POLSC232: American Government

Budget enforcement for appropriations measures under the congressional budget process has both statutory and procedural elements. The statutory elements are derived from the Budget Control Act of 2011 (BCA), which imposes limits on discretionary spending each fiscal year through FY2021. The procedural elements of budget enforcement generally stem from requirements under the Congressional Budget Act of 1974 (CBA) that are normally associated with the budget resolution. Through this CBA process, the Appropriations Committee in each chamber, as well as each of their subcommittees, receives a procedural limit on the total amount of budget authority for the upcoming fiscal year.

Statutory Discretionary Spending Limits

The BCA places separate limits on two categories of discretionary spending: defense and nondefense. The defense category includes all discretionary spending under budget function 050 (defense). The nondefense category includes discretionary spending in all the other budget functions. The BCA limits were first implemented in FY2012 and are applicable for each of the fiscal years through FY2021.

Pursuant to procedures under the BCA, the limits initially established for FY2014 through FY2021 were further lowered each fiscal year to achieve certain additional budgetary savings. The amount of the revised limits for the upcoming fiscal year is calculated by the Office of Management and Budget (OMB) and reported with the President's budget submission each year. The timing of this calculation, which is to occur many months prior to the beginning of the fiscal year, is intended to allow time for congressional consideration of appropriations measures that comply with the revised limits.

Enforcement

If discretionary spending is enacted in excess of the statutory limits, enforcement primarily occurs through "sequestration," which is the automatic cancelation of budget authority through largely across-the-board reductions of non-exempt programs and activities. Any such across-the-board reductions affect only non-exempt spending subject to the breached limit and are in the amount necessary to reduce spending so that it complies with the limit. The evaluation of the spending limits and any necessary sequestration occurs at specified times after appropriations measures are enacted. The first such evaluation occurs 15 days after Congress adjourns a session sine die. If appropriations measures are enacted after that time, subsequent evaluations of the budgetary effects of these measures and any necessary sequestration occurs 15 days after enactment.

The discretionary spending limits are also enforceable procedurally through points of order raised under Section 314(f) of the CBA. Section 314(f) prohibits the House or Senate from considering any measure, amendment thereto, or conference report that would cause one or both of the limits to be exceeded. The House can waive Section 314(f) through a special rule and the Senate by a three-fifths vote of Members.

Allocations and Other Limits on Appropriations Associated with the Budget Resolution

As mentioned previously, within each chamber, the total budget authority and outlays included in the annual budget resolution are allocated among the House and Senate committees with jurisdiction over spending, including the House and Senate Committees on Appropriations. Through this allocation process, the budget resolution sets total spending ceilings for each House and Senate committee (referred to as the 302(a) allocations).

The 302(a) allocation of the Appropriations Committee includes both discretionary spending and direct spending (including net interest). Discretionary spending is controlled by appropriations acts, which are under the jurisdiction of the House and Senate Committees on Appropriations. In addition to budget authority for all programs funded by discretionary spending, appropriations measures also include budget authority to finance the obligations of some direct spending programs controlled by legislation under the jurisdiction of the legislative (or authorizing) committees.

The budget authority for direct spending provided in appropriations measures is predominantly for entitlement programs, referred to as appropriated entitlements. These entitlements are funded through a two-step process. First, legislation becomes law that sets program parameters (through eligibility requirements and benefit levels, for example); then the appropriations committees must provide the budget authority needed to finance the commitment. The Appropriations Committees have limited control over the amount of budget authority provided, since the amount needed is the result of previously enacted commitments in law.

After the House and Senate Appropriations Committees receive their 302(a) allocations, they separately subdivide this amount among their subcommittees, providing each subcommittee with a ceiling. These subdivisions are referred to as the 302(b) suballocations. The authority for making 302(b) suballocations belongs to the House and Senate Appropriations Committees, and they may later be revised by the committees to reflect further action on appropriations. Such allocations become .effective (and enforceable) once they have been reported by the committee.

The spending ceilings associated with the annual budget resolution that apply to appropriations measures are generally for a single fiscal year (the upcoming fiscal year) because appropriations measures are annual.

If the budget resolution is significantly delayed (or is never completed), there may not be 302(a) allocations or 302(b) sub-allocations to enforce until the budget resolution is in place. In such instances, the House and Senate have often adopted alternative mechanisms to provide at least temporary 302(a) allocations for their respective Appropriations Committees, thereby establishing some enforceable spending ceilings. Such mechanisms have been referred to as a deeming resolution. The method of adopting such alternative mechanisms for one or both chambers may take a variety of forms. For example, when Congress did not complete a FY2007 budget resolution, both the House and Senate adopted separate deeming resolutions in 2006. The House adopted a special rule that, in part, deemed the House-adopted FY2007 budget resolution and accompanying committee report in effect for enforcement purposes

As a result, the FY2007 total spending ceilings and 302(a) allocations (and therefore, subsequent 302(b) suballocations) were in effect. The Senate included in a FY2006 supplemental appropriations act a deeming provision that, in part, set FY2007 302(a) allocations for the Senate Appropriations Committee. For FY2014 and FY2015, an alternative mechanism for budget enforcement, which included a means to establish 302(a) allocations for appropriations, was enacted in the Bipartisan Budget Act of 2013.72 In the absence of a budget resolution, this mechanism allowed the chairs of the House and Senate Appropriations Committees to enter statements into the Congressional Record of budgetary levels for their respective chambers. Those statements, which included a 302(a) allocation for the chambers' Appropriations Committees, formed the basis for the subsequent 302(b) suballocations for the subcommittees.

Enforcement

The restrictions on appropriations associated with the budget resolution are enforced procedurally through points of order that can be raised on the House and Senate floors when the appropriations measures are considered.

House

Two CBA points of order, under Sections 302(f) and 311(a), are available to enforce the 302(a) allocation to the Appropriations Committees and the 302(b) suballocations to their subcommittees. These CBA points of order apply to committee-reported appropriations bills, certain non-reported appropriations bills, amendments, and conference reports to these measures during their consideration. If such an appropriation violates these rules, the legislation or amendment cannot be considered.

The 302(f) point of order prohibits floor consideration of a measure, amendment, or conference report providing new budget authority for the upcoming fiscal year that would cause the applicable committee 302(a) or subcommittee 302(b) allocations of new budget authority for that fiscal year to be exceeded. The application of this point of order on appropriations measures is generally limited to discretionary spending (and any changes in direct spending initiated in the appropriations measures). For example, if a committee-reported regular appropriations bill had provided total new discretionary budget authority equal to the subcommittee's 302(b) allocation, any amendment proposing additional new discretionary budget authority would violate the 302(f) point of order.

The 311(a) point of order prohibits floor consideration of a measure, amendment thereto, or conference report that would cause the applicable total budget authority and outlay ceilings in the budget resolution for that fiscal year to be exceeded. As the amounts of all the spending measures considered in the House accumulate, they could potentially reach or exceed these ceilings. This point of order would typically affect the last spending bills to be considered, such as supplemental appropriations measures or the last regular appropriations bills. In the House, the so-called Fazio Exception, however, exempts legislation if it would not cause the applicable committee 302(a) allocations to be exceeded.

Separate orders adopted at the beginning of the 112th through 114th Congresses, established new requirements applicable to House consideration of amendments to appropriations bills. Section 3(d)(3) of H.Res. 5 (114th Congress) provides a point of order against an amendment (or amendments offered en bloc) that proposes a net increase in budget authority, even if the level of budget authority in the bill is below the ceiling established under the appropriate 302(b) subdivision. This establishes a secondary enforcement mechanism intended to preserve any savings below the 302(b) subdivision achieved by the Appropriations Committee or through floor amendments. This new point of order applies only to general appropriations bills. In addition, the FY2015 budget resolution established points of order in both the House and Senate that prohibit language in appropriations measures that would produce a net increase in the cost of direct spending programs above levels specified in the resolution (for FY201-FY2019).

Senate

Three points of order typically enforce spending ceilings associated with the budget resolution. Two are CBA points of order, as provided in Sections 302(f) and 311(a). The Senate application of these rules, however, varies from the House versions. The Senate 302(f) point of order prohibits floor consideration of such legislation providing new budget authority for the upcoming fiscal year that would cause the applicable 302(b) suballocations in new budget authority and outlays for that fiscal year to be exceeded. In contrast to the House, it (1) does not apply to 302(a) allocations, but (2) does enforce the outlay level associated with the 302(b) subdivisions. The 311(a) point of order in the Senate is similar to the House version. The Senate, however, does not provide for an exception similar to the Fazio Exception in the House.

In addition, the FY2015 budget resolution established points of order in both the House and Senate that prohibit language in appropriations measures that would produce a net increase in the cost of direct spending programs above levels specified in the resolution (for FY201-FY2019).

Senators may make motions to waive these points of order at the time the issue is raised. Currently, a vote of three-fifths of all Senators (60 Senators if there are no vacancies) is required to approve a waiver motion for any of these points of order. A vote to appeal the presiding officer's ruling also requires a three-fifths vote of all Senators.

Emergency Spending

In the House and Senate, discretionary appropriations may be designated or otherwise provided so that they are effectively exempt from the budget enforcement limits. Such designations or allowances for additional budget authority are provided pursuant to Section 251(b)(2)(A)-(D) of the Balanced Budget and Emergency Deficit Control Act (BBEDCA) and include the following:

• Appropriations designated as emergency requirements;
• Appropriations designated as Overseas Contingency Operations/Global War on Terrorism (OCO/GWOT);
  
• Certain appropriations for continuing disability reviews and redeterminations;
  
• Certain appropriations for the health care fraud and abuse control (HCFAC); and
• Appropriations designated for disaster relief.
  

The BBEDCA does not limit the amount of budget authority that can be designated as emergency requirements or for OCO/GWOT each fiscal year, nor does it specify the types of activities that are eligible for such designations. In practice, the emergency requirements designation has generally been used to provide additional budget authority for unanticipated needs. The OCO/GWOT designation has generally been used for expenses associated with overseas operations, such as in Iraq and Afghanistan, as well as other purposes.

The allowable purposes for the continuing disability reviews and redeterminations budget authority are such activities under Titles II and XVI of the Social Security Act and for the costs associated with conducting redeterminations of eligibility under Title XVI. The purposes for the HCFAC funds are any for that program at the Department of Health and Human Services. The BBEDCA specifies the maximum amounts for these programs that would be effectively exempt from the spending limits, if appropriated, for each of the fiscal years between FY2012 and FY2021.

Budget authority eligible for the disaster relief designation is for the cost of activities carried out pursuant to a declaration of a major disaster under the Stafford Act (42 U.S.C. 5122(2)). The amount for this disaster designation is capped each fiscal year to the 10-year rolling average for such budget authority minus the high and low fiscal years during that period. If the entire allowable amount that can be designated for a fiscal year is not appropriated, the unused amount of the designation may be carried over to the following fiscal year.

Section 314(d) of the CBA allows House amendments to strike amounts that are designated as an emergency in appropriations measures or amendments thereto, notwithstanding their budgetary effects. In the Senate, amounts that are designated as an emergency are subject to a point of order under Section 314(e). That point of order may be waived by a three-fifths vote of the Senate. If the point of order is not waived and the presiding officer sustains the point of order, the designation is stricken, and the measure or amendment may be vulnerable to the various enforceable spending limits.

The House also considers the emergency, OCO/GWOT, and disaster relief designations to be legislative and prohibits their inclusion in general appropriations bills, amendments thereto, or conference reports. The Senate, however, does not consider such designations to be legislative.