POLSC232: American Government

Congress has established a process that provides for two separate types of measures - authorization measures and appropriation measures. These measures perform different functions. Authorization acts establish, continue, or modify agencies or programs. For example, an authorization act may establish or modify programs within the Department of Defense. An authorization act may also explicitly authorize subsequent appropriations for specific agencies and programs, frequently setting spending ceilings for them. These authorizations of appropriations provisions may be permanent, annual, or multiyear authorizations. Annual and multiyear provisions require reauthorizations when they expire. Congressional rules generally restrict appropriations measures to provide new budget authority only for programs, activities, or agencies previously authorized by law. Congress, however, is not required to provide appropriations for an authorized discretionary spending program.

House and Senate rules enforce the separation of these functions into different measures by separating committee jurisdiction over appropriations and other types of legislation and rules prohibiting measures from including both appropriations and other legislation. Authorization measures are under the jurisdiction of legislative committees, such as the House Committees on Agriculture and Homeland Security or the Senate Committees on Armed Services and the Judiciary. Appropriations measures are under the jurisdiction of the House and Senate Appropriations Committees.

The House and Senate prohibit, in various ways, language in appropriations bills providing appropriations for purposes not authorized by law or legislation on an appropriations bill. An appropriation for purposes not authorized by law, commonly called an unauthorized appropriation, is new budget authority in an appropriations measure (including an amendment or conference report) for agencies or programs with no current authorization or for which budget authority exceeds the ceiling authorized. Legislation refers to language in appropriations measures that changes existing law, such as establishing new law or amending or repealing current law. Legislation is under the jurisdiction of the legislative committees.

Although House rules prohibit both unauthorized appropriations and legislation in regular appropriations bills and supplemental appropriations measures that provide funds for two or more agencies, the House may choose to waive their application. However, House rules do not prohibit such provisions in continuing resolutions. The House prohibition applies to bills reported by the House Appropriations Committee, amendments, and conference reports. The point of order applies to the text of the bill as well as any amendments or conference reports.

Senate rules regarding legislation on appropriations bills restrict the content of amendments to regular bills, supplementals that provide funds for more than one purpose or agency, and continuing resolutions. Such amendments include those that are:

• offered on the Senate floor,
• reported by the Senate Appropriations Committee to the House-passed measure, or
• proposed as a substitute for the House-passed text.

In other words, Senate rules prohibit legislation in both Senate Appropriations Committee amendments and non-committee amendments. They also prohibit non-germane amendments.

These Senate rules do not apply to provisions in Senate bills or conference reports. Recently, the practice of the Senate Appropriations Committee has been either to (1) report the House-passed bill with a committee substitute, or (2) report an original Senate bill, wait until the Senate receives the House-passed bill, and then offer a committee substitute (comprising the text of the Senate bill) to the House-passed bill. In either case, the Senate considers the committee's recommendations in the form of a committee amendment.

Senate rules are generally considered to be less restrictive than the House regarding what may be interpreted as unauthorized appropriations, and they prohibit such appropriations in comparatively fewer situations. For example, the Senate Appropriations Committee may report committee amendments containing appropriations not previously authorized by law. Similarly, an amendment moved by direction of the committee with legislative jurisdiction or in pursuance of an estimate submitted in accordance with law would not be prohibited under Rule XVI. An appropriation is also considered authorized if the Senate has previously passed the authorization during the same session of Congress, even if the bill has not been enacted into law. As a result, while the Senate rule generally prohibits unauthorized appropriations, Senators rarely raise this point of order.

The division between an authorization and an appropriation is a construct of House and Senate rules created to apply to congressional consideration so that the term "unauthorized appropriations" does not convey a legal meaning with regard to funding. If unauthorized appropriations or legislation remain in an appropriations measure as enacted, either because no one raised a point of order or the House or Senate waived the rules, the provision will still have the force of law. Unauthorized appropriations, if enacted, are therefore generally available for obligation or expenditure. Legislative provisions enacted in an annual appropriations act also generally have the force of law for the duration of that act unless otherwise specified.