Introduction

The Congressional Budget Act of 1974 (Budget Act)¹ established the basic framework that is used today for congressional consideration of budget and fiscal policy. The act provided for the adoption of a concurrent resolution on the budget (budget resolution) as a mechanism for coordinating congressional budgetary decisionmaking. This process supplements other House and Senate procedures for considering spending and revenue legislation by allowing Congress to establish and enforce parameters with which those separate pieces of budgetary legislation must be consistent. The parameters are established when Congress adopts a budget resolution, setting forth overall levels for new budget authority, outlays, revenues, deficit, and debt.

These overall spending levels are then allocated to the various committees in the House and Senate responsible for spending legislation. The overall levels and allocations may then be enforced through points of order and implementing legislation, such as that enacted through the reconciliation process.² Points of order are prohibitions against certain congressional actions or the consideration of certain types of legislation. These prohibitions may be enforced when a Member raises a point of order against an action or legislation that is alleged to violate these rules when it is considered by the House or Senate. Points of order are not self-enforcing, however. A point of order must be raised by a Member on the floor of the chamber before the presiding officer can rule on its application and thus its enforcement.³

Although the congressional budget process comprises numerous procedures dealing with spending, revenue, and debt legislation, this report focuses only on that portion of the process that stems from the Budget Act. The report identifies the points of order included in the Budget Act, as amended. It also identifies related points of order established in various other measures that have been adopted pursuant to the constitutional authority of each chamber to determine its rules of proceeding that have a direct impact on budget enforcement. These other measures include the budget resolution adopted by Congress in 2021 (S.Con.Res. 14, 117^th Congress); 2017 (H.Con.Res. 71, 115^th Congress); 2015 (S.Con.Res. 11, 114^th Congress); 2009 (S.Con.Res. 13, 111^th Congress); and 2008 (S.Con.Res. 70, 110^th Congress). The report also describes selected provisions in the rules of the House and separate orders adopted at the beginning of the 118^th Congress (H.Res. 5, 118^th Congress); the Budget Enforcement Act of 1990 (P.L. 101-508); and the Statutory Pay-As-You-Go Act of 2010 (P.L. 111-139) that pertain to the consideration, contents, implementation, or enforcement of budgetary decisions.

Points of order are typically in the form of a provision stating that "it shall not be in order" for the House or Senate to take a specified action or consider certain legislation that is inconsistent with the requirements of the Budget Act. Other provisions of the act, formulated differently, establish various requirements or procedures, particularly concerning the contents and consideration of the budget resolution or reconciliation legislation. These provisions, however, are not typically enforced through points of order and are not included here.⁴

Points of order in the Budget Act, as amended, are permanent because none of these provisions is scheduled to expire, although several points of order may have limited applicability or have been rendered moot by the expiration of limits they were intended to enforce.⁵ The freestanding point of order protecting the Social Security trust fund in the House established in the Budget Enforcement Act is similarly permanent. Other points of order established under recent budget resolutions, however, have various sunset provisions or limited application.

Application of Points of Order

Most points of order in the Budget Act apply to measures as a whole, as well as to motions, amendments, or conference reports to those measures. When a point of order is sustained against consideration of some matter, the effect is that the matter in question falls.

Section 312 of the Budget Act states that for the purposes of enforcing budgetary points of order, levels of spending and revenues "shall be determined on the basis of estimates made by the Committee on the Budget of the House of Representatives or the Senate, as applicable." House Rule XXIX, clause 4, further clarifies that such determinations may be provided by the chair of the House Budget Committee.⁶

Because the House often uses the Committee on Rules to specify the text of a measure to be considered, Section 315 of the Budget Act provides clarification with respect to how the term as reported as used in Titles III and IV of the Budget Act should be applied. For cases in which a reported measure is considered pursuant to a special rule, a point of order against a bill "as reported" would apply to the text made in order by the rule as original text for the purpose of amendment or to the text on which the previous question is ordered directly to passage. In this way, no point of order would be considered as applying (and no waiver would be required) if a substitute resolved the problem. In addition, the rules of the House since the 110^th Congress have included a provision further specifying that for measures considered pursuant to a special rule, points of order under Title III of the Budget Act apply without regard to whether the measure considered is actually the text that was reported from committee. Under Rule XXI, clause 8, points of order apply to the form of a measure recommended by the reporting committee where the statute uses the term as reported (in the case of a measure that has been reported), the form of the measure made in order as an original text for the purpose of amendment, or the form of the measure on which the previous question is ordered directly to passage.

Section 312(f) provides that when a point of order against a measure is sustained, the measure is recommitted to the appropriate committee for any further consideration. This allows the Senate an opportunity to remedy the problem that caused the point of order. Section 312(d) is also designed to provide the Senate with the opportunity to remedy a problem that would provoke a point of order. This provision states that a point of order may not be raised against a measure, amendment, motion, or conference report while an amendment or motion that would remedy the problem is pending.

Section 312(e) clarifies that any point of order that would apply in the Senate against an amendment also applies against amendments between the chambers. Further, this section also states 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 surgically 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.⁷ 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. These include Section 314(e) of the Budget Act and Section 4(g)(3) of the Statutory Pay-As-You-Go Act of 2010, both of which concern emergency designations, and Section 314 of S.Con.Res. 70 (110^th Congress) prohibiting Changes in Mandatory Programs in appropriations legislation (also known as CHIMPs).

Procedures for Waiving Points of Order

The 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 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.⁸

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). 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, 2025.⁹ The three-fifths threshold has also been required for the Senate to waive many of the related points of order established in budget resolutions and other measures, such as the Statutory Pay-As-You-Go Act of 2010. As with other provisions of Senate rules, Budget Act points of order may also be waived by unanimous consent.

In the House, Budget Act points of order are typically waived by the adoption of special rules, although other means (such as unanimous consent or suspension of the rules) may also be used. A waiver may be used to protect a bill, specified provision(s) in a bill, or an amendment from a point of order that could be raised against it. Waivers may be granted for one or more amendments even if they are not granted for the underlying bill. The House may waive one or more specific points of order, or they may include a "blanket waiver"—that is, a waiver that would protect a bill, provision, or amendment from any point of order.

Points of Order in the Budget Act

Applicable to the Consideration of a Budget Resolution

Section 301(g). In the Senate, prohibits consideration of a budget resolution using more than one set of economic assumptions.

Section 301(i). In the Senate, prohibits consideration of a budget resolution that would decrease the Social Security surplus in any fiscal year covered by the resolution. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 305(b)(2). In the Senate, prohibits consideration of nongermane amendments to a budget resolution.¹⁰ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 305(c)(4). In the Senate, prohibits consideration of nongermane amendments to amendments in disagreement to a budget resolution. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 305(d). In the Senate, prohibits a vote on a budget resolution unless the figures contained in the resolution are mathematically consistent.

Section 312(c). In the Senate, prohibits consideration of a budget resolution that provides for a deficit in excess of the maximum deficit amount specified in the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, for the first fiscal year set forth in the resolution.¹¹ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Applicable to the Consideration of Reconciliation Legislation

Section 310(d)(1). In the House, prohibits the consideration of amendments to reconciliation legislation that would cause a net increase in the deficit either by increasing outlays above the levels in the bill or reducing revenues below the level in the bill unless fully offset.

Section 310(d)(2). In the Senate, prohibits the consideration of amendments to reconciliation legislation that would cause a net increase in the deficit relative to the applicable reconciliation instructions. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 310(e). In the Senate, prohibits consideration of nongermane amendments to reconciliation legislation or to amendments in disagreement to reconciliation (by reference to Sections 305(b)(2) and 305(c)(4)). This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 310(f). In the House, prohibits consideration of an adjournment resolution of more than three calendar days during July until the House has completed action on any required reconciliation legislation.

Section 310(g). Prohibits the consideration of reconciliation legislation that contains recommendations with respect to Social Security. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 313(b). In the Senate, prohibits consideration of extraneous provisions in reconciliation legislation.¹² This provision is also known as the "Byrd rule" and is intended to limit the content of a reconciliation bill to those changes in law necessary to implement the budgetary policies agreed to in the budget resolution. This point of order may be raised against one or more provisions and, if well taken, would cause only that provision to be stricken. In general, a provision would be considered extraneous if it

• does not produce a change in outlays or revenues,
• produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions,
• is outside of the jurisdiction of the committee that submitted the provision for inclusion in the reconciliation measure,
• produces a change in outlays or revenues that is merely incidental to the nonbudgetary components of the provision,
• would increase the deficit for a fiscal year beyond the period covered by the budget resolution, or
• recommends changes to Social Security.

This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Applicable to All Legislation

Section 302(c). Prohibits the consideration of any measure within the jurisdiction of the House or Senate Appropriations Committees that provides new budget authority for a fiscal year until the committee makes the suballocation required by Section 302(b). This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 302(f)(1). In the House, after action on a budget resolution is completed, prohibits consideration of legislation providing new budget authority for any fiscal year that would cause the applicable allocation of new budget authority made pursuant to Section 302(a) or (b) for the first fiscal year or for the total of all fiscal years to be exceeded.

Section 302(f)(2)(A). In the Senate, after a budget resolution is agreed to, prohibits consideration of legislation (from any committee other than the Appropriations Committee) that would cause the applicable allocation of new budget authority or outlays made pursuant to Section 302(a) for the first fiscal year or for the total of all fiscal years to be exceeded. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 302(f)(2)(B). In the Senate, after a budget resolution has been agreed to, prohibits consideration of legislation from the Appropriations Committee that would cause the applicable suballocation of new budget authority or outlays made pursuant to Section 302(b) to be exceeded. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 303(a). Prohibits consideration of legislation providing new budget authority, an increase or decrease in revenues, an increase or decrease in the public debt limit, new entitlement authority (in the Senate only), or an increase or decrease in outlays (in the Senate only) for a fiscal year until a budget resolution for that fiscal year has been agreed to.¹³

Section 303(c). In the Senate, prohibits consideration of any appropriations measure until a concurrent resolution for that fiscal year has been agreed to and an allocation has been made to the Committee on Appropriations under Section 302(a).¹⁴

Section 306(a). In the Senate, prohibits consideration of matters within the jurisdiction of the Budget Committee except when it is a measure reported by the committee or the committee is discharged from further consideration of the measure or an amendment to such a measure.¹⁵ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 306(b). In the House, prohibits consideration of matters within the jurisdiction of the Budget Committee except when it is a measure reported by the committee or the committee is discharged from further consideration of the measure or an amendment to such a measure.¹⁶

Section 309. In the House, prohibits consideration of an adjournment resolution for more than three calendar days during July until the House has approved all regular appropriations bills for the upcoming fiscal year.

Section 311(a)(1). In the House, prohibits consideration of legislation that would cause new budget authority or outlays to exceed the levels set forth in the budget resolution for the first fiscal year or revenues to fall below the levels set forth in the budget resolution for the first fiscal year or for the total of all fiscal years for which allocations are made pursuant to Section 302(a).¹⁷

Section 311(a)(2). In the Senate, prohibits consideration of legislation that would cause new budget authority or outlays to exceed the levels set forth in the budget resolution for the first fiscal year or revenues to fall below the levels set forth in the budget resolution for the first fiscal year or for the total of all fiscal years for which allocations are made pursuant to Section 302(a). This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 311(a)(3). In the Senate, prohibits consideration of legislation that would cause a decrease in Social Security surpluses or an increase in Social Security deficits relative to the level set forth in the budget resolution for the first fiscal year or for the total of all fiscal years for which allocations are made pursuant to Section 302(a). This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 312(b). In the Senate, prohibits the consideration of legislation that would cause any of the discretionary spending limits specified in Section 251(c) of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, to be exceeded.¹⁸ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 314(e). In the Senate, prohibits the use of emergency designations. Note that this point of order applies to the emergency designation rather than against the spending or revenue itself. If the point of order is raised, the emergency designation is stricken and the spending or revenue is no longer insulated from other budgetary enforcement procedures.¹⁹ This section also requires committees reporting legislation that include provisions designated as emergency to include in any accompanying written report a justification for the designation. This point of order may be waived in the Senate (and the emergency designation retained) by a vote of three-fifths of all Senators.

Section 314(f). Prohibits consideration in the House or Senate of legislation that would cause the discretionary spending limits set forth in Section 251 of the Balanced Budget and Emergency Deficit Control Act, as amended by the Budget Control Act of 2011, to be exceeded.²⁰ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Section 401(a). Prohibits consideration of legislation providing new contract authority, borrowing authority, or credit authority not limited to amounts provided in appropriations acts.²¹

Section 401(b)(1). Prohibits consideration of legislation providing new entitlement authority that is to become effective during the current fiscal year.²²

Unfunded Mandates

Title IV, Part B of the Budget Act (Sections 421-427) was added as a consequence of the Unfunded Mandates Reform Act of 1995.²³

Section 425(a)(1). Prohibits consideration of legislation reported by a committee unless the committee has published a statement by the Congressional Budget Office (CBO) on the direct costs of federal mandates. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.²⁴

Section 425(a)(2). Prohibits consideration of legislation that would increase the direct costs of federal intergovernmental mandates by an amount greater than the thresholds specified in Section 424(a). This point of order may be waived in the Senate by a vote of three-fifths of all Senators.²⁵

Section 426. In the House, prohibits consideration of a rule or order that would waive the application of Section 425.

Budget Points of Order Adopted in Other Measures

H.Res. 5, 118^th Congress

At the beginning of each Congress, the House of Representatives adopts rules to govern its proceedings in the form of its standing rules as well as a series of separate orders. On January 9, 2023, the House considered and adopted H.Res. 5, providing for the rules of the House for the 118^th Congress by a vote of 220-213. Among the rules adopted are several that concern the budget process and budget enforcement:²⁶

• Section 2(a). This section reinstates the "cut-as-you-go" (CUTGO) rule, as Rule XXI, clause 10. The CUTGO rule prohibits the consideration of any legislation that would have the net effect of increasing direct spending over either of two time periods: (1) the six-year period consisting of the current fiscal year, the budget year, and the four ensuing fiscal years following the budget year or (2) the 11-year period consisting of the current year, the budget year, and the nine ensuing fiscal years following the budget year.²⁷
• Section 2(a)(4). This section reinstates a restriction on reconciliation directives as Rule XXI, clause 7. The rule states that it is not in order in the House to consider a budget resolution that contains directives triggering the reconciliation process if such reconciliation legislation would cause an increase in net direct spending for the period covered by the resolution.²⁸
• Section 3(f)(2). This section adopts as a separate order a requirement that the CBO estimate whether certain legislation would cause a net increase in spending in excess of $2.5 billion in any of the four 10-year periods beginning with the fiscal year 10 years after the current fiscal year. In addition, the order prohibits the House from considering legislation that would cause such an increase.²⁹

S.Con.Res. 14, 117^th Congress

Section 4002(a). In the Senate, prohibits consideration of legislation that would provide advance appropriations for a fiscal year other than the current fiscal year or budget year.³⁰ Section 4002(b) provides for exceptions, which are limited to appropriations for FY2023 and FY2024 programs that are identified in the joint explanatory statement of managers accompanying the resolution as "Accounts Identified for Advance Appropriations" and do not exceed $28.852 billion in each fiscal year. Section 4002(b) further identifies exceptions to the prohibition for

• the Corporation for Public Broadcasting;
• the Department of Veterans Affairs for the Medical Services, Medical Community Care, Medical Support and Compliance, and Medical Facilities accounts of the Veterans Health Administration;
• legislation implementing a bipartisan infrastructure agreement as determined by the chairman of the Committee on the Budget of the Senate; and
• the Department of Health and Human Services for the Indian Health Services and Indian Health Facilities accounts.

This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

H.Con.Res. 71, 115^th Congress

Section 4106. In the Senate, prohibits consideration of any direct spending or revenue legislation that would increase or cause an on-budget deficit for the period of the current fiscal year and the five ensuing fiscal years or the period of the current fiscal year and the 10 ensuing fiscal years.³¹ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

S.Con.Res. 11, 114^th Congress

Section 3101(b)(1). In the Senate, prohibits the consideration of a measure that would cause a net increase in on-budget deficits in excess of $5 billion in any of the four consecutive 10-year periods beginning with the first fiscal year that is 10 years after the budget year in the most recently agreed to budget resolution. This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

S.Con.Res. 13, 111^th Congress

Section 404(a). In the Senate, prohibits the consideration of direct spending or revenue legislation that would cause a net increase in the deficit in excess of $10 billion in any fiscal year provided for in the most recently adopted budget resolution unless it is fully offset over the period of all fiscal years provided for in the most recently adopted budget resolution.³² This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

S.Con.Res. 70, 110^th Congress

Section 314. In the Senate, prohibits provisions in an appropriations bill that constitute a change in CHIMPs and produce a net cost. This point of order could be raised against one or more provisions that would (1) increase budget authority in at least one of the nine years after the budget year and over a 10-year budget window, (2) increase net outlays over the nine years following the budget year, and (3) the sum of all such CHIMPs in the measure would increase net outlays over the nine years after the budget year.³³ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Budget Enforcement Act of 1990 (P.L. 101-508)

Section 13302(a). In the House, prohibits consideration of legislation that would provide for a net increase in Social Security benefits or decrease in Social Security taxes in excess of 0.02% of the present value of future taxable payroll for a 75-year period, or in excess of $250,000,000 for the first five-year period after it becomes effective.³⁴

Statutory Pay-As-You-Go Act of 2010 (P.L. 111-139)

Section 4(g)(3). In the Senate, if a point of order is raised during consideration of direct spending or revenue legislation subject to PAYGO against an emergency designation in that measure, the provision making the designation shall be stricken.³⁵ This point of order may be waived in the Senate by a vote of three-fifths of all Senators.

Fiscal Responsibility Act of 2023 (P.L. 118-5)

Section 112(a) and Section 123(a). Points of order in the House and Senate, respectively, to prohibit consideration of legislation that would provide a discretionary appropriation for a year other than the current fiscal year or budget year. In each case, the point of order would not apply to funding for FY2025 and FY2026 that are (1) identified as part of "Accounts Identified for Advance Appropriations" and in the aggregate do not exceed $28.852 billion; (2) the Corporation for Public Broadcasting; (3) certain VA accounts—Medical Services, Medical Community Care, Medical Support and Compliance, and Medical Facilities accounts of the Veterans Health Administration—and (4) the Indian Health Services and Indian Health Facilities Accounts.