in the law creating the Postal 
    Corporation.
        If the amendment here is permitted to prevail then all sorts of 
    amendments affecting the operation of the Postal Service would be 
    applicable and the whole purpose of the Postal Service Corporation 
    law would be destroyed. So I think it is very imperative since this 
    does change the law and the powers invested in the Rate Commission 
    that we hold it is obviously legislation on an appropriation bill. 
    . . .
        The Chairman: (8) Permit the Chair to direct a 
    question to the gentleman from Oklahoma.
---------------------------------------------------------------------------
 8. B. F. Sisk (Calif.).
---------------------------------------------------------------------------

        Is the gentleman's position such that in his opinion this 
    amounts to a change in law? Would the gentleman speak to that 
    point?
        Mr. Steed: Yes. The sole authority to determine what will be 
    charged for parcel post, whether it is more or less than cost, is 
    vested in the Postal Rate

[[Page 6061]]

    Commission and to accept this amendment here would limit that 
    authority which would change the law which vests that total power 
    in that Commission. So it would require an action on the part not 
    only of the ratemaking Commission but the Postmaster General in 
    that he does not now have to abide by this sort of demand.
        The whole purpose of the corporation was to take the power to 
    do that sort of thing out of Congress and leave it in the Postal 
    Corporation for the postal rate commitment.
        The Chairman: The Chair is prepared to rule. The gentleman from 
    Oklahoma makes a point of order against the amendment offered by 
    the gentlewoman from New Jersey dealing with the availability of 
    funds in connection with the matter of parcel post where the Postal 
    Service permits parcel post to be handled at less than attributable 
    costs.
        The Chair feels that the point of order made by the gentleman 
    from Oklahoma to the effect that, in essence, this changes basic 
    law, must be sustained in light of the fact that the Chair does not 
    feel that the gentlewoman from New Jersey has made a sufficient 
    case that it would be otherwise.
        Therefore, the Chair is constrained to sustain the point of 
    order.

Timing of Expenditures

Sec.  51.23 An amendment to a general appropriation bill, providing 
    that ``no amount in excess of 20 percent of any appropriation 
    contained in this Act for any agency for any fiscal year may be 
    obligated by such agency during the last two months of such fiscal 
    year'' was ruled out as legislation restricting a discretionary 
    authority conferred by law, since 31 USC Sec. 665(c)(3) 
    specifically confers discretionary authority on the Office of 
    Management and Budget to determine the time frame for distribution 
    of funds within the total period for which appropriated.
    On June 25, 1980,(9) the Chair (10) applied 
the principle that it is not in order on a general appropriation bill, 
even by language in the form of a limitation, to restrict the 
discretionary authority conferred by law to adminster expenditures 
(rather than the use or amount of appropriated funds) including 
discretion as to the percentage of the funds which may be apportioned 
for expenditure within a certain period of time. The amendment, against 
which a point of order was raised, stated:
---------------------------------------------------------------------------
 9. 126 Cong. Rec. 16815-17, 96th Cong. 2d Sess. Under consideration 
        was H.R. 7590, energy and water development appropriations for 
        1981.
10. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------

        Amendment offered by Mr. [Herbert E.] Harris [II, of Virginia]: 
    Page 30, after line 12, insert the following:
        Sec. 503. No amount in excess of 20 percent of any 
    appropriation contained in this Act for any agency for any fiscal 
    year may be obligated by such agency during the last two months of 
    such fiscal year. . . .

[[Page 6062]]

        Mr. [John T.] Myers of Indiana: . . . Mr. Chairman, I make a 
    point of order against the amendment on the grounds that it would 
    be legislation on a general appropriations bill, and therefore 
    violates rule XXI, clause 2.
        Although the amendment uses the words ``No amount,'' it is not 
    a limitation in the accepted sense, that is, a refusal by Congress 
    to appropriate for a specified purpose.
        The effect of the amendment is a positive direction to the 
    Executive, which is not in order under the precedents.
        In addition, Mr. Chairman, the gentleman's amendment is not in 
    order because the amendment proposes to change the application of 
    existing law and is therefore legislation in an appropriation bill 
    and is in violation of clause 2, rule XXI.
        The gentleman's amendment provides that not more than 20 
    percent of the total appropriation made available for any agency 
    for any fiscal year under the act may be obligated during the last 
    2 months of such fiscal year. Section 665(c)(3) of title 31 of the 
    United States Code states the following:

            (3) Any appropriation subject to apportionment shall be 
        distributed by months, calendar quarters, operating seasons, or 
        other time periods, or by activities, functions, projects, or 
        objects, or by a combination thereof, as may be deemed 
        appropriate by the officers designated in subsection (d) of 
        this section to make apportionments and reapportionments. 
        Except as otherwise specified by the officer making the 
        apportionment, amounts so apportioned shall remain available 
        for obligation, in accordance with the terms of the 
        appropriation, on a cumulative basis unless reapportioned.

        The key phrase in this quote is:

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

        This phrase allows the agency budget officers discretionary 
    authority to apportion the appropriations received each year in a 
    manner that he deems appropriate considering the unique financial 
    requirements of his particular agency. The gentleman's amendment 
    deletes this discretionary authority by prohibiting him from 
    obligating more than 20 percent of his appropriations during the 
    last 2 months of the fiscal year. This obviously changes the 
    application of existing law and is in violation of the House rules. 
    Mr. Chairman, in chapter 26, section 1.8 of Deschler's Procedures, 
    the following is stated:

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

        Mr. Harris:  . . . It is a fact that this amendment is a 
    limitation amendment. It is clear and it is not confusing. It is 
    like many other amendments that we have looked at before in this 
    House.

            No amount in excess of 20 percent of any appropriation 
        contained in this Act for any agency for any fiscal year may be 
        obligated for such agen

[[Page 6063]]

        cy during the last two months of such fiscal year.

        Mr. Chairman, what we have to look to on a limitation bill is 
    the rules, and I would refer to chapter 25, section 10.6 of 
    Deschler, which states, with regard to H.R. 11612, in the 91st 
    Congress, 1st session:

            An amendment to a general appropriation bill which is 
        strictly limited to funds appropriated in the bill, and which 
        is negative and restrictive in character and prohibits certain 
        uses of the funds, is in order as a limitation even though its 
        imposition will change the present distribution of funds and 
        require incidental duties on the part of those administering 
        the funds.

        Clearly, that is precisely what this language does, and I rely 
    very strongly upon Deschler's, chapter 25, section 10.6. . . .
        The Chairman: The Chair is ready to rule.
        The gentleman from Indiana (Mr. Myers) makes the point of order 
    that the amendment offered by the gentleman from Virginia (Mr. 
    Harris) constitutes legislation on an appropriation bill in 
    violation of clause 2, rule XXI, by prohibiting the incurring of 
    obligations of any funds appropriated in the bill in excess of 20 
    percent of the total amount appropriated in the last 2 months of 
    availability of those funds.
        The Chair has examined existing law (31 U.S.C. 665(c)(3)) with 
    respect to distribution of appropriations. The Chair interprets 
    this law to confer discretionary authority upon the Office of 
    Management and Budget, and thereby upon the agency incurring the 
    actual obligation, to determine the most appropriate time frame for 
    the distribution of funds within the period of availability for 
    which appropriated.
        Under the precedents of the House cited on page 532 of the 
    House Rules and Manual, it is not in order on a general 
    appropriation bill to affirmatively take away a discretionary 
    authority conferred by law. Because the pending amendment could 
    conceivably restrict the specific authority conferred by existing 
    law upon contracting officers to incur obligations at the time 
    deemed most appropriate by them the Chair must sustain the point of 
    order.

    Parliamentarian's Note: On July 28, 1980,(11) the Chair 
made a comparable ruling on a similar amendment, but based the ruling 
on a burden of proof test, upon a determination that the June 25, 1980, 
ruling, in its characterization of the extent of discretionary 
authority conferred upon recipient agencies by the statute, was 
unnecessarily broad.
---------------------------------------------------------------------------
11. See Sec. 22.26, supra.
---------------------------------------------------------------------------