[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[F. Permissible Limitations on Use of Funds]
[Â§ 77. Treasury and Post Office]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6473-6488]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
               F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
 
Sec. 77. Treasury and Post Office

Mail Seizure

Sec. 77.1 An amendment to a Treasury and Post Office Departments 
    appropriation bill, providing that no funds therein may be used for 
    the seizure of mail (in connection with income tax investigations) 
    without a search warrant was held to be a limitation and in order.

    On Apr. 5, 1965,(19) The Committee of the Whole was 
considering H.R. 7060. The Clerk read as follows, and proceedings 
ensued as indicated below:
---------------------------------------------------------------------------
19. 111 Cong. Rec. 6869, 6870, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Durward G.] Hall [of Missouri]: On 
    page 8, immediately before the period in line 11, insert the 
    following: ``: Provided, That no appropriation made by any 
    provision of this Act for the fiscal year ending June 30, 1966, may 
    be used for the seizure of mail without a search warrant authorized 
    by law in carrying out the activities of the United States in 
    connection with the seizure of property for collection of taxes due 
    to the United States''.
        Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I reserve a 
    point of order on this amendment.
        The Chairman: (20) The gentleman from Oklahoma 
    reserves a point of order. . . .
---------------------------------------------------------------------------
20. John A. Blatnik (Minn.).
---------------------------------------------------------------------------

        Mr. Steed:  Chairman, I renew my point of order against the 
    amendment because it is not a limitation on appropriations. It 
    requires actions by the Bureau of Internal Revenue, which can be 
    authorized only by legislation.
        The Chairman: The language is a limitation here. The Chair 
    overrules the point of order. The point of order is not sustained.

    Parliamentarian's Note: Subsequent rulings have cast some doubt on 
the applicability at present of the above ruling. On June 16, 1977, an 
amendment which prohibited the use of funds by OSHA for any inspection 
conducted by that agency without a search warrant based on probable 
cause as authorized by law was held out of order as legislation since 
it would impose new affirmative duties to make applications to courts, 
a procedure not required by statutory law or uniformly required by the 
federal courts. See 123 Cong. Rec. 19373, 95th Cong. 1st Sess. [H.R. 
7555]. If a definitive ruling by the Supreme Court had existed which 
required a probable cause warrant for inspections by OSHA, such ruling 
might, of course, have constituted a sufficient basis in law for the 
limitation as proposed to

[[Page 6474]]

be held in order. As it was, the Chair merely took into account (by 
judicial notice) the fact that federal court rulings had not been 
uniform or finally dispositive of constitutional requirements as to 
obtaining search warrants in such cases. The Chair did note in his 
ruling that the amendment would require such warrants even where 
inspection was voluntarily submitted to, whereas probable cause 
warrants are not ordinarily required under the case law when voluntary 
consent is given to the search.
    Again, on June 7, 1978, an amendment to a general appropriation 
bill denying use of funds for OSHA to conduct inspections of small 
businesses unless a warrant had been previously obtained was ruled out 
of order as legislation since existing law as interpreted by the 
Supreme Court required a warrant for such inspections only where the 
business under inspection insisted upon such a warrant. See 124 Cong. 
Rec. 16677, 95th Cong. 2d Sess. [H.R. 12929]. It may be noted that the 
ruling above, on Apr. 5, 1965, is arguably distinguishable from the 
later rulings, since the amendment held in order on that occasion did 
not include the term ``probable cause'' (which is a judicial finding) 
to define the necessary warrant, which could therefore be an 
administrative warrant. In the final analysis, however, whether the 
1965 amendment was a permissible limitation would depend on whether 
existing law at the time did require search warrants prior to the 
seizure of mail in connection with income tax investigations. If so, 
the amendment would merely be a restatement of existing law and 
therefore allowable. It would appear, however, that the Internal 
Revenue Service had a persuasive argument at the time that it had the 
authority to seize the mail of delinquent taxpayers without a warrant. 
Section 6331(a) of the Internal Revenue Code provides the Secretary of 
the Treasury with authority to levy upon all property and upon rights 
to property of a delinquent taxpayer 10 days after notice and demand. 
Notwithstanding any other provision of law, the only property which 
cannot be levied upon is defined in code Sec. 6334(c). In 1965, mail 
was not enumerated as an exception in code Sec. 6334. The Service 
relied on several Supreme Court cases to establish that mail was 
property (Searight v Stokes, 44 U.S. 151); that judicial seizures of 
mail did not violate constitutional guarantees (Ex parte Jackson, 96 
U.S. 721), and that statu

[[Page 6475]]

torily authorized levy procedures do not violate due process guarantees 
(Springer v U.S., 102 U.S. 586). An argument might be made that mail in 
the hands of the Post Office was not the property of the taxpayer-
addressee. But since it had been held that an addressee has a 
sufficient legal right to the mail to enable him to recover it from 
third parties (U.S. v Jones, 31 F2d 755, 3d Cir. 1929), it could be 
argued that the taxpayer had a sufficient property interest in it upon 
which the Service could levy.

Distribution of Funds to States

Sec. 77.2 An amendment to a paragraph of an appropriation bill 
    providing that no part of the funds therein contained shall be 
    distributed to states on a per capita income basis was held to be a 
    proper limitation restricting the use of funds and in order.

    On Feb. 7, 1936,(1) the Committee of the Whole was 
considering H.R. 10919, a Treasury and Post Office Departments 
appropriation bill. A point of order against an amendment to the bill 
was overruled as follows:
---------------------------------------------------------------------------
 1. 80 Cong. Rec. 1679, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Grants to States for public-health work: For the purpose of 
    assisting States, counties, health districts, and other political 
    subdivisions of the States in establishing and maintaining adequate 
    public-health services, including the training of personnel for 
    State and local health work, as authorized in sections 601 and 602, 
    title VI, of the Social Security Act, approved August 14, 1935 (49 
    Stat. 634), $8,000,000.
        Mr. [John] Taber [of New York]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Taber: Page 36, line 19, after the 
        period, strike out the period, insert a comma and the 
        following: ``Provided, That no part of the funds appropriated 
        in this paragraph shall be distributed to States on a per-
        capita income basis.

        Mr. [Carl] Vinson of Kentucky: Mr. Chairman, I make a point of 
    order. The basis for the point of order is that it is legislation 
    on an appropriation bill.
        Mr. Taber: Mr. Chairman, it is purely a limitation. It 
    prohibits the expenditure for certain purposes.
        The Chairman: (2) The Chair is of the opinion that 
    it is a limitation on an appropriation, and, therefore, overrules 
    the point of order.
---------------------------------------------------------------------------
 2. Arthur H. Greenwood (Ind.).
---------------------------------------------------------------------------

    Parliamentarian's Note: Section 602 of 49 Stat. 634 prescribed a 
broad allotment formula as follows:

        (a) The Surgeon General of the Public Health Service, with the 
    approval of the Secretary of the Treasury, shall, at the beginning 
    of each fiscal year, allot

[[Page 6476]]

    to the States the total of (1) the amount appropriated for such 
    year pursuant to section 601; and (2) the amounts of the allotments 
    under this section for the preceding fiscal year remaining unpaid 
    to the States at the end of such fiscal year. The amounts of such 
    allotments shall be determined on the basis of (1) the population; 
    (2) the special health problems; and (3) the financial needs; of 
    the respective States.

    This limitation did not change any stated element in the formula.

Subversive Activities

Sec. 77.3 An amendment to an appropriation bill, offered as a separate 
    paragraph, prohibiting appropriations to pay the salary or expenses 
    of any persons against whom charges have been brought under House 
    Resolution 105 (relating to investigation of subversion) and not 
    disposed of, was held a proper limitation upon an appropriation 
    bill and in order.

    On Feb. 9, 1943,(3) the Committee of the Whole was 
considering H.R. 1648, a Treasury and Post Office Departments 
appropriation. A point of order was made and overruled as indicated 
below:
---------------------------------------------------------------------------
 3. 89 Cong. Rec. 754, 78th Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. (Everett M.) Dirksen (of Illinois): On 
    page 52, after line 16, insert a new paragraph as follows:
        ``Section 303. No part of any appropriation or authorization in 
    this act shall be used to pay the salary or expenses of any persons 
    against whom charges have been brought under the terms of House 
    Resolution 105 (4) where such charges have not been 
    disposed of by action of the House exonerating such person or by 
    enactment into law of a bill or resolution making some other 
    disposition thereof.''
---------------------------------------------------------------------------
 4. H. Res. 105 authorized the Committee on Appropriations to examine 
        charges against executive employees based on such employees' 
        membership in subversive organizations.
---------------------------------------------------------------------------

        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I raise a 
    point of order against the amendment. I take it the gentleman from 
    Illinois will concede the point of order?
        Mr. Dirksen: I do not concede it. I think it is a perfectly 
    proper limitation.
        Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, I 
    rise to call the attention of the Chair on the point of order to 
    the fact that this attempted limitation requires affirmative 
    action, additional duties, on the part of some agency of the House 
    or someone else. . . .
        The Chairman: (5) The Chair is prepared to rule.
---------------------------------------------------------------------------
 5. Wirt Courtney (Tenn.).
---------------------------------------------------------------------------

        While not identical, of course, with amendments along the same 
    line and of the same general nature offered earlier in the debate, 
    the Chair is of the opinion that this amendment partakes of the 
    nature of those amendments offered earlier.

[[Page 6477]]

        The Chair is of the opinion that this does not require 
    affirmative action, that it does not get into the realm of 
    affirmative legislation, that it is a limitation, and, as the Chair 
    stated when the other amendments were under consideration, the 
    Congress, having the power to appropriate, would by the same token 
    have the right and the authority to limit the appropriation.
        The Chair is constrained to hold that the point is not well 
    taken. It is therefore overruled.

Silver Purchase

Sec. 77.4 An amendment providing that none of the funds appropriated in 
    a bill shall be used for carrying out the purchase of any silver, 
    except newly mined silver from the United States, was held in order 
    as a limitation on an appropriation bill.

    On Feb. 28, 1939,(6) he Committee of the Whole was 
considering H.R. 4492, a Treasury and Post Office Departments 
appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
 6. 84 Cong. Rec. 2021-23, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Salaries and expenses, mints and assay offices: For 
    compensation of officers and employees of the mints including 
    necessary personal services for carrying out the provisions of the 
    Gold Reserve Act of 1934 and the Silver Purchase Act of 1934 . . . 
    $2,016,000. . . .
        Mr. [John] Taber [of New York]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Taber: On page 45, line 5, after 
        the comma, strike out ``$2,016,000'' and insert ``$1,916,000'' 
        and the following: ``Provided, That none of the funds 
        appropriated in this bill shall be used for carrying out the 
        purchase of any silver, except newly mined silver mined in the 
        United States.''. . .

        [Mr. Louis Ludlow, of Indiana, reserved a point of order, but 
    later withdrew such reservation, whereupon Mr. Abe Murdock, of 
    Utah, made a point of order as shown below. Prior to the point of 
    order, debate took place as follows:]
        Mr. Taber: Mr. Chairman, I have offered this limitation, and it 
    is a pure limitation and clearly in order, to reduce the amount of 
    the appropriation on page 45 by $100,000. This is probably $25,000 
    less than the amount that should be saved as a result of the 
    operation of the amendment. I have offered the amendment for the 
    purpose of preventing the purchase of any silver by the United 
    States Government under any of the Silver Purchase Acts, with the 
    exception of newly mined silver mined in the United States. . . .
        Mr. [John A.] Martin of Colorado: Just how does shrinking the 
    appropriation by $100,000 prevent the purchase of the foreign 
    silver?
        Mr. Taber: It prevents the use of any of the funds appropriated 
    in this act for the purpose of such purchase. Without the 
    expenditures for the personnel involved in such purchase there can 
    be no purchase. Without the expenditures for carting and handling 
    the silver to the storage warehouse at

[[Page 6478]]

    West Point there can be no purchase of foreign silver.
        Mr. Martin of Colorado: If the gentleman will yield further, 
    the gentleman's amendment does not affect the power of the 
    Secretary of the Treasury to make such purchases inasmuch as the 
    Silver Purchase Act confers the power on him.
        Mr. Taber: My amendment prohibits the expenditure of any of the 
    funds for that purpose. Under this proviso, a limitation, it would 
    be absolutely impossible for the Secretary of the Treasury to spend 
    any of the funds appropriated in this act for the purpose of 
    carrying out the purchase of any silver, with the exception of 
    newly mined silver mined in the United States. . . .
        Mr. [Charles L.] Gifford [of Massachusetts]: Would the 
    gentleman tell the Committee the method of paying for this silver 
    by issuing silver certificates on the basis of $1.29 for 44 cents 
    and 64 cents silver and what this would eventually lead to?
        Mr. Taber: Well, it simply leads, eventually, to inflation, of 
    course, but what I want to do at this time is to bring the folks 
    from the silver territory to a realization of the fact that if they 
    are going to expect any consideration along the line of a subsidy 
    for silver--and that is what this is--they have got to get rid of 
    the burden of foreign-mined and foreign-stored silver. As a result 
    of this operation of handling this foreign-mined and foreign-stored 
    silver the United States will be paying for the operation of the 
    Chinese-Japanese war, and before we get through we will be paying 
    for the operation of the Spanish civil war that has been going on. 
    There must be some limitation somewhere upon these expenditures. . 
    . .
        Mr. [Francis H.] Case of South Dakota: The gentleman has 
    already said that this would prohibit the use of any of this money 
    for foreign-produced silver, and now the gentleman states 
    positively that there is nothing in his amendment that would 
    interfere with the purchase of domestically produced silver under 
    the Silver Purchase Act.
        Mr. Taber: It will not interfere with newly mined domestically 
    produced silver mined in the United States. It will interfere with 
    the purchase of stored silver in the United States.
        Mr. [Fred L.] Crawford [of Michigan]: Mr. Chairman, will the 
    gentleman yield?
        Mr. Taber: I yield to the gentleman from Michigan.
        Mr. Crawford: And one should also keep in mind that we have the 
    Thomas amendment and also the Silver Purchase Act and this 
    amendment which the gentleman proposes would not, under the Thomas 
    amendment of the Silver Purchase Act, interfere with the purchase 
    of domestically mined silver. . . .
        Mr. Murdock of Utah: Mr. Chairman, I make the point of order 
    that the amendment submitted by the gentleman from New York is in 
    violation of the Holman rule and constitutes legislation on an 
    appropriation bill. . . .
        The Chairman: (7). . . The Chair simply desires to 
    call the attention of the Committee to a ruling that has been made 
    in the past on a question very similar to this one, and the Chair

[[Page 6479]]

    reads from a decision of the Honorable Nelson Dingley, of Maine, 
    Chairman of the Committee of the Whole, on January 17, 1896, in 
    which he ruled:
---------------------------------------------------------------------------
 7. John W. Boehne (Ind.).
---------------------------------------------------------------------------

            The House in Committee of the Whole has the right to refuse 
        to appropriate for any object, either in whole or in part, even 
        though that object may be authorized by law. That principle of 
        limitation has been sustained so repeatedly that it may be 
        regarded as a part of the parliamentary law of the Committee of 
        the Whole.

        Because of this decision the Chair overrules the point of 
    order.

Air Carriage of Foreign Mails

Sec. 77.5 An amendment providing that no part of an appropriation for 
    transportation of foreign mails by aircraft shall be paid to any 
    corporation which shall directly or indirectly purchase insurance 
    from any official or employee of the United States was held in 
    order as a limitation on an appropriation bill.

    On Feb. 28, 1939,(8) he Committee of the Whole was 
considering H.R. 4492, a Treasury and Post Office Departments 
appropriation bill. The Clerk read as follows, and proceedings ensued 
as indicated below:
---------------------------------------------------------------------------
 8. 84 Cong. Rec. 2034, 2035, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Foreign air-mail transportation: For transportation of foreign 
    mails by aircraft, as authorized by law $10,200,000.
        Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Schafer of Wisconsin: Page 64, 
        line 14, after the period, insert: ``Provided, That no part of 
        the funds herein appropriated shall be paid to any corporation 
        which shall directly or indirectly purchase insurance from any 
        official or employee of the United States or any member of 
        their immediate family.''

        Mr. [Louis] Ludlow [of Indiana]: Mr. Chairman, a point of 
    order.
        The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
 9. John W. Boehne (Ind.).
---------------------------------------------------------------------------

        Mr. Ludlow: I make the point of order, Mr. Chairman, that it is 
    legislation on an appropriation bill. . . .
        Mr. Schafer of Wisconsin: I wish to be heard briefly, Mr. 
    Chairman.
        This is a limitation. My amendment applies to a paragraph of 
    the bill which makes an appropriation of $10,200,000 as a subsidy 
    to aviation corporations which are engaged in the transportation of 
    foreign air mail. In view of the fact that administrative branches 
    of the Government determine what corporations are to receive these 
    large subsidies, it is necessary to include the language of the 
    amendment in order that private personal interests of Government 
    officials and employees and their families might not conflict with 
    the public interest with a resulting increased cost to the 
    taxpayers' Treasury. This amendment is a limitation with a purpose 
    of reducing the cost of

[[Page 6480]]

    government, and I submit it is in order. . . .
        The Chairman: The Chair is ready to rule. The Chair is of the 
    opinion that this is definitely a limitation and, therefore, the 
    point of order is overruled.

Pay for Services Related to Investigations

Sec. 77.6 A provision that no part of an appropriation shall be used to 
    pay any person detailed or loaned for service in connection with 
    any congressional investigation was held to be in order as a proper 
    limitation.

    On Feb. 19, 1937,(10) the Committee of the Whole was 
considering H.R. 4720, a Treasury and Post Office Departments 
appropriation bill. The Clerk read the following provision of the bill 
against which a point of order was raised:
---------------------------------------------------------------------------
10. 81 Cong. Rec. 1445, 1446, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        Sec. 5. No part of the appropriations contained in this act 
    shall be used to pay the compensation of any person detailed or 
    loaned for service in connection with any investigation or inquiry 
    undertaken by any committee of either House of Congress under 
    special resolution thereof.
        Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I make a 
    point of order against section 5 on the ground it is legislation on 
    an appropriation bill. . . .

        The Chairman: (11) . . . The question raised is 
    whether this is a proper limitation to be placed on an 
    appropriation bill. If it be a proper limitation, then the point of 
    order cannot be sustained. It is a question whether any law is 
    changed by this section. If special committees desire to employ any 
    employee from a department, they can still employ them by making 
    proper arrangements and paying for them out of the appropriations 
    that have been made for the special committees, but this is an 
    appropriation bill for the Treasury and Post Office Departments, 
    and the question arises whether the House in Committee of the Whole 
    can place a limitation not only that will save money, but will 
    direct to whom that money will be paid.
---------------------------------------------------------------------------
11. Arthur H. Greenwood (Ind.).
---------------------------------------------------------------------------

        There are many decisions defining limitations on appropriation 
    bills, but one of the best that the Chair has found is one given by 
    Chairman Nelson Dingley, of Maine, on January 13, 1896, which is 
    found on page 47 of Cannon's Procedure of the House of 
    Representatives. The ruling of the Chairman at that time was as 
    follows:

            The House in Committee of the Whole has the right to refuse 
        to appropriate for any object, either in whole or in part, even 
        though that object may be authorized by law. That principle of 
        limitation has been sustained so repeatedly that it may be 
        regarded as a part of the parliamentary law of the Committee of 
        the Whole. . . .

        Again, on December 8, 1922, the Treasury Department 
    appropriation

[[Page 6481]]

    bill was under consideration in the Committee of the Whole House on 
    the state of the Union, when the paragraph providing an 
    appropriation for the enforcement of the National Prohibition Act 
    was reached Mr. Tinkham, of Massachusetts, proposed this amendment:

            Add a new provision, as follows: ``Provided That no part of 
        this appropriation shall be used for the payment of a salary of 
        any employee who shall not have been appointed after a 
        competitive examination and certification by the Civil Service 
        Commission.''

        Mr. Madden made a point of order against this amendment and 
    cited the section of the law which permitted the Commissioner of 
    Internal Revenue and the Attorney General to select certain 
    employees to help enforce the law.
        The Chairman of the Committee of the Whole at that time was the 
    gentleman from Indiana, Mr. Sanders; and the Chair reads his 
    decision:

            The Committee on Appropriations, of course, have no 
        legislative powers except such as are prescribed by the rules, 
        and an amendment cannot be offered which proposes legislation 
        unless it comes within the rules. However, there is a very long 
        line of decisions which permits limitations upon 
        appropriations. An appropriation shall be paid to any certain 
        class of employees, and the Chair knows of no reason why an 
        amendment which provides that no part of this appropriation 
        shall be paid to employees unless they have certain 
        qualifications is not a proper limitation. The Chair therefore 
        overrules the point of order.

        That decision may be found in Cannon's Precedents, volume 7, 
    section 1593.
        The Chair thinks that the section of the bill against which the 
    point of order is made is a proper limitation upon the use of the 
    appropriation contained in the bill. It does not necessarily have 
    to reduce the amount that shall be paid. It can direct to whom it 
    shall be paid. The Chair is of the opinion, therefore, that the 
    section is clearly within the power of the Committee of the Whole 
    to place a limitation upon an appropriation; and the Chair, 
    therefore, overrules the point of order.

Compensation of Named Persons

Sec. 77.7 An amendment to a paragraph of an appropriation bill 
    providing that no part of the money contained in the act shall be 
    paid as compensation to several persons, naming them, was held 
    germane and a proper limitation upon an appropriation bill.

        On Feb. 5, 1943,(12) the Committee of the Whole was 
    considering H.R. 1648, a Treasury and Post Office Departments 
    appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
12. 89 Cong. Rec. 645, 646, 78th Cong. 1st Sess.
---------------------------------------------------------------------------

        Expenses of loans: The indefinite appropriation ``Expenses of 
    loans, act of September 24, 1917, as amended and extended'' (31 
    U.S.C. 760, 761), shall not be used during the fiscal year 1944 to 
    supplement the appropriations otherwise provided for the current 
    work of the Bureau of the Public Debt. . . .

[[Page 6482]]

        Mr. [Joe] Hendricks [of Florida]: Mr. Chairman, I offer the 
    following amendment, which I send to the desk.
        The Clerk read as follows:

            Amendment offered by Mr. Hendricks: Page 12, line 22, after 
        the word ``Treasury'', strike out the period and insert a colon 
        and the following: ``Provided further, That no part of any 
        appropriation contained in this act shall be used to pay the 
        compensation of William Pickens, Frederick L. Schuman  . . . 
        and Edward Scheunemann.''

        Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, I make the 
    point of order that the amendment provides for the refusal of 
    payment of salaries to individuals whose salaries are not provided 
    for in this appropriation bill and, therefore, that the amendment 
    is not germane. Further, I make the point of order that it is 
    legislation on an appropriation bill. . . .
        The Chairman: (13) With respect to the point of 
    order made by the gentleman from New York [Mr. Marcantonio], 
    amendments of this character have been inserted in appropriation 
    bills heretofore. The amendment simply limits the appropriation. If 
    Congress has the right to appropriate, Congress, by the same token, 
    has the right to limit the appropriation.
---------------------------------------------------------------------------
13. Wirt Courtney (Tenn.).
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Bulk Rates for Political Committees

Sec. 77.8 An amendment reducing an amount in a general appropriation 
    bill for the postal service and providing that no funds therein be 
    used to implement special bulk third-class rates for political 
    committees was held in order either as a negative limitation not 
    specifically requiring new determinations or as a retrenchment of 
    expenditures under the Holman rule even assuming its legislative 
    effect, since the reduction of the amount in the bill would 
    directly accomplish the legislative result.

    On July 13, 1979,(14) during consideration in the 
Committee of the Whole of H.R. 4393 (Treasury Department, Postal 
Service, and general government appropriation bill) a point of order 
against an amendment was overruled as indicated below:
---------------------------------------------------------------------------
14. 125 Cong. Rec. 18453-55, 96th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Chairman: (15) The Clerk will read.
---------------------------------------------------------------------------
15. Richardson Preyer (N.C.).
---------------------------------------------------------------------------

        The Clerk read as follows:

            For payment to the Postal Service Fund for public service 
        costs and for revenue foregone on free and reduced rate mail, 
        pursuant to 39 U.S.C. 2401 (b) and (c), and for meeting the 
        liabilities of the former Post Office Department to the 
        Employees' Compensation Fund and to postal employees for earned 
        and unused annual leave as of June 30, 1971, pursuant to 39 
        U.S.C. 2004, $1,697,558,000.

[[Page 6483]]

        Mr. [Dan] Glickman [of Kansas]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Glickman: On page 9, line 3, 
        delete ``$1,697,558,000.'' and insert in lieu thereof 
        ``$1,672,810,000: Provided That no funds appropriated herein 
        shall be available for implementing special bulk third-class 
        rates for `qualified political committees' authorized by Public 
        Law 95-593.''. . .

        Mr. [Robert C.] Eckhardt [of Texas]: My point of order [which 
    had previously been reserved] is that the amendment places a burden 
    on the Postal Department which would not exist but for this 
    amendment. . . . [I]f the amendment is passed, it does not merely 
    withhold funds, but it requires the Postal Department to adjust the 
    rates of the Postal Department in order to comply with the 
    limitation contained in this amendment. Therefore, this is not a 
    mere limitation on an appropriation but it is a limitation which 
    requires the Postal Department, as the gentleman has stated in his 
    letter, to adjust all rates, determine which rates need 
    adjustments, which ones qualify or would not qualify under the 
    provision, and, thus, reduce those rates to the figures that would 
    permit the reduction in revenue. Therefore, it seems clear to me 
    that this affords an extremely heavy burden on the Postal 
    Department which would not otherwise exist but for the passage of 
    the amendment. If this were not true, the situation would create an 
    anomalous condition which I had pointed out in my initial question 
    to the gentleman in the well and the author of the amendment. It 
    would create a situation in which the benefits provided under 
    section 3626 of title 39 would still be enjoyed by qualifying 
    political committees, and yet the Postal Department would not be 
    able to receive the adjustment due to the additional costs. It 
    seems to me that in effect if the gentleman is correct and if 
    adjustments are made in the rate, there is another change in 
    substantive law occasioned by the adjustment in rates. That is, the 
    adjustment in rates substantively changes Public Law 95-593 so as 
    to deprive qualified political committees, including the Democratic 
    Committee and the Republican Committee, and all others that 
    qualify, of the benefits that we have enacted in another piece of 
    legislation, not one that deals with the Postal Department but 
    deals generally with the rates of political parties with respect to 
    the use of the mails.
        Mr. Glickman: . . . The amendment is strictly one of 
    limitation. It reduces funding by $25 million and limits the use of 
    that funding with respect to the charging of postal rates. I would 
    state for the gentleman and for the Chair that section 3627 of 
    title 39, United States Code is discretionary authority to adjust 
    rates if the appropriation fails and is not mandatory authority 
    and, therefore, I do believe that the amendment is merely a 
    limitation and is germane. . . .
        The Chairman: The Chair is prepared to rule on the point of 
    order.
        In the opinion of the Chair, the amendment constitutes a 
    negative limitation on how funds in the bill are spent rather than 
    being legislation on an appopriations bill. No new determinations 
    are required. Even if the amendment should be considered as 
    constituting legislation, it constitutes a retrenchment because it 
    cuts the

[[Page 6484]]

    amounts in the bills and the legislative effect directly 
    contributes to that reduction.
        The Chair, therefore, overrules the point of order.

No Funds to Administer Customs Service Reductions

Sec. 77.9 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,(16) 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:
---------------------------------------------------------------------------
16. 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 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: (17) The Chair is prepared to rule.
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17. Anthony C. Beilenson (Calif.).

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[[Page 6485]]

        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.(18)
---------------------------------------------------------------------------
18. 7 Cannon's Precedents Sec. 1694 is discussed in 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.)

Enforcement of Internal Revenue Service Policies

Sec. 77.10 An amendment to a general appropriation bill prohibiting the 
    use of funds therein to carry out any ruling of the Internal 
    Revenue Service which rules that taxpayers are not entitled to 
    certain charitable deductions was held in order as a limitation, 
    since the amendment was merely descriptive of an existing ruling 
    already promulgated by that agency and did not require new 
    determinations as to the applicability of the limitation to other 
    categories of taxpayers.

    On July 16, 1979,(19) during consideration in the 
Committee of the Whole of H.R. 4393 (Treasury Department, Postal 
Service, and general government appropriation bill), a point of order 
against an amendment was overruled, as follows:
---------------------------------------------------------------------------
19. 125 Cong. Rec. 18808-10, 96th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Robert K.] Dornan [of 
        California]: Page 39, after line 18, add the following new 
        section:
            Sec. 613. None of the funds available under this Act may be 
        used to carry out any revenue ruling of the Internal Revenue 
        Service which rules that a taxpayer is not entitled to a 
        charitable deduction for general purpose contributions which 
        are used for educational purposes by a religious organization 
        which is an exempt organization as described in section 
        170(c)(2) of the Internal Revenue Code of 1954. . . .

[[Page 6486]]

        Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, I want to insist 
    upon my point of order.
        Regardless of the merit of the subject matter here, this 
    obviously is not a limitation on an appropriation. It is evident by 
    the author's own statement that many things will be involved if 
    this amendment is adopted, that would be forced upon the agency, 
    that are not otherwise involved. It is in direct violation of 
    clause 2, rule XXI, because it does create legislative action.
        This is obviously a matter that only the legislative committee 
    can cope with, and so because it is a violation of that rule I 
    insist that the point of order be sustained. . . .
        Mr. Dornan: . . . I can assure the gentleman from Oklahoma (Mr. 
    Steed) that I checked out this amendment with the Parliamentarian's 
    Office, and I was told that the amendment was in order as a 
    limitation on an appropriations bill. There is no additional burden 
    imposed on Federal executive offices. IRS officials already perform 
    the simple ministerial requirement of analyzing our tax returns. 
    The amendment is negative in nature. It shows retrenchment on its 
    face. It is germane. Nevertheless, for the benefit of the 
    gentleman, if he desires, I will read some relevant excerpts from 
    Cannon's Precedents which demonstrate that the amendment is in 
    order. . . .
        . . . [I]n section 1515:

            An amendment prohibiting payment of fees to officials under 
        certain contingencies was held to retrench expenditures and to 
        come within the exception to the rule against admission of 
        legislation on appropriation bills. . . .

        Section 1491:

            If the obvious effect of an amendment is to reduce 
        expenditures, it is not necessary that it provide for such 
        reduction in definite terms and amount in order to come within 
        the exception.

        Section 1493, and I will conclude with this one--

            A cessation of Government activities was held to involve a 
        retrenchment of expenditures. . . .

        Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, this 
    amendment obviously adds a burden to the IRS to establish a 
    different standard from that which would be applicable under 
    existing law. If it did not, the amendment would be of no effect. 
    What is attempted to be done here is to provide a different rule of 
    law and impose that on the IRS by what is called a retrenchment in 
    an appropriations bill. If this may be done in the name of 
    retrenchment of expenditures, then any law of this Nation may be 
    changed. Funds may not be permitted to go to any agency which makes 
    a determination of an administrative sort unless that determination 
    is different from that which the law would permit to apply under 
    the circumstances. . . .
        The Chairman: (20) The Chair is prepared to rule on 
    the point of order. The Chair is of the opinion that retrenchment 
    precedents under the Holman rule do not apply in this situation 
    since no certain reduction in funds is involved. The Chair is of 
    the opinion that there are no precedents directly in point and the 
    Chair is not aware that the gentleman has sought the advice of the 
    Chair's advisers on this particular amendment but on a somewhat 
    similar amendment.
---------------------------------------------------------------------------
20. Richardson Preyer (N.C.).
---------------------------------------------------------------------------

        The Chair is of the opinion that what is involved in the 
    amendment is

[[Page 6487]]

    a particular ruling which applied to a single case and that, 
    therefore, no new determination has to be made by the IRS. It does 
    not require the IRS to make new rulings or determinations. The 
    amendment does not describe a situation where the IRS must look at 
    every religious contribution to determine if it applies. The 
    amendment is somewhat analogous to that in Deschler's (Procedure), 
    chapter 25, section 10.16, which was held in order.
        Therefore, the Chair thinks the amendment is in order, and the 
    point of order is overruled.

    Parliamentarian's Note: Rulings such as that cited above would now 
be affected by Rule XXI clause 5(b),(21) which provides:
---------------------------------------------------------------------------
21. House Rules and Manual Sec. 846b (1985).
---------------------------------------------------------------------------

        No bill or joint resolution carrying a tax or tariff measure 
    shall be reported by any committee not having jurisdiction to 
    report tax and tariff measures, nor shall an amendment in the House 
    or proposed by the Senate carrying a tax or tariff measure be in 
    order during the consideration of a bill or joint resolution 
    reported by a committee not having that jurisdiction. A question of 
    order on a tax or tariff measure in any such bill, joint 
    resolution, or amendment thereto may be raised at any time.

    An otherwise valid limitation on the use of funds contained in a 
general appropriation bill may be held to violate this clause where it 
is shown that the imposition of the restriction on Internal Revenue 
Service funding for the fiscal year would effectively and inevitably 
preclude the IRS from collecting revenues otherwise due and owing by 
law or require collection of revenue not legally due or owing. See, for 
example, the ruling of Aug. 1, 1986, during consideration of H.R. 5294, 
Treasury Department and Postal Service appropriation bill for fiscal 
1987.

Sec. 77.11 The Chair held that an amendment to a general appropriation 
    bill denying the use of funds therein for the Internal Revenue 
    Service to carry out certain published tax procedures did not 
    impose new duties or determinations on the executive branch and did 
    not constitute legislation.

    In a ruling on Aug. 19, 1980,(1) the Chair indicated 
that it is in order on a general appropriation bill to deny the use of 
funds to carry out an existing regulation, and the fact that the 
regulation for which funds are denied may have been promulgated 
pursuant to court order and pursuant to constitutional provisions is an 
argument on the merits of the amendment and does not render it 
legislative in nature. The pro

[[Page 6488]]

ceedings are discussed in Sec. 64.28, supra.
---------------------------------------------------------------------------
 1. 126 Cong. Rec. 21981, 21983, 21984, 96th Cong. 2d Sess.
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Regulations as to Sureties on Customs Bonds

Sec. 77.12 Language in a general appropriation bill prohibiting the use 
    of funds therein to eliminate an existing legal requirement for 
    sureties on customs bonds was held in order as a valid limitation 
    merely denying funds to change existing law and regulations.

    The Chair held on June 27, 1984,(2) that, 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. The proceedings are discussed in Sec. 51.16, 
supra.
---------------------------------------------------------------------------
 2. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------

Excepting Certain Political Committees From Limitation Affecting Mail 
    Rates

Sec. 77.13 To an amendment to a general appropriation bill limiting the 
    use of funds for the Postal Service to implement special mail rates 
    for qualified political committees as authorized by law, an 
    amendment lessening the amount of the reduction of funds in the 
    original amendment and also excepting from the limitation certain 
    congressional political committees as defined in law was held in 
    order either as an exception from a valid limitation which did not 
    add legislation (since the determinations as to which political 
    committees fit those descriptions were already required by law of 
    the Postal Service) or as perfecting a retrenchment amendment while 
    still reducing funds in the bill.

    The ruling of the Chair on July 13, 1979,(3) as that to 
an amendment retrenching expenditures in a general appropriation bill 
by reducing amounts therein and prohibiting their availability to 
particular recipients, an amendment lessening the amount of the 
reduction and also providing an exception from the limitation may be in 
order as a perfection of the retrenchment if funds contained in the 
bill remain reduced thereby. The proceedings are discussed in Sec. 4.8, 
supra.
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 3. 125 Cong. Rec. 18456, 18457, 96th Cong. 1st Sess.

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[[Page 6489]]