For other versions of this document, see http://wikileaks.org/wiki/CRS-RL30862 ------------------------------------------------------------------------------ Order Code RL30862 The Budget Reconciliation Process: The Senate's "Byrd Rule" Updated March 20, 2008 Robert Keith Specialist in American National Government Government and Finance Division The Budget Reconciliation Process: The Senate's "Byrd Rule" Summary Reconciliation is a procedure under the Congressional Budget Act of 1974 by which Congress implements budget resolution policies affecting mainly permanent spending and revenue programs. The principal focus in the reconciliation process has been deficit reduction, but in some years reconciliation has involved revenue reduction generally and spending increases in selected areas. Although reconciliation is an optional procedure, it has been used most years since its first use in 1980 (19 reconciliation bills have been enacted into law and three have been vetoed). During the first several years' experience with reconciliation, the legislation contained many provisions that were extraneous to the purpose of implementing budget resolution policies. The reconciliation submissions of committees included such things as provisions that had no budgetary effect, that increased spending or reduced revenues when the reconciliation instructions called for reduced spending or increased revenues, or that violated another committee's jurisdiction. In 1985 and 1986, the Senate adopted the Byrd rule (named after its principal sponsor, Senator Robert C. Byrd) on a temporary basis as a means of curbing these practices. The Byrd rule has been extended and modified several times over the years. In 1990, the Byrd rule was incorporated into the Congressional Budget Act of 1974 as Section 313 and made permanent (2 U.S.C. 644). A Senator opposed to the inclusion of extraneous matter in reconciliation legislation may offer an amendment (or a motion to recommit the measure with instructions) that strikes such provisions from the legislation, or, under the Byrd rule, a Senator may raise a point of order against such matter. In general, a point of order authorized under the Byrd rule may be raised in order to strike extraneous matter already in the bill as reported or discharged (or in the conference report), or to prevent the incorporation of extraneous matter through the adoption of amendments or motions. A motion to waive the Byrd rule, or to sustain an appeal of the ruling of the chair on a point of order raised under the Byrd rule, requires the affirmative vote of three-fifths of the membership (60 Senators if no seats are vacant). The Byrd rule provides six definitions of what constitutes extraneous matter for purposes of the rule (and several exceptions thereto), but the term is generally described as covering provisions unrelated to achieving the goals of the reconciliation instructions. The Byrd rule has applied to 17 reconciliation measures considered by the Senate from 1985 through the present. There have been 53 points of order and 42 waiver motions considered and disposed of under the Byrd rule, largely in a manner that favored those who opposed the inclusion of extraneous matter in reconciliation legislation (43 points of order were sustained, in whole or in part, and 33 waiver motions were rejected). This report will be updated as developments warrant. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative History of the Byrd Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Current Features of the Byrd Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Definitions of Extraneous Matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Exceptions to the Definition of Extraneous Matter . . . . . . . . . . . . . . . . 6 Implementation of the Byrd Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Points of Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Waiver Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Years in Which the Byrd Rule Was Not Invoked . . . . . . . . . . . . . . . . 13 Byrd Rule Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Impact on House-Senate Relations in 1993 and 1994 . . . . . . . . . . . . . 14 Effects on Tax-Cut Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Rules Changes in the 110th Congress Barring Deficit Increases . . . . . 20 Appendix A. Text of the Byrd Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 List of Tables Table 1. Reconciliation Measures Enacted Into Law or Vetoed: 1980-2007 . . . 8 Table 2. Reconciliation Acts: Summary of Points of Order and Waiver Motions Under the Byrd Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Table 3. Listing of Actions Under the Senate's Byrd Rule, by Act: 1985-2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 The Budget Reconciliation Process: The Senate's "Byrd Rule" Introduction Reconciliation is a process established under Section 310 of the Congressional Budget Act of 1974 (P.L. 93-344), as amended.1 The purpose of reconciliation is to change substantive law so that revenue and mandatory spending levels are brought into line with budget resolution policies. Reconciliation generally has been used to reduce the deficit through spending reductions or revenue increases, or a combination of the two. In recent years, however, the reconciliation process also has encompassed revenue reduction generally and spending increases in selected program areas. Reconciliation is a two-step process. Under the first step, reconciliation instructions are included in the budget resolution, directing one or more committees in each House to develop legislation that changes spending or revenues (or both) by the amounts specified in the budget resolution. If more than one committee in each House is given instructions, each instructed committee submits reconciliation legislation to its respective Budget Committee, which incorporates all submissions, without any substantive revision, into a single, omnibus budget reconciliation measure. Reconciliation procedures during a session usually have applied to multiple committees and involved omnibus legislation. Under the second step, the omnibus budget reconciliation measure is considered in the House and Senate under expedited procedures (for example, debate time in the Senate on a reconciliation measure is limited to 20 hours and amendments must be germane). The process culminates with enactment of the measure, thus putting the policies of the budget resolution into effect. Reconciliation, which was first used by the House and Senate in 1980, is an optional procedure, but it has been used in most years. Over the period covering from 1980 to the present, 19 reconciliation bills have been enacted into law and three have been vetoed. During the first several years' experience with reconciliation, the legislation contained many provisions that were extraneous to the purpose of reducing the deficit. The reconciliation submissions of committees included such things as provisions that had no budgetary effect, that increased spending or reduced revenues, or that violated another committee's jurisdiction. 1 For a detailed discussion of the reconciliation process, see CRS Report RL33030, The Budget Reconciliation Process: House and Senate Procedures, by Robert Keith and Bill Heniff Jr. CRS-2 In 1985 and 1986, the Senate adopted the Byrd rule (named after its principal sponsor, Senator Robert C. Byrd) as a means of curbing these practices. Initially, the rule consisted of two components, involving a provision in a reconciliation act and a Senate resolution. The Byrd rule has been modified several times over the years. The purpose of this report is to briefly recount the legislative history of the Byrd rule, summarize its current features, and describe its implementation from its inception through the present. Legislative History of the Byrd Rule During the first five years that the Byrd rule was in effect, from late 1985 until late 1990, it consisted of two separate components -- (1) a provision in statute applying to initial Senate consideration of reconciliation measures, and (2) a Senate resolution extending application of portions of the statutory provision to conference reports and amendments between the two Houses. Several modifications were made to the Byrd rule in 1986 and 1987, including extending its expiration date from January 2, 1987, to January 2, 1988, and then to September 30, 1992, but the two separate components of the rule were preserved. In 1990, these components were merged together and made permanent when they were incorporated into the Congressional Budget Act (CBA) of 1974 as Section 313. There have been no further changes in the Byrd rule since 1990. The Byrd rule originated on October 24, 1985, when Senator Robert C. Byrd, on behalf of himself and others, offered Amendment No. 878 (as modified) to S. 1730, the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985.2 The Senate adopted the amendment by a vote of 96-0.3 In this form, the Byrd rule applied to initial Senate consideration of reconciliation measures. Senator Byrd explained that the basic purposes of the amendment were to protect the effectiveness of the reconciliation process (by excluding extraneous matter that often provoked controversy without aiding deficit reduction efforts) and to preserve the deliberative character of the Senate (by excluding from consideration under expedited procedures legislative matters not central to deficit reduction that should be debated under regular procedures). He opened his remarks by stating: ... we are in the process now of seeing ... the Pandora's box which has been opened to the abuse of the reconciliation process. That process was never meant to be used as it is being used. There are 122 items in the reconciliation bill that are extraneous. Henceforth, if the majority on a committee should wish to include in reconciliation recommendations to the Budget Committee any measure, no matter how controversial, it can be brought to the Senate under an 2 For a detailed legislative history of the Byrd rule, see the following print of the Senate Budget Committee: Budget Process Law Annotated -- 1993 Edition, by William G. Dauster, 103rd Cong., 1st sess., S. Prt. 103-49, October 1993, notes on pp. 229-246. 3 The Senate's consideration of and vote on the amendment occurred on pp. S14032-S14038 of the Congressional Record (daily ed.) of October 24, 1985. CRS-3 ironclad built-in time agreement that limits debate, plus time on amendments and motions, to no more than 20 hours. It was never foreseen that the Budget Reform Act would be used in that way. So if the budget reform process is going to be preserved, and more importantly if we are going to preserve the deliberative process in this U.S. Senate -- which is the outstanding, unique element with respect to the U.S. Senate, action must be taken now to stop this abuse of the budget process.4 The Byrd amendment was included in modified form in COBRA of 1985 (P.L. 99-272), which was not enacted into law until April 7, 1986, as Section 20001 (100 Stat. 390-391). The Byrd rule, in this form, thus became effective on April 7. As originally framed, the Byrd rule was set to expire on January 2, 1987. Figure 1. Laws and Resolutions Over the years, the Senate Establishing the Byrd Rule has expanded and revised the Byrd rule through the adoption of two resolutions and the P.L. 99-272, Consolidated Omnibus inclusion of provisions in four Budget Reconciliation Act of 1985, Section laws. Figure 1 lists the laws 2001 (100 Stat. 390-391), April 7, 1986. and resolutions that have established and revised the Byrd S.Res. 286 (99th Congress, 1st Session), rule. December 19, 1985. On December 19, 1985, S.Res. 509 (99th Congress, 2nd Session), the Senate adopted by voice October 16, 1986. vote a resolution (S.Res. 286), sponsored by Senator Alan P.L. 99-509, Omnibus Budget Simpson and others, that Reconciliation Act of 1986, Section 7006 (100 extended the application of Stat. 1949-1950), October 21, 1986. portions of the statutory provision to conference reports P.L. 100-119, Increasing the Statutory and amendments between the Limit on the Public Debt, Section 205 (101 two Houses. Because the Stat. 784-785), September 29, 1987. enactment of COBRA of 1985 was delayed until early 1986, P.L. 101-508, Omnibus Budget the portion of the Byrd rule Reconciliation Act of 1990, Section 13214 dealing with conference reports (104 Stat. 1388-621 through 1388-623), became effective first. The November 5, 1990. provisions of S.Res. 286 were set to expire on the same date as P.L. 105-33, Balanced Budget Act of the provision in COBRA of 1997, Section 10113(b)(1) (111 Stat. 688), 1985 (January 2, 1987). August 5, 1997. In the following year, the Senate was involved in two actions affecting the Byrd rule. First, the Senate adopted S.Res. 509 by voice vote 4 See the remarks of Senator Robert C. Byrd on p. S14032 of the Congressional Record (daily ed.), October 24, 1985. CRS-4 on October 16, 1986. The measure, offered by Senator Alan Simpson and others, modified S.Res. 286 in a technical fashion. Second, the Omnibus Budget Reconciliation Act of 1986 was enacted into law, as P.L. 99-509, on October 21, 1986. Section 7006 of the law made several minor changes in the Byrd rule and extended its expiration date by one year -- until January 2, 1988. Further changes in the Byrd rule were made in 1987. These changes were included in a measure increasing the statutory limit on the public debt, modifying procedures under the Balanced Budget and Emergency Deficit Control Act of 1985, and making other budget process changes (P.L. 100-119, signed into law on September 29; see Title II (Budget Process Reform)). Section 205 of the law added an item to the list of definitions of extraneous matter in the Byrd rule and extended its expiration until September 30, 1992. In 1990, Congress and the President agreed to further modifications of the budget process by enacting the Budget Enforcement Act (BEA) of 1990 (Title XIII of the Omnibus Budget Reconciliation Act of 1990). Section 13214 of the law made significant revisions to the Byrd rule and incorporated it (as permanent law) into the CBA of 1974 as Section 313 (2 U.S.C. 644). Finally, the Budget Enforcement Act of 1997 (Title X of the Balanced Budget Act of 1997) made minor technical changes in Section 313 of the CBA of 1974 to correct drafting problems with the BEA of 1990. Current Features of the Byrd Rule A Senator opposed to the inclusion of extraneous matter in reconciliation legislation has two principal options for dealing with the problem. First, a Senator may offer an amendment (or a motion to recommit the measure with instructions) that strikes such provisions from the legislation. Second, under the Byrd rule, a Senator may raise a point of order against extraneous matter. The Byrd rule is a relatively complex rule5 that applies to two types of reconciliation measures considered pursuant to Section 310 of the CBA of 1974 -- reconciliation bills and reconciliation resolutions.6 (A reconciliation resolution could 5 Some of the complexities of the Byrd rule are examined in: (1) Riddick's Senate Procedure (S.Doc. 101-28, 101st Cong., 2nd sess., 1992), by Floyd M. Riddick and Alan S. Frumin, pp. 624-626; and (2) Budget Process Law Annotated -- 1993 Edition, by William G. Dauster, op. cit., beginning on p. 198. 6 Part of the Byrd rule, Section 313(a), also applies to reconciliation measures considered pursuant to Section 258C of the Balanced Budget and Emergency Deficit Control Act of 1985. This section, which has never been invoked, provides for the consideration of reconciliation legislation in the fall in order to achieve deficit reductions that would obviate the need for an expected sequester under the pay-as-you-go (PAYGO) requirement (or, previously, the deficit targets). The PAYGO requirement effectively expired at the end of the 107th Congress (see CRS Report RS21378, Termination of the "Pay-As-You-Go" (PAYGO) Requirement for FY2003 and Later Years, by Robert Keith.) All of the (continued...) CRS-5 be used to make changes in legislation that had passed the House and Senate but had not yet been enrolled and sent to the President. The practice of the House and Senate has been to consider only reconciliation bills.) In general, a point of order authorized under the Byrd rule may be raised in order to strike extraneous matter already in the bill as reported or discharged (or in the conference report), or to prevent the incorporation of extraneous matter through the adoption of amendments or motions. A point of order may be raised against a single provision or two or more provisions (as designated by title or section number, or by page and line number), and may be raised against a single amendment or two or more amendments. The chair may sustain a point of order as to all of the provisions (or amendments) or only some of them. Once material has been stricken from reconciliation legislation under the Byrd rule, it may not be offered again as an amendment. A motion to waive the Byrd rule, or to sustain an appeal of the ruling of the chair on a point of order raised under the Byrd rule, requires the affirmative vote of three-fifths of the membership (60 Senators if no seats are vacant).7 A single waiver motion can: (1) apply to the Byrd rule as well as other provisions of the Congressional Budget Act; (2) involve multiple as well as single provisions or amendments; (3) extend (for specified language) through consideration of the conference report as well as initial consideration of the measure or amendment; and (4) be made prior to the raising of a point of order, thus making the point of order moot. When a reconciliation measure, or a conference report thereon, is considered, the Senate Budget Committee must submit for the record a list of potentially extraneous matter included therein.8 This list is advisory, however, and does not bind the chair in ruling on points of order. Determinations of budgetary levels for purposes of enforcing the Byrd rule are made by the Senate Budget Committee. Definitions of Extraneous Matter. Subsection (b)(1) of the Byrd rule provides definitions of what constitutes extraneous matter for purposes of the rule. 6 (...continued) reconciliation measures considered by the Senate thus far have originated pursuant to Section 310 of the CBA of 1974. 7 In the Senate, many points of order under the CBA of 1974 require a three-fifths vote of the membership to waive (or to sustain an appeal of the ruling of the chair). Most of these three-fifths waiver requirements are temporary, but in the case of the Byrd rule it is permanent. Section 503 of the FY2004 budget resolution (H.Con.Res. 95, 108th Cong.), adopted on April 11, 2003, extended the expiration date for the temporary requirements to September 30, 2008. 8 For an example of such a list, see the remarks of Senator Pete Domenici regarding the conference report on the Balanced Budget Act of 1997 in the Congressional Record (daily ed.) of July 31, 1997, at pp. S8406-S8408. CRS-6 The Senate Budget Committee, in its report on the budget resolution for FY1994, noted: `Extraneous' is a term of art. Broadly speaking, the rule prohibits inclusion in reconciliation of matter unrelated to the deficit reduction goals of the reconciliation process.9 A provision is considered to be extraneous if it falls under one or more of the following six definitions: ! it does not produce a change in outlays or revenues; ! it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions; ! it is outside of the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure; ! it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision; ! it would increase the deficit for a fiscal year beyond the "budget window" covered by the reconciliation measure;10 and ! it recommends changes in Social Security. The last definition complements a ban in Section 310(g) of the CBA of 1974 against considering any reconciliation legislation that contains recommendations pertaining to the Social Security. For purposes of these provisions, Social Security is considered to include the Old-Age, Survivors, and Disability Insurance (OASDI) program established under Title II of the Social Security Act; it does not include Medicare or other programs established as part of that act. Exceptions to the Definition of Extraneous Matter. Subsection (b)(2) of the Byrd rule provides that a Senate-originated provision that does not produce a change in outlays or revenues shall not be considered extraneous if the chairman and ranking minority members of the Budget Committee and the committee reporting the provision certify that -- 9 See the report of the Senate Budget Committee to accompany S.Con.Res. 18, Concurrent Resolution on the Budget, FY1994 (S.Rept. 103-19, March 12, 1993), p. 49. 10 The "budget window" refers to the period covered by the budget resolution, and to any reconciliation directives included therein and the resultant reconciliation legislation. Beginning in the late 1980s, the budget resolution is required to cover at a minimum the "budget year" (the fiscal year beginning on October 1 in the session that the budget resolution is adopted) and the four following fiscal years (the "outyears"). In addition, budget resolutions sometimes cover the "current year" (the fiscal year preceding the budget year) and up to five additional outyears. Accordingly, the longest budget window that has applied to a budget resolution and associated reconciliation legislation covered 11 years, including the current year. CRS-7 ! the provision mitigates direct effects clearly attributable to a provision changing outlays or revenues and both provisions together produce a net reduction in the deficit; or ! the provision will (or is likely to) reduce outlays or increase revenues: (1) in one or more fiscal years beyond those covered by the reconciliation measure; (2) on the basis of new regulations, court rulings on pending legislation, or relationships between economic indices and stipulated statutory triggers pertaining to the provision; or (3) but reliable estimates cannot be made due to insufficient data. Additionally, under subsection (b)(1)(A), a provision that does not change outlays or revenues in the net, but which includes outlay decreases or revenue increases that exactly offset outlay increases or revenue decreases, is not considered to be extraneous. The full text of the Byrd rule in its current form is provided in Appendix A. Implementation of the Byrd Rule Congress and the President considered 22 omnibus reconciliation measures (as shown in Table 1) between calendar year 1980, when the reconciliation process was first used, and the present.11 As stated previously, 19 of these measures were enacted into law and three were vetoed (by President Clinton). The Byrd rule has been in effect during the consideration of the last 17 of these 22 measures, covering calendar years 1985 through 2007. The Byrd rule had not been established when the first five reconciliation bills were considered. Table 1. Reconciliation Measures Enacted Into Law or Vetoed: 1980-2007 11 The Senate also considered two measures linked to the reconciliation process. On December 15, 1975, the Senate considered, amended, and passed H.R. 5559, the Revenue Adjustment Act of 1975, which reduced revenues by about $6.4 billion pursuant to a budget resolution instruction. The measure was not regarded as a reconciliation bill when it was considered by the House, but it was considered under reconciliation procedures in the Senate. The President vetoed the measure later in the year and the House sustained his veto. See the remarks of Senator Russell Long and the presiding officer on p. 40540 and the remarks of Senator Edmund Muskie and others on pp. 40544-40550 in the Congressional Record of December 15, 1975, regarding the status of H.R. 5559 as a reconciliation bill. The Deficit Reduction Act of 1984 (P.L. 98-369) was regarded as a reconciliation bill when it was considered in the House, but was stripped of that classification when it was considered in the Senate (in April and May of 1984). The House also has considered reconciliation measures that were not considered in the Senate. For more information on the consideration of reconciliation measures, see CRS Report RL30458, The Budget Reconciliation Process: Timing of Legislative Action, by Robert Keith. CRS-8 Public Date Statutes-at-Large Reconciliation Act Law Enacted Citation Number (or Vetoed) Byrd Rule Not in Effect 1 Omnibus Reconciliation Act 96-499 94 Stat. 2599-2695 12-05-80 of 1980 2 Omnibus Budget 97-35 95 Stat. 357-933 08-13-81 Reconciliation Act of 1981 3 Tax Equity and Fiscal 97-248 96 Stat. 324-707 09-03-82 Responsibility Act of 1982 4 Omnibus Budget 97-253 96 Stat. 763-807 09-08-82 Reconciliation Act of 1982 5 Omnibus Budget 98-270 98 Stat. 157-162 04-18-84 Reconciliation Act of 1983 Byrd Rule in Effect (Partially for COBRA of 1985) 6 Consolidated Omnibus Budget 99-272 100 Stat. 82-391 04-07-86 Reconciliation Act of 1985 7 Omnibus Budget 99-509 100 Stat. 1874- 10-21-86 Reconciliation Act of 1986 2078 8 Omnibus Budget 100-203 101 Stat. 1330, 1- 12-22-87 Reconciliation Act of 1987 472 9 Omnibus Budget 101-239 103 Stat. 2106- 12-19-89 Reconciliation Act of 1989 2491 10 Omnibus Budget 101-508 104 Stat. 1388, 1- 11-05-90 Reconciliation Act of 1990 630 11 Omnibus Budget 103-66 107 Stat. 312-685 08-10-93 Reconciliation Act of 1993 12 Balanced Budget Act of 1995 -- (H.R. 2491, vetoed) 12-06-95 13 Personal Responsibility and 104-193 110 Stat. 2105- 08-22-96 Budget Reconciliation Act of 2355 1996 14 Balanced Budget Act of 1997 105-33 111 Stat. 251-787 08-05-97 15 Taxpayer Relief Act of 1997 105-34 111 Stat. 788-1103 08-05-97 16 Taxpayer Refund and Relief -- (H.R. 2488, vetoed) 09-23-99 Act of 1999 17 Marriage Tax Relief -- (H.R. 4810, vetoed) 08-05-00 Reconciliation Act of 2000 CRS-9 Public Date Statutes-at-Large Reconciliation Act Law Enacted Citation Number (or Vetoed) 18 Economic Growth and Tax 107-16 115 Stat. 38-150 06-07-01 Relief Reconciliation Act of 2001 19 Jobs and Growth Tax Relief 108-27 117 Stat. 752-768 05-28-03 Reconciliation Act of 2003 20 Deficit Reduction Act of 2005 109-171 120 Stat. 4-184 02-08-06 21 Tax Increase Prevention and 109-222 120 Stat. 345-373 05-17-06 Reconciliation Act of 2005 22 College Cost Reduction and 110-84 121 Stat. 784-822 09-27-07 Access Act of 2007 Source: Prepared by the Congressional Research Service. The Byrd rule was fully in effect during the consideration of all but the first of the 17 reconciliation bills. During consideration of that bill, the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985, the Byrd rule applied to the consideration of the conference report, but not to initial consideration of the bill. The 17 reconciliation bills considered and passed by the House and Senate during this period stemmed from reconciliation directives in 15 different budget resolutions. Two budget resolutions, in 1997 (for FY1998) and 2005 (for FY2006), led to the enactment of two reconciliation measures in each year. As Table 2 shows, there have been 53 points of order and 42 waiver motions, for a total of 95 actions, considered and disposed of under the Byrd rule.12 (There is not a one-to-one correspondence between points of order and waiver motions. A point of order can be raised under the Byrd rule without a waiver motion being offered; conversely, a waiver motion can be offered without a point of order having been raised.) 12 The Byrd rule is only one of many point-of-order provisions in Titles III and IV of the CBA of 1974, as amended (2 U.S.C. 644). In some instances, points of order or waiver motions are made under the act by general reference only (such as a Senator raising a point of order "under Title III of the Act") rather than by specific reference to the provision(s) involved. When only general references are made, it usually is impossible to determine (by reference to debate in the Congressional Record alone) which provision of the act is involved. Consequently, this report reflects only those instances when specific reference was made to Section 313 of the act or to the Byrd rule and may undercount somewhat the actual number of actions involving the rule. CRS-10 Table 2. Reconciliation Acts: Summary of Points of Order and Waiver Motions Under the Byrd Rule Points of Order Waiver Motions Total Public Calendar Points Law Year(s) of (or To Strike Provision(s) From To Bar Consideration of Order Vetoed Bill or Conference Report of Amendment Senate Total Approved Rejected Total and Bill) Action Waiver Number Sustained Fell Total Sustained Fell Total Motions 99-272 1985 -- -- -- -- -- -- -- -- -- -- -- 99-509 1986 1 1 2 -- -- -- 2 1 1 2 4 100-203 1987 -- -- -- -- -- -- -- 1 -- 1 1 101-239 1989 -- -- -- -- -- -- -- -- -- -- -- 101-508 1990 3 1 4 2 -- 2 6 1 2 3 9 103-66 1993 2 2 4 3 -- 3 7 -- 4 4 11 H.R. 2491 1995 4 -- 4 4 -- 4 8 -- 7 7 15 104-193 1996 4 1 5 1 -- 1 6 1 3 4 10 105-33 1997 2 2 4 3 -- 3 7 2 3 5 12 105-34 1997 1 2 3 6 -- 6 9 2 6 8 17 CRS-11 Points of Order Waiver Motions Total Public Calendar Points Law Year(s) of (or To Strike Provision(s) From To Bar Consideration of Order Vetoed Bill or Conference Report of Amendment Senate Total Approved Rejected Total and Bill) Action Waiver Number Sustained Fell Total Sustained Fell Total Motions H.R. 2488 1999 1 -- 1 2 -- 2 3 1 3 4 7 H.R. 4810 2000 -- 1 1 2 -- 2 3 -- 2 2 5 107-16 2001 -- -- -- -- -- -- -- -- -- -- -- 108-27 2003 -- -- -- 1 -- 1 1 -- 1 1 2 109-171 2005 1 -- 1 -- -- -- 1 -- 1 1 2 109-222 2005- -- -- -- -- -- -- -- -- -- -- -- 2006 110-84 2007 -- -- -- -- -- -- -- -- -- -- -- Total 19 10 29 24 -- 24 53 9 33 42 95 Source: Prepared by the Congressional Research Service from data provided in the Legislative Information System. CRS-12 On the whole, the points of order and waiver motions were disposed of in a manner that favored by a large margin those who opposed the inclusion of extraneous matter in reconciliation legislation, as discussed in more detail below.13 Five of the six definitions of extraneousness (the exception being recommending changes in Social Security) have been cited as bases for points of order under the Byrd rule. The most common basis, that the provision or amendment did not change outlays or revenues, was cited as the sole basis in 32 instances and as one of two bases in three other instances. None of the other bases were cited in more than six instances. (In some instances, the basis for the point of order was not cited.) The Byrd rule has been used primarily during initial consideration of a reconciliation measure. It was invoked only five times -- twice in 1993, once in 1995, once in 1997, and once in 2005 -- during consideration of a conference report. In 1993, two points of order against matter characterized as extraneous in a conference report were rejected by the chair. In both instances, the chair's ruling was upheld upon appeal. The two motions to appeal the chair's rulings were defeated by identical votes, 43-57. In 1995, two sections were struck from a conference report and the two chambers had to resolve the final differences with a further amendment between them. In 1997, a section in the conference report was retained following a successful vote (78-22) to waive a point of order. Finally, in 2005, three provisions were struck from a conference report (another provision was retained), necessitating action on a further amendment between the two chambers. As shown in Table 2, points of order and waiver motions under the Byrd rule have occurred more frequently in the 1990s (81) compared to the 1980s (5) or the 2000s (9 so far). The middle years of the decade of the 1990s, covering calendar years 1993 through 1997, was especially active in this regard, accounting for 65 of the total 81 points of order and waiver motions during that decade. Points of Order. In total, 53 points of order were raised and disposed of under the Byrd rule. Points of order generally were raised successfully; 43 were sustained (in whole or in part), enabling Senators to strike extraneous matter from the legislation in 19 cases and to bar the consideration of extraneous amendments in 24 cases. Ten of the points of order fell, either upon the adoption of a waiver motion or upon the ruling of the chair. One point of order was withdrawn and is not counted in Table 2. In two instances, a point of order was not raised because a waiver motion previously had been offered and approved, thus making the point of order moot. In many instances, a point of order was raised against multiple provisions, sections, or titles of the bill, sometimes covering a variety of different topics. In a 13 It is difficult, if not impossible, to accurately determine the deterrent effect of the Byrd rule, so this aspect is not addressed in this report. CRS-13 few cases, the Chair ruled that most, but not all, of the provisions violated the Byrd rule. Waiver Motions. A total of 42 motions to waive the Byrd rule, to permit the inclusion of extraneous matter, were offered and disposed of by the Senate. Waiver motions generally were not offered successfully; 9 were approved and 33 were rejected. Two other waiver motions were withdrawn and a third waiver motion was changed to a unanimous consent request; they are not counted in Table 2. Eight of the nine successful motions were used to protect committee-reported language in the bill or language in the conference report; only one motion to protect a floor amendment was successful. Eight of the successful waiver motions exceeded the required 60-vote threshold by between two votes and 21 votes; on average, they exceeded the threshold by 12 votes. The remaining successful waiver motion was approved by voice vote. With regard to the 33 unsuccessful waiver motions, 32 of them fell short of the threshold by between one vote and 43 votes; on average, they fell short of the threshold by 12 votes. The remaining unsuccessful waiver motion was rejected by voice vote. Fifteen of the unsuccessful waiver motions garnered at least 51 votes. Table 3, at the end of this section, provides more detailed information on points of order and waiver motions made under the Byrd rule from 1985 through 2007. Years in Which the Byrd Rule Was Not Invoked. In five instances (in 1985, 1989, 2001, 2003, and 2006), the Senate considered reconciliation legislation without taking any actions under the Byrd rule. No points of order were raised, or waiver motions offered, under the Byrd rule during consideration of the conference report on the Consolidated Omnibus Budget Reconciliation Act of 1985, which began on December 19, 1985; as previously mentioned, this was the first instance in which the Byrd rule applied. In 1989, no actions involving the Byrd rule occurred, in large part because the Senate leadership chose to use an amendment rather than the Byrd rule to deal with extraneous matter in the bill. On October 13, 1989, during consideration of the Omnibus Budget Reconciliation of 1989, the Senate adopted Mitchell Amendment No. 1004 by voice vote. The amendment struck extraneous matter from the bill; its stated purpose was "to strike all matter from the bill that does not reduce the deficit."14 In 2001 and 2003, no actions under the Byrd rule were taken during consideration of two significant revenue-reduction measures, the Economic Growth 14 See the Congressional Record (daily ed.) of October 13, 1989, p. S13349. The Senate leadership used an amendment for similar purposes during consideration of the Omnibus Budget Reconciliation Act of 1981. CRS-14 and Tax Relief Reconciliation Act of 2001 and the Jobs and Growth Tax Relief Reconciliation Act of 2003. The potential application of the Byrd rule to the measures was averted by the inclusion of "sunset" provisions that limited the duration of the tax cuts, thereby preventing deficit increases beyond the applicable budget windows. Finally, the Senate considered two reconciliation bills in 2005. During consideration of the conference report on the spending reconciliation bill, the Deficit Reduction Act of 2005, in late 2005, a point of order under the Byrd rule was raised successfully. The revenue reconciliation bill, the Tax Increase Prevention and Reconciliation Act of 2005, was initially considered in late 2005, but action on the conference report carried over into 2006. The potential application of the Byrd rule in 2006 to the conference report was avoided because the tax cuts extending beyond the budget window were offset so that no deficit increases occurred in that period.15 Byrd Rule Controversies Although the Byrd rule has advocates in the House and Senate, its use sometimes has engendered much controversy, especially between the two Houses. Impact on House-Senate Relations in 1993 and 1994. In 1993 and 1994, during the 103rd Congress, the stringent application of the Byrd rule by the Senate significantly influenced the final shape of the reconciliation act and later affected the deliberations of the Joint Committee on the Organization of Congress. The House considered its version of the Omnibus Budget Reconciliation Act of 1993, H.R. 2264, on May 27. The Senate considered its version, S.1134, on June 23 and June 24 (after completing consideration of S. 1134, the Senate amended and passed H.R. 2264 for purposes of conference with the House). Senator Pete Domenici, ranking minority member of the Senate Budget Committee, inserted a list of potentially extraneous matters included in S. 1134 in the Congressional Record of June 24 (at p. S7984).16 The list identified more than a dozen sections in five titles of the bill as possibly being in violation of the Byrd rule, specifically Section 313(b)(1)(A) (i.e., producing no change in outlays or revenues). At the House-Senate conference stage, the Senate leadership directed the parliamentarian and Senate Budget Committee staff to thoroughly review the legislation to identify any provisions originating in the House or Senate that might 15 Senate action on the Tax Increase Prevention and Reconciliation Act of 2005 is discussed in CRS Report RL33132, Budget Reconciliation Legislation in 2005-2006 Under the FY2006 Budget Resolution, by Robert Keith. 16 This requirement was added by Section 13214 of the Omnibus Budget Reconciliation Act of 1990. Consequently, its first application was to consideration of the Omnibus Budget Reconciliation Act of 1993. CRS-15 violate the Byrd rule.17 As a result of this review, many provisions were deleted from the legislation in conference. During Senate consideration of the conference report, Senator James Sasser, Chairman of the Senate Budget Committee, discussed this process: ... with regard to the Byrd rule, we worked very hard and very faithfully over a period of well over a week in going over this bill to try to clarify and remove items that might be subject to the Byrd rule. As the distinguished ranking member indicated, I think over 150 items were removed from the reconciliation instrument here, because it was felt that they would be subject to the Byrd rule.... I might say some of our House colleagues could not understand, and I do not blame them because there were a number of things that were pulled out of this budget reconciliation that had been voted on and passed by large majorities in both houses. But simply because they violated the Byrd rule, we had to go to the chairmen of the appropriate House committees and tell them they had to come out. They simply did not understand it. I think it made them perhaps have a little less high esteem for some of us here in the Senate...In the final analysis, their leadership had to demand that some of these provisions subject to the Byrd rule come out.18 During House consideration of the conference report, several Democratic Members criticized the Byrd rule and discussed its impact on the legislation. For example, Representative Dan Rostenkowski, chairman of the House Ways and Means Committee, stated: ... I also have to express my grave concerns regarding the other body's so-called Byrd rule. As a result of this procedural rule, policies that would have significantly improved the Medicare Program could not even be considered. Over 80 pages of statutory language were stripped out of the Medicare title. Staff wasted countless hours, scrutinizing every line to ensure that there is nothing that would upset our friends at the other end of the Capitol. Even more absurd is the fact that most of the items stripped were minor and technical provisions that received bipartisan support when they passed both the House and the Senate last year. I hope that Members on both sides of the aisle share my grave concerns about how this rule has been used, and its impact on reconciliation. I sincerely hope 17 See the discussion of "Preemptive Editing of the Conference Report" in Budget Process Law Annotated -- 1993 Edition, by William G. Dauster, op. cit., pp. 245-246. Also, see (1) Richard E. Cohen, "Running Up Against the `Byrd Rule'," National Journal, September 4, 1993, p. 2151; (2) George Hager, "The Byrd Rule: Not an Easy Call," Congressional Quarterly Weekly Report, July 31, 1993, p. 2027; and (3) Mary Jacoby, "Senate Parliamentarian Purges Budget Bill of Measures That Could Violate Byrd Rule," Roll Call, August 5, 1993, p. 9. 18 See the remarks of Senator Sasser in the Congressional Record (daily ed.) of August 6, 1993, p. S10662. CRS-16 that this rule will be reconsidered before we ever return to the reconciliation process again.19 Controversy over the Byrd rule persisted during late 1993 and into 1994. The Joint Committee on the Organization of Congress, co-chaired by Representative Lee Hamilton and Senator David Boren, was slated to make recommendations on congressional reform, including changes in the budget process, in December of 1993. Representative Martin Olav Sabo, chairman of the House Budget Committee, wrote to Co-Chair Hamilton in October, telling him that "widespread use [of the Byrd rule] this year was extremely destructive and bodes ill for the reconciliation process in the future." Further, he stated that "the use of mechanisms like the Byrd rule greatly distorts the balance of power between the two bodies" and that strict enforcement of the Byrd rule "requires that too much power be delegated to unelected employees of the Congress."20 Chairman Sabo attached two Budget Committee staff documents to his letter: (1) a 29-page listing of reconciliation provisions "dropped or modified" in conference in order to comply with the Byrd rule, and (2) a three-page statement identifying specific problems caused by the rule (including a bar against including authorizations savings in reconciliation, the forcing of piecemeal legislation, incentives to use counterproductive drafting techniques to mitigate effects, and a bar against provisions achieving savings or promoting efficiency when the Congressional Budget Office was unable to assign particular savings to them). The Senate Members of the Joint Committee on the Organization of Congress recommended in their final report that a provision clarifying "that the `Byrd rule' is permanent, applies to conference reports, requires sixty votes to waive, and applies to extraneous matters" be included in a broad reform bill.21 Legislation embodying the Senate recommendations (S. 1824) was introduced on February 3, 1994 (the recommendation pertaining to the Byrd rule was set forth in Section 312 of the bill). The House Members of the Joint Committee did not include any recommendations regarding the Byrd rule in their report or legislation (H.R. 3801, also introduced on February 3, 1994). The day after the two reform bills were introduced, the chairmen of 15 House committees wrote to Speaker Tom Foley. They urged him to meet with Senate 19 See the remarks of Representative Rostenkowski in the Congressional Record (daily ed.) of August 5, 1993, p. H6126. He discusses specific programs dropped from the conference report because of the Byrd rule p. H6124. Also, see the remarks that same day of Representatives de la Garza (p. H6143), Vento (p. H6235), and Stenholm (p. H6257). 20 Letter from Representative Martin Olav Sabo to Representative Lee H. Hamilton, October 26, 1993, 2 pp.. 21 See Organization of the Congress, Final Report of the Senate Members of the Joint Committee on the Organization of Congress, S.Rept. 103-215, vol. I, December 1993, pp. 14 and 15. CRS-17 Majority Leader George Mitchell in order to get Section 312 of S. 1824, dealing with the Byrd rule, removed from the reform package.22 On July 19, 1994, Chairman Sabo introduced H.R. 4780. The bill would have amended the CBA of 1974 to make the Byrd rule "applicable to the Senate only," chiefly by removing references to conference reports in Section 313 of the act.23 None of the three bills cited above were acted upon before the 103rd Congress adjourned. Effects on Tax-Cut Legislation. During the 106th Congress, the budget resolutions for FY2000 and FY2001 included reconciliation instructions directing the House Ways and Means and Senate Finance Committees to develop legislation implementing substantial reductions in revenue.24 The reconciliation instructions in the two budget resolutions called for total revenue reduction over five years of $142 billion and $150 billion, respectively.25 Neither budget resolution included any instructions regarding spending. This marked the first time that the House and Senate had recommended substantial reductions in revenue through the reconciliation process without offsetting savings to be achieved in spending programs. Any resultant reconciliation legislation was expected under these budget resolutions to reduce large surpluses, not to incur or worsen deficits. In each of these two years, there was controversy in the Senate regarding the appropriateness of using reconciliation procedures under circumstances that worsened the federal government's fiscal posture. Some Senators argued that the use of reconciliation, with its procedural restrictions that sharply curtail debate time and limit the offering of amendments in comparison to the usual Senate procedures, could be justified only when it was necessary to reduce or eliminate a deficit (or to preserve or increase a surplus). Other Senators maintained that reconciliation is neutral in its orientation -- the language in Section 310 of the CBA of 1974 refers to "changes" in spending and revenue amounts, not increases or decreases -- and is intended to expedite the consideration of important and potentially complex budgetary legislation. 22 The letter is discussed in: Karen Foerstel, "Byrd Rule War Erupts Once Again," Roll Call, February 24, 1994, pp. 1 and 13. 23 See the following article for a discussion of the Sabo bill: Mary Jacoby, "Sabo Bill Would Kill Byrd Rule For Good," Roll Call, July 25, 1994, p. 12. 24 See Sections 104 and 105 of H.Con.Res. 68, the FY2000 budget resolution (the conference report was H.Rept. 106-91, April 14, 1999), and Sections 103 and 104 of H.Con.Res. 290, the FY2001 budget resolution (the conference report was H.Rept. 106-577, April 12, 2000). The FY2001 budget resolution also included reconciliation instructions directing the House Ways and Means Committee to develop legislation reducing the debt held by the public. 25 The instructions in the FY2000 budget resolution covered 10 fiscal years, while the instructions in the FY2001 budget resolution covered five fiscal years. The reconciliation instructions in the FY2000 budget resolution also provided for total revenue reductions of $778 billion over 10 years. CRS-18 Against the backdrop of the larger issue of the appropriate use of reconciliation under these circumstances, Senators also debated in particular the impact of the Byrd rule on the scope of the resultant tax-cut legislation. One of the determinants of extraneousness under the Byrd rule is whether the legislation reduces revenues or increases spending in the net beyond the budget window (i.e., the period to which the reconciliation instructions apply). Changes in tax law, however, often are made on a permanent basis. As a consequence, reconciliation legislation recommending permanent tax cuts may run afoul of the Byrd rule. During consideration of the Taxpayer Refund and Relief Act of 1999 and the Marriage Tax Relief Reconciliation Act of 2000, the Byrd rule was used successfully to ensure the inclusion of sunset provisions in the bills, limiting the effectiveness of the tax cuts to the period covered by the reconciliation instructions.26 During the first session of the 107th Congress, the Senate again addressed these issues as it considered H.R. 1836, largely embodying President Bush's proposal for a $1.6 trillion tax cut.27 In addition to debating the appropriateness of using the reconciliation process to expedite tax-cut legislation, Senators argued for and against the inclusion of the 10-year "sunset" provision necessary to achieve compliance with the Byrd rule. Some Senators maintained that permanent changes in tax law should be allowed under reconciliation procedures, just as they often are customarily made in freestanding tax legislation. Other Senators praised the value of being able to reexamine such significant modifications in budgetary policy in future years when economic circumstances may have changed materially. The sunset provision was retained in the final version of the legislation, as Section 901 (115 Stat. 150) of P.L. 107-16, the Economic Growth and Tax Relief Reconciliation Act of 2001. In 2003, during the first session of the 108th Congress, the Byrd rule influenced the form of revenue reconciliation directives in the FY2004 budget resolution (H.Con.Res. 95).28 Initially, House and Senate leaders indicated that they would settle on a conference agreement instructing the House Ways and Means Committee to reduce revenues through reconciliation by $550 billion or more for the period covering FY2003-FY2013 and the Senate Finance Committee to reduce revenues by $350 billion for the same period. A majority of Senators had indicated their opposition to revenue reductions greater than $350 billion. 26 Proceedings under this aspect of the Byrd rule, in the case of the Taxpayer Refund and Relief Act of 1999, occurred on July 28, 1999; see the remarks of Senators Roth, Moynihan, Conrad, Gramm, and others in the Congressional Record (daily ed.) of that date on pp. S9478-S9484. With regard to the Marriage Tax Relief Reconciliation Act of 2000, see the remarks of Senator Roth in the Congressional Record of July 14, 2000, on pp. S6782-S6784. 27 See, for example, the remarks of Senator Robert C. Byrd, "Reconciliation Process Reform," in the Congressional Record (daily ed.), February 15, 2001, pp. S1532-S1536, and opening remarks of Senator Byrd and others during Senate consideration of H.R. 1836 in the Congressional Record (daily ed.), May 17, 2001, beginning on p. S5028. 28 See H.Rept. 108-71 (April 10, 2003). CRS-19 The use of dual reconciliation instructions in the budget resolution would enable the leadership to secure passage of the budget resolution while leaving open the possibility that a subsequent conference on the differing versions of the revenue reconciliation measure passed by the two Houses might reach an acceptable compromise between these two amounts. However, it soon became apparent that, if the Senate initially passed a revenue reconciliation measure consistent with the directive in the budget resolution (i.e., reducing revenues by $350 billion), the later consideration of a conference agreement reflecting a compromise level of revenue reductions greater than $350 billion could violate the Byrd rule. In particular, Section 313(b)(1)(B) defines as extraneous any provision reported by a committee that reduces revenues (or increases outlays) if the net effect of all of the committee's provisions is that it fails to achieve its reconciliation instructions. Proposing revenue reductions greater than the level of reductions set in the reconciliation instructions would be considered a failure to achieve the instructions. In order to resolve the problem, the conference agreement on the FY2004 budget resolution instructed both the House Ways and Means Committee and the Senate Finance Committee to reduce revenues by $550 billion over FY2003-FY2013, but a point of order barred the initial consideration in the Senate of a reconciliation measure (as distinct from a conference report) containing revenue reductions in excess of $350 billion for this period.29 The FY2004 budget resolution further provided that the Senate point of order could be waived only by the affirmative vote of three-fifths of the Members duly chosen and sworn (i.e., 60 Senators, if no seats are vacant). This procedural formulation strengthened the position of those who favored initial Senate passage of a reconciliation measure limited to $350 billion in revenue reductions, but removed the potential Byrd rule hurdle should a majority of Senators later choose to support a conference agreement providing as much as $550 billion in revenue reductions.30 Senator Max Baucus, the ranking minority member of the Senate Finance Committee, questioned whether the directive to the committee should be regarded as 29 The reconciliation directives are set forth in Section 201 of H.Con.Res. 95; the Senate point of order is set forth in Section 202. A portion of the reconciled amounts is set forth as outlay increases in order to accommodate changes in tax programs (e.g., refundable tax credits) that are scored as outlays. Consequently, the aggregate instruction of $550 billion is actually $535 billion in revenue reductions and $15 billion in outlay increases in the House, and $522.524 billion in revenue reductions and $27.476 billion in outlay increases in the Senate. 30 For further discussion of this matter, see CRS Report RL31902, Revenue Reconciliation Directives in the FY2004 Budget Resolution, by Robert Keith. Also, see (1) "Concessions to Moderates Imperil Early GOP Tax Cutting Accord," by Andrew Taylor, CQ Weekly, April 12, 2003; and (2) "Grassley Promises GOP Moderates Final Tax Cut Will Not Top $350 Billion," by Bud Newman, BNA's Daily Report for Executives, Monday, April 14, 2003, p. G-7. CRS-20 $350 billion or $550 billion.31 Ultimately, Senator Charles Grassley, chairman of the Senate Finance Committee, indicated that he had reached agreement with other Senators to adhere to the $350 billion level in the conference on the reconciliation measure, notwithstanding the fact that the limitation in Section 202 of the budget resolution only applied to initial consideration of the measure.32 The resultant reconciliation measure (H.R. 2), according to final estimates of the Congressional Budget Office and Joint Tax Committee, contained $349.7 billion in revenue reductions and related outlay changes.33 The bill, which became P.L. 108-27, the Jobs and Growth Tax Relief Reconciliation Act of 2003, on May 28, 2003, included sunset provisions in Section 107 (117 Stat. 755-756) and Section 303 (117 Stat. 764). During the 109th Congress, the House and Senate considered separate revenue and spending reconciliation bills pursuant to the FY2006 budget resolution. The budget resolution provided for a revenue reconciliation bill that reduced revenues by up to $70 billion over the five-year budget window (FY2006-FY2010) used in the budget resolution. The conference agreement on the revenue reconciliation bill, H.R. 4297, recommended significant revenue reduction beyond the budget window, principally with respect to extensions of current capital gains and dividends provisions through December 31, 2010.34 Instead of incorporating sunset provisions in order to comply with the Byrd rule, as had been done in the past, the conferees included offsets of the revenue losses. The JCT estimated the total revenue loss over ten years (FY2006-FY2015) at $69.084 billion, an amount nearly $900 million smaller than the five-year revenue loss. The measure became P.L. 109-222, the Tax Increase Prevention and Reconciliation Act of 2005, on May 17, 2006. Rules Changes in the 110th Congress Barring Deficit Increases. In the 110th Congress, the House and Senate adopted rules changes barring the consideration of legislation that would lead to deficit increases. First, the House and Senate adopted rules barring the use of reconciliation in a manner that would increase the deficit. As part of the changes in the budget process included in the rules package for the 110th Congress, H.Res. 6, the House included a ban (in Section 402) against the consideration of a budget resolution containing reconciliation directives that would increase the deficit (or reduce the surplus) over the six-year or 11-year periods beginning with the current fiscal year. The Senate 31 See the remarks of Senator Max Baucus in the Congressional Record (daily ed.) of April 11, 2003, pp. S5296-S5298, in which he inserts a letter from Senate Parliamentarian Alan Frumin to Senate Democratic Leader Thomas Daschle regarding the potential application of the Byrd rule to the consideration of reconciliation legislation. 32 See the remarks of Senator Grassley in the Congressional Record (daily ed.) of April 11, 2003, pp. S5295-S5296. 33 See the CBO cost estimate on H.R. 2 (108th Cong.) of May 23, 2003, available at [http://www.cbo.gov]. 34 Although the capital gains and dividends provisions would sunset on December 31, 2010, they would incur revenue losses in succeeding years (e.g., in FY2012, a $12.698 billion revenue loss for the capital gains provision and a $6.326 billion revenue loss for the dividends provision). CRS-21 included a similar ban for the same two time periods in the FY2008 budget resolution (Section 202 of S.Con.Res. 21). Second, the House adopted a "pay-as-you-go" (PAYGO) rule at the beginning of the 110th Congress (also as a part of H.Res. 6), requiring that changes in legislation affecting direct spending or revenues be deficit neutral; shortly thereafter, the Senate revised its long-standing PAYGO in a manner that conforms closely to the new House rule.35 Both rules enforce the PAYGO requirement over the six-year and 11- year periods used in the new reconciliation rules described above. Finally, the Senate established a point of order in the FY2008 budget resolution (Section 203 of S.Con.Res. 21) against legislation that would increase the deficit by more than $5 billion in any of the four consecutive 10-year intervals beginning with FY2018. In the pending budget resolution for FY2009, the Senate proposes to revise the point of order so that it applies to legislation making any increase in the deficit (i.e., without regard to a threshold) in any of the four consecutive 10-year intervals beginning with FY2019 (Section 201 of S.Con.Res. 70). The recent rules changes pertaining to deficit control presumably make it much less likely that the Senate would consider reconciliation legislation potentially in violation of the Byrd rule's prohibition against deficit increases beyond the budget window. 35 The House PAYGO rule is discussed in CRS Report RL33850, The House's "Pay-As- You-Go" (PAYGO) Rule in the 110th Congress: A Brief Overview, by Robert Keith. The Senate PAYGO rule is discussed in CRS Report RL31943, Budget Enforcement Procedures: Senate Pay-As-You-Go (PAYGO) Rule, by Bill Heniff Jr. Both rules are discussed in CRS Report RL34300, Pay-As-You-Go Procedures for Budget Enforcement, by Robert Keith. CRS-22 Table 3. Listing of Actions Under the Senate's Byrd Rule, by Act: 1985-2007 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 1. Consolidated Omnibus Budget Reconciliation Act of 1985 (P.L. 99-272; 4/7/1986) d a. To Strike Provision(s) from Bill or Conference Report [none] b. To Bar Consideration of Amendment(s) [not applicable] 2. Omnibus Budget Reconciliation Act of 1986 (P.L. 99-509; 10/21/1986) a. To Strike Provision(s) from Bill or Conference Report Section 403 Outlay increase when Conservation programs Rejected, 32-61 Sustained; section stricken committee not in (September 19, 1986) compliance p. 139, line 1-p. 161, line 17; Outside committee's Program fraud civil Approved, 79-15 Fell and p. 162, lines 1-24 jurisdiction remedies (September 19, 1986) b. To Bar Consideration of Amendment(s) [none] CRS-23 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 3. Omnibus Budget Reconciliation Act of 1987 (P.L. 100-203; 12/22/1987) a. To Strike Provision(s) from Bill or Conference Report [none] b. To Bar Consideration of Amendment(s) Byrd-Dole Amendment No. [specific basis not cited] [various topics] Approved, 81-13 [none raised] 1254; Kassebaum Amendment No. 1259; and Gramm Amendment No. 1260 4. Omnibus Budget Reconciliation Act of 1989 (P.L. 101-239; 12/19/1989) e a. To Strike Provision(s) from Bill or Conference Report [none] b. To Bar Consideration of Amendment(s) [none] CRS-24 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 5. Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508; 11/5/1990) a. To Strike Provision(s) from Bill or Conference Report Section 7405(j) Outside committee's Apportionment of highway None Sustained; subsection stricken jurisdiction funds between states (October 17, 1990) p. 1017, line 5-p. 1018, line 19; Budgetary changes merely Occupational Safety and None Sustained; provisions stricken and p. 1018, line 22-p. 1019, incidental to non- Health Administration (October 18, 1990) line 18 budgetary components (OSHA) penalties Sections 4003-4016 No change in outlays or Harvesting of timber in the None Sustained; sections stricken revenues Tongass National Forest in (October 18, 1990) Alaska Title III, Subtitle B (as No change in outlays or National aviation noise Approved, 69-31 Fell modified) revenues policy, limitations on (October 18, 1990) airport improvement program revenues, high density traffic airport rules, and related matters CRS-25 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order b. To Bar Consideration of Amendment(s) Graham Amendment No. 3025 No change in outlays or Authorize Federal Deposit Rejected, voice vote Sustained; amendment fell revenues Insurance Corporation (October 18, 1990) (FDIC) to develop risk- based insurance system Symms Amendment No. 3039 No change in outlays or Deposit of all increased Rejected, 48-52 Sustained, amendment fell revenues motor fuel taxes (other than (October 18, 1990) taxes on railroads) into Highway Trust Fund 6. Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66; 8/10/1993) a. To Strike Provision(s) from Bill or Conference Report Section 1105(c) No change in outlays or Commercial use of bovine Rejected, 38-60 Sustained; subsection stricken revenues growth hormone in other (June 24, 1993) countries Section 7801; Section 7803(a) No change in outlays or Childhood immunizations None Sustained; most provisions stricken f (proposing in part new Sections revenues and tax return preparer (June 24, 1993) 2106 and 2108(b)(2) of the standards Social Security Act); and Section 8252(a)(2), (b), and (c) CRS-26 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order Section 13631(b) (proposing in No change in outlays or Childhood immunizations None Fell. Motion to appeal Chair's ruling part a new Section 1928 of the revenues; budgetary rejected, 43-57 Social Security Act) changes merely incidental (August 6, 1993) to non-budgetary components Section 1106(a) Budgetary changes merely Imposition of domestic None Fell. Motion to appeal Chair's ruling incidental to non- content requirements on rejected, 43-57 budgetary components U.S. cigarette (August 6, 1993) manufacturers b. To Bar Consideration of Amendment(s) Domenici/Nunn Amendment No change in outlays or Extend discretionary caps Rejected, 53-45 Sustained; amendment fell No. 544 revenues on defense, international, (June 24, 1993) and domestic spending through FY1995 Bradley Amendment No. 542 No change in outlays or Separate enrollment Rejected, 53-45 Sustained; amendment fell revenues requirement for (June 24, 1993) appropriations and tax expenditures Gramm Amendment No. 557 No change in outlays or Restoration of maximum Rejected, 43-55 Sustained; amendment fell revenues deficit amounts (June 24, 1993) CRS-27 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 7. Balanced Budget Act of 1995 (H.R. 2491; vetoed 12/6/1995) a. To Strike Provision(s) from Bill or Conference Report Section 7171 No change in outlays or Raising the age of Medicare None Sustained; section stricken revenues eligibility (October 27, 1995) Section 7191(a) No change in outlays or Bar against the use of Rejected, 55-45 Sustained; subsection stricken revenues federal funding of abortions (October 27, 1995) under Medicaid 49 provisions in various titles [various bases cited] [various topics, dealing Rejected, 53-46 Sustained against 46 provisions, of the bill primarily with welfare which were stricken; not sustained reform] against 3 provisions, which remained in bill (October 27, 1995) Section 8001 (proposing in part No change in outlays or Application of antitrust rule Rejected, 54-45 Sustained; provisions stricken from a new Section 1853(f) to the revenues; budgetary to provider-sponsored conference report Social Security Act) and changes merely incidental organizations (November 17, 1995) Section 13301 to non-budgetary (MedicarePlus) and components exemption of physician office laboratories. CRS-28 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order b. To Bar Consideration of Amendment(s) Dorgan Amendment No. 2977 [specific basis not cited] Ending deferral for U.S. Rejected, 47-52 Sustained; amendment fell shareholders on income of (October 26, 1995) controlled foreign corporations attributable to imported property Specter Modified Amendment No change in outlays or Expressing sense of the Rejected, 17-82 Sustained; amendment fell No. 2986 revenues Senate regarding a flat tax (October 27, 1995) Bumpers Amendment No. No change in outlays or Prohibition against the Rejected, 49-50 Sustained; amendment fell 3028 revenues scoring of assets sales as (October 27, 1995) budget savings Byrd/Dorgan Amendment No. No change in outlays or Increase time limit on Rejected, 47-52 Sustained; amendment fell 2942 revenues debate in Senate on (October 27, 1995) reconciliation legislation CRS-29 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 8. Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193; 8/22/1996) a. To Strike Provision(s) from Bill or Conference Report Section 2923 (proposing a new Outlay increase when Medicaid supplemental None Sustained; provision stricken Section 1511 of the Social committee not in umbrella fund (July 18, 1996) Security Act), p. 772, line 13-p. compliance 785, line 22 Section 408(a)(2) No change in outlays or Family cap (no additional Rejected, 42-57 Sustained; provision stricken revenues cash assistance for children (July 23, 1996) born to families receiving assistance) Section 2104 No change in outlays or Social services provided by Approved, 67-32 Fell revenues charitable or private (July 23, 1996) organizations Section 2909 No change in outlays or Abstinence education Rejected, 52-46 Sustained; provision stricken revenues programs (July 23, 1996) 22 provisions in various titles [various bases cited] Various topics involving the None Sustained against 21 provisions, of the bill Food Stamp, School Lunch, which were stricken from the bill; not and Child Nutrition sustained against 1 provision, which programs and welfare remained in the bill reform (July 23, 1996) CRS-30 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order b. To Bar Consideration of Amendment(s) First Modified Amendment No. No change in outlays or Expressing the sense of Rejected, 55-43 Sustained; amendment fell 4914 revenues Congress that the President (July 19, 1996) should ensure approval of state welfare reform waiver requests 9. Balanced Budget Act of 1997 (P.L. 105-33; 8/5/1997) a. To Strike Provision(s) from Bill or Conference Report Section 5611 No change in outlays or Raising the age of Medicare Approved, 62-38 Fell revenues eligibility (June 24, 1997) Section 5822 Budgetary changes merely Enrollment eligibility [waiver motion Sustained; provision stricken incidental to non- (Welfare-to-Work Grant withdrawn] (June 25, 1997) budgetary components Program) Section 1949(a)(2) No change in outlays or Bar against the use of None [point of order withdrawn] revenues federal funding of abortions under Medicaid Sections 5713, 5833, and 5987 Outside committee's [various topics] None Sustained; sections stricken jurisdiction (June 25, 1997) CRS-31 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order Section 5001 No change in outlays or Establishment of a Approved, 62-37 Fell revenues Medicare Choice program (June 25, 1997) (balanced billing protection) b. To Bar Consideration of Amendment(s) Levin Amendment No. 482 No change in outlays or Allowing vocational Rejected, 55-45 Sustained; amendment fell revenues educational training to be (June 25, 1997) counted as a work activity under the Temporary Assistance for Needy Families program Kennedy Amendment No. 490 Increase in deficit or Student loan programs Rejected, 43-57 Sustained; amendment fell reduction of surplus in (June 25, 1997) fiscal year beyond those covered by instructions Kennedy Amendment No. 504 [no basis cited] Immediate transfer to Rejected, 38-62 Sustained; amendment fell Medicare Part B of certain (June 25, 1997) home health benefits CRS-32 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 10. Taxpayer Relief Act of 1997 (P.L. 105-34; 8/5/1997) a. To Strike Provision(s) from Bill or Conference Report Section 602 No change in outlays or District of Columbia [waiver motion Sustained; section stricken revenues Government reform withdrawn] (June 26, 1997) Section 702(d) No change in outlays or Intercity passenger rail Approved, 77-21 Fell revenues funding (June 27, 1997) Section 1604(f)(3) No change in outlays or Crediting of new cigarette Approved, 78-22 Fell revenues tax against "global (July 31, 1997) settlement" b. To Bar Consideration of Amendment(s) Gramm Amendment No. 566 No change in outlays or Balanced budget Rejected, 37-63 Sustained; amendment fell revenues enforcement procedures (June 27, 1997) Bumpers Amendment No. 568 [no basis cited] Prohibition against scoring, Rejected, 48-52 Sustained; amendment fell for budget purposes, (June 27, 1997) revenues from sale of certain federal lands CRS-33 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order Craig Amendment No. 569 No change in outlays or Prohibition in PAYGO Rejected, 42-58 Sustained; amendment fell revenues budget process against (June 27, 1997) using tax increases to pay for mandatory spending increases Brownback/Kohl Amendment No change in outlays or Balanced budget Rejected, 57-43 Sustained; amendment fell No. 570 revenues enforcement procedures (June 27, 1997) First Amendment No. 571 No change in outlays or Balanced budget Rejected, 59-41 Sustained; amendment fell revenues enforcement procedures (June 27, 1997) Abraham Amendment No. 538 No change in outlays or Reservation of future Rejected, 53-47 Sustained; amendment fell revenues revenue windfalls for tax or (June 27, 1997) deficit reduction CRS-34 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 11. Taxpayer Refund and Relief Act of 1999 (H.R. 2488; vetoed 9/23/1999) a. To Strike Provision(s) from Bill or Conference Report Section 1502 Increase in deficit or General extension of Rejected, 51-48 Sustained; section stricken reduction of surplus in revenue-reduction (July 28, 1999) fiscal year beyond those provisions covered by instructions Section 202 Increase in outlays Enhancement of the Earned Approved, voice vote [none raised] Income Tax Credit for married couples b. To Bar Consideration of Amendment(s) Bingaman Amendment No. No change in outlays or Expressing the sense of the Rejected, 48-52 Sustained; amendment fell 1462 revenues Senate regarding investment (July 30, 1999) in education First Amendment No. 1467 No change in outlays or Expressing the sense of the Rejected, 54-46 Sustained; amendment fell revenues Senate regarding the (July 30, 1999) Medicare Reserve Fund CRS-35 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 12. Marriage Tax Relief Reconciliation Act of 2000 (H.R. 4810; vetoed 8/5/2000) a. To Strike Provision(s) from Bill or Conference Report Section 4 Increase in outlays Enhancement of the Earned On July 17, the waiver Fell Income Tax Credit for motion (made on July (July 17, 2000) married couples 14) was changed to a unanimous consent request and agreed to b. To Bar Consideration of Amendment(s) Roth Amendment No. 3864 Increase in deficit or Striking the sunset Rejected, 48-47 Sustained; amendment fell reduction of surplus in provision in the legislation (waiver motion also (July 17, 2000) fiscal year beyond those applied to amendment covered by instructions listed below) Roth Amendment No. 3865 Increase in deficit or Striking the sunset Rejected, 48-47 Sustained; amendment fell reduction of surplus in provision in the legislation (waiver motion also (July 17, 2000) fiscal year beyond those applied to amendment covered by instructions listed above) CRS-36 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order 13. Economic Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-16; 6/7/2001) a. To Strike Provision(s) from Bill or Conference Report [none] b. To Bar Consideration of Amendment(s) [none] 14. Jobs and Growth Tax Relief Reconciliation Act of 2003 (P.L. 108-27; 5/28/2003) a. To Strike Provision(s) from Bill or Conference Report [none] b. To Bar Consideration of Amendment(s) Sessions Amendment No. 639 Increase in deficit or Applying the sunset Rejected, 51-49 Sustained; amendment fell reduction of surplus in provision to the revenue (May 15, 2003) fiscal year beyond those increase provisions covered by instructions 15. Deficit Reduction Act of 2005 (P.L. 109-171; 2/8/2006) a. To Strike Provision(s) from Bill or Conference Report Section 5001(b)(3) and (b)(4), No change in outlays or Requiring the Secretary of Rejected, 52-48 Sustained against first three a portion of Section 6043(a), revenues (Section Health and Human Services (waiver motion provisions, which were stricken from CRS-37 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order and Section 7404 5001(b)(3) and (b)(4)), to submit to Congress by applied to first three the bill; not sustained against Section and budgetary changes August 1, 2007, a report on provisions, but did not 7404, which remained in the bill merely incidental to non- the plan for the hospital apply to Section (December 21, 2005) budgetary components (a value based purchasing 7404) portion of Section 6043(a) program under Medicare and Section 7404) (Section 5001(b)(3); requiring the Medicare Payment Advisory Commission to submit to Congress by June 1, 2007, a report that includes detailed recommendations on a structure of value based payment adjustments for hospital services under Medicare (Section 5001(b)(4); the negligent standard for hospitals and physicians who treat Medicaid patients (a portion of Section 6043(a); and eligibility for foster care maintenance payments and adoption assistance (Section 7404) CRS-38 Object of Point of Ordera Basis of Point of Order b Subject Matter Waiver Motion c Disposition of Point of Order b. To Bar Consideration of Amendment(s) [none] 16. Tax Increase Prevention and Reconciliation Act of 2005 (P.L. 109-222; 5/17/2006) a. To Strike Provision(s) from Bill or Conference Report [none] b. To Bar Consideration of Amendment(s) [none] 17. College Cost Reduction and Access Act of 2007 (P.L. 110-84; 9/27/2007) a. To Strike Provision(s) from Bill or Conference Report [none] b. To Bar Consideration of Amendment(s) [none] a. The Byrd rule is Section 313 of the Congressional Budget Act of 1974, as amended (2 U.S.C. 644). There are many point-of-order provisions in Titles III and IV of the act. In some instances, points of order or waiver motions are made under the act by general reference only (such as a Senator raising a point of order "under Title III of the Act") rather than by specific reference to the provision(s) involved. When only general references are made, it usually is impossible to determine (by reference to debate in the Congressional Record alone) which provision of the act is involved. Consequently, this table reflects only those instances when specific reference was made to Section 313 of the act or to the CRS-39 Byrd rule. The object of a point of order under the Byrd rule may be to strike one or more provisions (as designated by title or section number, or by page and line number) in a reconciliation measure or a conference report thereon, or to bar consideration of one or more amendments thereto. b. A provision is regarded as extraneous under the Byrd rule if it: (1) does not produce a change in outlays or revenues; (2) produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions; (3) is outside of the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure; (4) produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision; (5) would increase the deficit for a fiscal year beyond those covered by the reconciliation measure; or (6) recommends changes in Social Security. The Byrd rule sets forth specific exceptions to the criteria to determine extraneousness. c. Under the Byrd rule, a successful waiver motion requires the affirmative vote of three-fifths of the membership (60 Senators, if no seats are vacant). A single waiver motion can: (1) apply to the Byrd rule as well as other provisions of the CBA of 1974; (2) involve multiple as well as single provisions or amendments; (3) extend (for specified language) through consideration of the conference report as well as initial consideration of the measure or amendment; and (4) be made prior to the raising of a point of order, thus making the point of order moot. d. On October 24, 1985, Senator Robert C. Byrd offered an amendment containing the Byrd rule to the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985, which the Senate adopted. In this form, the Byrd rule applied to initial Senate consideration of reconciliation measures. On December 19, 1985, the Senate adopted S.Res. 286, which extended the application of portions of the provision in COBRA of 1985 to conference reports and amendments between the two Houses. Because the enactment of COBRA of 1985 was delayed until early 1986, the portion of the Byrd rule dealing with conference reports became effective first. Senate consideration of the conference report on COBRA of 1985, and amendments between the two Houses thereon, occurred beginning on December 19, 1985. Therefore, only the portion of the Byrd rule dealing with conference reports and amendments between the two Houses applied during the consideration of COBRA of 1985. No actions were taken under the rule. e. On October 13, 1989, during consideration of the Omnibus Budget Reconciliation Act of 1989, the Senate adopted Mitchell Amendment No. 1004 by voice vote. The amendment struck extraneous matter from the bill; its stated purpose was "to strike all matter from the bill that does not reduce the deficit"; (see the Congressional Record (daily ed.) of Oct. 13, 1989, p. S13349). f. The point of order was not sustained against that part of Section 7803(a) proposing a new Section 2106 of the Social Security Act. CRS-40 Appendix A. Text of the Byrd Rule (Section 313 of the Congressional Budget Act of 1974) EXTRANEOUS MATTER IN RECONCILIATION LEGISLATION Sec. 313. (a) In General. -- When the Senate is considering a reconciliation bill or a reconciliation resolution pursuant to Section 310, (whether that bill or resolution originated in the Senate or the House) or Section 258C of the Balanced Budget and Emergency Deficit Control Act of 1985 upon a point of order being made by any Senator against material extraneous to the instructions to a committee which is contained in any title or provision of the bill or resolution or offered as an amendment to the bill or resolution, and the point of order is sustained by the Chair, any part of said title or provision that contains material extraneous to the instructions to said Committee as defined in subsection (b) shall be deemed stricken from the bill and may not be offered as an amendment from the floor. (b) Extraneous Provisions. -- (1) (A) Except as provided in paragraph (2), a provision of a reconciliation bill or reconciliation resolution considered pursuant to Section 310 shall be considered extraneous if such provision does not produce a change in outlays or revenues, including changes in outlays and revenues brought about by changes in the terms and conditions under which outlays are made or revenues are required to be collected (but a provision in which outlay decreases or revenue increases exactly offset outlay increases or revenue decreases shall not be considered extraneous by virtue of this subparagraph); (B) any provision producing an increase in outlays or decrease in revenues shall be considered extraneous if the net effect of provisions reported by the Committee reporting the title containing the provision is that the Committee fails to achieve its reconciliation instructions; (C) a provision that is not in the jurisdiction of the Committee with jurisdiction over said title or provision shall be considered extraneous; (D) a provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision; (E) a provision shall be considered to be extraneous if it increases, or would increase, net outlays, or if it decreases, or would decrease, revenues during a fiscal year after the fiscal years covered by such reconciliation bill or reconciliation resolution, and such increases or decreases are greater than outlay reductions or revenue increases resulting from other provisions in such title in such year; and (F) a provision shall be considered extraneous if it violates Section 310(g). CRS-41 (2) A Senate-originated provision shall not be considered extraneous under paragraph (1)(A) if the Chairman and Ranking Minority Member of the Committee on the Budget and the Chairman and Ranking Minority Member of the Committee which reported the provision certify that: (A) the provision mitigates direct effects clearly attributable to a provision changing outlays or revenues and both provisions together produce a net reduction in the deficit; (B) the provision will result in a substantial reduction in outlays or a substantial increase in revenues during fiscal years after the fiscal years covered by the reconciliation bill or reconciliation resolution; (C) a reduction of outlays or an increase in revenues is likely to occur as a result of the provision, in the event of new regulations authorized by the provision or likely to be proposed, court rulings on pending litigation, or relationships between economic indices and stipulated statutory triggers pertaining to the provision, other than the regulations, court rulings or relationships currently projected by the Congressional Budget Office for scorekeeping purposes; or (D) such provisions will be likely to produce a significant reduction in outlays or increases in revenues but, due to insufficient data, such reduction or increase cannot be reliably estimated. (3) A provision reported by a committee shall not be considered extraneous under paragraph (1)(C) if (A) the provision is an integral part of a provision or title, which if introduced as a bill or resolution would be referred to such committee, and the provision sets forth the procedure to carry out or implement the substantive provisions that were reported and which fall within the jurisdiction of such committee; or (B) the provision states an exception to, or a special application of, the general provision or title of which it is a part and such general provision or title if introduced as a bill or resolution would be referred to such committee. (c) Extraneous Materials. -- Upon the reporting or discharge of a reconciliation bill or resolution pursuant to Section 310 in the Senate, and again upon the submission of a conference report on such reconciliation bill or resolution, the Committee on the Budget of the Senate shall submit for the record a list of material considered to be extraneous under subsections (b)(1)(A), (b)(1)(B), and (b)(1)(E) of this section to the instructions of a committee as provided in this section. The inclusion or exclusion of a provision shall not constitute a determination of extraneousness by the Presiding Officer of the Senate. CRS-42 (d) Conference Reports. -- When the Senate is considering a conference report on, or an amendment between the Houses in relation to, a reconciliation bill or reconciliation resolution pursuant to Section 310, upon -- (1) a point of order being made by an Senator against extraneous material meeting the definition of subsections (b)(1)(A), (b)(1)(B), (b)(1)(D), (b)(1)(E), or (b)(1)(F), and (2) such point of order being sustained, such material contained in such conference report or amendment shall be deemed stricken, and the Senate shall proceed, without intervening action or motion, to consider the question of whether the Senate shall recede from its amendment and concur with a further amendment, or concur in the House amendment with a further amendment, as the case may be, which further amendment shall consist of only that portion of the conference report or House amendment, as the case may be, not so stricken. Any such motion in the Senate shall be debatable for 2 hours. In any case in which such point of order is sustained against a conference report (or Senate amendment derived from such conference report by operation of this subsection), no further amendment shall be in order. (e) General Point of Order. -- Notwithstanding any other law or rule of the Senate, it shall be in order for a Senator to raise a single point of order that several provisions of a bill, resolution, amendment, motion, or conference report violate this section. The Presiding Officer may sustain the point of order as to some or all of the provisions against which the Senator raised the point of order. If the Presiding Officer so sustains the point of order as to some of the provisions (including provisions of an amendment, motion, or conference report) against which the Senator raised the point of order, then only those provisions (including provisions of an amendment, motion, or conference report) against which the Presiding Officer sustains the point or order shall be deemed stricken pursuant to this section. Before the Presiding Officer rules on such a point of order, any Senator may move to waive such a point of order as it applies to some or all of the provisions against which the point of order was raised. Such a motion to waive is amendable in accordance with the rules and precedents of the Senate. After the Presiding Officer rules on such a point of order, any Senator may appeal the ruling of the Presiding Officer on such a point of order as it applies to some or all of the provisions on which the Presiding Officer ruled. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL30862