that the effect would “be the same as if the Senate had disagreed to the amendment.” This would allow the Senate to keep the underlying measure pending, and thus retain the ability to resolve their differences with the House. This provision therefore means that any resolution of the differences between the House- and Senate-passed versions of a measure, whether it is in the form of a conference report or not, must adhere to the provisions of the Budget Act.
There are exceptions to the general principle of applying points of order to a measure as a whole. The most salient is probably Section 313, the so-called Byrd Rule. This section applies to matter “contained in any title or provision” in a reconciliation bill or resolution (or conference report thereon), as well as any amendment or motion. If a point of order is sustained under this section, only the provision in question is stricken, or the amendment or motion falls.[1] Several of the points of order in the Senate subsequently established under budget resolutions have been written so that they too apply to individual provisions rather than the measure as a whole, in the same manner as provided in Section 313(e) of the Budget Act. In particular, this construction is applied to the points of order against emergency spending designations (Section 403(e)(1) of S.Con.Res. 13 (111th Congress), Section 314(e) of the Budget Act, and Section 4(g)(3) of the Statutory Pay-As-You-Go Act of 2010). These sections further provide that, if sustained, the effect of the point of order is that the provision making an emergency designation shall be stricken, and may not be offered as an amendment from the floor.
Procedures for Waiving Points of Order
The Congressional Budget Act sets forth certain procedures, under Section 904, for waiving points of order under the act. These waiver procedures apply in the Senate only. Under these procedures, a Senator may make a motion to waive the application of a point of order either preemptively before it can be raised, or after it is raised, but before the presiding officer rules on its merits.[2]
In the Senate, most points of order under the Budget Act may be waived by a vote of at least three-fifths of all Senators duly chosen and sworn (60 votes if there are no vacancies) (see Table 1). The three-fifths waiver requirement was first established for some points of order under the Balanced Budget and Emergency Deficit Control Act of 1985. Beginning with the Balanced Budget Act of 1997, this super-majority threshold was applied to several additional points of order on a temporary basis. These points of order are identified in Section 904(c)(2), and the three-fifths requirement is currently scheduled to expire September 30, 2025.[3] The three-fifths threshold has also been required for the Senate to waive the application of many of the related
- ↑ Section 313(d) provides a special procedure for further consideration of a measure should a point of order under this section be sustained against a provision in a conference report.
- ↑ In the case of points of order under Section 313 of the Budget Act (and by extension, other points of order for which this construction applies) a single point of order may be raised against several provisions. The presiding officer may sustain the point of order “as to some or all of the provisions,” and a motion to waive the point of order may, likewise, be made concerning some or all of the provisions against which the point of order was raised.
- ↑ As originally provided in Title X of the Balanced Budget Act of 1997, the three-fifths requirement expired on September 30, 2002. The Senate subsequently adopted S.Res. 304 on October 16, 2002, renewing the three-fifths requirement for all of the points of order identified in Section 904(c)(2) (except for Section 302(f)(2)(B)) through April 15, 2003. The three-fifths requirement (including for Section 302(f)(2)(B)) was renewed through September 30, 2008, under Section 503 of H.Con.Res. 95 (108th Congress), extended through September 30, 2010, under Section 403 of H.Con.Res. 95 (109th Congress), extended through September 30, 2017, under Section 205 of S.Con.Res. 21 (110th Congress), and most recently, extended through September 30, 2025 under Section 3201(a)(1) of S.Con.Res. 11 (114th Congress).
