Congress of the U.S.: Commitees, Rules, and Procedures

CONGRESS OF THE U.S.: COMMITEES, RULES AND PROCEDURES No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.

CONGRESS OF THE U.S.: COMMITEES, RULES AND PROCEDURES

SELA G. THOMASON EDITOR

Nova Science Publishers, Inc. New York

Copyright © 2009 by Nova Science Publishers, Inc.

All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Available upon request. ISBN 978-1-60876-582-9 (E-Book)

Published by Nova Science Publishers, Inc.    New York

CONTENTS Preface Chapter 1

xi Resolving Legislative Differences in Congress: Conference Committees and Amendments between the Houses Elizabeth Rybicki

1

Chapter 2

Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act after Ten Years 37 Morton Rosenberg

Chapter 3

Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power Kenneth R. Thomas

75

Rescission Actions Since 1974: Review and Assessment of the Record Virginia A. McMurtry

99

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Grassroots Lobbying: Constitutionality of Disclosure Requirements Jack Maskell

123

Congressional Resources in CRS Research Centers and the La Follette Congressional Reading Room Audrey Celeste Crane-Hirsch

143

Enforcement of Congressional Rules of Conduct: An Historical Overview Mildred Amer

167

Congressionally Chartered Nonprofit Organizations (“Title 36 Corporations”): What they Are and how Congress Treats them Kevin R. Kosar

185

Casework in a Congressional Office: Background, Rules, Laws, and Resources R. Eric Petersen

203

vi

Contents

Chapter 10

Retirement Benefits for Members of Congress Patrick J. Purcell

Chapter 11

Members who have Served in the U.S. Congress 30 Years or more Mildred Amer

Chapter 12

U.S. Trade Statutes: Expiration Dates and Mandated Periodic Reports to Congress Mary Jane Bolle, William H. Cooper, Ian F. Fergusson, J. F. Hornbeck, James K. Jackson, Vivian C. Jones, Danielle Langton, Michael F. Martin, M. Angeles Villarreal, Jennifer E. Lake,.Charles E. Han rahan, Remy Jurenas, and Brent D. Yacobucci

Chapter 13

Roles and Duties of a Member of Congress R. Eric Petersen

Chapter 14

“No Confidence” Votes and other Forms of Congressional Censure of Public Officials Jack Maskell and Richard S. Beth

223

237

255

271

283

Chapter 15

Congressional Salaries and Allowances Ida A. Brudnick

299

Chapter 16

Prescription Drug Sales over the Internet Christopher J. Sroka

311

Chapter 17

United Nations Commission on Human Rights (UNCHR): Recent Congressional Issues Vita Bite

321

Salaries of Members of Congress: A List of Payable Rates and Effective Dates, 1789-2007 Ida A. Brudnick

327

Chapter 18

Chapter 19

Congressional Budget Actions in 2005 Bill Heniff Jr.

333

Chapter 20

Party Leaders in the United States Congress, 1789-2007 Valerie Heitshusen

365

Chapter 21

The “Deeming Resolution”: A Budget Enforcement Tool Robert Keith

401

Chapter 22

Lame Duck Sessions of Congress, 1935-2004 (74th-108th Congresses) Richard S. Beth

Chapter 23

Recess Appointments: A Legal Overview T. J. Halstead

425 443

Contents Chapter 24

Chapter 25

Territorial Delegates to the U.S. Congress: Current Issues and Historical Background Betsy Palmer Substantiality of an Agency's Legal and Policy Objections in Refusing to Comply with Subpoenas for Documents and the Testimony of Agency Personnel Morton Rosenberg

Chapter 26

Asian Pacific Americans in the United States Congress Lorraine H. Tong

Chapter 27

Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management R. Eric Petersen

Chapter 28

Points of Order in the Congressional Budget Process James V. Saturno

Chapter 29

Appropriations Subcommittee Structure: History of Changes from 1920-2007 James V. Saturno

Chapter 30

Chapter 31

Chapter 32

Chapter 33

Pages of the United States Congress: History, Background Information, and Proposals for Change Mildred Amer

vii

461

479 497

515 533

547

561

Congressional Budget Resolutions: Motions to Instruct Conferees Robert Keith

571

Tracking Current Federal Legislation and Regulations: A Guide to Resources Pamela Hairston

585

Gifts and Ethics Rules: Side-by-Side Comparison of Provisions of S. 1 and H.Res. 6, 110th Congress Jack Maskell

597

Chapter 34

Architect of the Capitol: Appointment, Duties, and Operations Mildred Amer

Chapter 35

Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 1614 / S. 936 / S. 1285 Would Change Current Law Matthew E. Glassman

Chapter 36

Congressional Gifts and Travel: Proposals in the 109th Congress Mildred Amer

Chapter 37

Salary Linkage: Members of Congress and Certain Federal Executive and Judicial Officials

609

619 627

635

viii

Contents Barbara L. Schwemle

Chapter 38

Technology Assessment in Congress: History and Legislative Options Genevieve J. Knezo

Chapter 39

Congressional Official Mail Costs Matthew E. Glassman

Chapter 40

Protection of Classified Information by Congress: Practices and Proposals Frederick M. Kaiser

643 651

661

Chapter 41

Executive Lobbying: Statutory Controls R. Eric Petersen

Chapter 42

Congressional or Federal Charters: Overview and Current Issues Kevin R. Kosar

677

Salaries of Members of Congress: Congressional Votes, 1990-2007 Ida A. Brudnick

683

Chapter 43

669

Chapter 44

Congressional Advisory Commissions: An Overview Matthew E. Glassman

713

Chapter 45

Committee of the Whole: An Introduction Judy Schneider

721

Chapter 46

The Congressional Budget Process: A Brief Overview James V. Saturno

727

Chapter 47

Congressional Oversight Frederick M. Kaiser

735

Chapter 48

Congressional Redistricting: The Constitutionality of Creating an At-Large District L. Paige Whitaker

741

Chapter 49

Procedural Analysis of Private Laws Enacted: 1986-2007 Christopher M. Davis

747

Chapter 50

Points of Order, Rulings, and Appeals in the Senate Valerie Heitshusen

755

Chapter 51

Congressional Franking Privilege: An Overview of Legislation in the 110th Congress Matthew E. Glassman

Chapter 52

Architects of the Capitol: Selected Biographical Information Mildred Amer

759 763

Contents Chapter 53

Points of Order, Rulings, and Appeals in the House of Representatives Valerie Heitshusen

ix

767

Chapter 54

Congressional Franking Privilege: An Overview Matthew E. Glassman

771

Chapter 55

Congress’ Early Organization Meetings Judy Schneider

775

Chapter 56

General Debate in Committee of the Whole James V. Saturno

779

Chapter 57

Types of Committee Hearings Valerie Heitshusen

783

Chapter 58

Committee of the Whole: Stages of Action on Measures Richard S. Beth

787

Chapter 59

Amendments between the Houses James V. Saturno

791

Chapter 60

Congressional Budget Act Points of Order Bill Heniff Jr.

795

Chapter 61

Pages of the United States Congress: Selection, Duties, and Program Administration Mildred Amer

Chapter 62

Engrossment, Enrollment, and Presentation of Legislation R. Eric Petersen

Chapter 63

Congressional Record: Its Production, Distribution, and Accessibility Mildred Amer

799 803

807

Chapter 64

Budget Resolution Enforcement Bill Heniff Jr.

809

Chapter 65

Messages, Petitions, Communications, and Memorials to Congress R. Eric Petersen

811

Chapter 66

Conference Reports and Joint Explanatory Statements Christopher M. Davis

815

Chapter 67

Committee Types and Roles Valerie Heitshusen

819

Chapter 68

“Sense of” Resolutions and Provisions Christopher M. Davis

823 823

Chapter 69

Conference Committee Deliberations Walter J. Oleszek

827

Chapter 70

Publications of Congressional Committees: A Summary

831

x

Contents Matthew E. Glassman

Chapter 71

Amendment Process in the Committee of the Whole Judy Schneider

835

Chapter 72

Pairing in Congressional Voting: The House Christopher M. Davis

839

Chapter 73

Formulation and Content of the Budget Resolution Bill Heniff Jr.

841

Chapter 74

Expedited or “Fast-Track” Legislative Procedures Christopher M. Davis

845

Chapter 75

Appropriations Bills: What Are “General Provisions”? Sandy Streeter

847

Chapter 76

Overview of the Authorization-Appropriations Process Bill Heniff Jr.

849

Chapter 77

Bills, Resolutions, Nominations, and Treaties: Origins, Deadlines, Requirements, and Uses Richard S. Beth

Chapter 78

Bills and Resolutions: Examples of how Each Kind is Used Richard S. Beth

Chapter 79

Provisions of Special Rules in the House: An Example of a Typical Open Rule Judy Schneider

Chapter 80 Index

Sunset Review: A Brief Introduction Virginia A. McMurtry

853 857

861 863 867

PREFACE This new book presents the nuts and bolts procedures and rules which make the U.S. Congress tick.. Chapter 1 - The Constitution requires that the House and Senate approve the same bill or joint resolution in precisely the same form before it is presented to the President for his approval or veto. To this end, both houses must pass the same measure and then attempt to reach agreement about its provisions. The House and Senate may be able to reach agreement by an exchange of amendments between the houses. Each house has one opportunity to amend the amendments from the other house, so there can be Senate amendments to House amendments to Senate amendments to a House bill. House amendments to Senate bills or amendments are privileged for consideration on the Senate floor; Senate amendments to House bills or amendments generally are not privileged for consideration on the House floor. In practice, the House and Senate often dispose of amendments between the houses by unanimous consent. Chapter 2 - On March 29, 1996, the President signed into law the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat. 857-874, Subtitle E of which for the first time established a mechanism by which Congress can review and disapprove, by means of an expedited legislative process, virtually all federal agency rules. In its current form, however, some have questioned the efficacy of the review scheme as a vehicle to control agency rulemaking through the exercise of legislative oversight. These questions have been raised despite the use of the CRA to nullify OSHA' s controversial ergonomics standards in March 2001. In the view of some observers, the OSHA action was the result of a unique confluence of circumstances not likely to soon recur: the White House and both Houses of Congress in the hands of the same political party, a contentious rule promulgated in the waning days of an outgoing administration; longstanding opposition to the rule by some in Congress and by a broad coalition of business interests; and encouragement of repeal by the President. On the other hand, some maintain that a number of major rules have been affected by the Agency recognition of the existence of the review mechanism, and argue that the review scheme has had a significant influence. Chapter 3 - The ratification of the U.S. Constitution, to a significant extent, defined the lines of authority between the state and federal governments. In recent years, the Supreme Court has decided a number of cases that address this historical relationship. This chapter discusses state and federal legislative power generally and focuses on a number of these "federalism" cases. The chapter does not, however, address the much larger policy issue of

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when it is appropriate — as opposed to constitutionally permissible — for federal powers to be exercised. The U.S. Constitution provides that Congress shall have the power to regulate commerce with foreign nations and among the various states. This power has been cited as the constitutional basis for a significant portion of the laws passed by the Congress over the last 50 years, and it currently represents one of the broadest bases for the exercise of congressional powers. In United States v. Lopez and subsequent cases, however, the Supreme Court did bring into question the extent to which Congress can rely on the Commerce Clause as a basis for federal jurisdiction. Another significant source of congressional power is based on the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Section 5 of that amendment provides that Congress has the power to legislate regarding its provisions. In the case of Flores v. City of Boerne, however, the Court imposed limits on this power, requiring that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. Chapter 4 - The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). Under the ICA, unless Congress takes action to approve a rescission request from the President within the 45-day review period prescribed by the law, the funds must be released. With respect to a presidential rescission message, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress on its own accord may initiate rescission actions, by cancelling previously appropriated funds in a subsequent law. According to data compiled by the Government Accountability Office (GAO), from FY1974 to FY2006, Presidents requested 1,178 rescissions under the ICA, totaling somewhat over $76 billion. Close to a third of the proposals were approved by Congress, with approximately 40% of the total dollar amount of presidential rescission requests ($25 billion) enacted by Congress. The sum of rescissions requested by the President and subsequently enacted exceeded $1 billion in only four of the 30-plus years (FY1981, FY1982, FY1992 and FY1994). During this period Congress initiated 1,610 rescission actions amounting to $143.5 billion, over five times the total of presidentially requested rescission subsequently enacted, reflecting a trend toward an increasing number of rescissions being initiated by Congress. Chapter 5 - Certain legislative proposals, such as S. 1, 110th Congress, and H.R. 4682, 109th Congress, seek to extend public reporting requirements for some activities intended to stimulate “grassroots” lobbying. The activities involved in “lobbying,” including the stimulation of “grassroots” lobbying, clearly implicate and involve freedoms protected by the First Amendment, including speech, associational rights, and the right to petition the government. The courts have long found, however, that certain burdens on these fundamental rights may be tolerated in a statute when the statute seeks to promote significant governmental and societal interests, when the burdens on such activities are, at the most, indirect (such as in disclosure laws), and when the statute is drawn with enough precision so that a correlation exists between the information required to be disclosed and the achievement of the interests asserted as the law’s justification. Under such standards, the courts have upheld against facial First Amendment challenges required disclosures and detailed reporting in the areas of lobbying activities and campaign finance regulation to promote the interests of preventing corruption and limiting the undue influences of monied and powerful interests, as

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well as preventing merely the appearance of such corruption or influence, in basic governmental and democratic processes. The apparent trend in more recent judicial decisions seems to allow the legislatures some leeway in determining which activities are relevant to the goals of preserving the integrity of, for example, their own legislative process, and so to include also in required disclosures some activities that are more on the periphery and not necessarily themselves directly involved in such process, but are intended to result in direct contacts and to significantly influence a legislator. Chapter 6 - Congressional staff and interns seeking quick facts, legislative information, Congressional Research Service (CRS) publications, and reference and research assistance may come in person to CRS facilities located in Library of Congress and in House and Senate office buildings. These include the Senate Research Center (SRC) in Russell B-07, the Rayburn Research Center (RRC) in Rayburn B-355, and the La Follette Congressional Reading Room (LCRR) in the Madison building LM- 202 and LM-204. The LCRR and research centers provide access to CRS products; Internet and online sources, including the CRS website and the Legislative Information Service; magazine and newspaper collections and indexing tools; a variety of standard reference books; and legislative and public policy materials useful to congressional offices. Staff and intern user self-service is welcomed, with guidance provided by CRS reference staff as needed. This chapter, originally authored by Merete F. Gerli, describes the types of CRS products and a selection of the most frequently used printed and online reference sources available in the reading room and research centers for use by congressional staff. These deal with legislation and public policy; bills, congressional documents, laws, and regulations; Congress, elections, and politics; the federal government; directories of organizations, associations, corporations, state agencies, educational institutions, and the media; biographical information; data on foreign countries and international affairs; quick facts and statistics; and special collections such as quotations. Chapter 7 - The Constitution vests Congress with broad authority to discipline its Members. However, only in the past 40 years have both houses established formal rules of conduct and formal disciplinary procedures where allegations of illegal or unethical conduct are investigated and punishment is meted out. Previously, Congress dealt with misconduct on a case-by-case basis and relied on the decisions of voters as the ultimate authority in questions of wrongdoing. In 1964, the Senate first established a permanent ethics committee, the Select Committee on Standards and Conduct, which was renamed the Select Committee on Ethics in 1977. The House first established a permanent ethics committee, the Committee on Standards of Official Conduct, in 1967. In 1968, each chamber adopted rules of conduct. Since the committees were established, two Representatives have been expelled following felony convictions, 22 Representatives have been censured, and eight Representatives have been reprimanded; nine Senators have been censured, and one Senator was reprimanded. In recent years, the effectiveness of the two congressional ethics committees has been debated. Numerous proposals made within and outside of Congress have suggested alternative means to enforce congressional rules of conduct, including the use of an outside, independent entity composed of non-Members. Chapter 8 - The chartering by Congress of organizations with a patriotic, charitable, historical, or educational purpose is essentially a 20th century practice. There are currently

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some 92 nonprofit corporations listed in Title 36, Subtitle II, of the U.S. Code. These socalled “Title 36 corporations,” such as the Girl Scouts of America and the National Academy of Public Administration, are typically incorporated first under state law, then request that Congress grant them a congressional or federal charter. Chartered corporations listed in Title 36 are not agencies of the United States, and the charter does not assign the corporate bodies any governmental attributes. For instance, the corporation’s debt is not guaranteed, explicitly or implicitly, by the full faith and credit of the United States. The attraction of Title 36 status for national organizations is that it tends to provide an “official” imprimatur to their activities, and to that extent it may provide them prestige and indirect financial benefit. In recent years, some in Congress have expressed concern that the public may be misled by its chartering process into believing that somehow the U.S. government approves and supervises the corporations, when in fact this is not the case. As a consequence, in 1989 the House Judiciary Committee decided upon a moratorium on granting new charters. (The Senate generally defers to the House on chartering matters.) This moratorium has been reaffirmed by the committee at the beginning of each Congress since. On several recent occasions, however, the full Congress has established Title 36 corporations on its own plenary authority. Chapter 9 - The term casework in a congressional office refers to the response or services that Members of Congress provide to constituents who request assistance. Each year, thousands of constituents turn to Members of Congress with a wide range of requests, from the simple to the complex. Members and their staffs help constituents deal with administrative agencies by acting as facilitators, ombudsmen, and, in some cases, advocates. In addition to serving individual constituents, some congressional offices also consider as casework liaison activities between the federal government and local governments, businesses, communities, and nonprofit organizations. Members of Congress determine the parameters of their constituent service activities. Casework is conducted for various reasons, including a broadly held understanding among Members and staff that casework is integral to the representational duties of a Member of Congress, and that such activities can be part of an outreach strategy to build political support. In addition, casework can be viewed as an evaluative stage of the legislative process. Constituent inquiries about specific policies, programs, or benefits may suggest areas where programmatic or policy changes require further legislative consideration. Chapter 10 - Prior to 1984, neither federal civil service workers nor Members of Congress paid taxes to Social Security, nor were they eligible for Social Security benefits. Members of Congress and other federal employees were instead covered by a separate pension plan called the Civil Service Retirement System (CSRS). The 1983 amendments to the Social Security Act (P.L. 98-2 1) required federal employees first hired after 1983 to participate in Social Security. These amendments also required all Members of Congress to participate in Social Security as of January 1, 1984, regardless of when they first entered Congress. Because the CSRS was not designed to coordinate with Social Security, Congress directed the development of a new retirement plan for federal workers. The result was the Federal Employees’ Retirement System Act of 1986 (P.L. 99-335). Chapter 11 - This chapter identifies those 234 Members of Congress whose service in the House or Senate, or both, has been 30 years or more. The information provided is current through July 7, 2007.

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To place this information in perspective, it should be noted that some 11,814 individuals have served in Congress since 1789. Excluding Delegates and Resident Commissioners, this includes 9,919 persons who have served only in the House, 1,250 persons who have served only in the Senate, and 645 who have served in both houses. Of the names listed here, 137 have spent all of their congressional careers in the House; 27 have spent all of their careers in the Senate; and 70 have had combined service in the House and Senate to achieve 30 or more years of service. Three women are included in the listing. Seventeen incumbent Senators and 17 incumbent Representatives have served 30 years or longer. Chapter 12 - The Constitution gives Congress express power over the imposition of tariffs and the regulation of foreign trade. As part of this responsibility, Congress enacts laws including those that: establish tariff rates; implement trade agreements; provide remedies against unfairly traded imports; control exports of sensitive technology; and extend tariff preferences to imports from developing countries. Over time, and under carefully prescribed circumstances, Congress has delegated some of its trade authority to the Executive Branch. Congress, however, has, in some cases, kept tight reins on the use of this authority by requiring that certain trade laws and programs be renewed; and by requiring the Executive Branch to issue reports to Congress to monitor the implementation of the trade laws and programs. This chapter is intended to assist Congress in exercising its oversight responsibilities regarding foreign trade. It is designed as a quick reference guide on two key elements of U.S. trade statutes: (a) expiration dates for major trade programs and trade statutes; and (b) mandated periodic reports to Congress. To this end, the chapter provides this information in two tables. Table 1 includes expiration dates of programs or laws. Table 2 includes information on mandated reports to Congress by the Executive branch, as required under various trade laws. Chapter 13 - The duties carried out by a Member of Congress are understood to include representation, legislation, and constituent service and education, as well as political and electoral activities. The expectations and duties of a Member of Congress are extensive, encompassing several roles that could be full-time jobs by themselves. Despite the acceptance of these roles and other activities as facets of the Member’s job, there is no formal set of requirements or official explanation of what roles might be played as Members carry out the duties of their offices. In the absence of formal authorities, many of the responsibilities that Members of Congress have assumed over the years have evolved from the expectations of Members and their constituents. Upon election to Congress, Members typically develop approaches to their jobs that serve a wide range of roles and responsibilities. Given the dynamic nature of the congressional experience, priorities placed on various Member roles tend to shift in response to changes in seniority, committee assignment, policy focus, district or state priorities, institutional leadership, and electoral pressures. In response, the roles and specific duties a Member carries out are often highlighted or de-emphasized accordingly. Chapter 14 - S.J.Res. 14 of the 1 10th Congress, submitted on May 24, 2007, has been described as proposing a vote of no confidence in Attorney General Alberto Gonzales. This chapter discusses the possible significance of action by Congress or either House to adopt a resolution expressing “no confidence” in a cabinet official or other official in the executive branch of the federal government. It examines the legal issues that could be raised by

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resolutions of this kind and discusses the relation of such action both to votes of no confidence in systems of parliamentary government and to congressional action to censure or otherwise express disapprobation of public officials. It also describes known instances in which action to express a lack of confidence in, or impose another form of censure on, public officials have been attempted in Congress. S.J.Res. 14 of the 1 10th Congress, submitted on May 24, 2007, has been described as proposing a vote of no confidence in Attorney General Alberto Gonzales. This chapter discusses the possible significance of action by Congress or either House to adopt a resolution expressing “no confidence” in a cabinet official or other official in the executive branch of the federal government. It examines the legal issues that could be raised by resolutions of this kind and discusses the relation of such action both to votes of no confidence in systems of parliamentary government and to congressional action to censure or otherwise express disapprobation of public officials. It also describes known instances in which action to express a lack of confidence in, or impose another form of censure on, public officials have been attempted in Congress. Chapter 15 - This chapter provides basic information on congressional salaries and allowances. First, the chapter briefly summarizes the current salary of Members of Congress, limits on their outside earned income and honoraria, and applicable health insurance and retirement benefits. Second, the chapter provides information on allowances available to Representatives and Senators to support them in their official and representational duties as Members. Their allowances include those for official office expenses, staff, mail, and other allowances and services. Third, the chapter lists the salaries of congressional officers and officials and committee staff. Sources are hearings, reports, debates, and language of regular annual and supplemental legislative branch appropriations acts; the U.S. Code and U.S. Code Annotated Supplements to Title 2; latest available Order of the Speaker of the House of Representatives, implementing a pay increase for House employees, effective January 1, 2006, issued December 18, 2005 (to be contained in 2 U.S.C. 60a-2a, and currently available at [http://uscode.house.gov]); latest publicly available Order of the President pro tempore, implementing a pay increase for Senate employees, issued January 4, 2006 (to be contained in 2 U.S.C. 60a-1,and currently available at [http://uscode.house.gov]); the Members’ Congressional Handbook (web edition), prepared by the Committee on House Administration, for Members and staff of the U.S. House of Representatives, available at [http://cha.house.gov/index.php?option =com_content& task=view&id=49&Itemid=37]; the quarterly Statement of Disbursements of the House, compiled by the House Chief Administrative Officer, April 1, 2007, to June 30, 2007 (110th Congress, 1st session, H.Doc. 110-52, part 3 of 3, pp. 342 1-3435); and the Office of Personnel Management for executive level pay rates to which some legislative employees are statutorily linked. Chapter 16 - This chapter provides an overview of prescription drug sales over the Internet and related legislative activities. The chapter discusses how online pharmacies operate and some of the concerns raised by the sale of drug products in electronic commerce. The chapter also describes some recent government and private sector actions taken to address these concerns.

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Chapter 17 - The United States played a major role in establishin the U.N. Commission on Human Rights (UNCHR) and has been a member of that body from its first meeting in 1847. The U.S. term ends on December 31, 2001, since the United States did not secure enough votes to retain its seat in 2002. In response to this action by U.N. member countries, the House of Representatives on May 10, 2001 adopted an amendment to the Foreign relations Authorizations for FY2002-2003 (H.R. 1646) withholding the third and final arrears payment ($244 million) to the United Nations and other international organizations until the United States regains a seat on the UNCHR. This short chapter provides an overview of the UNCHR and Administration and Congressional responses to recent developments. Chapter 18 - Congress is required by Article I, Section 6, of the Constitution to determine its own pay. Prior to 1969, Congress did so by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Congressional salaries initially were $1,500. By 1968, they had risen to $30,000. Stand-alone legislation may still be used to raise Member pay, as it was most recently in 1982, 1983, 1989, and 1991, but two other methods — including an automatic annual adjustment procedure and a commission process — are now also available. Under the annual adjustment procedure, Members are scheduled to receive a 2.7% increase in January 2008, unless modified by Congress, or limited by the rate of increase in the base pay of General Schedule(GS) federal employees. Congress voted to deny the scheduled January 2007 adjustment. Members last received a pay increase (1.9%) in January 2006, increasing their salary to the current rate of $165,200. Chapter 19 - During the first session of the 109th Congress, the House and Senate considered many different budgetary measures. Most of them pertained to fiscal year (FY) 2006 and beyond, but some made adjustments to the budget for FY2005. This chapter describes House and Senate actions on major budgetary legislation within the framework of the congressional budget process and other procedural requirements. Congress typically begins its annual budget process once the President submits his budget for the upcoming fiscal year. President George W. Bush submitted his FY2006 budget to Congress on February 7, 2005. The congressional budget process provides for an annual concurrent resolution on the budget to serve as a framework for the consideration of budgetary legislation. The budget resolution sets forth aggregate spending and revenue levels, and spending levels by major functional area, for at least five fiscal years. Budget resolution policies are implemented through the enactment of reconciliation bills, revenue and debt-limit legislation, and appropriations and other spending measures. They are enforced by points of order that may be raised when legislation is pending on the House and Senate floor. Chapter 20 - This chapter briefly describes current responsibilities and selection mechanisms for 15 House and Senate party leadership posts and provides tables with historical data, including service dates, party affiliation, and other information for each. Tables have been updated as of the chapter’s issuance date to reflect leadership changes. Although party divisions appeared almost from the First Congress, the formally structured party leadership organizations now taken for granted are a relatively modern development. Constitutionally-specified leaders, namely the Speaker of the House and the President pro tempore of the Senate, can be identified since the first Congress. Other leadership posts, however, were not formally recognized until about the middle of the 19th century, and some are 20th century creations.

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In the earliest Congresses, those House Members who took some role in leading their party were often designated by the President as his spokesperson in the chamber. By the early 1 800s, an informal system developed when the Speaker began naming his lieutenant to chair one of the most influential House committees. Eventually, other members wielded significant influence via other committee posts (e.g., the post-1880 Committee on Rules). By the end of the 19th century, the formal position of floor leaders had been established in the House. Chapter 21 - “Deeming resolution” is a term that refers to legislation deemed to serve as an annual budget resolution for purposes of establishing enforceable budget levels for a budget cycle. A deeming resolution is used when the House and Senate are late in reaching final agreement on a budget resolution or fail to reach agreement altogether. The Congressional Budget Act of 1974 requires the annual adoption of a budget resolution establishing aggregate levels of revenues, spending, the debt limit, and the surplus or deficit, as well as allocations of spending. Enforcement of the budget resolution relies primarily upon points of order and reconciliation procedures. With regard to the enforcement of budget aggregates and committee spending allocations, the major points of order are found in Sections 311 and 302 of the act, respectively. The term “deeming resolution” is not officially defined, nor is there any specific statute or rule authorizing such legislation. Instead, the use of a deeming resolution simply represents the House and Senate employing regular legislative procedures to deal with the issue on an ad hoc basis. Chapter 22 - A “lame duck” session of Congress occurs whenever one Congress meets after its successor is elected, but before the successor’s term begins. The expression is now used not only for a special session called after a sine die adjournment, but also for any portion of a regular session that falls after an election. In current practice, any meeting of Congress after election day, but before the following January 3, is a lame duck session. Prior to 1933, when the 20th Amendment changed the dates of the congressional term, the last regular session of Congress was always a lame duck session. A lame duck session can occur in several ways. (1) In practice, Congress has usually provided for its existing session to resume after a recess spanning the election. (In 1954, only the Senate returned in this way, while the House adjourned sine die.) (2) In 1940, 1942, and 2002, Congress continued meeting, sometimes in pro forma sessions every third day, until well after the election. (3) Congress can reconvene after an election pursuant to contingent authority granted to the leadership in a recess or adjournment resolution (in 1998, the House alone followed this course). Two other possibilities have not been realized: (4) Congress could set a statutory date for a new session to convene after the election, then adjourn its existing session sine die. (5) While Congress is in recess or sine die adjournment, the President could call it into extraordinary session at a date after the election. Chapter 23 - Article II of the Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law." As a supplement to this authority, the Constitution further provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The Recess Appointments Clause was designed to enable the President to ensure the

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unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation. Coupled with the ambiguities inherent in interpreting the Clause, the President's use of the recess appointment power in such a fashion has given rise to significant political and legal controversy since the beginning of the Republic. This chapter provides an overview of the Clause, with a focus on its historical application and interpretation. This chapter is a companion piece to CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T.J. Halstead, which focuses specifically on the application and interpretation of the Clause in the judicial context. Chapter 24 - Territorial Delegates have served in the House since the late 1700s, representing territories that had not yet achieved statehood. In the 20th Century, the concept of Delegate grew to include representation of territories where the United States exercises some degree of control but which were not expected to become states. Currently, the U.S. insular areas of American Samoa, Guam, the Virgin Islands, and the federal municipality of the District of Columbia are each represented in Congress by a Delegate to the House of Representatives. The individual elected to represent Puerto Rico is called the Resident Commissioner instead of delegate. The Delegates and Resident Commissioner are the successors of Delegates from statehood-bound territories, who first took seats in the House in the late 1700s. Proposals offered in recent Congresses have sought to grant the Delegate from the District of Columbia voting rights on the floor of the House. Another proposal would expand territorial representation to include the Commonwealth of the Northern Mariana Islands. Floor action in the House and Senate on these bills could occur before the end of the 109th Congress. Chapter 26 - Nine Asian Pacific Americans serve in the 110th Congress; two Senators, six Representatives, and one Delegate. Of the 36 Asian Pacific Americans who have served in the United States Congress from 1903 to the present. Their ancestry has included Chinese, Chamorro, Filipino, Asian Indian, Japanese, Korean, Native Hawaiian, and Samoan. There have been five Senators (three have also served in the House), 15 Representatives, six territorial Delegates, and 13 Resident Commissioners from the Philippine Islands. Resident Commissioners served from 1907-1946 while the Philippines was a U.S. territory and commonwealth (all were Philippine born). The ancestry of these Asian Pacific Americans has included Chinese, Chamorro, Filipino, Asian Indian, Japanese, Korean, Native Hawaiian, and Samoan. Of the 23 Asian Pacific Americans, 16 were Democrats and 7 were Republicans. Asian Pacific Americans have served in both houses of Congress representing California, Hawaii, Louisiana, Oregon, Virginia, American Samoa, and Guam. They have served in leadership positions, including committee and subcommittee chairmanships. This chapter presents information on Senators, Representatives, and Delegates, including party affiliations, length and dates of service, and committee assignments. Chapter 27 - Members of Congress are authorized by law to nominate candidates for appointment to four U.S. service academies. These schools are the U.S. Military Academy, the U.S. Naval Academy, the U.S. Air Force Academy, and the U.S. Merchant Marine Academy. The fifth service academy, the U.S. Coast Guard Academy, does not require a congressional nomination for appointment. These institutions prepare college-age Americans

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to be officers of the United States uniformed services. Upon graduation, service academy graduates are commissioned as officers in the active or reserve components of the military, the merchant marine, or the U.S. Coast Guard for a minimum of five years. The nomination of constituents to one of the service academies can provide Members of Congress with the opportunity to perform community outreach and other representational duties. In some states and congressional districts, nominations are highly competitive. Others are less competitive, and some offices do not receive expressions of interest from enough applicants to fill the number of nominations allocated. Consequently, some congressional offices might need to dedicate considerable staff resources to the selection process to identify qualified candidates, whereas others can incorporate service academy nominations alongside other constituent service work such as casework. Chapter 28 - The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended) created a process that Congress uses each year to establish and enforce the parameters for budgetary legislation Enforcement is accomplished through the use of points of order, and through the reconciliation process. Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point of order against legislation that may violate these rules when it is considered by the House or Senate. This chapter summarizes points of order under the Congressional Budget Act of 1974, as amended, as well as related points of order established in the budget resolution adopted by Congress in 2007 (S.Con.Res. 21, 110th Congress), the Rules of the House for the 110th Congress, and the Budget Enforcement Act of 1990 (P.L. 101-508). In addition, it describes how points of order are applied and the processes used for their waiver in the House and Senate. Chapter 29 - This chapter details the evolution of the House and Senate Appropriations Committees' subcommittee structure from the 1920s to the present. In 1920, the House adopted a change in its rules to consolidate jurisdiction over all appropriations in the Appropriations Committee. After the enactment of the Budget and Accounting Act of 1921, the House reorganized its Appropriations Committee by establishing for the first time a set of subcommittees to consider appropriations bills based on the administrative organization of the executive branch. The Senate followed suit in 1922, and the two chambers have continued under that basic organizational approach since that time. The evolution of the modern Appropriations subcommittee structure can be divided into four eras. The first era, stretching roughly from the initial reorganization in the 1920s until the end of the Second World War, was marked by stability. Most of the changes in Appropriations structure resulted from combining bills (e.g., the Treasury Department bill with the Post Office Department bill beginning in 1924), although one new bill (and subcommittee) was created when the appropriations bill for the Department of Labor was split off from the Departments of State, Justice, Commerce, and Labor bill in 1939. Chapter 30 - For more than 175 years, messengers known as pages have served the United States Congress. Currently, approximately 100 young men and women from across the nation are allowed to serve as pages at any given time. Pages must be high school juniors and at least 16 years of age. Several incumbent and former Members of Congress as well as other prominent Americans have served as congressional pages. Pages must be appointed and sponsored by a Member of Congress for one academic semester of the school year, or a summer session. They are appointed on a rotating basis

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pursuant to criteria set by the House and Senate leadership, which determines the Members eligible to sponsor a page. Academic standing is among the most important criteria used in the final selection of pages. Over the years, there have been areas of concern about the problems posed by having young pages serve Congress. In the 1800s and early 1900s, some House pages were as young as 10 and Senate pages as young as 13. Most of the concerns and subsequent congressional actions addressed the lack of supervised housing, as well as issues such as age, tenure, selection, education, and overall management of the pages. The most recent and far-reaching reforms in the page system occurred in 1982 and 1983, following press reports of insufficient supervision, alleged sexual misconduct, and involvement in the trafficking of drugs on Capitol Hill. Most of these reports were later found to be unsubstantiated. Chapter 31 - Both the House and the Senate have procedures whereby the full bodies may issue instructions to conferees on budget resolutions. Such instructions usually are issued in the form of a motion, but in at least one instance the Senate adopted a simple resolution containing such instructions. If a motion or resolution instructing conferees is agreed to, however, the instructions are not binding on the conferees and no point of order would lie against the conference report on the ground that the instructions had been violated. The practices of the House and Senate regarding such motions differ markedly in key respects, including in terms of the frequency and number of motions and the prerogative to offer such motions First, the House resorts to such motions regularly, having considered 17 such motions in 14 of the past 18 years (covering FY1991-FY2008). The House regularly used such motions in earlier years as well. During this period, the Senate instructed its conferees on only two budget resolutions, for FY2000 and FY2008. For earlier years, the Senate precedents only cite one instance when budget resolution conferees were instructed (for FY1979, when a simple Senate resolution was used). Chapter 32- This guide has been designed to introduce congressional staff to selected official government and commercial sources that are useful in tracking and obtaining background information and specific facts on the status of federal legislative or regulatory initiatives. By using a variety of these sources, congressional staff can track federal legislation and regulations. Those who prefer weekly overviews would be interested in such commercial publications such as CQ Weekly, Newsweek, Time, and U.S. News and World Report. For daily coverage, helpful resources are the Congressional Record, CQ Today, (formerly CQ Daily Monitor), the Federal Register, The New York Times, The Washington Post, The Wall Street Journal, and The Los Angeles Times. Databases such as GPO Access, LexisNexis, Westlaw, and the websites of the U.S. House of Representatives and the U.S. Senate are also useful. Chapter 33 - The following chart presents, in summary fashion, a side-by-side comparison of the provisions in S. 1 and H.Res. 6, 1 10th Congress, which relate specifically to congressional ethics, including the receipt of gifts from lobbyists and their clients and the acceptance of payment or reimbursement of expenses from outside, private sources for “officially connected” travel expenses. Although the provisions of both S. 1 and H.Res. 6 deal with other matters, including changes to the internal procedures in the Senate and House, respectively, (and in S. 1, changes to the federal lobbying statute), this chart focuses only on comparing the amendments and proposed changes dealing with “ethics” provisions affecting Members, employees, and officers of either House of Congress. (For a summary of all of the

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provisions of S. 1, see CRS Report RL33852, Ethics, Lobbying, and Related Procedural Reforms Proposed in S. 1, 1 10th Congress.) On January 4, 2007, the House of Representatives adopted H.Res. 6, 1 10th Congress, which amended the internal Rules of the House to apply greater restrictions, more transparency, and further regulation to the acceptance by Members and staff of “gifts” from private, outside sources, including the acceptance of travel expenses or reimbursements for “officially connected” travel by Members and staff. The Rules changes prohibiting the receipt of even de minimis gifts (less than $50 in value) from lobbyists, agents of foreign principals, and private entities employing such lobbyists or foreign agents are effective in the House immediately; the new restrictions, regulations and transparency provisions regarding “officially connected” travel expenses are to take effect on March 1, 2007. Chapter 34 - The office of Architect of the Capitol (AOC) dates from 1793 when construction of the Capitol building began. The responsibilities of the office have grown substantially over time. In recent years, as a result of laws that affected the management of its large workforce and the overall direction of the office, changes have taken place in management and staffing policies. The AOC is appointed by the President and subject to Senate confirmation. Alan M. Hantman, FAIA, the most recent Architect, served from January 30, 1997, to February 4, 2007. Pursuant to law, he was confirmed for a 10-year term. He declined to seek reappointment. Stephen T. Ayers, AIA, currently serves as Acting Architect of the Capitol until such time as a permanent successor is installed. A bicameral congressional advisory commission is required to recommend to the President at least three candidates to fill the vacant AOC post. By law, the Architect, supported by such staff as are authorized by Congress, operates and maintains the Capitol Complex's buildings and grounds. Since the terrorist attacks of September 11, 2001, the Architect has participated in reviews of Capitol Hill security as a member of the Capitol Police Board and as a member of a security "working group" established by the Committee on House Administration. The AOC also supervises construction of the Capitol Visitor Center. Chapter 35 - Current law prohibits the franking of mass mailings by Senators fewer than 60 days, and by House Members fewer than 90 days, prior to any primary or general election in which the Member is a candidate. H.R. 1614, S. 936, and S. 1285 would amend Title 39, United States Code, by altering the prohibition for both Senators and House Members to the period starting 90 days prior to any primary and ending on the day of the general election for any federal election to which the Member is a candidate. The legislation would also prohibit the mailing of mass mailings for the same period by any congressional committee or subcommittee of which the chair or ranking member was a candidate for office. These changes would increase the mass-mailing-prohibited period for all Senators and some House Members. Had the legislation been enacted prior to the 2006 election, affected Members would have seen increases ranging from one day to 215 days, depending on the primary date in the Members home state. Table 1 of this chapter details these increases by state. Chapter 36 - It has been a decade since the House and Senate examined their rules on the acceptance of gifts and travel expenses. Press accounts of alleged excesses in privately funded

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congressional travel and gifts, particularly from lobbyists, have provided an impetus for proposed changes in the 109th Congress. On March 29, 2006, the Senate adopted S. 2349, the Legislative and Lobbying Transparency and Accountability Act of 2006, which was sponsored by Senators Trent Lott and Susan Collins This measure incorporated provisions of S. 2349, reported from the Senate Rules and Administration Committee, and S. 2128, sponsored by Senator John McCain and reported from the Senate Homeland Security and Governmental Affairs Committee. S. 2349 addresses many of the reform proposals discussed in the 109th Congress, including gifts and travel, earmarks, the "revolving door," lobbying by relatives of Members, floor access by former Members who are lobbyists, and disclosure of employment negotiations. Chapter 37 - The salaries of Members of Congress, certain high-level federal officials (those paid at Level II of the Executive Schedule (EX)), and certain federal justices and judges have been in parity for many years. The Ethics Reform Act of 1989 provides for annual pay adjustments to be established for the Members, the Vice President, federal officials paid under the EX Schedule, and federal justices and judges. The act also requires a Citizens’ Commission on Public Service and Compensation and the President to recommend salaries in parity for these federal government positions. The commission has never been activated, and, thus, such recommendations have never been made. Legislation currently pending in the 110th Congress would provide pay increases of 50% (S. 1638), 16.5% (S. 2353), and 41.3% (H.R. 3753), respectively, to justices and judges. This chapter discusses the issue of salary linkage. Chapter 38 - Congress created the Office of Technology Assessment (OTA) in 1972, P.L. 92484, and terminated its funding in 1995. The pros and cons of reviving OTA or recreating a similar body have been examined. Since 2002, at congressional direction, the Government Accountability Office (GAO) has conducted several pilot technology assessments. Legislation was proposed during the 108th Congress to restore OTA' s funding; to create an entity to conduct assessments for Congress; to conduct technology assessments in GAO; and to create a technology assessment capability in GAO or under its direction. In 2006, the House Science Committee held hearings on the issue of providing science and technology advice to Congress. Policy issues under discussion include the need for assessments, funding, the utility of GAO's technology assessment work, and options for design of an advisory body. Chapter 39 - The congressional franking privilege allows Members of Congress to send official mail via the U.S. Postal Service at government expense. This chapter provides information and analysis on the costs of franked mail in the House and Senate. In FY2006, overall expenditures on official mail were $34,388,661. House official mail costs ($30,706,581) were 89.3% of the total, whereas Senate mail costs ($3,623,080) were 10.7% of the total. Member mass mailings accounted for 82.8% of the total mail costs. In the House, 89.4% of mail costs were Member mass mailings, whereas 27.0% of Senate mail costs were Member mass mailings. During the past 20 years, franking reform efforts reduced franking expenditures by almost 70% from $113.4 million in FY1988 to $34.3 million in F2006 (Table 2). House mail costs have decreased from a high of $77.9 million in FY1988 to $30.7 million in FY2006. The Senate has dramatically reduced its costs, from $43.6 million in FY1984 to $3.6 million in FY2006. Chapter 40 - The protection of classified national security and other controlled information is of concern not only to the executive branch — which determines what

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information is to be safeguarded, for the most part — but also to Congress, which uses the information to fulfill its constitutional responsibilities. It has established mechanisms to safeguard controlled information in its custody, although these arrangements have varied over time between the two chambers and among panels in each. Both chambers, for instance, have created offices of security to consolidate relevant responsibilities, although these were established two decades apart. Other differences exist at the committee level. Proposals for change, some of which are controversial, usually seek to set uniform standards or heighten requirements for access. Chapter 41 - Federal agency employees use appropriated funds to foster public support and opposition to legislation pending before Congress. Congress has enacted limitations and prohibitions on executive lobbying, but these statutory restrictions have been difficult to enforce. To the extent that prosecution is required, Congress must rely on the Justice Department. Non-criminal prohibitions have been enacted to limit the expenditure of appropriated funds for certain types of lobbying activities. Congressional oversight can help curb executive lobbying efforts that are found objectionable. For further analysis, see CRS Report RL32750, Public Relations and Propaganda: Restrictions on Executive Agency Activities, by Kevin Kosar; CRS Report 97-57, Restrictions on Lobbying Congress With Federal Funds, by Jack Maskell; and CRS Report RL33065, Lobbying Reform: Background and Legislative Proposals, 109th Congress, by R. Eric Petersen. Chapter 42 - A congressional or federal charter is a federal statute that establishes a corporation. Congress has issued charters since 1791, although most charters were issued after the start of the 20th century. Congress has used charters to create a variety of corporate entities, such as banks, government-sponsored enterprises, commercial corporations, venture capital funds, and more. Recently, Congress has faced two issues involving its use of charters — confusion over who is responsible for the activities of chartered corporations and the challenges of managing them. Chapter 43 - The U.S. Constitution, in Article I, Section 6, authorizes compensation for Members of Congress “ascertained by law, and paid out of the Treasury of the United States.” Throughout American history, Congress has relied on three different methods in adjusting salaries for Members. Stand-alone legislation, the most frequently used method, was last used to provide increases in 1990 and 1991. It was the only method used by Congress until 1967, when Congress established the commission procedure. The second method, under which annual adjustments took effect automatically unless disapproved by Congress, was established in 1975. From 1975-1989, these annual adjustments were based on the rate of annual comparability increases given to the General Schedule federal employees. This method was changed by the 1989 Ethics Act to require that the annual adjustment be determined by a formula based on certain elements of the Employment Cost Index. Under this revised process, annual adjustments were accepted 11 times (scheduled for January 1991, 1992, 1993, 1998, 2000, 2001, 2002, 2003, 2004, 2005, and 2006) and denied six times (scheduled for January 1994, 1995, 1996, 1997, 1999, and 2007). Chapter 44 - A congressional advisory commission is a formal group often established for the purpose of obtaining advice, developing recommendations on complex policy issues, or finding solutions to contentious problems. Congressional commissions are usually established by statute, typically involve Members of Congress in the appointment process (either through direct service on the commission or by appointing or recommending

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candidates), and deliver their work product to Congress, often in the form of recommendations for legislative action. Most congressional commissions are temporary bodies that study particular policy problems or investigate events (policy commissions) and report their findings to Congress. Congress also occasionally creates commissions that commemorate a person or event, oversee ongoing functions of Congress, or serve diplomatic or interparliamentary functions. This chapter provides an overview of congressional advisory commissions and the general statutory structure of a congressional policy commission. For additional information, see CRS Report RL333 13, Congressional Commissions, Committees, Boards, and Groups: Appointment Authority and Membership, by Matthew E. Glassman. Chapter 45 - The Committee of the Whole House on the State of the Union, more often referred to as the "Committee of the Whole," is the House of Representatives operating as a committee on which every Member of the House serves. The House of Representatives uses this parliamentary device to take procedural advantage of a somewhat different set of rules governing proceedings in the Committee than those governing proceedings in the House. The purpose is to expedite legislative consideration. This chapter briefly reviews the history of the Committee of the Whole, describes the current procedure associated with it, and identifies its procedural advantages. Chapter 46 - The term "budget process," when applied to the federal government, actually refers to a number of processes that have evolved separately and that occur with varying degrees of coordination. This overview, and the accompanying flow chart, are intended to describe in brief each of the parts of the budget process that involve Congress, clarify the role played by each, and explain how they operate together. They include the President's budget submission, the budget resolution, reconciliation, sequestration, authorizations, and appropriations. Chapter 47 - Congressional oversight of policy implementation and administration has occurred throughout the history of the United States government under the Constitution. Oversight — the review, monitoring, and supervision of operations and activities — takes a variety of forms and utilizes various techniques. These range from specialized investigations by select committees to annual appropriations hearings, and from informal communications between Members or congressional staff and executive personnel to the use of extra congressional mechanisms, such as offices of inspector general and study commissions. Oversight, moreover, is supported by a variety of authorities — the Constitution, public law, and chamber and committee rules — and is an integral part of the system of checks and balances between the legislature and the executive. Chapter 48 - Among other provisions, H.R. 1433 (110th Cong.), the District of Columbia House Voting Rights Act of 2007, would expand the U.S. House of Representatives by two Members to a total of 437 Members. The first of these two new seats would be allocated to create a voting Member representing the District of Columbia, and the second seat would be assigned in accordance with 2000 census data and existing federal law, resulting in the addition of a fourth congressional seat in the state of Utah, which would be a temporary atlarge district. This chapter is limited to discussing only the constitutionality of the creation of an at-large congressional district. While it is not without doubt, based on the authority granted to Congress under the Constitution to regulate congressional elections and relevant Supreme Court precedent, it appears that federal law establishing a temporary at-large congressional district would likely be upheld as constitutional.

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Chapter 49 - Between 1986 and 2007, Congress enacted 167 private laws. Most dealt with immigration issues or claims against the government. Of these measures, 66% originated in the House, 9% had cosponsors, and 23% had companion bills. Most were enacted without amendment or need to resolve differences with the other house. This chapter examines the broad distinctions that appear among these measures in terms of their subject matter, introduction, sponsorship and cosponsorship, referral, method of consideration, amendment, and reconciling of differences between the chambers' versions of the bill. Unlike public law, which applies to public matters and deals with individuals only by classes, the provisions of private law apply to "one or several specified persons, corporations, [or] institutions." Private legislation is premised on the idea that general law cannot cover all situations equitably, and sometimes Congress must enact legislation to address unique problems that public law either created or overlooked. Private legislation has its foundation in the right to "petition the government for a redress of grievances guaranteed to all citizens by the First Amendment to the U.S. Constitution. While once much more common, in modem practice private laws are rare and designed to grant relief in those few situations where no other legal or administrative remedies are available to a petitioner. Chapter 50- The Senate's presiding officer typically does not have responsibility for proactively ensuring that matters under consideration comply with the rules. Instead, Senators may enforce the Senate's legislative rules and precedents by making points of order whenever they believe that one of those rules or precedents is, or is about to be, violated. Under some circumstances, a ruling by the presiding officer determines whether or not the point of order is well taken. Under others, the Senate itself decides the point of order, usually by majority vote. For more information on legislative process, see [http://www.crs.gov/ products/ guides/guidehome. shtml]. Senate Rule XX states in part that "[a] question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate." The rule goes on to confirm that the presiding officer may "submit any question of order for the decision of the Senate." Chapter 51 - The Congressional franking privilege allows Members of Congress to send official mail at government expense. During the 1 10th Congress, five pieces of legislation have been introduced to alter the franking privilege for Members. H.R. 2788 would require that all pieces of mail sent in mass mailings include a statement indicating the cost of producing and mailing the mass mailing. H.R. 2687 would prohibit mass mailings in the form of newsletters, questionnaires, or congratulatory notices. H.R. 1614, S. 936, and S. 1285 would prohibit Senators and Representatives from sending mass mailings during the period starting 90 days prior to any primary and ending on the day of the general election for any federal election to which the Member is a candidate. See CRS Report RS34085, Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 1614 / S. 936 / S. 1285 Would Change Current Law, and CRS Report RS227 10, Congressional Franking Privilege: An Overview, by Matthew E. Glassman. Chapter 52 - Prior to 1989, the Architect of the Capitol (AOC) was appointed by the President for an unlimited term without any direct action by the Senate. A provision in the FY1990 Legislative Branch Appropriations Act (P.L. 101-163) altered this selection procedure, requiring the President to nominate the AOC for a 10-year term, subject to the advice and consent of the Senate. Presently, a search is underway for a new Architect to

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replace Alan Hantman, FAIA, who left office on February 4, 2007. For additional information, please refer to CRS Report RL32820, Architect of the Capitol: Appointment, Duties, and Operations, by Mildred Amer. With the enactment of P.L. 101-163, 103 Stat. 1068, the AOC is now required to be appointed by the President, with the advice and consent of the Senate, for a 10-year term. Previous Architects were appointed by the President, without mandated congressional participation, for an unspecified term. The 1989 act also created a bicameral congressional advisory commission to recommend to the President at least three candidates for the AOC post. Chapter 53 - The Speaker usually does not take the initiative to prevent the House from considering proposals or taking actions that would violate the House's rules. Instead, whenever a Member believes that the House's legislative procedures are being violated in some way, or are about to be violated, that Member may insist that the House's procedures be enforced by making a point of order against the alleged violation. See [http://www.crs.gov/products/guides/guidehome.shtml] for more information on legislative process. Chapter 54 - The congressional franking privilege, which dates from 1775, allows Members to send official mail to their constituents at government expense. Congress, through legislative branch appropriations, reimburses the U.S. Postal Service for the franked mail it handles. Use of the frank is regulated by federal law, House and Senate rules, and committee regulations. Reform efforts during the past 20 years have reduced overall franking expenditures by almost 70%, from $113.4 million in FY1988 to $34.3 million in FY2006 (current dollars). This chapter provides an overview of the congressional franking privilege, its costs, and regulations on Member use of the frank. Chapter 55 - Since the mid-1970s, the House and Senate have convened early organization meetings in November or December of even-numbered years to prepare for the start of the new Congress in January. The purposes of these meetings are both educational and organizational. Educational sessions range from legislative procedures and staff hiring to current issues. Organizational sessions elect class officers, party leaders, and chamber officers; name committee representatives and other party officials; and select committee chairmen and often committee members. Such actions are officially ratified at the start of the new Congress. Chapter 56 - The House considers most important bills (and resolutions) on the floor by resolving into the Committee of the Whole House on the state of the Union. This is a committee on which all Representatives serve and which meets on the House floor. The House acts on a bill by resolving into Committee of the Whole (as it usually is called) first to debate the bill as a whole and subsequently to debate and vote on any amendments to the bill. At the end of this process, the Committee "rises" and reports the bill back to the House with whatever amendments the Committee of the Whole has approved. Then the House votes on these amendments and on final passage of the bill. The process of considering a bill in Committee of the Whole has two distinct stages: first, a period for general debate; and second, a process of debating and voting on amendments to the bill. What follows in this fact sheet focuses exclusively on the general debate phase; other fact sheets discuss the

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amendment process in Committee of the Whole. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtm1].1 General debate is a period of time set aside for debating the merits of the bill as a whole, the state of current law on the subject of the bill, the need for new legislation, the various provisions of the bill, and possible amendments to it. This is a time for debate only. No amendments to the bill are in order, nor can Members offer any other motions that can affect the content of the bill or its fate. Chapter 57 - Congressional committee hearings may be broadly classified into four types: legislative, oversight, investigative, and confirmation. Hearings may be held on Capitol Hill or elsewhere (e.g., a committee member's district or state, or a site related to the subject of the hearing). These latter hearings are often referred to as field hearings. See [http://www.crs. gov/products/guides/guidehome.shtml] for more information on legislative process. All hearings have a similar formal purpose, to gather information for use by the committee in its activities. This information often is used to shape legislation, even when the hearing is not specifically a legislative hearing. All four types of hearings share common characteristics. The differences among them may appear indistinct, and their purposes sometimes overlap. For example, investigative hearings are sometimes seen as a type of oversight or may lead to legislation, and legislative hearings on a bill might also provide oversight opportunities. Chapter 58 - The House gives initial floor consideration to most major legislation in Committee of the Whole, a parliamentary device that is technically a committee of the House to which all Members belong. This fact sheet describes seven chief stages that occur in considering a measure under this procedure: resolving into committee, general debate, amendment under the five-minute rule, reporting to the House, House vote on amendments, motion to recommit, and final passage. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. House Rule XVIII prescribes procedures in Committee of the Whole, but these may be modified by a rule for considering a specific measure, reported by the Committee on Rules. Clause 3 of the Rule requires that revenue, appropriation, and authorization measures be considered initially in Committee of the Whole. Other measures may be considered there pursuant to a rule. Chapter 59 - The House and Senate must approve an identical version of a measure before it may be presented for the President's approval or veto. If the House and Senate approve differing versions of a measure, the differences must first be resolved. One way to do this is through an exchange of amendments between the houses. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. When the House or Senate passes a measure, it is sent to the other chamber for further consideration. If the second chamber passes the measure with one or more amendments, it is then sent back to the originating chamber. In modern practice, the second chamber typically substitutes its version of a measure as a single amendment to the measure as passed by the first chamber. The first chamber then may accept the amendment or propose its own further amendment. In this way, the measure may be messaged back and forth between the House

1

Stanley Bach, former Senior Specialist at CRS, originally wrote this report. Dr. Bach has retired. The listed author updated this report.

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and Senate in the hope that both houses will eventually agree to the same version of a measure. Chapter 60 - Title III of the Congressional Budget Act of 1974 (Titles I-IX of P.L. 93344, 88 Stat. 297-332), as amended, contains several points of order that are used to enforce congressional budget procedures and substantive provisions of a budget resolution. These points of order prohibit certain congressional actions and consideration of certain legislation. This fact sheet does not discuss points of order established by other portions of the Budget Act. For more information on the budget process, see [http://www.crs.gov/products/ guides/guidehome. shtml]. Budget Act points of order are not self-enforcing. In order to enforce a congressional budget rule, a Member must raise a point of order against the legislation violating it. When a point of order is raised against legislation that may violate a substantive provision of a budget resolution, a determination of whether the legislation would cause spending or revenue levels to be breached is based on estimates supplied by the Budget Committee of the appropriate chamber, under Section 312(a) of the Budget Act. Generally, when a point of order is sustained, the violating bill or amendment effectively fails and is not considered or the violating provision of a bill or amendment is stricken. Chapter 61 - For more than 150 years, messengers known as pages have served the United States Congress. Currently, approximately 100 young men and women from across the nation serve as pages at any given time. Pages must be high school juniors and at least 16 years of age. Several incumbent and former Members of Congress as well as other prominent Americans have served as congressional pages. Senator Daniel Webster appointed the first Senate page in 1829. The first House pages began their service in 1842. The first women were appointed as pages in 1971. Pages must be appointed and sponsored by a Member of Congress for one academic semester of the school year, or a summer session. They are appointed on a rotating basis pursuant to criteria set by the House and Senate leadership, which determines the Members eligible to sponsor a page. Academic standing is among the most important criteria used in the final selection of pages. Prospective pages are advised to contact their Senators or Representative to request consideration for a page appointment. For a longer discussion of the page system, see CRS Report RL33685, Pages of the United States Congress: History, Background Information, and Proposals for Change, by Mildred Amer. Chapter 62 - Engrossment, enrollment, and presentation of legislation are components of the legislative process that attest to the accuracy of bill texts, confirm House and Senate action, and confirm delivery of the bills to the President for review. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml].2 Chapter 63 - The Congressional Record is the most widely recognized published account of the debates and activities in Congress. The Record often reflects the intent of Congress in enacting legislation. This fact sheet is one of a series on the legislative process. Please see [http://www.crs.gov/products/guides/guidehome.shtml] for more information on the legislative process. The Constitution mandates that each house shall keep and publish a journal of its proceedings. Accordingly, the House and Senate Journals, which are summaries of floor 2

This report was written by Paul S. Rundquist, formerly a Specialist in American National Government at CRS. Dr. Rundquist has retired, but the listed author updated the report.

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proceedings, are the official accounts of congressional proceedings, but the Record is better known and the most useful. The Record is published daily by the Government Printing Office (GPO) when either house of Congress is in session. It is brought by GPO to the congressional post offices for early morning delivery to congressional offices as well as to both chambers. Each day's Record contains an account of the previous day's congressional activity. However, if a session extends past midnight, the Record is usually published in two parts with the first part printed the following day, and action after midnight included in the next day's edition. Copies of the Record are also available for Representatives inside the House chamber and for Senators on their desks in the Senate chamber. Extra copies may be obtained from the House Document Room (B18, Ford House Office), the Senate Library (B 15, Russell Senate Office Building), and the Senate Document Room (B04, Hart Senate Office Building). Chapter 64 - The annual budget resolution sets forth Congress's budget plan for a period of at least five fiscal years. It includes total levels of new budget authority, outlays, revenues, the deficit, and the public debt for each of the fiscal years covered. While the budget resolution does not become law, the Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, 88 Stat. 297-332), as amended, provides for the enforcement of its provisions as they are implemented in subsequent annual appropriations bills, revenue measures, and other budgetary legislation. For more information on the budget process, see [http:/www.crs.gov/products/guides/guidehome. shtml]. Once a budget resolution is adopted, Congress may enforce its provisions, through points of order, at several levels: the total levels of spending and revenues, the level of resources allocated to committees, and the level of resources allocated to the appropriations subcommittees. Congress also may use reconciliation legislation to enforce the direct spending and revenue provisions of a budget resolution (see CRS Report 98-814, Budget Reconciliation Legislation: Development and Consideration). Chapter 65 - The Constitution and the rules of the House and Senate identify various means that citizens, subordinate levels of government, and other branches of the federal government may use to communicate formally with either or both houses of Congress. The House and Senate use written messages to communicate with the other. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. Chapter 66 - When a conference committee completes its work successfully, the committee presents and explains its agreements in two documents: first, a conference report; and second, a joint explanatory statement, often called a statement of managers.3 The conference report presents the formal legislative language on which the conference committee has agreed. The joint explanatory statement explains the various elements of the conferees' agreement in relation to the positions that the House and Senate had committed to the conference committee. Two copies of each document must be signed by a majority of the House conferees and by a majority of the Senate conferees. One pair of the signed documents is retained by each house's conferees. Thus, a conferee who supports the conference agreement signs four signature sheets, two for the conference report and two for the joint explanatory statement. Of

3

This report was written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS. The listed author updated the report.

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course, conferees who do not support the agreement are not expected to sign any of the signature sheets. Chapter 67 - Congress divides its legislative, oversight, and internal administrative tasks among more than 200 committees and subcommittees. Within assigned areas, these functional subunits gather information; compare and evaluate legislative alternatives; identify policy problems and propose solutions; select, determine, and report measures for full chamber consideration; monitor executive branch performance (oversight); and investigate allegations of wrongdoing. For more information on legislative process, see [http://www. crs.gov/products/guides/guidehome. shtml]4 The 1946 Legislative Reorganization Act (60 Stat. 812) sets the framework for the modern committee system. The act organized the Senate and House committees along roughly parallel lines, but divergences have emerged over time. Within the guidelines of chamber rules, each committee adopts its own rules addressing organizational, structural, and procedural issues. As a consequence, there is considerable variation among panels and across chambers. Chapter 68 - One or both houses of Congress may formally express opinions about subjects of current national interest through freestanding simple or concurrent resolutions (called generically "sense of the House," "sense of the Senate," or "sense of the Congress" resolutions). These opinions may also be added to pending legislative measures by amendments expressing the views of one or both chambers. This fact sheet5 identifies the various forms these expressions may take and the procedures governing such actions. See [http://www.crs.gov/products/guides/guidehome.shtml] for more information on legislative process. Chapter 69 - The Constitution requires that proposed laws must pass the House and Senate in absolutely identical form before they can be sent to the White House for presidential consideration. Different procedural techniques are used to achieve "bicameral ignition," but the one usually employed for controversial measures is to establish a conference committee. Composed of conferees chosen from each chamber — usually from the committee(s) that reported the legislation — the conference committee's job is to iron out differences when the House and Senate pass dissimilar versions of the same bill. Because conference committees make significant policy decisions, it is little surprise that these bicameral units are sometimes called "the third house of Congress." To understand the work of conference committees, it is useful to discuss (1) several features common to inter-chamber negotiations, (2) how conferences are organized, and (3) the authority of conferees. Worth noting is that many lawmakers anticipate that certain legislation will eventually reach the conference committee stage, and they will take purposeful pre-conference actions to bolster their negotiating leverage with the other body. For instance, either chamber may adopt floor amendments that may be used as "bargaining material" in conference. Chapter 70 - House and Senate committees publish a variety of documents dealing with legislative and other policy issues, investigations, and internal committee matters. These include committee hearings; legislative, investigative, conference committee, and committee 4

This report was originally written by Thomas P. Carr, formerly an Analyst in American National Government at CRS. The listed author has updated this report. 5 This report was written by Paul S. Rundquist, formerly a Specialist in American National Government at CRS. Dr. Rundquist has retired, but the listed author updated the report.

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activity reports; calendars; and committee prints. These publications are usually available from the issuing committee, the House or Senate document rooms, and increasingly, from committee websites as well. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome. shtml]. Chapter 71 - Amendments are usually considered not in the House, but in the Committee of the Whole, a parliamentary device designed to expedite the amendment process. For example, in the House, Members are generally recognized under the "hour rule;" in the Committee of the Whole, they are recognized to speak under the "five-minute rule." A quorum in the House is 218; in the Committee of the Whole, 100. This chapter is a companion to CRS Report 98-426, Amendments on the House Floor: Summary of Major Restrictions. Chapter 72 - Under Rule XX, clause 3, the practice of "pairing" involves — under certain procedural circumstances — a Member who is absent during a vote on the House floor arranging with a Member on the opposite side of a specific question who is present during a vote to announce that the Member who is present is forming a "pair" with the absent Member, thus allowing the absent Member to have recorded how he would have voted had he been present. See [http://www.crs.gov/products/guidehome.shtml] for more information on legislative process. This particular type of pair, where one Member is absent and the other present for the vote, is referred to as a "live pair," although the term no longer appears in the House Rules. Charles W. Johnson, the House Parliamentarian Emeritus, has written, "Although rarely used, the announcement of live pairs, which involves an agreement between one Member who is present and voting and another on the opposite side of the question, who is absent, is still permitted under Rule XX, clause 3." (See House Practice: A Guide to the Rules, Precedents and Procedures of the House [Washington: GPO, 2003], p. 926.) Chapter 73 - The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, 88 Stat. 297-332) established the concurrent budget resolution as the centerpiece of the congressional budget process. The annual budget resolution is an agreement between the House and Senate on a budget plan for the upcoming fiscal year and at least the following four fiscal years. As a concurrent resolution, it is not sent to the President for his signature and thus does not become law. The budget resolution, however, provides the framework for subsequent legislative action on the annual appropriations bills, revenue measures, debt- limit legislation, reconciliation legislation (if required), and any other budgetary legislation. Consequently, the President may be drawn into negotiations with Congress on the budget resolution. For more information on the budget process, see [http://www.crs.gov/products/guides/guidehome. shtml]. Chapter 74 - Expedited or "fast-track" legislative procedures are special procedures that Congress adopts to promote timely committee and floor action on a specifically defined type of bill or resolution.6 For example, House and Senate consideration of budget resolutions and reconciliation bills are governed by fast-track procedures. Congress includes expedited procedures in bills that are enacted into law — the Congressional Budget Act, as amended, and the Medicare Prescription Drug, Improvement and Modernization Act, for example — instead of adopting them as part of the standing rules of the House or Senate. However, these procedures have the same force and effect that they would have if they were incorporated in 6

This report was originally written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS.

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the standing rules of the House or Senate. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. The regular legislative procedures of the House and Senate can be time-consuming, and they provide no guarantee that every bill or resolution that is introduced will be considered quickly, or at all, in committee and on the floor. In fact, most bills are never considered, and only a small fraction are passed by the House and Senate and enacted into law. Chapter 75 - An annual appropriations act generally consists of two parts — paragraphs providing funding, and general provisions focusing on non-funding as well as funding issues. Generally, each paragraph corresponds to a unique budget account and provides a lump- sum amount for a group of activities such as agency salaries and expenses, and may include restrictions or conditions that apply to that funding. Some general provisions establish restrictions and conditions which apply to a single account, multiple accounts, the entire bill, or a department or agency funded in the bill. General provisions may be of a policy or operational character. For more information on federal budget process, see [http://www.crs.gov/products/guides/guidehome. shtml]. Chapter 76 - A primary avenue for exercising Congress’s power of the purse is the authorization and appropriation of federal spending to carry out government activities. While the power over appropriations is granted to Congress by the U.S. Constitution, the authorization- appropriation process is derived from House and Senate rules. The formal process consists of two sequential steps: (1) enactment of an authorization measure that may create or continue an agency or program as well as authorize the subsequent enactment of appropriations; and (2) enactment of appropriations to provide funds for the authorized agency or program. See [http://www.crs.gov/products/guides/guidehome.shtml ] for more information on budget process. The authorizing and appropriating duties in this two-step process are carried out by a division of labor within the committee system. Legislative committees, such as the House Committee on Armed Services and the Senate Committee on Commerce, Science, and Transportation, are responsible for authorizing legislation related to the agencies and programs under their jurisdiction; most standing committees have authorizing responsibilities. The Appropriations Committees of the House and Senate have jurisdiction over appropriations measures. As discussed below, House and Senate rules generally prohibit the encroachment of these committee responsibilities by the authorizers and appropriators. Chapter 77 - In each chamber of Congress, four forms of legislative measure may be introduced (or, for resolutions, submitted) and acted on: bills, joint resolutions, concurrent resolutions, and resolutions of one house ("simple resolutions"). In addition, under the Constitution the Senate acts on two forms of executive business: nominations and treaties. This fact sheet provides a tabular comparison of the formal characteristics and uses of these six different kinds of business. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome. shtml]. The rules of the two houses include references to the four types of measure, but generally take for granted the distinctions among them, which have developed in the course of congressional history. Today, a bill or joint resolution is used when the purpose is to make law; a joint resolution is used also for the purpose of proposing an amendment to the Constitution. The other two forms of resolution are used for internal business of Congress itself. (For specific examples of how each form of measure is used, see CRS Report 98-706, Bills and Resolutions: Examples of How Each Kind is Used.) Executive business is so called

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because it is transmitted by the President, who must obtain the advice and consent of the Senate before the nomination or treaty becomes effective. Chapter 78 - When Congress seeks to pass a law, it uses a bill or joint resolution, which must be passed by both houses in identical form, then presented to the President for his approval or disapproval. To regulate its own internal affairs, or for other purposes where authority of law is not necessary, Congress uses a concurrent resolution (requiring adoption by both houses) or a simple resolution (requiring action only in the house of origin). More detailed descriptions appear in CRS Report 98-728, Bills, Resolutions, Nominations, and Treaties: Origins, Deadlines, Requirements, and Uses. Congress may use each of the four forms of measure it employs for a variety of purposes. This fact sheet identifies the most prevalent uses of each and, as appropriate, gives brief explanations of these uses. For more information on legislative process, see [http://www. crs.gov/products/guides/guidehome. shtml]. Chapter 79 – This chapter includes a typical example of a simple open rule that the House Committee on Rules may report to govern House floor action on a bill that is not otherwise privileged for consideration. This resolution has been divided into five parts. See [http://www.crs.gov/products/guides/guidehome.shtml] for more information on legislative process. The first part of the rule makes the bill in order for floor consideration by authorizing the Speaker to transform the House into the Committee of the Whole to consider that bill. Without this authority, a motion for the same purpose would not be in order; it would not be privileged to interrupt the regular daily order of business on the House floor. The second part waives a reading of the bill. It also governs general debate on the bill by setting the amount of time for the debate, by dividing control of this time, usually between the chairman and ranking minority member of the committee that reported the bill, and by requiring that all general debate be relevant to the subject of the bill. Chapter 80 – This fact sheet provides an overview of the sunset concept, its initiation in the states, and congressional consideration of federal sunset measures.

In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.

Chapter 1

RESOLVING LEGISLATIVE DIFFERENCES IN CONGRESS: CONFERENCE COMMITTEES AND AMENDMENTS BETWEEN THE HOUSES* Elizabeth Rybicki SUMMARY The Constitution requires that the House and Senate approve the same bill or joint resolution in precisely the same form before it is presented to the President for his approval or veto. To this end, both houses must pass the same measure and then attempt to reach agreement about its provisions. The House and Senate may be able to reach agreement by an exchange of amendments between the houses. Each house has one opportunity to amend the amendments from the other house, so there can be Senate amendments to House amendments to Senate amendments to a House bill. House amendments to Senate bills or amendments are privileged for consideration on the Senate floor; Senate amendments to House bills or amendments generally are not privileged for consideration on the House floor. In practice, the House and Senate often dispose of amendments between the houses by unanimous consent. Alternatively, the House and Senate can disagree to each other’s positions on a bill and then agree to create a conference committee to propose a package settlement of all their disagreements. Most conferees are drawn from the standing committees that had considered the bill initially. The House or Senate may vote to instruct its conferees before they are appointed, but such instructions are not binding. Conferees generally are free to negotiate in whatever ways they choose, but eventually their agreement must be approved by a majority of the House conferees and a majority of the Senate conferees. The conferees are expected to address only the matters on which the House and Senate have disagreed. They also are expected to resolve each disagreement within the *

This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code 98-696 GOV, dated October 25, 2007.

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scope of the differences between the House and Senate positions. If the conferees cannot reach agreement on an amendment, or if their agreement exceeds their authority, they may report that amendment as an amendment in true or technical disagreement. On the House and Senate floors, conference reports are privileged and debatable, but they are not amendable. The Senate has a procedure to strike out portions of the conference agreement that are considered, under Senate rules, to be “out of scope material” or “new directed spending provisions.” The House also has a special procedure for voting to reject conference report provisions that would not have been germane to the bill in the House. After agreeing to a conference report, the House or Senate can dispose of any remaining amendments in disagreement. Only when the House and Senate have reached agreement on all provisions of the bill can it be enrolled for presentation to the President.

INTRODUCTION The process of resolving the legislative differences that arise between the House of Representatives and the Senate is one of the most critical stages of the legislative process. It is also potentially one of the most complicated. Each chamber continues to be governed by its own rules, precedents, and practices; but at this stage, each house also must take into account the preferences and, to some extent, the procedures of the other. This chapter1 summarizes the procedures the two houses of Congress use most frequently to resolve their legislative differences. It is based upon an interpretation of the rules and published precedents of the House and Senate, and an analysis of the application of these rules and precedents in recent practice. It bears emphasizing that this chapter is not exhaustive nor is it in any way an official statement of House or Senate procedures. It may serve as a useful introduction or general guide, but it should not be considered an adequate substitute for a study of House and Senate rules and precedents themselves, or for consultations with the parliamentarians of the House and Senate on the meaning and possible application of the rules and precedents. Readers may wish to study the provisions of the rules — especially House Rule XXII — and examine the applicable precedents as explained in House Practice: A Guide to the Rules, Precedents, and Procedures of the House, especially pp. 307-342 (on “Conferences Between the Houses”) and pp. 8 13-839 (on “Senate Bills; Amendments Between the Houses”), and in Riddick’s Senate Procedure (Senate Document No. 101-28), especially pp. 126-143 (on “Amendments Between Houses”) and pp. 449-493 (on “Conferences and Conference Reports”).

THE NEED FOR RESOLUTION Before Congress can submit a bill or joint resolution to the President for his approval or disapproval, the Senate and the House of Representatives must agree on each and every provision of that measure.2 It is not enough for both houses to pass versions of the same measure that are comparable in purpose but that differ in certain technical or even minor details; the House and Senate

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must agree on identical legislative language. Nor is it enough for the two chambers to approve separate bills with exactly the same text; the House and Senate both must pass the same bill. In sum, both chambers of Congress must pass precisely the same measure in precisely the same form before it can become law.3 Each of these requirements — agreement on the identity of the measure (e.g., H.R. 1 or S. 1), and agreement on the text of that measure — is considered in turn in the following sections of this chapter.

SELECTION OF THE MEASURE Because both chambers must pass the same measure before it can become law, at some point during the legislative process the House must act on a Senate bill or the Senate must act on a House bill. Congress usually meets this requirement without difficulty or controversy. In some cases, however, selecting the measure may require some parliamentary ingenuity and can have policy and political consequences. After either house debates and passes a measure, it sends (or “messages”) that bill to the other chamber. If the second house passes the first house’s bill without any amendments, the legislative process is completed: both houses have passed the same measure in the same form.4 If the second house passes the bill with one or more amendments, both chambers have acted on the same measure; now they must resolve the differences between their respective versions of the text if the measure is to become law. In most cases, either the House or the Senate can be the first chamber to act. However, the Constitution requires that all revenue measures originate in the House, and the House traditionally has insisted that this prerogative extends to appropriations as well as tax measures.5 Thus, the House normally acts first on such a measure, and, consequently, it is a House-numbered bill or joint resolution that Congress ultimately presents to the President for enacting appropriations or tax laws. In some cases, the proponents of a measure may decide that one house or the other should act first. For example, a bill’s supporters may first press for floor action in the chamber where they think the measure enjoys greater support. They may hope that success in one house may generate political momentum that will help the measure overcome the greater opposition they expect in the second chamber. Alternatively, one house may defer floor action on a bill unless and until it is passed by the other, where the measure is expected to encounter stiff opposition. The House leadership, for example, may decide that it is pointless for the House to invest considerable time, and for Representatives to cast possibly unnecessary and politically difficult votes, on a controversial bill until after an expected Senate filibuster on a comparable Senate bill has been avoided or overcome. As these considerations imply, major legislative proposals frequently are introduced in both houses — either identical companion bills or bills that address the same subject in rather different ways. If so, the appropriate subcommittees and committees of the House and Senate may consider and report their own measures on the same subject at roughly the same time. Thus, when one house passes and sends a bill to the other, the second chamber may have its own bill on the same subject that has been (or is soon to be) reported from committee and

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available for floor consideration. In such cases, the second chamber often acts initially on its own bill, rather than the bill received from the other house.6 This is particularly likely to happen when the committee of the second house reports a bill that differs significantly in approach from the measure passed by the first chamber. The text selected for floor consideration generally sets the frame of reference within which debate occurs and amendments are proposed. In most cases, the House or Senate modifies, but does not wholly replace, the legislative approach embodied in the bill it considers. It is usually advantageous, therefore, for a committee to press for floor consideration of its approach, rather than the approach proposed by the other house. In large part for this reason, the House (or the Senate) often acts on its own bill even though it has already received the other chamber’s bill on the same subject. Under these circumstances, however, it would not be constructive for the House to pass its bill and then send it to the Senate. If the House were to do so, then each chamber would have in its possession a bill passed by the other, but both chambers would not yet have acted on the same measure. To avoid this potential problem, the second house often acts initially on its own bill, and then it also acts on the other chamber’s bill on the same subject. The usual practices of the House and Senate for doing so differ slightly. The House customarily debates, amends, and passes the House bill and, immediately thereafter, takes up the counterpart Senate bill. The floor manager then moves to “strike out all after the enacting clause” of the Senate bill (the opening lines of every bill — “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled”) and replace the stricken text with the full text of the House bill as just passed. The House often agrees by unanimous consent to consider the Senate bill and approves the House substitute routinely. The Senate bill, as amended, then is passed by voice vote or without objection, and the House lays its own bill on the table (which disposes of it adversely). In some cases, the special rule under which a House bill is considered also includes provisions for such action on the Senate bill. For instance, a special rule may state: After the passage of H.R. 1, it shall be in order to take from the Speaker’s table the bill S. l and to move to strike out all after the enacting clause of the said Senate bill and insert in lieu thereof the provisions contained in H.R. 1 as passed by the House. In this way, the House actually passes two bills on the same subject and with identical provisions, but it is the Senate bill (which both chambers now have passed) that is the subject of further action. The Senate acts in a comparable fashion, although it usually does not pass its own bill. Instead, the Senate debates and amends its bill, and agrees to third reading and engrossment of the bill, as amended.7 The Senate then takes up the House bill by unanimous consent, strikes out all after the enacting clause, inserts the amended text of the Senate bill, and passes the House bill, as it has been amended by the Senate’s amendment in the nature of a substitute. The Senate bill that was debated and amended is never actually passed; after passing the House bill, the Senate indefinitely postpones further proceedings on its own bill. If the first house’s bill has been referred to committee in the second chamber and is still there, it is first necessary to discharge the committee from further consideration of the bill. This also is normally accomplished routinely, either by unanimous consent or, in the House, pursuant to the provisions of a special rule. To avoid the need for this action, the Speaker often leaves a Senate bill on “the Speaker’s table,” instead of referring it to the appropriate

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House committee, if there is reason to expect that the House will soon act on a companion House bill. Similarly, a House bill may be taken up on the Senate floor without first being referred to committee when a companion Senate bill has been reported from committee and is on the Senate’s legislative calendar. By these devices, the House and Senate arrange to act on the same bill, even if they have passed that measure with fundamentally different texts. In most cases, these arrangements are noncontroversial and routine. Under some circumstances, however, complications and difficulties can arise. The House operates under a rule which requires that all amendments must be germane to the measure being considered; the Senate does not.8 Unless the Senate imposes a germaneness requirement on itself by unanimous consent (which it often does), most measures are subject to whatever nongermane floor amendments Senators wish to offer. Consequently, the Senate may select a House bill on one subject as a convenient “vehicle” and amend it to include provisions on other, unrelated subjects. Sometimes the use of unrelated legislative vehicles is accepted by both the House and the Senate as a useful, or even necessary, device to cope with different political and parliamentary conditions prevailing in the two chambers. Although such situations are relatively unusual, problems sometimes arise that make neutral vehicles useful for resolving them. During the 95th Congress, for example, President Carter submitted a massive proposal for major new national energy legislation. The Democratic leadership of the House chose to consider the President’s entire program in a single bill, and eventually the House passed H.R. 8444. In the Senate, on the other hand, the Democratic majority leadership concluded that an omnibus bill would inspire a filibuster that probably could not be broken; consequently, the Senate debated and amended five separate bills that collectively dealt with the same subjects as H.R. 8444. A dilemma now arose. If the Senate passed its five bills and sent them to the House, the House would face different bills on different aspects of the President’s program, which was precisely the situation the House had sought to avoid by consolidating the various proposals in H.R. 8444. Yet if the Senate attempted to pass the House bill, the feared filibuster was likely to develop. To resolve the dilemma, the Senate selected four neutral vehicles: minor House bills that had been awaiting Senate action. To each of these bills the Senate added the texts of one or more of its energy bills as well as provisions of the single House bill (H.R. 8444). It was on these bills that the House and Senate eventually resolved their differences over national energy legislation, even though the four bills originally had been for the relief of Jack R. Misner and Joe Cortina, and to suspend import duties on competition bobsleds and luges for the Lake Placid Winter Olympic Games and on certain doxorubicin hydrochloride antibiotics. In this instance, then, selecting the measure was complicated by the differing situations in the two houses, and was arranged through the use of four unrelated vehicles.9 Resorting to such convoluted procedures is unusual. Normally, the selection of the measure is arranged routinely, as the House and Senate proceed toward the more difficult task of resolving their differences over the substance, not the form, of legislation.

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TWO METHODS OF RESOLUTION Once the House and Senate have passed different versions of the same measure, there are basically two methods they can use to resolve the differences between their versions. One method involves a conference committee — a panel of members representing each house that attempts to negotiate a version acceptable to both chambers. Most major bills are sent to conference committees. The other method makes a conference committee unnecessary by relying instead on amendments between the houses — Senate amendments to the House position, or House amendments to the Senate position, or both. The two houses shuttle the measure back and forth between them, each chamber proposing an alternative to the position of the other or insisting on its own position, in the hope that both houses eventually will agree on the same position. The essential nature of each method can be described relatively simply. However, potential complications abound. Occasionally, some combination of the two methods may be used. For example, the House and Senate may begin the process of resolving their differences by amending each other’s amendments. Then they may decide to go to conference if the first method is not totally, or even partially, successful. Alternatively, the two houses may decide immediately to create a conference committee that is able to resolve some, but not all, of the differences between their two versions. If so, the two chambers may accept whatever agreements the conferees have reached, and then attempt to deal with the remaining disagreements through an exchange of amendments between the houses. Under some circumstances, the process can become even more complicated. Certain patterns of action are most common, but the possible variations make the procedures at this stage of the legislative process the most difficult to predict with any assurance. Moreover, either house may refuse to act at any time and at any stage of this process, and if that chamber remains adamant in its refusal to act, the measure dies. In general, the House or Senate cannot take any action by either method unless it is in formal possession of the “papers” — the official copies of the measure and whatever amendments, motions, and accompanying messages have been approved by the House and Senate. In attempting to resolve their differences, the two chambers act sequentially, not simultaneously. Although most major legislation is considered by a conference committee, amendments between the houses are best discussed first.

AMENDMENTS BETWEEN THE HOUSES The need to resolve differences arises when one house passes a measure that the second chamber subsequently passes with one or more amendments.10 It is these amendments that create the differences between the two houses. The differences may be resolved by one chamber accepting the amendments of the other or by proposing new amendments that the other house agrees to accept. Within limits to be discussed, the measure may be sent back and forth between the House and Senate, each house amending the amendments of the other, in the hope that one chamber

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will agree to the proposals from the other. When the amending opportunities are exhausted, one house must accept the position of the other or the bill can die for lack of agreement. Alternatively, at any stage during this process, either house can request a conference, thereby proposing to use the other method for resolving their differences. (Then, if the conference is not totally successful, it may be necessary to return once again to amendments between the houses.) The second chamber’s amendments to the bill are the text that is subject to amendments between the houses, and that text may be amended in two degrees.11 Assume that the House has passed H.R. 1 and the Senate has passed the same bill with an amendment. When the Senate sends the bill back to the House, the House may amend the Senate amendment — technically, the House concurs in the Senate amendment with a House amendment. This House amendment to the Senate amendment is a first-degree amendment. When the Senate receives from the House the bill with the House amendment to the Senate amendment, the Senate may concur in the House amendment to the Senate amendment. If the Senate does so, the differences between the chambers have been resolved. Alternatively, the Senate may amend the House amendment — technically, the Senate concurs in the House amendment to the Senate amendment with a further Senate amendment. This further Senate amendment is a second-degree amendment. When the bill and the accompanying papers (that is, the various House and Senate amendments and messages) are now returned to the House, that chamber may not propose a further amendment. That would be a prohibited amendment in the third degree.12 The House may concur in the final Senate amendment, in which case the differences are resolved, or it may disagree to the Senate amendment. (Note that this is the first point at which disagreement has been expressed; a later section of this chapter discusses the importance of reaching the stage of disagreement.) If the House disagrees to the final Senate amendment (or to any Senate amendment at some earlier stage), the Senate may recede from its amendment and concur in the last position offered by the House (thereby achieving agreement), or the Senate may insist on its amendment. In turn, if both chambers are adamant, the House may insist on its disagreement, the Senate may adhere to its amendment, and the House finally may adhere to its disagreement.13 If this stage is reached, the bill is almost certain to die unless one house or the other recedes from its last position. (This same sequence of events can begin in the Senate, with the subsequent actions of the chambers reversed.) The two houses may reach agreement at any stage of this process if one chamber concurs in the amendment of the other or recedes from its own amendment. Alternatively, stalemate could be reached more quickly — for instance, if the chambers refuse to alter their original positions and proceed directly through the stages of disagreement, insistence, and adherence, bypassing the intermediate stages at which they could offer new proposals in the form of firstand second-degree amendments between the houses. Fortunately, the House and Senate rarely reach the point of insistence and then adherence. It is even rather unusual for there to be second-degree amendments between the houses (for instance, for the House to concur in the Senate amendment to the House amendment to a Senate bill with a further House amendment). Most often, the House and Senate either reach agreement at an earlier stage or they choose instead to submit their differences to a conference committee.

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CONSIDERATION OF SENATE AMENDMENTS BY THE HOUSE The House may consider on the floor a House-passed measure with Senate amendments under several circumstances: (1) instead of sending the bill to a conference committee, (2) in the process of sending it to conference, or (3) after the measure has been considered by a conference. This section discusses House action on Senate amendments either instead of or before consideration in conference. House actions on Senate amendments after conference are discussed in later sections of this chapter on amendments in true and technical disagreement. A bill that the House has passed and that the Senate has amended and returned to the House usually remains at “the Speaker’s table” until it is taken up again on the House floor. It may be referred to a House committee at the discretion of the Speaker, but referral to committee is not mandatory and rarely occurs. The Speaker is most likely to refer the bill to committee if the Senate amendments are major in scope and nongermane in character, and especially if the Senate amendments would fall within the jurisdiction of a House committee that had not considered the bill originally. 14 At this stage of the legislative process, the bill and the Senate amendments to it are not privileged for floor consideration by the House — in other words, it is not in order for the House to consider the Senate amendments to the bill — unless the Senate amendments do not include any authorization, appropriation, or revenue provisions that House rules require to be considered in Committee of the Whole. The bill and Senate amendments become privileged for House floor consideration only after the House has reached the stage of disagreement. The only motion that can be made on the House floor at this stage is a motion to go to conference with the Senate. This motion can take two forms. If the Senate has passed a House bill with Senate amendments, the motion proposes that the House disagree to the Senate amendments and request or agree to a conference with the Senate. If the Senate has disagreed to House amendments to a Senate bill and returned the bill to the House, the motion proposes instead that the House insist on its amendments and request or agree to a conference. In either case, the motion is entertained at the Speaker’s discretion, and may be made only at the direction of the committee (or committees) with jurisdiction over the subject of the measure. The same result is achieved far more often by unanimous consent. If the Senate amendments require consideration in Committee of the Whole, it is not in order to move to concur in the Senate amendments (thereby reaching agreement), or to move to concur in the Senate amendments with House amendments (thereby proposing a new House position to the Senate). However, such actions frequently are taken by unanimous consent. The House floor manager may ask unanimous consent, for instance, to take the bill, H.R. 1, with Senate amendments thereto from the Speaker’s table and concur in the Senate amendments. Another Member, generally a minority-party member of the committee of jurisdiction, often reserves the right to object, usually only for the purpose of asking the floor manager to explain the purpose of the request and the content of the Senate amendments. Their discussion usually establishes that the Senate amendments are either desirable or minor and, in any case, are acceptable to the Representatives who know and care the most about the measure. The reservation of objection then is withdrawn; the unanimous consent request is accepted, and the differences between the House and Senate are thereby resolved. In similar fashion, the House may — again, by unanimous consent — concur in some or all of the Senate amendments with House amendments.

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It bears repeating that, if there is objection to a unanimous consent request to concur in Senate amendments (with or without House amendments), no motion to that effect can be made if the amendments require consideration in Committee of the Whole. However, at least two alternatives are available. First, the Speaker may recognize the floor manager to move to suspend the rules and concur in the Senate amendments (again, with or without House amendments). Motions to suspend the rules may be considered, at the discretion of the Speaker, on a Monday or Tuesday, or Wednesday. The Speaker also may entertain motions to suspend the rules on other days by unanimous consent or pursuant to a special rule. Such a motion is debatable for forty minutes, it is not amendable, and it requires support from twothirds of the Members present and voting. Second, the Rules Committee may report, and the House may agree to, a special rule making in order a motion to concur (with or without amendments). In fact, the special rule even may be drafted in such a way that the vote to agree to the rule is also the vote to concur in the Senate amendments. Such a resolution is known as a self-executing rule, and may take the following form: Resolved, That immediately upon the adoption of this resolution the bill (H.R. 1), together with the Senate amendments thereto, is taken from the Speaker’s table to the end that the Senate amendments be, and the same are hereby, agreed to. There are additional rules and precedents concerning the consideration of certain Senate amendments in Committee of the Whole, the germaneness of House amendments to Senate amendments, and the relative precedence of the motion to concur and the motion to concur with amendments. However, these rules and precedents are not often invoked at this stage of House proceedings because the measure and the Senate amendments are either sent directly to conference or they are disposed of by a means that waives these rules and precedents — unanimous consent, suspension of the rules, or special rules. Some of these possibilities are far more likely to arise during House floor action on Senate amendments in true or technical disagreement, and they are discussed in later sections on those subjects.

CONSIDERATION OF HOUSE AMENDMENTS BY THE SENATE When the Senate receives a bill with House amendments, it normally is held at the desk. The motion to proceed to consideration of the amendments is privileged and, therefore, not debatable. (The motion to proceed normally is debatable.) Moreover, the consideration of these amendments suspends, but does not displace, the pending or unfinished business. Paragraph 3 of Rule VII provides: The Presiding Officer may at any time lay, and it shall be in order for a Senator to move to lay, before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives for appropriate action allowed under the rules and any question pending at that time shall be suspended for this purpose. Any motion so made shall be determined without debate. Normally, the majority leader asks the presiding officer to lay before the Senate the House message on a bill; such a message may state that the House has passed a certain Senate bill with amendments that are stated in the message. The message also may inform the Senate that the House has requested a conference. Once the Senate has agreed to consider House amendments, the House amendments themselves are amendable.

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After some explanation of the Senate bill and the House amendments, the majority leader or the majority floor manager of the bill usually moves or asks unanimous consent (1) that the Senate concur in the House amendments, or (2) that the Senate concur in the House amendments with Senate amendments, or (3) that the Senate disagree to some or all of the House amendments and either request or agree to a conference with the House. Any of these motions is debatable and, therefore, is subject to being filibustered. Whichever proposal is made, however, it is likely to be accepted by the Senate without serious opposition. Thus, the Senate may act on House amendments at virtually any time, even if a major bill is under consideration, both because the House amendments are privileged business and also because they normally are disposed of quickly (so that the Senate’s consideration of the pending bill is not interrupted for long). It usually is not necessary to call up the House amendments by use of a nondebatable motion; they usually are considered by unanimous consent. But unanimous consent probably is made easier to obtain by the knowledge that the nondebatable motion is in order (and, therefore, that extended debate is not possible). These Senate practices effectively obviate a variety of parliamentary options that are available for acting on House amendments. For example, a motion to agree to a House amendment has precedence over (and may be offered while there is pending) a motion to disagree and go to conference. But a motion to agree to the House amendment with an amendment has precedence over the motion to agree, and a motion to refer the House amendments to a committee of the Senate has precedence over both the motion to agree and the motion to disagree. Fortunately, the complexities that these options can create arise very infrequently because House amendments normally are not called up on the Senate floor until after a process of consultations and negotiations that is so characteristic of the Senate. The majority and minority floor managers can be expected to consult with each other and to decide if the House amendments are acceptable or if the two Senators can agree on amendments to those House amendments. Whatever agreement the floor managers reach also is discussed with other interested Senators in the hope of achieving general concurrence. If such concurrence is reached, it is reflected in an expeditious floor decision to agree to the House amendments, with or without amendments. If concurrence cannot be reached, the Senators involved normally decide to resolve the disagreements among themselves (as well as with the House) in conference, rather than through a complicated series of motions and amendments offered on the Senate floor.

THE INFORMAL ALTERNATIVE TO CONFERENCE If the House and Senate versions of a measure are submitted to conference, the conference committee must meet formally and, if it resolves some or all of the differences between the houses, prepare both a conference report and a joint explanatory statement. To avoid these and other requirements, the two chambers may use the process of sending amendments between the houses as an informal alternative that achieves much the same purpose and result as would a conference committee. The purpose of a conference committee is to negotiate a settlement of the legislative differences between the two chambers. But these negotiations do not have to take place in the

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official setting of a conference committee meeting. They also can occur through informal discussions among the most interested Representatives and Senators and their staffs. If such informal discussions are successful, their results can be embodied in an amendment between the houses. As the second house nears or reaches completion of floor action on a measure, the staffs of the respective House and Senate committees are likely to be comparing the two versions of the bill and seeking grounds for settling whatever differences exist. After initial staff discussions, the House and Senate committee leaders themselves may become involved. If these informal and unofficial conversations appear productive, they may continue until a tentative agreement is reached, even though no conference committee has yet been created. If the tentative agreement proves acceptable to other interested Representatives and Senators, a conference committee may be unnecessary. Instead, when the bill with the second house’s amendments has been returned to the first chamber, the majority floor manager may, under the appropriate rules or practices of that house, call up the bill and propose that the House or Senate (as the case may be) concur in the second chamber’s amendments with some amendments. He or she then describes the differences between the House and Senate versions of the measure and explains that the proposed amendments represent a compromise that is agreeable to the interested members of both houses. The floor managers may express their confidence that, if the first house accepts the amendments, the other chamber also will accept them. If the first house does agree to the amendments, the second chamber then considers and agrees to them as well, under its procedures for considering amendments of the “other body.” In this way, the differences between the House and Senate are resolved through the kind of negotiations for which conference committees are created, but without resort to a formal conference committee.

THE STAGE OF DISAGREEMENT Since the purpose of conference committees is to resolve legislative disagreements between the House and Senate, it follows that there can be no conference committee until there is disagreement — until the House and Senate formally state their disagreement to each other’s positions. A chamber reaches this stage either by formally insisting on its own position or by disagreeing to the position of the other house, and so informing the other house. Once the House or Senate reaches the stage of disagreement, it cannot then agree to (concur in) a position of the other chamber, or agree with an amendment, without first receding from its disagreement. The stage of disagreement is an important threshold. Before this threshold is reached, the two chambers presumably are still in the process of reaching agreement. Thus, amendments between the houses, as an alternative to conference, are couched in terms of one chamber concurring in the other’s amendments, or concurring in the other’s amendments with amendments. For example, when the House concurs in Senate amendments with House amendments, the House does so because it does not accept the Senate amendments — in fact, it disagrees with them. But the House does not state its disagreement explicitly and formally

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at this stage because crossing the threshold of disagreement has significant procedural consequences, especially in the House. Whereas House amendments are always privileged in the Senate, most Senate amendments are not privileged in the House before the House has reached the stage of disagreement. Moreover, the order of precedence among certain motions is reversed in the House (but not in the Senate) after the stage of disagreement has been reached. Before the stage of disagreement, the order of precedence among motions in both chambers favors motions that tend to perfect the measure further; after the stage of disagreement in the House, the order of precedence is reversed, with precedence being given to motions that tend to promote agreement between the chambers. Before the stage of disagreement, for example, a motion to concur with an amendment has precedence over a motion to concur; after the stage of disagreement in the House, a motion to recede and concur has precedence over a motion to recede and concur with an amendment. The precedence among motions before and after the stage of disagreement can become important during the process of exchanging amendments between the houses. It is most likely to matter after a conference committee has reported and the House and Senate are considering amendments in true or technical disagreement. For this reason, a more detailed discussion of the subject is reserved to the sections on such amendments.

ARRANGING FOR A CONFERENCE If the differences between the House and Senate cannot be resolved through the exchange of amendments between the houses, two possibilities remain. First, stalemate can lead to the death of the legislation if both chambers remain adamant. Or second, the two houses can agree to create a conference committee to discuss their differences and seek a mutually satisfactory resolution. In fact, major bills usually are sent to a conference committee, either after an unsuccessful attempt to resolve the differences through amendments between the houses or, more often, without such an attempt having even being made. The process of arranging for a conference can begin as soon as the second house passes the bill at issue, either with one or more amendments to parts of the measure or with a single amendment in the nature of a substitute that replaces the entire text approved by the first chamber. The second house then may simply return the bill, with its amendments, to the first chamber if there is reason to believe that the first house might accept the amendments, or that amendments between the houses can be used successfully as an informal alternative to conference. It also may do so if the second house wishes to act first on an eventual conference report, because the chamber that asks for a conference normally acts last on the conference report. Alternatively, and more commonly, the second house may pass the bill and immediately insist on its amendments and also request a conference with the first chamber. By insisting on its amendments, the second chamber reaches the stage of disagreement. The bill, the second house’s amendments, and the message requesting a conference, then are returned to the first house. The first house is not obliged to disagree to the second chamber’s amendments and agree to the requested conference. The first house also has the options, for example, of refusing to act at all or concurring in the second chamber amendments, with or without

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amendments. When one chamber requests a conference, however, the other house normally agrees to the request. If the second chamber just returns the bill and its amendments to the first house without insisting on its amendments, the first house may disagree to the amendments and request a conference. The bill, the amendments, and the message requesting the conference then are returned to the second chamber, which usually insists on its amendments (thereby reaching the stage of disagreement) and agrees to the conference. Thus, there are essentially two direct routes to conference. (There are more indirect routes, of course, if an attempt is first made to resolve the differences through an exchange of amendments.) The second house may begin the process by insisting on its amendments and requesting the conference. If this does not occur, the first house then may begin the process by disagreeing to the second chamber’s amendments and requesting the conference itself. The first route is likely to be followed when the need for a conference is a foregone conclusion. However, strategic considerations also may influence how the Senate and House agree to go to conference, especially in view of the convention that the chamber which asks for the conference normally acts last on the conference report. With this in mind, proponents of the legislation may prefer one route to the other. For example, House or Senate conferees can avoid the possibility of facing a motion in one house to recommit the conference report (with or without instructions) if they have arranged for the other house to act first on the report.15 By the same token, if Senate opponents are expected to filibuster the conference report, proponents may prefer for the Senate to agree to a House request for a conference, so that the Senate will act first on the report. This arrangement avoids compelling Representatives to cast difficult votes for or against a conference report that may not reach a vote in the Senate. On the other hand, a bill’s supporters could prefer that the House agree to the conference and then vote first on the report, with the hope that a successful House vote might improve the prospects for later success on the Senate floor.

SELECTION OF CONFEREES After either house requests or agrees to a conference, it usually proceeds immediately to select conferees, or managers as they also may be called. The selection of conferees can be critically important, because it is this group — sometimes a small group — of Representatives and Senators who usually determine the final form and content of major legislation. In the House, clause 11 of Rule I authorizes the Speaker to appoint all members of conference committees, and gives him certain guidelines to follow: The Speaker shall appoint all select, joint, and conference committees ordered by the House. At any time after an original appointment, the Speaker may remove Members, Delegates, or the Resident Commissioner from, or appoint additional Members, Delegates, or the Resident Commissioner to, a select or conference committee. In appointing Members, Delegates, or the Resident Commissioner to conference committees, the Speaker shall appoint no less than a majority who generally supported the House position as determined by the Speaker, shall name Members who are primarily responsible for the legislation, and shall, to the fullest

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Elizabeth Rybicki extent feasible, include the principal proponents of the major provisions of the bill or resolution passed or adopted by the House.

These guidelines carry weight as admonitions but they necessarily give the Speaker considerable discretion, and his exercise of this discretion cannot be challenged on the floor through a point of order. In the Senate, the presiding officer is almost always authorized to appoint “the managers on the part of the Senate.” Should the Senate fail to give the presiding officer this authority, however, Senators would elect their conferees. A motion to elect certain Senators as conferees is both debatable and amendable. Before the formal announcement of conferees in each chamber, a process of consultation takes place that vests great influence with the chairman and the ranking minority member of the committee (and sometimes the subcommittee) that had considered the bill originally. These Representatives and Senators almost always serve as conferees. Furthermore, they usually play an influential, and often a controlling, role in deciding the number of conferees from their respective chambers, the party ratio among these conferees, and which of their committee colleagues shall be appointed to the conference committee. In the House, the Speaker often accepts without change the list developed by the House committee leaders; the presiding officer in the Senate always does so. If the bill at issue had been considered by more than one committee in either house, all the involved chairmen and ranking minority members from that chamber normally participate in determining its roster of conferees, and the conferees usually are drawn from both or all of those committees. In such cases, the party leaders in each house are more likely to become involved in the selection process — in determining the total number of House or Senate conferees and the division of conferees between or among the committees of jurisdiction, as well as in choosing individual members to serve. From time to time, the Speaker also exercises his authority to appoint a Representative who offered a key successful floor amendment, even if he or she is not on the committee(s) that reported the legislation. In some cases — and especially in cases of multiple committee jurisdiction — House or Senate conferees may be appointed for limited purposes: for example, only for the consideration of Title I of the House version, or only for the consideration of a particular (and possibly nongermane) Senate amendment. Such conferees are expected to limit their participation in the conference to consideration of the matters for which they are appointed. This practice protects the preponderant influence in conference of the appropriate House and Senate standing committees. Each house determines for itself the size of its delegation to the conference committee. The House and Senate need not select equal numbers of conferees, and they frequently do not. However, unequal numbers of House and Senate managers do not affect the formal power of either house in conference decisions. The conference report requires approval by a majority of the House conferees and a majority of the Senate conferees, rather than a majority of all conferees. Each house usually appoints an odd number of conferees to avoid tie votes.

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INSTRUCTING CONFEREES After the House or Senate decides to go to conference (either by requesting the conference or agreeing to a request from the other house), its conferees usually are appointed immediately. Between these two steps, however, both houses have an opportunity (although usually only a momentary opportunity) to move to instruct the conferees.16 For example, the managers may be instructed to insist on the position of their house on a certain matter, or even to recede to the position of the other house. Instructions are not binding in either house. They are only admonitions, or advisory expressions of position or preference. No point of order lies in either the House or the Senate against a conference report on the ground that conferees did not adhere to the instructions they received. In the Senate, a motion to instruct is debatable and amendable. In the House, such a motion is debated under the one-hour rule, and a germane amendment to the instructions is in order only if the House does not order the previous question during or at the end of the first hour of debate. In neither house can conferees be instructed to take some action that exceeds their authority. In the House, clause 7 of Rule XXII also bars instructions that “include argument.” Only one valid motion to instruct is in order in the House before its conferees are named, whether or not the motion is agreed to; but if a motion to instruct is ruled out of order, another motion to instruct may be made. Under the precedents of the House, a member of the minority party is entitled to recognition to move to instruct. The Speaker normally looks first to senior minority party members of the committee that reported the measure at issue. This recognition practice can be used to try to control the instructions that are proposed; for example, instructions on one subject may be precluded if the ranking minority member seeks recognition to offer a motion to instruct on another subject.17 In the House, but not in the Senate, motions to instruct also are in order after House conferees have been appointed but have failed to report an agreement.18 Clause 7(c)(1) of House Rule XXII provides in part: A motion to instruct managers on the part of the House, or a motion to discharge all managers on the part of the House and to appoint new conferees, shall be privileged — (A) after a conference committee has been appointed for 20 calendar days and 10 legislative days without making a report... .

By precedent, more than one proper motion to instruct is in order when made pursuant to this clause, and the minority party does not enjoy preferential recognition in offering such motions. According to clause 7(c)(2), the Speaker “may designate a time in the legislative schedule on that legislative day for consideration” of the motion to instruct.

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RESTRICTIONS ON THE AUTHORITY OF CONFEREES In principle, there are significant restrictions on the kinds of policy agreements that House conferees can accept. In practice, however, these restrictions are not as stringent as they might seem at first. Because conference committees are created to resolve disagreements between the House and Senate, the authority of House conferees is limited to the matters in disagreement between the two houses. House conferees have no authority to change matters that are not in disagreement — that is, either matters that appear in the House and Senate versions of the measure in identical form, or matters that were not submitted to the conference in either the House or the Senate version. Furthermore, as House conferees consider each matter in disagreement, their authority is limited by the scope of the differences between the House and Senate positions on that matter. The House’s managers may agree on the House position, the Senate position, or some middle ground. But they may not include a provision in a conference report that does not fall within the range of options defined by the House position at one extreme and the Senate position at the other. If, for example, the House proposes to appropriate $1 billion for a certain purpose and the Senate proposes $2 billion instead, the House conferees may agree on $1 billion or $2 billion or any intermediate figure. But they may not agree on a figure that is less than $1 billion or more than $2 billion. To do so would exceed the scope of the differences between the House and Senate positions on that matter in disagreement. The concept of “scope” relates to specific differences between the House and Senate versions of the same measure, not to the implications or consequences of these differences. Thus, House conferees on a general appropriations bill may agree on the higher (or lower) of the House and Senate positions on each appropriation item, even though the sum of their agreements is higher (or lower) than the total sum proposed in either the House or the Senate version of the bill (unless the two versions explicitly state such a total). Also, if one house proposes to amend some existing law and the other chamber does not, the scope of the differences over this matter generally is bounded by the proposed amendments, on the one hand, and the pertinent provisions of existing law, on the other. Thus, the House conferees may agree on the proposed amendments or on alternatives that are closer to existing law. Thus, there are significant restrictions on the authority of House conferees: their authority is restricted by the scope of the differences between the House and Senate over the matters in disagreement between them.19 However, it is far easier to make this statement than to apply it in all cases. It becomes much more difficult to define the scope of the differences when the differences are qualitative, not quantitative as in the example above. Moreover, how difficult it is to define the scope of the differences also depends on how the second chamber to act on the measure has cast the matters in disagreement. If one house takes up a measure from the other and passes the measure with a series of amendments to the first chamber’s text, then the matters in disagreement in conference are cast in terms of two or more discrete amendments approved by the second house to pass the bill. These amendments usually are numbered for convenient reference. The two versions of the measure can be compared side by side to identify the provisions that are identical in both versions and those that are the subject of disagreements. Therefore, it is possible to identify both the matters in disagreement and the House and Senate positions on each of them.

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However, the second chamber that acts on a measure typically casts its version in the form of an amendment in the nature of a substitute for the entire text passed by the first house. In such cases, only one amendment is submitted to conference, even though that single amendment may encompass any number of specific differences between the House and Senate versions of the measure. In fact, the text of the bill as passed by one house and the text of the other house’s amendment in the nature of a substitute may embody wholly different approaches to the subject of the measure. The two versions may be organized differently and may address the same subject in fundamentally different ways. Second house substitutes make it much harder, if not impractical, to specifically identify each matter in disagreement and the scope of the differences over that matter. When a second chamber substitute is in conference, therefore, the conferees must have somewhat greater room for maneuver. Technically, the House and Senate are in disagreement over the entire text of the measure; substantively, the policy disagreements may be almost as profound. In such cases, the conferees resolve the differences between the House and Senate by creating a third version of the measure — a conference substitute for both the version originally passed by the first house and the amendment in the nature of a substitute approved by the second house. This latitude may be necessary, but it also means that the conference substitute could take the form of a third and new approach to the subject at hand — an approach that had not been considered on the floor of either house. To inhibit such a result, clause 9 of House Rule XXII states that: Whenever a disagreement to an amendment has been committed to a conference committee, the managers on the part of the House may propose a substitute that is a germane modification of the matter in disagreement. The introduction of any language presenting specific additional matter not committed to the conference committee by either House does not constitute a germane modification of the matter in disagreement. Moreover, a conference report may not include matter not committed to the conference committee by either House and may not include a modification of specific matter committed to the conference committee by either or both Houses if that modification is beyond the scope of that specific matter as committed to the conference committee.

Notwithstanding this specificity, determining whether a conference substitute includes some new “matter” is far more difficult than determining whether the conferees’ agreement on an appropriation for a program falls within the scope of the differences between the funding levels originally proposed by the House and Senate. If the House conferees have exceeded their authority in any one respect in agreeing to a conference report, that report as a whole is tainted and so is subject to a point of order on the House floor.20 However, there are at least three reasons why it is relatively unusual for a point of order to be made and sustained against a conference report. First, House conferees are aware of the limits within which they are to negotiate, and they usually try not to exceed their authority. Second, conferees frequently are presented with second chamber substitutes and, in those cases, they have somewhat greater discretion in the agreements they can reach. Third, even if the House managers propose a conference report that exceeds their authority, there are several ways in which they can protect their report against being subject to a point of order on the House floor. If the conferees were negotiating over separate numbered

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amendments and their agreement concerning one or more of the amendments is beyond their authority, they can report those amendments back to the House and Senate as amendments in technical disagreement. However, conferees may not report back in disagreement on part of an amendment in the nature of a substitute. Alternatively, the House can approve a conference report by a two-thirds vote under suspension of the rules, a procedure which does not allow points of order to be made on the floor. Finally, and perhaps most important in current practice, the House Rules Committee may propose that the House approve a special rule waiving any or all points of order against a conference report and against its consideration. Even if a conference report is ruled out of order, it may then be possible to propose precisely the same agreements that were contained in the report in the form of amendments between the houses (if the amendments are not in the third degree and do not contain nongermane matter). The Senate’s rules and precedents embody roughly the same principles regarding restrictions on the authority of its conferees. Paragraphs 2 and 3 of Senate Rule XXVIII state, in part, that: 2. (a)

Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses. (b) If matter which was agreed to by both Houses is stricken from the bill a point of order may be made against the report, and if the point of order is sustained, the report is rejected or shall be recommitted to the committee of conference if the House of Representatives has not already acted thereon. (c) If new matter is inserted in the report, a point of order may be made against the conference report and it shall be disposed of as provided under paragraph 4. 3. (a) In any case in which a disagreement to an amendment in the nature of a substitute has been referred to conferees — (1) it shall be in order for the conferees to report a substitute on the same subject matter; (2) the conferees may not include in the report matter not committed to them by either House; and (3) the conferees may include in their report in any such case matter which is a germane modification of subjects in disagreement.

Historically, the Senate has interpreted its rules and precedents affecting the content of conference reports in ways that grant conferees considerable latitude in reaching agreements with the House. According to Riddick’s Senate Procedure, for example, a “conference report may not include new ‘matter entirely irrelevant to the subject matter,’ not contained in the House- or Senate-passed versions of a measure as distinct from a substitute therefor.”21 And regarding conference substitutes, Senate precedents state that, “in such cases, they [the conferees] have the entire subject before them with little limitation placed on their discretion, except as to germaneness, and they may report any germane bill.”22 Under current practice, the Senate takes a commonsense approach to deciding whether new matter is sufficiently relevant to constitute “a germane modification of subjects in disagreement.” The authority of Senate conferees is further limited by a rule agreed to in the 110th Congress.23 Under paragraph 8 of the new Senate Rule XLIV, a Senator can raise a point of

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order against provisions of a conference report if they constitute “new directed spending provisions.” Paragraph 8 defines a “new directed spending provision” as: ... any item that consists of a specific provision containing a specific level of funding for any specific account, specific program, specific project, or specific activity, when no specific funding was provided for such specific account, specific program, specific project, or specific activity in the measure originally committed to the conferees by either House.

Paragraph 8 of Senate Rule XLIV applies only to provisions of conference reports that would provide for actual spending. In other words, it applies only to discretionary and mandatory spending provisions and not to authorizations of appropriations.24 Discretionary spending is provided in appropriations acts, and generally funds many of the programs, agencies, and routine operations of the federal government. Mandatory spending, also referred to as direct spending, is provided in or controlled by authorizing law, and generally funds entitlement programs, such as Social Security and Medicare.25 The Senate can waive both of these restrictions on the content of conference reports by a three-fifths vote of Senators duly chosen and sworn (60 Senators assuming no vacancies). The process for waiving a point of order, as well as the effect of a successful point of order raised under either of these rules, are discussed in a later section of this chapter on floor consideration of conference reports.

CONFERENCE PROCEDURES AND REPORTS Rules of procedure guide and constrain the legislative activities of both the House and Senate. So it is striking that there are almost no rules governing procedure in conference. The members of each conference committee can select their own chairman. They also can decide for themselves whether they wish to adopt any formal rules governing such matters as debate, quorums, proxy voting, or amendments, but usually they do not. The only rules imposed by the two houses governing conference committee meetings concern approval of the conference report and the openness of meetings to all conferees and to the public. A majority of the House managers and a majority of the Senate managers must approve and sign the conference report. Decisions are never made by a vote among all the conferees combined. All votes take place within the House delegation and within the Senate delegation. This is why there is no requirement or necessity for the two houses to appoint the same number of conferees; five Senate conferees, for example, enjoy the same formal collective power in conference as 25 House conferees. Until the mid-1970s, conference meetings were almost always closed to the public; now they are open unless a specific decision is made to close part or all of a meeting. Paragraph 8 of Senate Rule XXVIII states that: Each conference committee between the Senate and the House of Representatives shall be open to the public except when managers of either the Senate or the House of Representatives in open session determine by a rollcall vote of a majority of those managers present, that all or part of the remainder of the meeting on the day of the vote shall be closed to the public.

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The comparable House rule is even more stringent. Clause 12 of House Rule XXII requires a majority vote on the House floor to close part or all of a conference meeting. In other words, House conferees cannot vote to close a conference committee meeting unless they have been authorized to do so by a specific rollcall vote of the House. This difference between House and Senate rules has not been a source of public contention because efforts to close conferences normally are made only when they must deal with national security matters. When House managers want the authority to close part or all of a formal conference meeting, they usually offer a motion to this effect at the time the House arranges to go to conference. In the 1 10th Congress, the House and Senate agreed to additional requirements for conference committee meetings. According to new language added to clause 12 of House Rule XXII, managers “should endeavor to ensure” that meetings only occur if every House manager has been given notice and an opportunity to attend. The House rule also explicitly states that all matters in disagreement are open to discussion at an conference meeting. If a point of order is made and sustained on the House floor that conferees met in violation of clause 12 (or that they never met at all), the conference report is rejected and the House is considered to have requested a further conference with the Senate. Similarly, the Senate agreed in the 1 10th Congress that it was the “sense of the Senate” that conferees should hold “regular, formal meetings of all conferees that are open to the public,” that conferees should be given “adequate notice” of such meetings, and that all conferees should be given an opportunity to “participate in full and complete debates” of the matters before the conference.26 The new conference committee meeting guidelines responded to the complaints of some conferees in the 108th and 109th Congresses that they were excluded from conference committee meetings. Other Members argued at the time that bicameral negotiators commonly hold informal discussions, in small or large groups, and that a highly flexible negotiation process is necessary to reach a compromise. It is not clear what impact the new requirements will have on conference committee practice because the chambers have yet to determine what constitutes a “meeting” of the conference under the new provisions. Few other rules govern conference proceedings nor do conference committees often vote to establish their own rules. Instead, they generally manage without them. This absence of rules reflects the basic nature of the conference committee as a negotiating forum in which the negotiators should be free to decide for themselves how to proceed most effectively. In some cases, conferences are rather formal. One delegation puts a proposal on the table; the other delegation considers it and responds with a counter proposal. In other cases, conferences resemble free-form discussions in which the issues and the matters in disagreement are discussed without any apparent agenda or direction until the outlines of a compromise begin to emerge. In recent years, conferences on massive omnibus bills have even created “sub-conferences” to seek agreements which then can be combined into a single conference report. Sometimes customary practices develop among members of House and Senate committees who meet with each other regularly in conference. For example, they may alternate the chairmanship from one conference to the next between the committee or subcommittee chairmen from each house. Conference bargaining also can be facilitated by preliminary staff work. Staff may prepare side-by-side comparisons of the House and Senate versions so that the conferees can understand more easily how the two houses dealt with the same issues or problems.27 Furthermore, senior staff may engage in preliminary negotiations

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among themselves, seeking agreements acceptable to their principals, so that the members themselves can concentrate on the more intractable disagreements. When the conferees reach full agreement, staff prepare a conference report which indicates how each amendment in disagreement has been resolved. For example, the report may propose that the Senate recede from certain of its amendments to the House bill, that the House recede from its disagreement to certain other Senate amendments, and that the House recede from its disagreement to the remaining Senate amendments and concur in each with a House amendment (the text of which is made part of the report). When the conferees have considered a single amendment in the nature of a substitute, the report proposes that the House which originated the bill recede from its disagreement to the other house’s substitute, and concur in that amendment in the nature of a substitute with a substitute amendment that is the new version of the bill on which the conference committee has agreed. Two copies of the conference report must be signed by a majority of House conferees and a majority of Senate conferees. No additional or minority views may be included in the report. From time to time, a manager’s signature may be accompanied by an indication that he or she does not concur in the conference agreement on a certain numbered amendment. This does not make the report subject to a point of order in the House so long as a majority of House conferees have agreed on each numbered amendment. House rules require that House conferees be given an opportunity to sign the conference agreement at a set time and place. At least one copy of the final conference agreement must be made available for review by House managers with the signature sheets. The conference report itself is not the most informative document, because it does not describe the nature of the disagreements that confronted the conferees. Therefore, the rules of both houses require that a conference report be accompanied by a joint explanatory statement. According to paragraph 6 of Senate Rule XXVIII, this statement is to be “sufficiently detailed and explicit to inform the Senate as to the effect which the amendments or propositions contained in such report will have upon the measure to which those amendments or propositions relate.” Clause 7(e) of House Rule XXII contains a comparable requirement. Normally, this joint explanatory statement summarizes the House, Senate, and conference positions on each amendment in disagreement (or each provision, in the case of second chamber and conference substitutes). The statement also is prepared in duplicate and signed by majorities of both House and Senate conferees. The house that agreed to the conference normally acts first on the conference report.28 Because this is an established practice, not a requirement of either House or Senate rules, the order of consideration can be reversed, if that is strategically advantageous. For example, the House may wish to delay acting on a report until after the Senate has voted on it because of the possibility that the report may fall victim to a Senate filibuster. Alternatively, Senate conferees may agree that the House should act first if the report is likely to enjoy greater support in the House, in the belief (or hope) that the House vote will increase the prospects for approving the report in the Senate.29 Also, the first house to consider a conference report has the option of voting to recommit the report to conference. If and when either house agrees to the report, the effect of that vote is to discharge that house’s conferees, so there no longer is a conference committee to which the report can be recommitted. Therefore, the second house to consider the report does not have the option of recommitting it; it only may accept or reject the report. Sometimes, therefore, the supporters of a bill arrange for one house or the other to act first on the

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conference report in order to avoid the possibility of a successful recommittal motion. Whatever the case may be, the conferees must see to it that the house they want to act first takes the papers out of the conference. If conferees cannot agree on any of the amendments before them, or if they cannot agree on all matters encompassed by one house’s bill and the other’s substitute, they may report back in disagreement. The House and Senate then can seek a resolution of the differences either through a second conference or through an exchange of amendments and motions between the houses. Conferees also may report in total disagreement if they have reached an agreement on a bill and a second chamber substitute which, in some respect, violates their authority. In such a case, their disagreement is technical, not substantive. After the House receives or the Senate agrees to the report in disagreement, the conferees’ actual agreement is presented as a floor amendment to the amendment in disagreement, at which point considerations of the conferees’ authority no longer apply. Alternatively, the conferees may submit their report to the House and Senate even though it violates their authority in one or more respects, and then, in the House, the Rules Committee can propose and the House can adopt a resolution protecting the report against points of order.

FLOOR CONSIDERATION OF CONFERENCE REPORTS A conference report may be presented or filed at almost any time the House or Senate is in session, but not when the Senate is in executive session or when the House has resolved into Committee of the Whole. A conference report is unlikely to be considered immediately because both the House and Senate have layover and availability requirements that apply to conference reports. In the House, conference reports are subject to a three day “layover” requirement. Clause 8(a) of Rule XXII prohibits consideration of a conference report until the third day (usually excluding weekends and legal holidays) after the report and joint explanatory statement has been available in the Congressional Record. These requirements do not apply during the last six days of a session.30 In addition, copies of the report and the statement must be available for at least two hours before consideration of the report begins. Clause 2(b) applies the same requirements and conditions to amendments reported from conference in disagreement. However, the House may waive these restrictions by adopting a resolution reported from the Rules Committee for that purpose.31 A conference report that meets the availability requirements is considered as having been read when called up for consideration in the House. If a report does not meet one or more of the requirements but is called up by unanimous consent, it must be read. However, the House normally agrees by unanimous consent to have the joint explanatory statement read instead of the report, and then it also agrees to dispense with the reading of the statement. Conference reports are highly privileged in the House, and may be called up at almost any time that another matter is not pending. When called up, the report is considered in the House (not in Committee of the Whole), under the one-hour rule. Clause 8(d) of Rule XXII requires that this hour be equally divided between the majority and minority parties, not necessarily between proponents and opponents. The two floor managers normally explain the agreements reached in conference and then yield time to other Members who wish to speak

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on the report. If both floor managers support the report, a Member who opposes it is entitled to claim control of one-third of the time for debate. Before a second hour of debate can begin, the majority floor manager moves the previous question. If agreed to, as it invariably is, this motion shuts off further debate and the House immediately votes on agreeing to the conference report. Any points of order against a conference report in the House must be made or reserved before debate on the report begins (or before the joint explanatory statement is read). A conference report can be protected against one or more points of order if the Rules Committee reports and the House adopts a resolution waiving the applicable rules, or if the report is considered under suspension of the rules. In the Senate, paragraph 1 of Senate Rule XXVIII requires that a conference report must be “available on each Senator’s desk” before the Senate may consider it. In addition, under paragraph 9 of that same rule it is not in order to vote on the adoption of a conference report unless it has been available to Members and the general public for at least 48 hours before the vote. This availability requirement can be waived by three-fifths of Senators duly chosen and sworn (60 Senators if there are no vacancies). It can also be waived by joint agreement of the Majority and Minority Leader in the case of a significant disruption to Senate facilities or to the availability of the internet. Under the rule, a report is considered to be available to the general public if it is posted on a congressional website or on a website controlled by the Library of Congress or the Government Printing Office. The report and accompanying statement normally are not printed in the Senate section of the Record if they have been printed in the House section. Conference reports also normally are printed only as House documents. Conference reports are privileged in the Senate. The motion to consider a report on the Senate floor is in order at most times,32 and it is not debatable. The Senate’s usual practice is to take up conference reports by unanimous consent at times arranged in advance among the floor and committee leaders. Under a standing order the Senate adopted at the close of the 106th Congress in December 2000, the reading of a conference report no longer is required if the report “is available in the Senate.” When considered on the Senate floor, a conference report is debatable under normal Senate procedures; it is subject to extended debate unless the time for debate is limited by unanimous consent or cloture, or if the Senate is considering the report under an expedited procedures established by law (such as the procedures for considering budget resolutions and budget reconciliation measures under the Budget Act). Paragraph 7 of Senate Rule XXVIII states that, if time for debating a conference report is limited (presumably by unanimous consent), that time shall be equally divided between the majority and minority parties, not necessarily between proponents and opponents of the report. Consideration of a conference report by the Senate suspends, but does not displace, any pending or unfinished business; after disposition of the report, that business again is before the Senate. A point of order may be made against a conference report at any time that it is pending on the Senate floor (or after all time for debate has expired or has been yielded back, if the report is considered under a time agreement). If a point of order is sustained against a conference report on the grounds that conferees exceeded their authority, either by including “new matter” (Rule XXVIII) or “new directed spending provisions”(paragraph 8 of Rule XLIV) in the conference report, then there is a special procedure established in the 1 10th Congress to strike out the offending portion(s) of the conference recommendation and continue

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consideration of the rest of the proposed compromise.33 Under the new procedure, a Senator can make a point of order against one or more provisions of a conference report. If the point of order is not waived (see below), the presiding officer rules whether or not the provision is in violation of the rule. If a point of order is raised against more than one provision, the presiding officer may make separate decisions regarding each provision. Senate rules provide further that when the presiding officer sustains a point of order against a conference report on the grounds that it violates either the prohibition of “new matter” or “new directed spending provisions,” the matter is to be stricken from the conference recommendation. After all points of order raised under this procedure are disposed of, the Senate proceeds to consider a motion to send to the House, in place of the original conference agreement, a proposal consisting of the text of the conference agreement minus the “new matter” or “new directed spending provision” that was stricken.34 Amendments to this motion are not in order. The motion is debatable “under the same debate limitation as the conference report.”35 In short, the terms for consideration of the motion to send to the House the proposal without the offending provisions are the same as those that would have applied to the conference report itself. If the Senate agrees to the motion, the conference recommendation as altered by the deletion of the “new matter” or “new directed spending provision” would be returned to the House in the form of an amendment between the houses. The House would then have an opportunity to act on the amendment under the regular House procedures for considering Senate amendments discussed in earlier sections of this chapter. Senate rules also create a mechanism for waiving these restrictions on conference reports. Senators can move to waive points of order against one or several provisions, or they can make one motion to waive all possible points of order under either Rule XXVIII or Rule XLIV, paragraph 8. A motion to waive all points of order is not amendable, but a motion to waive points of order against specific provisions is. Time for debate on a motion to waive is limited to one hour and is divided equally between the majority leader and the minority leader, or their designees. If the motion to waive garners the necessary support, the Senate is effectively agreeing to keep the matter that is potentially in violation of either rule in the conference report. The rules further require a three-fifths vote to sustain an appeal of the ruling of the Chair and limit debate on an appeal to one hour, equally divided between the party leaders or their designees. The purpose of these requirements is to ensure that either method by which the Senate could choose to apply these rules, through a motion to waive or through an appeal of the ruling of the Chair, requires a three-fifths vote of the Senate (usually 60 Senators). A simple majority (51 Senators if there are no vacancies and all Senators are voting) cannot achieve the same outcome. Conference reports may not be amended on the floor of either house. Conferees are appointed to negotiate over the differences between the versions of the same bill that the two houses have passed; the delegations return to their respective chambers with identical recommendations in the form of a report that proposes a package settlement of all these differences. The House and Senate may accept or reject the settlement but they may not amend it directly. If conference reports were amendable, the process of resolving bicameral differences would be far more tortuous and possibly interminable. As noted in previous sections, the house that agrees to the request for a conference normally acts first on the report. The first chamber to act may vote to agree or not agree to the

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report, or it may agree to a preferential motion to recommit the report to conference, with or without non-binding instructions. Successful recommittal motions are quite unusual, in part because such an action implies that the conferees should and could have reached a more desirable compromise. If the first house agrees to the report, the second house only has the options of approving or disapproving the report. At this stage, the report cannot be recommitted. A vote by either house to agree to a conference report has the effect of automatically discharging its conferees and disbanding the conference committee; thus, there is no conference committee to which the second house could recommit the report. The defeat of a conference report in either house may kill the legislation, but only if no further action is taken, such as requesting a second conference or proposing a new position through an amendment between the houses. For lack of time, a second conference may not be practical near the end of a Congress, when many conference reports are considered. The vote to agree to a conference report normally completes that house’s action on the measure, assuming the other house also approves the report. However, some conference reports, especially those on general appropriations bills, may be accompanied by one or more amendments in either true or technical disagreement. Furthermore, House rules include special procedures for coping with conference report provisions, originating in the Senate, that would not have been germane floor amendments to the bill in the House. These possibilities are discussed in separate sections that follow.

AMENDMENTS IN TRUE DISAGREEMENT passed a version of the legislation and has entrusted the responsibility for resolving its differences with the other house to members who usually were actively involved in developing and promoting the measure. Nonetheless, conferees sometimes cannot reach agreement on all the amendments in disagreement. In such a case, the conferees may return to the House and Senate with a partial conference report dealing with the amendments on which they have reached agreement, but excluding one or more amendments that remain in disagreement. The result is complicated and potentially confusing procedural possibilities that, fortunately, do not often arise in current practice. The house that agreed to the conference first debates and votes on the partial conference report. After the report is approved, the reading clerk reads or designates the first amendment in disagreement, and the majority floor manager offers a motion to dispose of the amendment. When this process begins in the House, for example, the floor manager may move that the House insist on its disagreement to a Senate amendment. Agreeing to this motion implies that the House adamantly supports its original position and that the House wishes the Senate to recede from its amendment. Alternatively, the floor manager may move that the House either (1) recede from its disagreement to the Senate amendment and concur in that amendment, or (2) recede and concur with a House amendment. In the latter case, this House amendment (which must be germane to the Senate amendment) may be the position that the House managers had been advocating in conference, or it may be a new compromise position they have developed. By agreeing to this motion, the House supports the negotiating position of its conferees and asks the Senate to concur in this new House amendment.

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After the House disposes of the first amendment in disagreement, it acts in similar fashion on each of the other amendments that were not resolved in conference. The House then sends all the papers to the Senate with a message describing its actions. If the Senate agrees to the partial conference report and to the House position on all the amendments in disagreement on which Senate action is required, the legislative process is completed and the bill may be enrolled for presidential action. However, the Senate may agree to the partial conference report (which is rarely controversial), but not accept the House position on one or more of the amendments in disagreement. Instead, the Senate may vote to insist on its original position, support the negotiating position of its managers, or propose a new bargaining position to the House. If the House has insisted on its disagreement to a Senate amendment, the Senate may continue to insist on its amendment. If the House has receded from its disagreement to a Senate amendment and concurred in that amendment with a House amendment, the Senate may disagree to the House amendment or it may concur in the House amendment with a further Senate amendment (if such a Senate amendment would not be an amendment in the third degree). If one or more amendments remain in disagreement at the end of this process, either method of resolution may be pursued again. The amendments may be “messaged” back and forth between the houses until one chamber accepts the position of the other or until stalemate is reached. Alternatively, either house may request a further conference to consider the amendments that remain in disagreement. The same or new conferees may be appointed. Only the amendments in disagreement are submitted to the new conference. The managers may not re-open matters that were resolved in the partial conference report that both houses approved because these matters are no longer in disagreement. But the partial conference report cannot become law until all the remaining disagreements have been resolved. If the second conference is successful, the managers submit a second report for action on the House and Senate floor. If not, the legislation, including the partial conference report, probably is dead for that Congress. Amendments in true disagreement rarely arise when conferees are presented with a second chamber substitute. In such a situation, there is only one amendment before the conference. The conferees either reach agreement or they do not; they may not report only part of the substitute as an amendment in disagreement. If the conferees report back in total disagreement, the House and Senate then can vote to insist on their original positions or propose new versions of the legislation. This hardly ever occurs; but when it does, the bill may die for lack of further action or the two houses may agree to a new conference to consider the same issues once again. Instead, amendments in true disagreement generally have arisen when the second chamber has passed a bill with a series of separate amendments. Since this has happened most often to general appropriations bills that originate in the House (and on which the Senate requests conferences), the House usually has acted first on partial conference reports and amendments in disagreement. The possibility of amendments in disagreement can make it exceedingly difficult to anticipate what will happen to a measure that is sent to conference. It is not simply a question of whether or not the conferees will be able to resolve all the amendments in disagreement by reaching compromises that fall within the scope of the differences between the House and Senate versions. If a number of amendments are considered in conference, the managers may

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reach agreement on some, but not on others. And what then happens to the amendments reported in disagreement depends on the motions that are made and agreed to by the House and Senate. Furthermore, the recourse to amendments in disagreement creates new possibilities that were not available in conference. In conference, the managers’ options are defined and limited by the scope of the differences between the House and Senate positions before them. However, when the House and Senate act on an amendment in disagreement, they are not subject to this restriction. The concept of “the scope of the differences” is a restriction on the authority of managers in conference; it is not a restriction on amendments between the houses.36 So, for example, the House may amend a Senate amendment in disagreement with a new House position (or technically, the House may recede from its disagreement to the Senate amendment and concur in the Senate amendment with a House amendment) that goes beyond the scope of either house’s original position. Thus, it is possible, though not very likely in practice, that (1) the conferees could report an amendment in disagreement, (2) the first chamber to act could propose a new position in the form of an amendment to the amendment in disagreement, (3) the second chamber could respond with a further amendment that constitutes a new position of its own, and (4) conferees could be appointed for a second time to attempt to resolve the differences between these two new positions on the same subject. In this second conference, the same general policy question would be at issue, but the scope of the differences between the House and Senate versions (and consequently the options open to the conferees) would not be the same. To add to the uncertainties, several other complications can occur in the House as it acts on each amendment in disagreement. These options arise from the different order of precedence among certain motions in the House (but not in the Senate) that prevails before and after the House reaches the stage of disagreement, and the opportunities for crossing and re-crossing that threshold. These complications have arisen most often during action on amendments in disagreement to general appropriations bills. Before the House reaches the stage of disagreement, the order of precedence favors motions that tend to perfect the measure further; after the stage of disagreement, the order of precedence is reversed and favors motions that tend to promote agreement between the houses. Thus, if a motion to concur in a Senate amendment is made on the House floor before the stage of disagreement, a motion to concur with an amendment has precedence and may be offered and voted on while the motion to concur is pending. The motion to concur with an amendment has precedence because it tends to perfect the measure. If the House agrees to the motion to concur with an amendment, the straight motion to concur automatically falls without a vote, even though it had been offered first.37 After the House has reached the stage of disagreement, however, a motion that the House recede from its disagreement and concur in a Senate amendment has precedence over a motion to recede and concur with an amendment. The motion to recede and concur tends to promote agreement more directly than the motion to recede and concur with an amendment. If a preferential motion to recede and concur is made and carries, no vote occurs on the motion to recede and concur with an amendment, even if that motion already had been made. As if this were not complicated enough, the motion to recede and concur is divisible in the House, as is the motion to recede and concur with an amendment. Any Representative may demand that it be divided into two proposals: first, that the House recede from its disagreement to the Senate amendment; and second, that the House then concur in the Senate

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amendment (or concur in it with an amendment, depending on which motion has been made). Following a demand for the division of the motion, the House first considers whether it should recede from its disagreement. But if the House votes to recede, it crosses back over the threshold of disagreement; consequently, the precedence of motions reverses, and a motion to concur with an amendment takes precedence over a motion to concur. As a result, the possibilities that may arise on the House floor as the House considers each amendment in disagreement depend: first, on which motion is made by the floor manager; second, on what motions have precedence over that motion; and third, on whether an attempt is made to change the order of precedence by demanding a division of the first motion. Suppose that the clerk reads an amendment in disagreement and the floor manager moves that the House recede from its disagreement to that amendment and concur therein. Because the House and Senate reached the stage of disagreement before they appointed their conferees, a motion to recede and concur with a House amendment does not have precedence. However, if any Member demands a division of the motion to recede and concur, the House first debates and votes on whether to recede. Normally, the House does vote to recede because rejecting this motion would imply that the House is unwilling to consider either the Senate amendment or any compromise version. But when the House recedes from its disagreement, it crosses back over the threshold of disagreement and the order of precedence among motions is reversed. When the House then considers the second half of the divided motion — to concur in the Senate amendment — another Member may move instead that the House concur in the Senate amendment with an amendment, because the motion to concur with an amendment now has precedence over the motion to concur. Only if the House rejects the motion to concur with an amendment would it then vote on the original proposal to concur in the Senate amendment. Suppose instead that, after an amendment in disagreement has been read, the floor manager moves that the House recede and concur with an amendment. The stage of disagreement having been reached, a simple motion to recede and concur has precedence and may be offered. But if this motion is divided, the House votes first on whether to recede. And if the House does recede, the threshold of disagreement again is re-crossed and the motion to concur with an amendment has precedence over the second half of the divided motion — that the House concur. Thus, the amendment originally proposed in the motion to recede and concur with an amendment may be offered again as a motion to concur with an amendment — after a preferential motion to recede and concur has been offered, after that motion has been divided, and after the House has voted to recede.38 The array of possible complications on the Senate floor is more limited. First, the order of precedence of motions in the Senate is not reversed after the stage of disagreement has been reached. Second, Senators may not demand the division of a motion to recede and concur or of a motion to recede and concur with an amendment. Even in the House, Representatives seldom use the opportunities available to them. Amendments in true disagreement rarely arise and, when they do, the House usually accepts the floor manager’s motions to dispose of them. The sheer complexity of some of the parliamentary maneuvers described above probably discourages Members from attempting them, for fear that they are more likely to create confusion than achieve some strategic advantage. Nonetheless, the possibility of amendments in true disagreement and the various

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options for dealing with each of them on the floor make it dangerous to predict with confidence exactly what will happen to a measure once it has been submitted to conference.

AMENDMENTS IN TECHNICAL DISAGREEMENT As discussed in earlier sections of this chapter, there are important restrictions on the content of conference reports. Conferees may deal only with the matters that are in disagreement between the House and Senate, and they must resolve each of these matters by reaching an agreement that is within the scope of the differences between the House and Senate positions. If a conference report violates these restrictions in any one respect, the entire report is subject to a point of order.39 Yet conferees sometimes find it desirable or necessary to exceed their authority. For example, changing circumstances may make it imperative for Congress to appropriate more money for some program than either the House or the Senate initially approved. Or the conferees may decide that a bill should include provisions on a subject that was not included in the version passed by either house. In such cases, the conferees may be able to achieve their purpose, without subjecting their report to a point of order, by using the device of amendments in disagreement. In doing so, they take advantage of the fact that the restrictions that apply to provisions of conference reports do not govern amendments between the houses. If the conferees wish to exceed their authority in resolving one of the amendments in disagreement, they can exclude this amendment from the conference report; instead, they present to the House and Senate a partial conference report and an amendment in disagreement. This is called an amendment in technical disagreement. There is no substantive disagreement between the House and Senate conferees; they report the amendment in disagreement only for technical reasons — to avoid the restrictions that apply to conference reports. The first house considers the partial conference report and then the amendment in technical disagreement.40 When that amendment is presented (in the House, for example) the floor manager moves that the House recede from its disagreement to the Senate amendment and concur therein with an amendment that is the decision made in conference. Because this conference recommendation is considered outside of the conference report — as part of a motion to dispose of an amendment in technical disagreement — no point of order lies against the motion or the proposed amendment on the grounds that the amendment exceeds the scope of the differences or proposes a subject not committed to conference by either house. However, the proposed amendment still must be germane in the House. If the first house votes for the motion, the second chamber acts on the partial conference report and then on the first house’s amendment to the amendment in technical disagreement. When the amendment is presented, the floor manager moves that the Senate concur in the House amendment (assuming that the House acted first). If the Senate agrees to this motion, the process of resolution is completed. Until recently, conferees used this device regularly, although for a somewhat different purpose, to complete congressional action on general appropriations bills. The rules of the House generally prohibit such bills from carrying unauthorized appropriations and changes in existing law (“legislation”). The procedures of the Senate, however, are not as strict. Under a

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number of conditions, the Senate may consider floor amendments to general appropriations bills that would not have been in order in the House. If approved by the Senate, these amendments are sent to conference and constitute amendments in disagreement with the House. They are properly before the conference and the conferees may accept them without violating the restrictions on their authority that have been mentioned so far. This situation could create a significant problem for the House. On a general appropriations bill, conferees could present the House with a conference report that is not amendable but that includes matter that could not even have been considered, much less approved, by the House when it first acted on the bill on the floor. The remedy for the House can lie in the use of amendments in technical disagreement. Clause 5 of House Rule XXII states that House conferees may not agree to a Senate amendment to a general appropriations bill if the amendment would violate the prohibitions in the House’s rules against unauthorized appropriations and legislation on such bills (in clause 2 of Rule XXI), “unless specific authority to agree to the amendment first is given by the House by a separate vote with respect thereto.” Otherwise, the same clause provides, the Senate amendment in question “shall be reported in disagreement by the conference committee back to the two Houses for disposition by separate motion.” The same two options are available to conferees in the case of a Senate amendment proposing to appropriate funds in any bill that is not a general appropriations bill. In practice, House conferees never seek separate House floor votes in advance. Instead, the conferees report any amendments to which Rule XXII, clause 5(a), applies as amendments in technical disagreement. After the House agrees to the partial conference report, it considers these amendments. As each of the Senate amendments is presented to the House, the majority floor manager offers a motion that the House recede from its disagreement and either concur in the Senate amendment or concur in it with a House amendment. In either case, the floor manager’s motion incorporates the agreement reached in conference. After the House agrees to these motions, the Senate approves the partial report and then agrees to corresponding motions to dispose of the amendments that require Senate action. Whereas the House has dealt with most or all of the amendments separately, the Senate usually has disposed of most or all of them en bloc by unanimous consent. (The House may dispose of a number of such amendments en bloc, also by unanimous consent, when they are noncontroversial and when the floor manager proposes that the House recede and concur in each of them.) By this means, the House could respond, on a case-by-case basis, to Senate amendments to general appropriations bills that would not have been in order in the House. This procedure enabled the House to protect itself against having simply to vote for or against a conference report containing such Senate amendments (or modifications of them), and, therefore, having to choose between rejecting the report (and jeopardizing the bill) or violating the principles of its own rules. By voting on the motions made by the House floor manager, the House could decide in each instance whether to accept the judgment of its conferees that wisdom or necessity dictated an exception to a strict separation of appropriations from both authorizations and changes in existing law. Moreover, the House and Senate have the same options for dealing with amendments in technical disagreement that are available for disposing of amendments in true disagreement. Thus, amendments in technical disagreement have been a useful device to deal with the differences between House and Senate rules governing matters that may be included in

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general appropriations bills. This device was convenient for appropriations conferees because the Senate typically passed House appropriations bills with many separate, numbered amendments. Consequently, the conferees could report as many of these amendments as necessary as amendments in technical disagreement. In the last several Congresses, however, there have been far fewer amendments in technical disagreement accompanying appropriations conference reports. In many instances, the Senate has passed House appropriations bills with amendments in the nature of substitutes, and it is not possible to report back from conference with part of such an amendment in disagreement. Also, the House Rules Committee has reported, and the House has adopted, special rules waiving points of order against many of the appropriations conference reports. Anticipating that their reports would receive this protection, appropriations conferees could include all their agreements within their reports, without regard for considerations of scope or the matters in disagreement, and without fear that they would make their reports vulnerable to points of order on the House floor.

HOUSE CONSIDERATION OF NONGERMANE SENATE AMENDMENTS The contrast between House and Senate rules and procedures governing general appropriations bills poses one problem for bicameral relations that arises during the process of resolving legislative differences. A remedy has been the use of amendments in technical disagreement. Another and similar problem results from the contrast between House and Senate rules concerning the germaneness of amendments — a problem for which the House has devised a somewhat different remedy. House rules require amendments to be germane (unless this requirement is waived by a special rule). By contrast, Senate rules require that amendments be germane only when offered to general appropriations measures or budget measures (both budget resolutions and reconciliation bills) or when offered after the Senate has invoked cloture. In addition, the Senate sometimes imposes a germaneness requirement on itself as part of unanimous consent agreements governing consideration of individual measures, although such agreements may include exceptions that make specific nongermane amendments in order. Consider the potential consequences of this difference for the House. The Senate may pass a House bill with one or more nongermane amendments. Each of these amendments is “conferenceable” (an unofficial term that is used from time to time by participants in the legislative process) as an amendment in disagreement between the House and Senate. The conferees may include it (or a modification of it) in their conference report without violating their authority. However, this situation could force the House into an up-or-down vote on a conference report including nongermane matters that were not debated on the House floor, that would have been subject to points of order if offered as House floor amendments, and that might not even have been considered by the appropriate House committees. The remedy for the House appears in clause 10 of House Rule XXII. This clause creates an opportunity for the House to identify nongermane matter originating in the Senate and to consider it separately. (Of course, the House can adopt a special rule reported from the Rules Committee that waives the point of order this clause creates.)

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Clause 10 states that when the House begins consideration of a conference report or a motion to dispose of a Senate amendment to which the House has disagreed, a Member may make a point of order (before debate begins) against matter contained in the report or the motion on the grounds that the matter in question would not have been germane if it had been offered as a House floor amendment to the measure (in the form the measure passed the House).41 If the Speaker sustains the point of order (thereby establishing that the matter in question is nongermane), the Member then may move that the House reject the nongermane matter. This motion is debatable for 40 minutes, to be equally divided between and controlled by proponents and opponents. After the House votes on the motion, another such point of order may be made against different nongermane matter; and if it is sustained, another motion to reject is in order. If the House defeats any and all motions to reject, the House thereby decides to retain the nongermane matter. The House may vote not to reject nongermane language for at least two reasons. First, a majority of Representatives may support the nongermane matter on its merits; or second, the House may conclude that the Senate is so insistent on its nongermane language that rejecting it could seriously jeopardize enactment of the entire bill. If the House does vote to reject any nongermane matter in a conference report, the report is considered as having been rejected. This is consistent with the principle that conference reports are not amendable. Clause 1 0(d)(2) states that, in most cases, the House then proceeds automatically to decide “whether the House shall recede and concur in the Senate amendment with an amendment consisting of so much of the conference report as was not rejected.” In other words, the House votes to amend the Senate amendment with a House amendment that consists of the remainder of the conference agreement without the nongermane matter.42 If the Senate accepts this new House amendment, resolution is reached. If not, the Senate may disagree to the House amendment and request a new conference with the House. In this way, the House can isolate nongermane Senate matter for separate consideration, but neither chamber can impose its will on the other. Clause 10(d)(3) makes in order three possible motions, in an established order of precedence, that Members may make if the House votes to reject nongermane matter contained not in a conference report but in a motion that the House recede and concur in a Senate amendment, with or without amendment. In brief, these motions allow the House to amend the Senate amendment or to again disagree to it, perhaps also requesting a new conference with the Senate to resolve this disagreement.

SOME CONCLUDING OBSERVATIONS Describing conference committees as bargaining forums implies an element of competition between the House and Senate. Each house passes its own version of a bill and expects its managers to defend that version in conference. The conferees wish to return to their parent chamber and assert that their report preserves the essential features of their house’s version of the bill — that the other body gave more ground in conference. Which house most often wins in conference? Observers and students of Congress have attempted to answer this question from time to time, using methods ranging from case studies

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to statistical analyses. Perhaps it is not surprising that the results have been inconsistent and inconclusive. The answer to “Who wins in conference?” depends on the answer to another question: “What do the various participants want to win in conference?” And answering the latter question requires an understanding of Members’ motives and intentions that cannot always be discerned accurately from the public record. If a conference committee accepts the Senate’s positions (or relatively minor modifications of them) on three out of every four of the matters in disagreement, has the Senate “won”? There are at least three reasons to be skeptical. First, not all matters in disagreement are of equal significance. The matters on which the House prevailed, though fewer in number, may define and shape the essential character of the legislation; whereas the greater number of matters on which the Senate prevailed may be less important, individually and even collectively, in determining the scope and effect of the legislation. Second, the conferees from each house almost certainly are not equally committed to defending every element of their chamber’s version of the legislation. One or both houses may include provisions that are bargaining positions, rather than fixed legislative objectives. If one house, for instance, has passed a “weak” version of a bill, the other house may pass a version that is “stronger” than it really wishes or expects to be enacted, in anticipation of conference negotiations that will reach some middle ground. It also can be tempting for the floor manager of a bill to express no opposition to colleagues’ amendments when they are offered on the floor if accepting the amendments will induce their sponsors to vote for the bill without costing the votes of other members. This is a particularly attractive option in the Senate where Senators may offer nongermane amendments on unrelated subjects about which they feel strongly. As a result, the managers can take into conference a number of amendments that they are prepared to trade in return for more substantively important concessions from the other house. Third, it is a considerable oversimplification to think of each house’s delegation to a conference as a single unit or even as a group of individuals with the same goals. It is often said that conferees are to defend the positions of their house. However, all Representatives and Senators have individual legislative goals; each conferee can be expected to be more concerned about certain provisions in his or her house’s version of the bill than about others. And at least some of the conferees usually prefer some of the provisions of the other house’s version. In short, as each decision is made in conference, some conferees from each house win, and others lose.

ENDNOTES 1

This chapter was written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS. Dr. Bach has retired, but the listed author updated the chapter. 2 Each house may interpret the same legislative language differently; these differences sometimes emerge from a comparison of House and Senate committee reports and floor debates. Deliberate ambiguity in the language of legislation can be used to promote agreement between the two chambers. 3 This requirement also applies to joint resolutions proposing constitutional amendments and to concurrent resolutions, even though neither are sent to the White House for the

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President’s signature or veto. House and Senate resolutions, on the other hand, do not require action by “the other body.” Throughout this chapter, the terms “bill” and “measure” are used interchangeably to refer to all bills and resolutions on which House and Senate differences are to be resolved. 4 In this chapter, terms such as “first chamber” and “second house” are used to refer only to the order in which the House and Senate complete initial floor action on a measure. 5 From time to time, Senate committees and even the Senate as a whole may take some action on a Senate appropriations or tax measure. However, on the infrequent occasions when the Senate has passed such a bill and sent it to the House, the House often has returned it to the Senate on the ground that the bill infringed on the House’s constitutional prerogatives, as interpreted by the House. The resolutions that the House has adopted for this purpose often are called “blue slip” resolutions. 6 This may occur for strategic or institutional as well as procedural reasons, as when the House refuses to consider a Senate bill that the House finds to be in violation of its constitutional prerogative to originate revenue measures. Also, the two houses may prefer to retain the House or Senate bill number if one is more familiar than the other to the bills’ supporters outside of Congress. 7 Third reading and engrossment is a technical and noncontroversial stage in both houses that marks the conclusion of the amending process and precedes the vote on final passage. 8 Senate rules require floor amendments to be germane only when offered to general appropriations bills or budget measures, or after the Senate has invoked cloture. 9 Once the conferees completed their work, the House agreed to an unusual special rule under which it cast one vote to approve all four conference reports. 10 Note that, at this point, both houses have agreed to everything in the text except the portion amended by the second chamber. Thereafter, neither chamber should propose changes in portions of the text to which both have agreed. 11 A measure normally can be amended in two degrees on the House or Senate floor. An amendment offered to the text of the measure itself is an amendment in the first degree. While a first degree amendment is pending (that is, after it has been offered but before it has been voted on), an amendment may be offered to the amendment. Such an amendment to a pending amendment is an amendment in the second degree. Although more complicated situations may arise, both chambers generally prohibit third degree amendments. (In the House, however, a substitute for a first degree amendment is amendable.) Roughly the same principles apply to amendments between the houses. For more detailed descriptions of these procedures, see CRS Report 98-85 3, The Amending Process in the Senate, by Betsy Palmer and CRS Report 98-995, The Amending Process in the House of Representatives, Christopher M. Davis. 12 The House or Senate may consider a third degree amendment by unanimous consent. In the House, it also may be considered under suspension of the rules or pursuant to a special rule. 13 The terms “recede,” “insist,” and “adhere” have technical meanings in the legislative process. When the House or Senate “recedes,” it withdraws from a previous position or action. To “insist” and to “adhere” have essentially the same meaning but are terms used at different stages of the process. 14 The same applies to a Senate bill with Senate amendments to House amendments, and to a House bill with Senate amendments to House amendments to Senate amendments.

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This possibility is discussed in the section on floor consideration of conference reports. However, the House may amend the instructions (if it has not already ordered the previous question on the motion). Such an amendment must be germane to either the House or Senate versions of the bill, but not necessarily to the instructions to which the amendment is proposed. 18 It is possible for Senate conferees to be instructed by resolution while a bill is in conference. 16 Because the motion to instruct may be made only before the conferees are named, it is less likely to be viewed as a challenge to the intentions of the Members appointed as managers. 19 Clause 5 of House Rule XXII also restricts the authority of House conferees to include certain kinds of Senate amendments in conference reports on general appropriations bills. These restrictions are discussed in the section on amendments in technical disagreement. 20 Conference reports also are subject to points of order if they violate certain provisions of the Budget Act. 21 Riddick’s Senate Procedure, p. 484. 22 Ibid., p. 463. 23 For more information, see CRS Report RS22733, Senate Rules Changes in the 110th Congress Affecting Restrictions on the Content of Conference Reports, by Elizabeth Rybicki. 24 For more information on the applicability of Paragraph 8 of Rule XLIV, see a letter from the Majority Leader inserted into the Congressional Record (Congressional Record, daily edition, vol. 153 (September 24, 2007), pp. S11993-S 11994). 25 For more information on discretionary and direct spending, see CRS Report RS2037 1, Overview of the Authorization- Appropriations Process, by Bill Heniff Jr. 26 The “Sense of the Senate on Conference Committee Protocols” was included in the Honest Leadership and Open Government Act of 2007 (P.L. 110-81, sec. 515). 27 The preparation of such documents is not required, but they are particularly useful to help conferees identify and compare the corresponding House and Senate provisions of large and complex bills. These “side-by-sides”, as they often are called, sometimes are available from the House or Senate committee of jurisdiction. However, they are not generally available for public distribution to the same extent as House and Senate reports and documents, for example. 28 This practice is stated in Section XLVI of Jefferson’s Manual. 29 Rather than violate the customary order for considering conference reports, the same end can be achieved by arranging for one house to request the conference instead of agreeing to a request by the other. 30 In contemporary practice, adjournment resolutions usually are not approved until very shortly before the adjournment takes place. This often makes it impossible to know when the “last six days” begin. To achieve the same end, the House may adopt, as the end of the session approaches, a resolution reported from the Rules Committee that triggers certain provisions of House rules and waives others for the duration of the session. 31 Such a resolution always is in order, notwithstanding the usual requirement that a twothirds vote is necessary for the House to consider a resolution from the Rules Committee on the same day the resolution is reported. 17

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Several exceptions — for example, while the Journal is being read or a quorum call is in progress — are listed in paragraph 1 of Rule XXVIII. 33 For more information, see CRS Report RS22733, Senate Rules Changes in the 1 10th Congress Affecting Restrictions on the Content of Conference Reports, by Elizabeth Rybicki. 34 The form of the motion depends on what the House and Senate sent to conference. Very often, a House bill and a Senate amendment are sent to conference. The motion in that case would be for the Senate to recede from its amendment and concur in the House bill with a further Senate amendment consisting of the conference committee compromise without the “new matter” or “new directed spending provision.” If a Senate bill and House amendment were sent to conference, the motion would be that the Senate recede from its disagreement to the House amendment and concur in the House amendment with a further amendment. 35 Paragraph 4(b)(2) of Rule XXVIII; Paragraph 8(b)(2) of Rule XLIV. 36 However, floor amendments to amendments in disagreement still must meet normal requirements for floor amendments. For example, a House amendment to a Senate amendment in disagreement to a general appropriations bill still must be germane and may not propose a new unauthorized appropriation, even though the Senate amendment in disagreement may itself provide an unauthorized appropriation. 37 Such motions are not likely to be made in practice, for reasons discussed in the section on House consideration of Senate amendments. 38 Additional complications are possible. If a motion to concur with an amendment, or to recede and concur with an amendment, is made and rejected, another such motion could be made proposing a different germane amendment. Alternatively, if the previous question is not ordered on a motion to concur with an amendment (or a motion to recede and concur with an amendment), a germane second degree amendment could be offered to the amendment. 39 As discussed earlier, however, the Senate interprets its rules in a way that gives its conferees considerable latitude, and the House can waive points of order by adopting a special rule for that purpose. 40 The House usually acts first on partial conference reports and amendments in technical disagreement because they arise most often on general appropriations bills which originate in the House (and on which the Senate usually requests conferences). 41 The Speaker first entertains any points of order against the report as a whole (on grounds of scope, for example) before entertaining points of order concerning germaneness. 42 If the House rejects nongermane matter in a conference report accompanying a Senate measure that the House had amended, the House votes instead on insisting further on the House amendment to the Senate bill.

In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.

Chapter 2

CONGRESSIONAL REVIEW OF AGENCY RULEMAKING: AN UPDATE AND ASSESSMENT OF THE CONGRESSIONAL REVIEW ACT * AFTER TEN YEARS Morton Rosenberg SUMMARY On March 29, 1996, the President signed into law the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat. 857-874, Subtitle E of which for the first time established a mechanism by which Congress can review and disapprove, by means of an expedited legislative process, virtually all federal agency rules. In its current form, however, some have questioned the efficacy of the review scheme as a vehicle to control agency rulemaking through the exercise of legislative oversight. These questions have been raised despite the use of the CRA to nullify OSHA' s controversial ergonomics standards in March 2001. In the view of some observers, the OSHA action was the result of a unique confluence of circumstances not likely to soon recur: the White House and both Houses of Congress in the hands of the same political party, a contentious rule promulgated in the waning days of an outgoing administration; longstanding opposition to the rule by some in Congress and by a broad coalition of business interests; and encouragement of repeal by the President. On the other hand, some maintain that a number of major rules have been affected by the Agency recognition of the existence of the review mechanism, and argue that the review scheme has had a significant influence. Among potential impediments to the law's use, the scheme provides no expedited consideration procedure in the House of Representatives; there is no screening mechanism to identify rules that may require special congressional attention; and a disapproval resolution of a significant or politically sensitive rule is likely to need a supermajority to be successful if

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control of the White House and the Congress are in different political hands, as was the case between April 1996 and January 2001. Moreover, a number of critical interpretive issues remain to be resolved, including the scope of the provisions' coverage of rules; whether an agency failure to report a covered rule is subject to court review and sanction; whether a joint resolution of disapproval may be utilized to veto parts of a rule or only may be directed at the rule in its entirety; and what is the scope of the limitation that precludes an agency from promulgating a "substantially similar" rule after disapproval of a rule. Some might argue that these potential impediments and uncertainties have contributed to the fact that of a total of 37 joint resolutions of disapproval that have been introduced to date since April 1996, only one has succeeded in passing and that one may have been sui generis because of the unique circumstances accompanying its passage. During that period 41,218 major and non- major rules have been reported and become effective. This chapter will provide a brief explanation of how the structure of review scheme describes the criticisms of a some observers concerning the way it has been utilized.

INTRODUCTION On March 29, 1996, the President signed into law the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat. 857-874, Subtitle E of which for the first time established a mechanism by which Congress can review and disapprove, by means of an expedited legislative process, virtually all federal agency rules. In its current form, however, some have questioned the efficacy of the review scheme as a vehicle to control agency rulemaking through the exercise of legislative oversight. These questions have been raised despite the use of the CRA to nullify OSHA' s controversial ergonomics standard in March 2001. It has been argued that the action on the OSHA proposal was the result of a unique confluence of circumstances not likely to soon recur: the White House and both Houses of Congress in the hands of the same political party, a contentious rule promulgated in the waning days of an outgoing administration; longstanding opposition to the rule by some in Congress and by a broad coalition of business interests; and encouragement of repeal by the President. On the other hand, some maintain that a number of major rules have been affected by Agency recognition of the availability of the review mechanism, and argue that the review scheme has had a significant influence. Those who maintain that the CRA has not been appropriately utilized assert that the current procedure provides no expedited consideration procedure in the House of Representatives; lack of screening mechanism to identify rules that may require special congressional attention; and, that a disapproval resolution of a significant or politically sensitive rule is likely to need a supermajority to be successful if control of the White House and the Congress are in different political hands. They further maintain that a number of critical interpretive issues and questions remain to be resolved, including the scope of the provisions' coverage of rules; whether an agency failure to report a covered rule is subject to court review and sanction; whether a joint resolution of disapproval may be utilized to veto parts of a rule or only may be directed at the rule in its entirety; and what is the scope of the *

This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30116, dated March 29, 2006.

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limitation that precludes an agency from promulgating a "substantially similar" rule after disapproval of a rule. From these critics' perspective potential impediments and uncertainties have contributed to the fact that of a total of 37 joint resolutions of disapproval that have been introduced to date since April 1996, only one has passed. They point out that during that period over 41,828 major and non-major rules have been reported and become effective. This chapter will provide a brief explanation of how the review scheme was expected to operate and describe how it has been utilized. The possible reasons for the relatively limited use of the formal review mechanism thus far are assessed and congressional possible proposals are discussed. Obviously, there are those who do not support increased utilization of the CRA review process. Those holding this opinion may represent a number of views including concern that expanded use of the process will lead to the disproportionate influence on Federal regulations by powerful interest groups or that many regulations have become too technical to be judged by "non-experts". However, since those holding these or similar views have been notably silent during recent discussions of CRA issues, this chapter does not attempt to predict or describe these positions.

REVIEW OF AGENCY RULES The congressional review mechanism, codified at 5 U.S.C. 801-808, and popularly known as the Congressional Review Act (CRA), requires that all agencies promulgating a covered rule must submit a report to each House of Congress and to the Comptroller General (CG) that contains a copy of the rule, a concise general statement describing the rule (including whether it is deemed to be a major rule), and the proposed effective date of the rule. A covered rule cannot take effect if the report is not submitted. Section 801(a)(1)(A). Each House must send a copy of the report to the chairman and ranking minority member of each jurisdictional committee. Section 801(a)(1)(C). In addition, the promulgating agency must submit to the CG (1) a complete copy of any cost-benefit analysis; (2) a description of the agency's actions pursuant to the requirements of the Regulatory Flexibility Act and the Unfunded Mandates Reform Act of 1995; and (3) any other relevant information required under any other act or executive order. Such information must also be made "available" to each House. Section 801(a)(1)(B). Section 804(3) adopts the definition of "rule" found at 5 U.S.C. 551(4) which provides that the term rule "means the whole or part of an agency statement of general ... applicability and future effect designed to implement, interpret, or prescribe law or policy."1 The legislative history of Section 551(4) indicates that the term is to be broadly construed: "The definition of rule is not limited to substantive rules, but embraces interpretive, organizational and procedural rules as well."2 The courts have recognized the breadth of the term, indicating that it encompasses "virtually every statement an agency may make,"3 including interpretive and substantive rules, guidelines, formal and informal statements, policy proclamations, employee manuals and memoranda of understanding, among other types of actions. Thus a broad range of agency action is potentially subject to congressional review. The Comptroller General and the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget have particular

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responsibilities with respect to a "major rule," defined as a rule that will likely have an annual effect on the economy of $100 million or more, increase costs or prices for consumers, industries or state and local governments, or have significant adverse effects on the economy. The determination of whether a rule is major is assigned exclusively to the Administrator of OIRA. Section 804(2). If a rule is deemed major by the OIRA Administrator, the CG must prepare a report for each jurisdictional committee within 15 calendar days of the submission of the agency report required by Section 801(a)(1) or its publication in the Federal Register, whichever is later. The statute requires that the CG' s report "shall include an assessment of the agency's compliance with the procedural steps required by Section 801(a)(1)(B)."4 Section 801(a)(2)(A). The CG has interpreted his duty under this provision relatively narrowly as requiring that he determine whether the prescribed action has been taken, i.e., whether a required cost-benefit analysis has been provided, and whether the required actions under the Regulatory Flexibility Act, the Unfunded Mandates Reform Act of 1995, and any other relevant requirements under any other legislation or executive orders were taken, not to examine the substantive adequacy of the actions. The designation of a rule as major also affects its effective date. A major rule may become effective on the latest of the following scenarios: (1) 60 calendar days after Congress receives the report submitted pursuant to Section 801(a)(1)5 or after the rule is published in the Federal Register; (2) if Congress passes a joint resolution of disapproval and the President vetoes it, the earlier of when one House votes and fails to override the veto, or 30 calendar days after Congress receives the veto message; or (3) the date the rule would otherwise have taken effect (unless a joint resolution is enacted). Section 801(a)(3). Thus the earliest a major rule can become effective is 60 calendar days after the later of the submission of the report required by Section 801(a)(1) or its publication in the Federal Register, unless some other provision of the law provides an exception for an earlier date. Three possibilities exist. Under Section 808(2) an agency may determine that a rule should become effective notwithstanding Section 801(a)(3) where it finds "good cause that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest."6 Second, the President may determine that a rule should take effect earlier because of an imminent threat to health or safety or other emergency; to insure the enforcement of the criminal laws; for national security purposes; or to implement an international trade agreement. Section 801(c). Finally, a third route is available under Section 801(a)(5) which provides that "the effective date of a rule shall not be delayed by operation of this chapter beyond the date on which either House of Congress votes to reject a joint resolution of disapproval under Section 802."7 All other rules take effect "as otherwise allowed by law" after having been submitted to Congress under Section 801(a)(1). Section 801(a)(4). Under the Administrative Procedure Act, a final rule may go into effect 30 days after it is published in the Federal Register in final form. 5 U.S.C. 553(d). An agency, in its discretion, may delay the effectiveness of a rule for a longer period; or it may put it into effect immediately if good cause is shown. All covered rules are subject to disapproval even if they have gone into effect. Congress has preserved for itself a review period of at least 60 days. Moreover, if a rule is reported within 60 session days of adjournment of the Senate or 60 legislative days of adjournment of the House, the period during which Congress may consider and pass a joint resolution of disapproval is extended to the next succeeding session of the Congress. Section 801(d)(1). Such held over rules are treated as if they were published on the 15th session day of the

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Senate and the 15th legislative day of the House in the succeeding session and as though a report under Section 801(a)(1) was submitted on that date. Section 801(d)(2)(A), (e)(2). But a held over rule takes effect as otherwise provided. 801(d)(3). The opportunity for Congress to consider and disapprove is simply extended so that it has a full 60 session or legislative days to act in any session. If a joint resolution of disapproval is enacted into law, the rule is deemed not to have had any effect at any time. Section 801(f). If a rule that is subject to any statutory, regulatory or judicial deadline for its promulgation is not allowed to take effect, or is terminated by the passage of a joint resolution, any deadline is extended for one year after the date of enactment of the joint resolution. Section 803. A rule that does not take effect, or is not continued because of passage of a disapproval resolution, may not be reissued in substantially the same form. Indeed, before any reissued or new rule that is "substantially the same" as a disapproved rule can be issued it must be specifically authorized by a law enacted subsequent to the disapproval of the original rule. Section 801(b)(2). Section 802(a) spells out the process for an up or down vote on a joint resolution of disapproval.8 A joint resolution of disapproval must be introduced within 60 calendar days (excluding days either House of Congress is adjourned for more than three days during a session of Congress) after the agency reports the rule to the Congress in compliance with Section 801(a)(1). Timely introduction of a disapproval resolution allows each House 60 session or legislative days to pass it and thereby get the benefit of expedited consideration procedures, retroactive nullification of an effective rule, and the limitation on an agency from promulgating a "substantially similar" rule without subsequent congressional authorization to do so by law. The law provides an expedited consideration procedure for the Senate. If the committee to which a joint resolution is referred has not reported it out within 20 calendar days after referral, it may be discharged from further consideration by a written petition of 30 Members of the Senate, at which point the measure is placed on the calendar. After committee report or discharge it is in order at any time for a motion to proceed to consideration. All points of order against the joint resolution (and against consideration of the measure) are waived, and the motion is not subject to debate, amendment, postponement, or to a motion to proceed to other business. If the motion to consider is agreed to, it remains as unfinished business of the Senate until disposed of. Section 802(d)(1). Debate on the floor is limited to 10 hours. Amendments to the resolution and motions to postpone or to proceed to other business are not in order. Section 802(d)(2). At the conclusion of debate an up or down vote on the joint resolution is to be taken. Section 802(d)(3).9 There is no special procedure for expedited consideration and processing of joint resolutions in the House. But if one House passes a joint resolution before the other House acts, the measure of the other House is not referred to a committee. The procedure of the House receiving a joint resolution "shall be the same as if no joint resolution had been received from the other House, but ... the vote on final passage shall be on the joint resolution of the other House." Section 802(f)(1)(2). Section 805 precludes judicial review of any "determination, finding, action or omission under this chapter." This would insulate from court review, for example, a determination by the OIRA Administrator that a rule is major or not, a presidential determination that a rule should become effective immediately, an agency determination that "good cause" requires a rule to go into effect at once, or a question as to the adequacy of a Comptroller General's

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assessment of an agency's report. The legislative history of this provision indicates that this preclusion of judicial review would not apply to a court challenge to a failure of an agency to report a rule. This appears not to be a judicially settled matter.10 Resolutions of Disapproval Introduced Under the Congressional Review Act (April 1996 - March 2006) Date of Number Resolution 104th Congress

Sponsor

Agency

Subject

Last Action

9/17/1996

Sen. Trent Lott

HCFA/ HHS

Hospital reimbursement under Medicare

Failed in passage in Senate by UC

Hearing (House Committee on Resources) Referred to Subcommittee of House Committee on Education and the Workforce Referred to Senate Committee on Labor and Human Resources Referred to Subcommittee of House Committee on Commerce Referred to Senate Committee on Finance

S.J.Res. 60

105th Congress 3/4/1997

H.J.Res. 59

Rep. Don Young (+5)

USFWS/ DOI

Polar bear trophies from Canada

3/20/1997

H.J.Res. 67 (Same as S.J.Res. 25)

Rep. Roger Wicker (+54)

OSHA/ DOL

Occupational exposure to methylene chloride

4/10/97

S.J.Res. 25 (Same as H.J.Res. 67)

Sen. Thad Cochran (+5)

OSHA/ DOL

Occupational exposure to methylene chloride

6/18/1997

H.J.Res. 81

Rep. Joe Scarborough

FCC

6/10/98

S.J.Res. 50 (Same as H.J.Res. 123)

Sen. Christopher Bond

6/17/1998

H.J. Res 123 (Same as S.J.Res. 50)

Rep. Jim Nussle (+65)

Revision of cable television leased commercial access rules HCFA/ Surety bond HHS requirements for home health agencies under Medicare and Medicaid programs HCFA/ HHS Surety bond requirements for home health agencies under Medicare and Medicaid programs

Referred to Subcommittees of House Committees on Ways and Means and Commerce

106th Congress 5/20/1999

H.J.Res. 55

Rep. Ron Paul USPS (+68)

Delivery of mail to a commercial mail receiving agency

7/13/2000

H.J.Res. 104

Rep. Ron Paul EPA

National pollutant discharge

Referred to Subcommittee of House Committee on Government Reform Referred to Subcommittee of

Congressional Review of Agency Rulemaking

7/17/2000

7/18/2000

7/18/2000

S.J.Res. 50 (Same as H.J.Res. 106) H.J.Res. 105

Sen. Michael Crapo (+18)

EPA

Rep. Marion Berry (+23)

EPA

H.J.Res. 106 (Same as S.J.Res. 50)

Rep. Jay Dickey

EPA

elimination system program and federal antidegradation policy and the water quality planning and management regulations concerning total maximum daily load Water pollution under the total maximum daily load program

43 House Committee on Transportation and Infrastructure

Referred to Senate Committee on Environment and Public Works Referred to Subcommittee of House Committee on Transportation and Infrastructure

Total maximum daily loads under the Federal Water Pollution Control Act Water pollution under Referred to the total maximum Subcommittee of daily load program House Committee on Transportation and Infrastructure

107th Congress 3/1/2001

S.J.Res. 6 (same as H.J.Res. 35; H.Res. 79 provided for its considera tion in the House) H.J.Res. 35 (same as S.J.Res. 6)

Sen. Don Nickles (+6)

OSHA/ DOL

Ergonomics

Became P.L. 1075 on 3/20/2001

Rep. Ann Northrup (+32)

OSHA/ DOL

Ergonomics

3/15/2001

H.J.Res. 38

Rep. Ron Paul (+14)

HHS

Standards for privacy of individually identifiable health information

3/20/2001

S.J.Res. 91

Sen. Barbara Boxer (+6)

USAID

Restoration of the Mexico City Policy

Referred to Subcommittee of House Committee on Education and Workforce Referred to Subcommittees of House Committees on Energy and Commerce, Ways and Means, and Education and the Workforce Referred to Committee on Foreign Relations

3/7/2001

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Date of Resolution 4/4/2001

Number

Sponsor

Agency

Subject

H.J.Res. 43

Rep. Joe Knollenberg

DOE

Residential central air conditioners and heat pumps

4/4/2001

H.J.Res. 44

Rep. Joe Knollenberg

DOE

5/22/2001

S.J.Res. 14

Sen. Barbara Boxer

EPA

5/22/2001

S.J.Res. 15

Sen. Barbara Boxer

DOE

5/14/2002

H.J.Res. 92 (Same as S.J.Res. 37)

Rep. Eliot Engel HHS (+56)

5/14/2002

S.J.Res. 37 (Same as H.J.Res. 92)

Sen. Paul CMS/ HHS Wellstone (+13)

10/8/2002

S.J.Res. 48 (Same as H.J.Res. 119)

Sen. John McCain (+10)

FEC

10/8/2002

H.J.Res. 119 (Same as S.J.Res. 48)

Rep. Christopher Shays (+1)

FEC

Rep. William Thomas (+106)

CMS/ HHS

Last Action

Referred to Subcommittee of House Committee on Energy and Commerce Clothes washers Referred to Subcommittee of House Committee on Energy and Commerce Delay in the Referred to Senate effective date of Committee on new arsenic Environment and standard Public Works Postponement of the Hearing by Senate effective date of Committee on energy conservation Energy and Natural standards for central Resources air conditioners (7/13/2001) Modification of Referred to Medicaid upper Subcommittee of payment limit for non- House Committee on State government Energy and owned or operated Commerce hospitals Modification of upper Referred to Senate payment limit for non- Committee on State Finance government owned or operated hospitals Prohibited and Referred to Senate excessive Committee on contributions: nonRules and federal Administration funds or soft money Prohibited and Referred to House excessive Committee on House contributions: nonAdministration federal funds or soft money

108th Congress 1/7/2003

H.J.Res. 3

Revisions to payment policies under the Medicare physician fee schedule for calendar year 2003 and

Referred to House Committees on Energy and Commerce and Ways and Means

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other items 3/20/2003

H.J.Res. 41

Rep. Lane Evans

5/22/2003

H.J.Res. 58

Rep. Thomas Treasury Trancredo (+7)

7/15/2003

S.J.Res. 17 (Same as H.J.Res. 72)

Sen. Byron Dorgan (+24)

FCC

10/16/2003 H.J.Res. 72 (Same as S.J.Res. 17)

Rep. Maurice Hinchey (+2)

FCC

4/7/2004

S.J.Res. 31 (Same as H.R. 4236) S.J.Res. 32 (Same as H.R. 4237) H.R. 4236 (Same as S.J.Res.

Sen. John Edwards

OCC

Sen. John Edwards

OCC

H.R. 4237 (Same as S.J.Res.

Rep. Luis OCC Gutierrez (+35)

4/7/2004

4/28/2004

4/28/2004

DVA

Rep. Luis OCC Gutierrez (+35)

Acquisition procedures Referred to House for health-care Committees on resources Veterans Affairs and Government Reform Section 326(a) of USA Referred to PATRIOT ACT Subcommittee of (acceptance of certain House Committee on unverifiable Financial Services forms of identification by financial institutions) Broadcast media Passed Senate ownership without amendment by YeaNay vote (5540); not acted on by the House Broadcast media Referred to ownership Subcommittee of House Committee on Energy and Commerce Bank activities and Referred to Senate regulations Committee on Banking, Housing, and Urban Affairs Bank activities and Referred to Senate regulations Committee on Banking, Housing, and Urban Affairs Bank activities and Referred to regulations Subcommittee of House Committee on Financial Services Bank activities and Referred to regulations Subcommittee of House Committee on Financial Services

109th Congress 2/14/2005

S.J.Res. 4 (Same as H.J.Res. 24)

Sen. Kent Conrad (+8)

Agriculture

2/17/2005

H.J.Res. 23 (Same as S.J.Res. 4)

Rep. Herseth (+1)

Agriculture

Establishment minimal risk zones for introduction of mad cow disease Establishment of minimal risk zones for introduction of mad cow disease

Passed Senate by 5246 Yea-Nay vote 3/3/05; not acted on by House Referred to House Agriculture Committee. No action taken

46

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Date of Resolution 2/17/2005

6/29/2005

6/29/2005

Number

Sponsor

Agency

H.J.Res. 23 (Same as S.J.Res. 4) S.J.Res. 20 (Same as H.J.Res. 56)

Rep. Herseth (+1)

Agriculture

Sen. Leahy (+31)

EPA

H.J.Res. 56 (Same as S.J.Res. 20)

Rep. Meehan (+4)

EPA

Subject

Establishment of minimal risk zones for introduction of mad cow disease Removal of coal and oil-fired generating units from list of major sources of hazardous pollutants Removal of coal and oil-fired generating units from list of major sources of hazardous pollutants

Last Action

Referred to House Agriculture Committee. No action taken Defeated in Senate by 47-51 vote, 9?13/05

Referred to Committee on Energy and Commerce. No action taken

Note: Not included in this tabulation are bills designed to disapprove agency rules but that were not joint resolutions under the Congressional Review Act. For example, H.R. 3735, introduced on April 28, 1998, by Rep. Ron Paul, was intended to disapprove a rule requiring the use of bycatch reduction devices in the shrimp fishery of the Gulf of Mexico. The bill was in response to Amendment 9 to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico, issued as a final rule implementing the amendment on April 14, 1998. The bill's findings section indicated that approval of the amendment was inconsistent with the requirements of the Magnuson-Stevens Fishery Conservation Act and the Administrative Procedure Act. The disapproval section indicated that the rule "shall have no force or effect."

Finally, the law provides a rule of construction providing that a reviewing court shall not draw any inference from a congressional failure to enact a joint resolution of disapproval with respect to such rule or a related statute. Section 801(g).

UTILIZATION OF THE REVIEW MECHANISM SINCE 1996 As of March 24, 2006, the Comptroller General had submitted reports pursuant to section 801(a)(2)(A) to Congress on 610 major rules11 In addition, GAO had cataloged the submission of 41,218 non-major rules as required by Section 801 (a) (1) (A). To date, 37 joint resolutions of disapproval have been introduced relating to 28 rules. One rule, OSHA' s ergonomics standard in March 2001, has been disapproved, an action that some believe to be unique to the circumstances of its passage. Two other rules have been disapproved by the Senate. One, the Federal Communication Commission's 2003 rule relating to broadcast media ownership was disapproved by the Senate during the 108th Congress but was not acted upon by the House. The second, a 2005 Department of Agriculture rule relating to the establishment of minimal risk zones for introduction of bovine spongiform encephalopathy (Mad Cow Disease) was disapproved on March 3, 2005, but its counterpart, H.J.Res. 23, has not yet been acted upon by the House. A third joint resolution, S.J.Res. 20, seeking

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47

disapproval of a rule promulgated by the Environmental Protection Agency to delist coal and oil-direct utility units from the new source category list under the Clean Air Act, was defeated in the Senate by a vote of 47-51 on September 13, 2005. The following chart details the subjects and actions taken on the introduced resolutions. 1. On June 22, 2001, Senator Boxer also introduced S.J.Res. 17, which was intended to disapprove a memorandum issued by the President on March 29, 2001, (66 FR 17301) restoring the Mexico City Policy. However, the Congressional Review Act does not apply to actions by the President. See text at pp. 16-17. OSHA' s ergonomics standard had been controversial since the publication of its initial proposal for rulemaking in 1992 during the Bush Administration.12 OSHA circulated a draft proposal in 1994 which was met with strong opposition from business interests and the formation of an umbrella organization, the National Coalition on Ergonomics, to oppose its adoption. In 1995 OSHA circulated a modified draft proposal, particularly with respect to coverage and regulatory requirements. At the same time, congressional opposition resulted in appropriations riders that prohibited OSHA from promulgating proposed or final ergonomics proposals during the fiscal years 1995, 1996, and 1998.13 The riders did not prohibit OSHA from continuing its development work, however, which included responding to concerns that scientific knowledge of ergonomics was inadequate for rulemaking and that the cost of industry implementation of a broad standard would be extraordinarily costly. Congress mandated reports from the National Academy of Sciences which found a significant statistical link between workplace exposures and musculoskeletal disorders, but also noted that the exact causative factors and mechanisms are not understood. In 2000, congressional attempts to pass another appropriation rider, as well as stand alone prohibitory legislation, failed, and on November 14, 2000, OSHA issued its final standard which became effective on January 16, 200114 Most employer responsibilities under the new standard, however, were not to begin until October, 2001. As soon as the rule was issued two industry groups filed suit in the Court of Appeal for the District of Columbia Circuit challenging OSHA' s authority to issue the rule, its failure to follow proper procedures, the rationality of its provisions, and the adequacy of its scientific and economics analyses. The intervening 2000 elections also altered the political situation with the election of a president and effective control of both Houses of Congress in the same political party. Opponents of the standard introduced a resolution of disapproval under the CRA, S.J.Res. 16, on March 1, 2001. A discharge petition was filed on March 5, and debate on and passage of the resolution occurred on March 6 by a vote of 56-44. That evening the House Rules Committee issued a rule for floor action the next day, and after an hour of debate H.J.Res. 35 was passed on March 7 by a vote of 223-206. The President signed the nullifying measure into law on March 20, 2002.15 In sum, the veto of the ergonomics standards could be seen as the product of an unusual, confluence of factors and events: control of both Houses of Congress and the presidency by the same party, the longstanding opposition by these political actors, as well as by broad components of the industry to be regulated, to the ergonomics standards, and the willingness and encouragement of a president seeking to undo a contentious, end-of-term rule from a previous administration. In all other cases, if there is any discernible pattern to the introduced resolutions, it is to exert pressure on the subject agencies to modify or withdraw the rule, or to elicit support of members, which in some instances was successful. For example, H.J.Res. 67 (1997) was

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Morton Rosenberg

aimed at disapproving an Occupational Health and Safety Administration (OSHA) rule setting exposure limits on methylene chloride, a paint stripper used in the furniture and airplane industries. Its sponsor, Representative Roger Wicker, contended that the rule would harm small businesses without increasing protections for workers. The disapproval resolution never received a floor vote. But the Congressman succeeded in effecting a compromise through the inclusion of provisions in the FY1998 Labor, HHS and Education appropriations measure16 which required OSHA to provide on-site assistance for companies to comply with the new rules without fear of penalty. Mr. Wicker is reported to have stated that he used the disapproval resolution as a vehicle to gather support from influential members, including the chairs of the House Appropriations and Commerce Committees.17 The disapproval resolution mechanism was effectively utilized to accomplish the suspension of a highly controversial rulemaking by the then-Health Care Financing Administration (HCFA). In January 1998, HCFA issued a rule requiring that home health agencies (HHAs) participating in the Medicare program must obtain a surety bond that is the greater of $50,000 or 15 percent of the annual amount paid to the HHA by the Medicare program. In addition, a new HHA entering the Medicare or Medicaid program after January 1, 1998, had to meet a capitalization requirement by showing it actually had available sufficient capital to start and operate the HHA for the first three months. The rule was issued without the usual public participation through notice and comment and was made immediately effective. Substantial opposition to the rule quickly surfaced from both surety and HHA industry representatives. HCFA attempted to remedy the complaints by twice amending the rule, in March and in June, but was unsuccessful in quelling the industry-wide concerns. On June 10, Senator Bond, for himself and 13 other cosponsors, introduced S.J.Res. 50 to disapprove the June 1 HCFA rule. Within a short period, the disapproval resolution had garnered 52 sponsors. On June 17, a companion bill, H.J.Res. 123, was introduced in the House. Thereafter, members of the staffs of Senators Bond, Baucus, and Grassley (all members of the Senate Finance Committee with jurisdiction over the agency) met with HCFA officials and concluded an agreement that (1) the agency would suspend its June 1, 1998 rule indefinitely; (2) a General Accounting Office report would be requested by the committee that would study the issues surrounding the surety bond requirement; (3) on completion and issuance of the GAO report, HCFA would work in consultation with the Congress about the surety bond requirement; and (4) any new rule would not be effective earlier than February 15, 1999, and would be preceded by at least 60 days prior notice. The agreement was memorialized in a June 26 letter to HCFA signed by Senators Bond, Baucus and Grassley.18 The GAO report was issued on January 29, 1999, but the rule suspension was never lifted. No floor vote on the disapproval resolutions occurred in either House. Another illustration of the manner in which the review mechanism has been utilized is shown by S.J.Res. 60 (1996), concerning another HCFA rule, this one dealing with the agency's annual revision of the rates for reimbursement of Medicare providers (doctors and hospitals), which normally would have been effective on October 1, 1996. HCFA, however, submitted the rule to Congress on August 30, 1996, and since it was a major rule, it could not go into effect for 60 days, or until October 29, which meant there would be a significant loss of revenues because the differential rate increases could not be imposed for most of the month of October. Section 801(a)(5), however, provides that if a joint resolution of disapproval is rejected by one House, "the effective date of a rule shall not be delayed by operation of this chapter..." On the morning of September 17, 1996, Senator Lott introduced S.J.Res. 60 and

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49

that afternoon, by unanimous consent, the resolution "was deemed not passed."19 The HCFA rule went into effect on October 1 as scheduled. A final interesting utilization of the CRA process that had an impact and resulted in an unusual outcome, involved President George W. Bush's restoration, on February 15, 2001, of President Reagan's so-called Mexico City Policy, which limited the use of federal and nonfederal monies by non-governmental organizations (NGOs) to directly fund foreign population planning programs which support abortion or abortion-related activities. President Clinton had rescinded the 1984 Reagan policy when he took office in January 1993.20 A president's authority to determine the terms and conditions on which such NGOs may engage in foreign population planning programs derives from the Foreign Assistance Act of 1961.21 The provision vests the authority to make these determinations exclusively in the Chief Executive. President Reagan delegated his authority to make the determinations to the Administrator of the U.S. Agency for International Development (AID), who issued regulations that specified the conditions upon which grants would be given to NGOs. Thus, when the Mexico City Policy was rescinded in 1993, it was the AID Administrator that did it, at the direction of President Clinton. When President Bush restored it in 2001, he did it in a directive to the AID Administrator22 who simply revived the old conditions by internal agency administrative action. A number of Senate opponents of the policy filed a disapproval resolution on March 20, 2001, S.J.Res. 9, to nullify the Administrator's action, reasoning that it was a covered rule under the CRA since the implementing action was taken by an executive agency official and not by the President himself, and thus was reviewable by Congress.23 The President responded by rescinding his earlier directive to the AID Administrator and thereafter issuing an executive directive under his statutory authority personally implementing the necessary conditions and limitations for NGO grants.24 The presidential action mooted the disapproval resolution, and rendered a subsequent attempt to veto by S.J.Res. 17 ineffective because the CRA does not reach such actions by the President.

DISCUSSION In the ten years since its passage, the CRA process has been used sparingly. Several criticisms and questions concerning the process have been raised by those supporting the wider use of the regulatory disapproving mechanism. These have included a need for a screening mechanism for submitted rules; the absence of an expedited procedure in the House of Representatives for consideration of disapproval resolutions;the deterrent effect of the need for a supermajority to overcome a veto; the scope of the law's coverage; the judicial enforceability of its key requirements; whether a disapproval resolution may be directed at part of a rule; and the effect of a rule nullification on future agency rulemaking in the same area, which, critics believe, have introduced uncertainties and impediments to concerning the use of the process.

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Morton Rosenberg

1. Lack of a Screening Mechanism to Pinpoint Rules that Need Congressional Review; Proposals for Change Proponents of an expanded use of the CRA process have called for screening mechanism that will alert committees to rules that may raise important or sensitive substantive issues. In this view, their perceived lack prevents busy committees from prioritizing such issues. As indicated above, the Comptroller General's reports on major rules serve as check lists as to whether legally required agency tasks have been done and not as substantive assessments of whether they were done properly or whether the rules accord with congressional intent. Lack of knowledge of the existence of such sensitive rules by jurisdictional committees or interested Members is rarely the case. What critics say is absent is in- depth scrutiny and analysis of individual rules by an authoritative and presumably neutral source that may provide the basis for triggering meaningful congressional review. Support for an independent substantive screening body was signaled by the introduction by Representative Sue Kelly of H.R. 1704 in the 105th Congress, a bill that would have established a Congressional Office of Regulatory Analysis.25 The bill was referred to the House Judiciary and Governmental Reform and Oversight Committees both of which favorably reported differing versions of the legislation.26 Both versions would have established an independent Congressional Office of Regulatory Analysis (CORA) to be headed by a director appointed by the House Speaker and the Senate Majority Leader for a term of four years, with service in the office limited to no more than three terms. The current review functions of the Comptroller General under the CRA and the Congressional Budget Office under the Unfunded Mandates Act of 1995 would be transferred to the proposed CORA. The Judiciary Committee's version, in addition to having the Office make "an assessment of an agency's compliance with the procedural steps for 'major rules' required by CRA, directs the proposed CORA to "conduct its own regulatory impact of these `major rules.27 The bill as reported by the Government Reform Committee would have allowed the CORA director to use "any data and analyses generated by the Federal agency and any data of the Office" in analyzing the submitted rule. Both bills provided that a similar analysis of nonmajor rules was to be conducted when requested to do so by a House or Senate Committee or by individual members of either House. First priority for the conduct of such analyses was given to all major rules. Secondary priority was assigned to committee requests. Tertiary priority was given individual member requests. Finally, under the Judiciary Committee version, the report was to be furnished within 45 days after Congress receives notification of the rule; the Governmental Reform bill would have allowed 30 days. H.R. 1704 received no floor action during the 105th Congress. Critics maintain that an independent office of regulatory analysis would serve the congressional need for objective information necessary to evaluate agency regulations. In their view, it would also provide credibility and impetus for wider utilization of the review mechanism. Further, by providing intensive review of certain non-major rules, the possibility of OIRA "hiding" significant rules by not designating them as "major" is forestalled. Those opposing the establishment of an office of this kind might argue that creation of a new congressional bureaucracy for review purposes would be unnecessarily duplicative of what the agencies have already done as well as extraordinarily expensive. The requirement of the Judiciary Committee's version that a CORA do its own cost-benefit analysis from scratch

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51

could be pointed to as an unknown cost factor, as well as a task that may not be possible to perform adequately within the allotted 45 days. Congress agreed upon a limited test of the CORA concept, late in the 106th Congress, with the passage of the Truth in Regulating Act of 2000.28 That legislation established a three year pilot project for the General Accounting Office (now renamed the Government Accountability Office (GAO)) to report to Congress on economically significant rules. Under this pilot program, whenever an agency published an economically significant proposed or final rule a chairman or ranking minority member of a committee of jurisdiction of either House of Congress may request the Comptroller General (CG) to review the rule. The CG was to report on each rule within 180 calendar days. The report had to contain an "independent evaluation" by the CG of the agency's cost-benefit analysis. We are aware of only one request ever made pursuant to the provision. That was submitted in January 2001 by the chairs of the jurisdictional committees of the House and Senate with respect to the Department of Agriculture's forest planning and roadless area rule. GAO advised the requesters that although Act authorized $5 2 million per year for the program, no monies had been appropriated and it could not proceed with the request. No further action was taken on the request and Congress never enacted an appropriation, thereby forestalling implementation of the project. It may be noted that the 180-day reporting period did not mesh exactly with the time period under the CRA for consideration of rules subject to resolution of disapproval, although completed requests for analyses of proposed rules might coincide with such reviews. In any event, the pilot program established by the act expired in January 2004. In the 109th Congress, Representative Sue Kelly introduced H.R. 1167, which would make permanent the authority of Congress to request GAO to perform regulatory analyses. The new Truth in Regulating Act (TWA), if enacted as a permanent responsibility of GAO, would not appear that require a specific appropriation to require agency performance of the vested task as was the case when it was established as a "pilot project." It would, in effect, be an unfunded mandate. Although GAO currently does (and historically has always done) some reviews of agencies' rules at Members' requests under its current appropriations, both the volume and nature of the reviews are likely to be substantially different and may affect its ability to conduct other agency reviews. A similar bill, H.R. 725, section 5, would also make TIRA permanent, but would authorize up to $5 million for the revenues. Although GAO may view this bill as preferable, if the authorized funds are not appropriated, GAO could be in the same "unfunded mandate" situation as it would under H.R. 1167. In an apparent attempt to avoid the criticisms of the CORA model and to remedy some of the perceived impediments to the effectiveness of the CRA, Representative Ginny BrownWaite introduced H.R. 3356, the Joint Administrative Procedures Committee Act of 2003, in the 108th Congress which would amend the CRA by establishing a joint congressional committee with broad authority to investigate, evaluate and recommend actions with respect to the development of proposed rules, the amendment or repeal of existing rules, and disapproval of final rules submitted for review under the CRA.29 The responsibilities are in addition to the current statutory framework providing for review of new rules that are required to be reported. A new provision permits the joint committee to recommend disapproval of new rules to jurisdictional committees. The proposed Joint Administrative Procedures Committee (JAPC) would be composed of 12 members from each House with no more than 7 from one political party, selected by the Senate Majority Leader and the Speaker of the House. The JAPC would receive all agency submissions of covered rules and provide

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copies to all jurisdictional committees. The JACP has sixty days to consider the rule. The agency could be required to submit such reports as is required by the joint committee such as a cost-benefit analysis or risk assessment. If no action is taken by JACP, the rule may go into effect. If a majority determines that rule is inconsistent with congressional intent in the area, JACP may recommend a disapproval resolution to the House and Senate jurisdictional committees. In its report to the jurisdictional committees JACP is to pinpoint the objectionable provisions of the rule. The proposal would establish a new expedited consideration procedure for disapproval resolutions in the House of Representatives. On the third legislative day after a joint resolution is recommended by JACP, it is in order for any member of the House to move to proceed to consideration of the disapproval resolution. It is a privileged, non-debatable motion and once agreed to must be considered before any other business under expedited procedures. Only one hour of debate would be allowed. Finally, Section 801(b)(2) of the CRA is amended to provide that an agency may promulgate a new rule without new statutory authorization if it carries out the recommendation set forth in the report submitted by the JACP to the jurisdictional committees. The bill was referred to the House Committees on Rules and Judiciary. The Judiciary Committee referred it to its Subcommittee on Commercial and Administrative Law. No action was taken by either Committee. Representative Brown-Waite' s proposal was reintroduced in the 109th Congress as H.R. 3148 but has received no action as yet. Another bill, H.R. 576, introduced by Representative Ney in the 109th Congress, is similar in many respects to H.R. 3148, but quite different in certain fundamental ways. Both would create a 24 member House-Senate joint committee capable of holding hearings, requiring the attendance of witnesses, and making rules regarding its organization and procedures. Both also provide for an expedited consideration procedure in the House. Significant differences appear, however, with respect to the roles assigned to the joint committees. Under H.R. 3148, the current process established by the CRA for congressional review of new agency rules is maintained: required reports on new rulemakings are submitted to each House and such reports are sent to the jurisdictional committees of each House for action. Rules required to be reported are also sent to the joint committee. Special rules are provided for discharge from committees in the Senate and, under proposed H.R. 3148, from House committees. Expedited procedures are in effect for floor proceedings in each House. The only part to be played by the joint committee in the new rule review process under H.R. 3148 is to recommend to jurisdictional committees that certain submitted new rules be subject to disapproval resolutions. Deference to the current roles of jurisdictional committees is also maintained under H.R. 3148 with respect to the new duties given to the joint committee to selectively review existing federal agency rules in effect before the enactment of the CRA and existing major rules of federal agencies promulgated since April 1996. The joint committee may only recommend to jurisdictional committees that they take appropriate legislative action to amend or repeal such laws. Under H.R. 576, the joint committee, rather than the jurisdictional committees of each House, receives the report of covered rules submitted for review by federal agencies as well as cost-benefit analyses and other materials. Jurisdictional committees receive copies of these materials from the joint committee. GAO is to submit its report on major rules to the joint committee, not the jurisdictional committees concerned. Major rules take effect no earlier than 60 days after the rule is published in the Federal Register or is received by the joint committee. Joint resolutions of disapproval are reported by the joint committee to the

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respective Houses for action. The joint committee may also report "by bill ... recommendations with respect to matters within the jurisdiction of their respective Houses which are referred to the joint committee or otherwise within the jurisdiction of the joint committee." It would appear, then, that the joint committee would have the predominant role in the congressional review process, which might inject a highly controversial issue -diminution of the role of jurisdictional committees - in a reform debate already freighted with difficult and sensitive political and legal considerations. A third bill introduced in the 109th Congress is H.R. 931, by Representative Hayworth, would prohibit any regulation proposed by a federal agency from going into effect until a bill enacted under expedited consideration procedures applicable to to the rule is signed into law. The term "regulation" is given the broad meaning of the term "rule" as defined in 5 U.S.C. 551(4). The bill does not specifically reference the current CRA process. In fact, it would supercede it and require rulemaking agencies to seek approval of all covered "regulations." There is no provision for congressional processing in a timely and expeditious manner a potentially huge member proposed regulations.

2. Lack of an Expedited House Procedure Those unsatisfied with the current procedure indicate that the current absence of an expedited consideration procedure in the House of Representatives may well be a factor affecting use of the process in that body since, as a practical matter, it will mean engaging the House leadership each time a rule is deemed important enough by a committee or group of Members to seek speedy access to the floor. In view of the limits both on floor time and the ability to gain the attention of the leadership, it is argued that only the most well situated in the body will be able to gain access within the limited period of review.30 It is also maintained that a perception that no action will be taken in the House might deter Senate action.

3. The Deterrent Effect of the Ultimate Need for a Supermajority to Veto a Rule A consideration that critics maintain limits expanded use of the full CRA review mechanism has been the realization that any joint resolution disapproving a rule that does not have the support of the administration would be vetoed and require a two-thirds vote in each House to override. The deterrent potential of the need for a supermajority in each House to overcome a presidential veto is likely to be significant, unless the object of the exercise is simply to provide the impetus for informal accommodations, such as occurred in the HCFA surety bond matter, or to influence Members to support alternative legislation. Critics assert that a realization by agencies over time that passage of a disapproval resolution is highly unlikely could substantially reduce the efficacy of such a threat. Additionally, they maintain that a possible consequence of such an assumption is that agencies will not factor in congressional disapproval as part of the rule development process.31 Since the ergonomics veto, 19 resolutions of disapproval with respect to 14 rules have been introduced, only one of which has been acted upon ( by one House),32 which some see as a return to the prior practice of using the mechanism to facilitate bargaining.

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Thus, even with the successful disapproval of the ergonomics standard, critics are concerned that the supermajority hurdle still remains. One solution they have proposed is to establish a multi-tiered disapproval mechanism. That is, instead of all rules, major or nonmajor, being treated equally in that they can only be overturned by a joint resolution of disapproval, a process in which the entire burden of action is on the Congress, some rules might be designated for more selective, special review. For example, they argue that major or significant rules might be subject to a joint resolution of approval. Under such a scheme a major or significant rule would not become effective unless a joint resolution approving it passed both Houses within a specified period of time.33 To make such a scheme effective someone or some body, other than the OIRA Administrator or a congressional agency, such as the proposed CORA, might be vested with the authority to designate which rules are "major" or "significant" and thereby subject to the affirmative approval requirement. A benefit from the critics' standpoint is that the burden for supporting and justifying such rules falls on the promulgating agencies. All other rules would be subject to disapproval resolutions. Another proposal is to subject all covered rules to congressional approval and establish an expedited procedure whereby non-controversial rules may be sped through leaving only a few for close consideration.34

4. The Reluctance to Disapprove an Omnibus Rule where only One Part of the Rule Raises Objection Section 808 of the review provision sets forth the mandatory text of any joint resolution of disapproval: "That Congress disapproves the rule submitted by the –––––– relating –––––, and such rule shall have no force or effect. (The blank spaces being appropriately filled in)." The quoted text refers to "the rule" and "such rule," indicating a rule in its entirety. The experience of 33 joint resolutions of disapproval thus far introduced is that the first blank is filled with the name of the promulgating agency and the second with a generic title or description of the rule.35 Similarly, the text of the review provision refers to "such rule," "a rule," or "the rule," with no language a expressly referring to a part of any rule under review. The procedure leading to a vote on the proposed disapproval resolution allows for no amendments, and the final vote is up or down on the joint resolution as introduced. The legislative history of the provision is similarly uniform in using language that would ordinarily indicate a reference to a submitted rule in its entirety, except in one instance. During a discussion of the Section 802 procedure that would obtain when one House completes its action on a joint resolution and sends to it to the other House before the second House has yet to complete any action, the following comment is made: ... Subsection 802(f) sets forth one unique provision that does not expire in either House. Subsection 802(f) provides procedures for passage of a joint resolution of disapproval when one House passes a j oint resolution and transmits it to the other House that has not yet completed action. In both Houses, the joint resolution of the first House to act shall not be referred to a committee but shall be held at the desk. In the Senate, a House-passed resolution may be considered directly only under normal Senate procedures, regardless of when it is received by the Senate. A resolution of disapproval that originated in the Senate may be considered under the expedited procedures only during the period specified in subsection

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802(e). Regardless of the procedures used to consider a joint resolution in either House, the final vote of the second House shall be on the joint resolution of the first House (no matter when that vote takes place). If the second House passes the resolution, no conference is necessary and the joint resolution will be presented to the President for his signature. Subsection 802(f) is justified because subsection 802(a) sets forth the required language of a joint resolution in each House, and thus, permits little variance in the joint resolutions that could be introduced in each House.36 (Emphasis supplied).

The last two sentences as seen by some as raising uncertainty. The next to last sentence would appear to contemplate the possibility of a conference to resolve differences in resolutions. The last sentence minimizes what those differences could be. Some have suggested that the explanation contemplates that parts of rules may be the subject of disapproval resolutions, arguing that the framers of the provision would have known that many rules are complex and contain a variety of provisions, only one or a few of which may be objectionable, and would not have required a whole rulemaking to be brought down simply because of one offending portion out of many It has also been argued that in light of the Section 801(b)(2) prohibition against agency issuance of a rule "in substantially the same form" after passage of a disapproval resolution unless Congress by subsequent law authorizes it, not allowing rejection of part of a rule would have a draconian result. In fact, an up or down vote on the entire rule would appear to have been the intent of the framers of the review provision. The language and structure of the provision, and the supporting explanation of the legislative history, contemplates a speedy, definitive and limited process. It is not unlike the legislative processes created for congressional actions dealing with military base closings,37 international trade agreements,38 and presidential reorganization plans39 among others. Each dealt with complex, politically sensitive decisions which allowed only an up or down vote by the Congress on the entire package presented. It was understood that piecemeal consideration would delay and perhaps obstruct legislative resolution of the issues before it. For similar reasons, the statutory structure and legislative history of the review provision strongly indicate that Congress intended the process to focus on submitted rules as a whole and not to allow veto of individual parts. Perhaps a proper reading of the quoted portion of the legislative history is that it was contemplating the possibility that the blank to be filled in after "relating to" might have different generic descriptions of the rule subject to disapproval. A broader reading of these sentences would not otherwise appear warranted by either the legislative language itself or the rest of the explanatory legislative history. As a practical matter, if this reading is correct it may be a factor in the limited use of the mechanism. As indicated, nullifying a rule means disabling an agency from regulating in the area covered by the rule unless Congress passes further authorization legislation, a significant consequence of any disapproval action. On the other hand, expressly authorizing nullification of portions of a rule might allow competing disapproval resolutions within each House and the certainty of a long, drawn out conference with the possibility of no agreement.

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5. The Uncertainty of which Rules are Covered by the CRA The framers of the congressional review provision intentionally adopted the broadest possible definition of the term "rule" when they incorporated Section 551(4) of the APA. As indicated previously,40 the legislative history of Section 551(4) and the case law interpreting it make it clear that it was meant to encompass all substantive rulemaking documents — such as policy statements, guidances, manuals, circulars, memoranda, bulletins and the like — which as a legal or practical matter an agency wishes to make binding on the affected public. The legislative history of the CRA emphasizes that by adoption of the Section 551 (4) definition of rule, the review process would not be limited only to coverage of rules required to comply with the notice and comment provisions of the APA or any other statutorily required variation of notice and comment procedures, but would rather encompass a wider spectrum of agency activities characterized by their effect on the regulated public: "The committee's intent in these subsections is ... to include matters that substantially affect the rights or obligations of outside parties. The essential focus of this inquiry is not on the type of rule but on its effect on the rights and obligations of non-agency parties."41 The framers of the legislation indicated their awareness of the practice of agencies avoiding the notification and public participation requirements of APA notice-and-comment rulemaking by utilizing the issuance of other, non-legislative documents as a means of binding the public, either legally or practically,42 and noted that it was the intent of the legislation to subject just such documents to congressional scrutiny: ... The committees are concerned that some agencies have attempted to circumvent noticeand-comment requirements by trying to give legal effect to general statements of policy, "guidelines," and agency policy and procedure manuals. The committees admonish the agencies that the APA' s broad definition of "rule" was adopted by the authors of this legislation to discourage circumvention of the requirements of chapter 8.43

It is likely that virtually all the 35,490 non-major rules thus far reported to the Comptroller General have been either notice and comment rules or agency documents required to be published in the Federal Register. This would mean that perhaps thousands of covered rules have not been submitted for review.44 Pinning down a concrete number is difficult since such covered documents are rarely if ever published in the Federal Register and thus will come to the attention of committees or Members only serendipitously. Eight such agency actions have come to the attention of committee chairmen and Members and were referred to the Comptroller General for determinations whether they were covered rules. In five of the eight cases the CG determined the action documents to be covered rules. See letter to Honorable Lane Evans, Ranking Minority Member, House Committee on Veterans' Affairs, B-292045 (May 19, 2003) (Department of Veterans Affairs memorandum terminating the Department's Vendee Loan Program is not a rule that must be submitted to Congress because it is exempt under Section 804(3)(B) and (C) as a rule relating to "agency management" or "agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties."); letter to Honorable Ted Strickland, B291906 (February 28, 2003) (Department of Veterans Affairs memorandum instructing all directors of health care networks to cease any marketing activities to enroll new veterans in such networks is excluded from CRA coverage by Section 804(3)(C) which

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excludes "any agency rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties."); letter to Honorable Doug Ose, Chairman, House Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs, Committee on Government Reform, B-287557 (May 14, 2001)(Department of Interior's Fish and Wildlife Service's Trinity River "Record of Decision" is a rule covered by the CRA because it is an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy and is an "agency action[ ] that substantially affect[s] the rights and obligations of outside parties."); letter to the Hon. James A Leach, Chairman, House Banking Committee, B-286338 (October 17, 2000)(Farm Credit Administration's national charter initiative held to be a rule under the CRA); letter to Honorable David M. McIntosh, Chairman, Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, House Committee on Government Reform and Oversight, B-281575 (January 20, 1999) (EPA "Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits" held to be covered because it created new, mandatory steps in the procedure for handling disparate impact assessments which gave recipients new rights they did not previously possess for obtaining complaint dismissals, a substantive alteration of the previous regulation.); letter to Senator Conrad Burns, B278224 (November 10, 1997) (the American Heritage River Initiative announced by the Council on Environmental Quality was not a covered rule because it was established by presidential executive order and direction and the President is not an "agency" under the APA and is not subject to the provisions of the APA); letter to Honorable Ted Stevens, Chairman, Senate Appropriations Committee, et al, B275178 ( July 3, 1997) (Tongass National Forest Land and Resources Management Plan held an agency statement of general applicability and future effect that implements, interprets, and prescribes law and policy); letter to Honorable Larry Craig, Chairman, Senate Committee on Energy and Resources, B-274505 (September 16, 1996) (memorandum of Secretary of Agriculture concerning the Emergency Salvage Timber Sale Program held to be a covered rule because it is of general applicability and interprets and implements the statutory program.). The GAO opinion on the American Heritage River Initiative rests its rationale that a presidential directive to an agency that results in substantive action by that agency is not thereby covered by the CRA based on the Supreme Court's rulings in Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Spector, 511 U.S. 462, 469 (1994). In light of Chamber of Commerce v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996) and National Family Planning v. Sullivan, 979 F. 2d 227 (1992), which successfully challenged substantive changes in rules that were directed by a presidential directive, the GAO General Counsel's conclusions may be problematic. Also questionable is the General Counsel's analysis in its February 28, 2003 opinion concluding that a Department of Veterans Affairs (DVA) memo terminating a long-time veterans health outreach program was an exempt agency practice that had no substantial effect on the rights of non-agency parties. In contrast with its May 19, 2004, opinion dealing with a termination of a DVA vendee loan program, where it closely examined the statutory basis of the loan program and found that it was established on the basis of discretionary authority of the Secretary and provided no direct benefits to veterans, the General Counsel made no mention that the Congress had charged the Secretary of DVA "with the affirmative duty of seeking out eligible veterans and eligible dependants and providing them" with federal benefits and services. Representative Strickland joined with the Vietnam Veterans of

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American in a suit seeking declaratory and injunctive relief to restore the program. In Vietnam Veterans of America v. Principi, 2005 WL 901133 (D.D.C. March 11, 2005), the district court found that "[u]nder 38 U.S.C. 7721, 7722, and 7227, Congress charges the Secretary of the Department of Veterans Affairs with the affirmative duty to `provide outreach services.' This duty is not discretionary but must be done in accordance with Congress' wishes." The court concluded, however, that since Congress appropriated a lumpsum for both outreach services and health care services, and the record showed that some monies had been expended for outreach services, it indicated that Congress meant to allow the Secretary the discretion to decide "the manner in which [outreach services] are to be provided." The critique here is that the Comptroller General's failure to examine the Secretary's duty under the statute in question eliminated the possibility finding a substantial effect of the agency's action on the rights or obligations of non-agency parties, thereby forestalling the opportunity for legislative review under CRA procedures. It is interesting to note that subsequent to the CG' s decision and the filing of the lawsuit, Congress enacted a limitation on the Fiscal Year 2004 VA appropriation stating, [n] one of the funds made available may be used to implement any policy prohibiting the Directors of the Veterans Integrated Service Networks from conducting outreach or marketing to enroll new veterans within their respective networks," an apparent indication that Congress thought the controverted policy could be having an impact on potential beneficiaries. See Pub.L. 108-199, H.R. 2673, sec. 418 (2004). Believing such instances to be only a small portion of unreported agency actions, GAO, at the behest of the House Government Reform and Oversight Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, engaged in discussions with the Office of Management (OMB) during 1998 for the creation of a uniform reporting form for use by agencies in reporting covered rules to the CG, and for the promulgation of an OMB guidance document covering such matters under the review provision as the definition of a covered rule, reporting requirements, the good cause exemption, and the consequences of failing to report a rule, among others. The failure to issue such guidance prompted insertion of the following directive in the FY1999 appropriation for OMB: "OMB is directed to submit a report by March 31, 1999, to the Committees on Appropriations, the Senate Committee on Governmental Affairs, and the House Committee on Government Reform and Oversight that ... issues guidance on the requirements of 5 U.S.C. Sec. 801 (a) (1) and (3); sections 804 (3), and 808 (2), including a standard new rule reporting form for use under section 801 (a)(1)(A)(B)."45 OMB, in the view of the Subcommittee, has failed to substantially comply with that statutory directive.46 If the guidance issued in compliance with the statutory direction is not consonant with the congressional understanding of the intent, meaning and scope of the congressional review provision, it might be considered as a vehicle for oversight hearings and possible remedial legislation.

6. The Uncertainty of the Effect of an Agency's Failure to Report a Covered Rule to Congress Section 801(a)(1)(A) of the CRA provides that "[b]efore a rule can take effect," the Federal agency promulgating such rule shall submit to each House of Congress and the

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Comptroller General a report containing the text of the rule, a description of the rule, including whether it is a major rule, and its proposed effective date. Section 805 states that "no determination, finding, action or omission under this chapter shall be subject to judicial review." The Department of Justice (DOJ) has broadly hinted that the language of Section 805 "precluding judicial review is unusually sweeping" so that it would presumably prevent judicial scrutiny and sanction of an agency's failure to report a covered rule.47 DOJ has succeeded with its preclusion argument in two federal district court rulings. More recently the rationale of those opinions has been called into question and rejected by a third district court. In Texas Savings and Community Bankers Assoc. v. Federal Housing Finance Board,48 three thrift associations and two of their trade associations sued the Federal Housing Finance Board challenging one of its policies regarding the home mortgage lending industry. The plaintiff's argued, inter alia, that the policy was a rule required to be reported to Congress under the CRA and the failure to report it precluded its enforcement. The government argued that Section 805 was a blanket preclusion of judicial review. In response to plaintiff's contention that Section 805 only precluded review of any "determination, finding, or omission" by Congress, the court held that "the statute provides for no judicial review of any 'any determination, finding, action or omission under this chapter,' not 'by Congress under this chapter.' The court must follow the plain English. Apparently, Congress seeks to enforce the [CRA] without the able assistance of the courts.''49 The court made no reference to the scheme of the act or its legislative history. The Texas district court's "plain meaning" rationale was cited with approval by an Ohio district in United States v. American Electric Power Service Colp.50 That case was one of many involving an extensive litigation campaign by the Environmental Protection Agency (EPA), begun in the mid-1990's to establish the extent to which a power plant or factory may alter its facilities or operations without bringing about a "modification" of that emission source so as to trigger the Clean Air Act's New Source Performance Standards and preconstruction "new source review."51 Among the issues common in these cases, and raised in this case, was whether EPA's determination to begin a campaign of litigation enforcement after many years of no enforcement was a substantive change that had to be reported to Congress under the CRA. It was among 123 affirmative defenses raised by defendants, nine coal-fired power plants in Ohio, Virginia, and West Virginia, which the Government moved to dismiss. Citing the Texas Savings case approvingly, the district court agreed "that the language of Section 805 is plain" and that "[d]eparture from the plain language is appropriate in the 'rare cases [in which] the literal application of a statute would produce a result demonstrably at odds with the intention of its drafters ... or when the statutory language is ambiguous.' ... In all other cases, the plain meaning of the statute controls. "52 The court did not indicate whether it had attempted to discern whether there was any evidence of congressional intent at odds with the court's plain meaning reading. It did, however, provide an alternative rationale: "Furthermore, this Court is not convinced that the instant enforcement action amounts to rulemaking which would be covered by 5 U.S.C. 801 et. seq., in the first instance," without elaboration.53 In United States v. Southern Indiana Gas and Electric Co.,54 the court faced the same issue in a motion for summary judgment by the power company defendant. Rejecting the Texas Savings and American Electric Power precedents, it found that Section 805 is ambiguous and susceptible to two possible meanings: that Congress did not intend for any court review of an agency's compliance with the CRA or that Congress only intended to

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preclude judicial review of its own determination, findings, actions or omissions made under the CRA after a rule had been submitted to it for review. Adopting the first alternative, argued for by the Government and adopted by the Texas Savings andAmerican Electric Power courts, would, according to the court, allow agencies "to evade the strictures of the CRA by simply not reporting new rules and courts would be barred from reviewing their lack of compliance This result would be at odds with the purpose of the CRA, which is to provide a check on administrative agencies' power to set policies and essentially legislate without Congressional oversight. The CRA has no enforcement mechanism, and to read it to preclude a court from reviewing whether an agency rule is in effect that should have been reported would render the statute ineffectual."55 The court found that the post-enactment legislative history "buttresses the 'limited scope' of the CRA' s judicial review provision" but was careful to acknowledge that "the lack of formal legislative history for the CRA makes reliance on this joint statement troublesome." However, the court made it clear that "this court reached its conclusion about the limited scope of the judicial review provision of the CRA based on the text of the statute and overall purpose of the act. The legislative history only serves to further reinforce the Court's conclusion."56 It is certainly arguable that the Southern Indiana court's view of the limited preclusiveness of Section 805 is plausible and persuasive. Indeed, an even stronger case can be made from a closer analysis of the text and structure of the act taken as a whole. Moreover, although the court was correct as a general matter that post- enactment legislative history normally is given less weight, there are a number of Supreme Court rulings that recognize that under certain circumstances, arguably applicable here, contemporaneous explanations of key provisions' intent have been found to be an "authoritative guide" to a statute's construction. In one instance the Court relied on an explanation given eight years after the passage of the legislation. The plain, overarching purpose of the review provision of the CRA was to assure that all covered final rulemaking actions of agencies would come before Congress for scrutiny and possible nullification through joint resolutions of disapproval.57 The scheme provides for the delayed effectiveness of some rules deemed innately important ("major rules"), Section 801(a)(3), and temporarily waives the submission requirement of Section 801 for rules establishing, modifying, opening, closing or conducting a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping, or for a rule an agency "for good cause" finds that notice and public procedure are impractical, unnecessary, or contrary to the public interest. Section 808. Rules promulgated pursuant to the Telecommunications Act of 1996 are excluded from the definition of "major rule". But all such rules must ultimately be submitted for review. And while the scheme anticipates that some (or even most) rules will go into effect before a joint resolution of disapproval is passed, the law provides that enactment of a joint resolution terminates the effectiveness of the rule and that the rule will be treated as though it had never taken effect. Sections 801(b)(1), 801(f). Further, a rule that has been nullified cannot be reissued by an agency in substantially the same form unless it is specifically authorized to do so by law after the date of the disapproval. Section 801(b)(2). The review scheme also requires a variety of actions by persons or agencies in support of the review process, and time for such actions to be scrutinized by both Houses to implement the scheme. Thus, the Comptroller General must submit a report to Congress on each major rule submitted within 15 calendar days after its submission or publication of the rule (Section

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801(a)(2)(A)); the Administrator of OIRA determines whether a rule is a "major rule" (Section 804(2)); and after a rule is reported the Senate has 60 session days, and the House 60 legislative days, to pass a disapproval resolution under expedited procedures. Section 802. But Congress has preserved for itself a period of review of at least 60 session or legislative days. Therefore, if a rule is reported within 60 session days of the Senate (or 60 legislative days of the House) prior to the date Congress adjourns a session of the Congress, the period during which Congress may consider and pass a joint resolution of disapproval is extended to the next succeeding session of the Congress. Section 801(d)(1). Thus the statutory scheme is geared toward congressional review of all covered rules at some time; and a reading of the statute that allows for easy avoidance defeats that purpose. Interpreting the judicial review preclusion provision to prevent court scrutiny of the validity of administrative enforcement of covered but non-submitted rules appears to be neither a natural nor warranted reading of the provision. Section 805 speaks to "determination[s], fmding[s], action[s], or omission[s] under this chapter," a plain reference to the range of actions authorized or required as part of the review process. Thus Congress arguably did not intend, as is more fully described below, to subject to judicial scrutiny, its own internal procedures, the validity of Presidential determinations that rules should become effective immediately for specified reasons, the propriety of OIRA determinations whether rules are major or not, or whether the Comptroller General properly performed his reporting function. These are matters that Congress can remedy by itself. However, without the potential of court invalidation of enforcement actions based on the failure to submit covered rules, agencies are not likely to comply with submission requirements. If Section 805 is read so broadly, it would arguably render ineffective as well the Section 801(b)(2) prohibition against an agency promulgating a new rule that is "substantially the same" as a disapproved rule unless it "is specifically reauthorized by a law enacted after" the passage of a disapproval resolution. It is more than likely that a determination whether a new or reissued rule is "substantially the same" as a disapproved rule is one that a court will be asked to make.58 Congress appears to have contemplated (and approved) judicial review in this and other situations when it provided in Section 801(g) that "[i]f Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency may infer any interest of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval." The legislative history of the review provision confirms this view of the limited reach of the judicial review preclusion language. A key sponsor (Representative Hyde) of the legislation, Representative McIntosh, explained during the floor debate on H.R. 3136 that "Under Section 8(a)(1)(A), covered rules may not go into effect until the relevant agency submits a copy of the rule and an accompanying report to both Houses of Congress."59 Shortly thereafter, the principal Senate and House sponsors of H.R. 3136 published a Joint Explanatory Statement in the Congressional Record providing a detailed explanation of the provisions of the congressional review provision of the CRA and its legislative history. Senator Nickles explained: Mr. NICKLES. Mr. President, I will submit for the RECORD a statement which serves to provide a detailed explanation and a legislative history for the congressional review title of H.R. 3136, the Small Business Regulatory Enforcement Fairness Act of 1996. H.R. 3136 was passed by the Senate on March 28, 1996, and was signed by the President the next day... .

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Morton Rosenberg Because title BI of H.R. 3136 was the product of negotiation with the Senate and did not go through the committee process, no other expression of its legislative history exists other than the joint statement made by Senator REID and myself immediately before passage of H.R. 3136 on March 28. I am submitting a joint statement to be printed in the RECORD on behalf of myself, as the sponsor of the S. 219, Senator REID, the prime co-sponsor of S. 219, and Senator STEVENS, the chairman of the Committee on Governmental Affairs. This joint statement is intended to provide guidance to the agencies, the courts, and other interested parties when interpreting the act's terms. The same statement has been submitted today in the House by the chairmen of the committees of jurisdiction over the congressional review legislation.60

The Joint Explanatory Statement is clear as to the scope and limitation of the judicial review provision: Limitation on judicial review of congressional or administrative actions Section 805 provides that a court may not review any congressional or administrative "determination, finding, action, or omission under this chapter". Thus, the major rule determinations made by the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget are not subject to judicial review. Nor may a court review whether Congress complied with the congressional review procedures in this chapter. This latter limitation on the scope of judicial review was drafted in recognition of the constitutional right of each House of Congress to "determine the Rules of its Proceedings". U.S. Const. art. I, §5, cl. 2, which includes each house being the final arbiter of compliance with such Rules. The limitation on a court's review of subsidiary determinations or compliance with congressional procedures, however, does not bar a court from giving effect to a resolution of disapproval that was enacted into law. A court with proper jurisdiction may treat the congressional enactment of a joint resolution of disapproval as it would treat the enactment of any other federal law. Thus, a court with proper jurisdiction may review the resolution of disapproval and the law that authorized the disapproved rule to determine whether the issuing agency has the legal authority to issue a substantially different rule. The language of subsection 801(g) is also instructive. Subsection 801(g) prohibits a court or agency from inferring any intent of the Congress only when "Congress does not enact a joint resolution of disapproval", or by implication, when it has not yet done so. In deciding cases or controversies properly before it, a court or agency must give effect to the intent of the Congress when such a resolution is enacted and becomes the law of the land. The limitation on judicial review in no way prohibits a court from determining whether a rule is in effect. For example, the authors expect that a court might recognize that a rule has no legal effect due to the operation of subsections 801(a)(1)(A) or 801(a)(3).61

The Justice Department has suggested that such post-enactment legislative history should not carry any weight, particularly in view of the unambiguous nature of the preclusion language at issue.62 However, as discussed below, the courts appear to have taken a contrary view in analogous interpretive situations. The Joint Explanatory Statement is a contemporaneous explanation of the congressional review provision by the legislative sponsors of the legislation which is consonant with the text and structure of the legislation. Such statements by legislative sponsors have been described by the Supreme Court as an "authoritative guide to the statute's construction." North

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Haven Bd. of Education v. Bell, 456 U.S. 512, 526-27 (1982)(citing a bill summary placed in the Congressional Record by the bill's sponsor after passage, and explanatory remarks made two years later by the same sponsor); Pacific Gas & Electric Co. v. Energy Resources Conservation and Development Commission, 461 U.S. 190, 211 n. 23 (1983)(relying on a 1965 explanation by "an important figure in the drafting of the 1957 [Atomic Energy Act"]); Grove City College v. Bell, 465 U.S. 555, 567 (1984)(remarks of sponsors deemed authoritative when they are consistent with the language of the legislation). Finally it may be noted that analogous preclusion of judicial review provisions in the original Paperwork Reduction Act of 1980, P.L. 96-511 and in the 1995 revision of the act, P.L. 104-13, have been uniformly construed by the courts to allow enforcement of its public protection provision. Thus 44 U.S.C. 3504 (1994), which authorized the Director of OMB to review and approve or disapprove information collection requirements in agency rules, and to assign control numbers to such forms, provided that "there shall be no judicial review of any kind of the Director's decision to approve or not to act upon a collection of information requirement contained in an agency rule." 44 U.S.C. 3504(h)(9). A similar provision appears in the 1995 revision of the Paperwork Reduction Act.63 The 1980 legislation also contained a "public protection" provision which absolved a person from any penalty for not complying with an information collection request if the form did not display an OMB control number or failed to state that the request was not subject to the act.64 The public protection provision, Section 3512, has been the subject of numerous court actions, some finding it applicable and providing a complete defense to noncompliance, others finding it inapplicable. But no court has ever raised a question with respect to preclusion of judicial review.65 A reviewing court construing the language of the congressional review provision, the structure of the legislation, and its legislative history, including post- enactment statements, is therefore likely to hold that a court is not precluded from preventing an agency from enforcing a covered rule that was not reported to Congress in compliance with Section 801(a)(1)(A).

7. The Uncertainty of the Breadth of the Prohibition against an Agency's Promulgation of a "Substantially Similar" Rule after the Original Rule has been Vetoed Enactment into law of a disapproval resolution has several important consequences. First, a disapproved rule is deemed not to have had any effect at any time. Thus, even a rule that has become effective for any period of time is retroactively negated.66 Second, a rule that does not take effect, or is not continued because of the passage of a disapproval resolution, cannot be "reissued in the same form" nor can a "new rule" that is "substantially the same" as the disapproved rule be issued unless such action is specifically authorized by a law enacted subsequent to the disapproval of the original rule.67 The full text of this provision states: (2) A rule that does not take effect (or does not continue) under paragraph (1) may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.

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Finally, if a rule that is subject to any statutory, regulatory or judicial deadline for its promulgation is not allowed to take effect, or is terminated by the passage of a joint resolution, any deadline is extended for one year after the date of enactment of the disapproval resolution.68 It can be anticipated that opponents of a disapproval resolution will argue that successful passage of a resolution may disable an agency from ever promulgating rules in the "area" covered by the resolution without future legislative reauthorization since a successful disapproval resolution must necessarily bring down the entire rule. Or, at the very least, it may be contended that any future attempt by the agency to promulgate new rules with respect to the subject matter will be subject to judicial challenge by regulated persons who may claim that either the new rules are substantially the same as those disapproved or that the statute provides no meaningful standard to discern whether a new rule is substantially the same and that the agency must await congressional guidance in the form of a statute before it can engage in further rulemaking in the area. The practical effect of these arguments, then, may be to dissuade an agency from taking any action until Congress provides clear authorization. A review of the CRA' s statutory scheme and structure, the contemporaneous congressional explanation of the legislative intent with respect to the provisions in question, the lessons learned from the experience of the March 2001 disapproval of the OSHA ergonomics rule, and the application of pertinent case law and statutory construction principles suggests that (1) It is doubtful that Congress intended that all disapproved rules would require statutory reauthorization before further agency action could take place. For example, it appears that Congress anticipated further rulemaking, without new authorization, where the statute in question established a deadline for promulgating implementing rules in a particular area. In such instances, the CRA extends the deadline for promulgation for one year from the date of disapproval. (2) A close reading of the statute, together with its contemporaneous congressional explication, arguably provides workable standards for agencies to reform disapproved regulations that are likely to be taken into account by reviewing courts. Those standards would require a reviewing court to assess both the nature of the rulemaking authority vested in the agency that promulgated the disapproved rule and the specificity with which the Congress identified the objectionable portions of a rule during the floor debates on disapproval. An important factor in a judicial assessment may be the CRA's recognition of the continued efficacy of statutory deadlines for promulgating specified rules by extending such deadlines for one year after disapproval. (3) The novelty of the issue, the uncertainty of the weight a court will accord the post enactment congressional explanation, and the current judicial inclination to give deference to the "plain meaning" of legislative language, make it difficult to reliably anticipate what a court is likely to hold. A blanket contention that enactment of a joint resolution disapproving an agency's rules would disable that agency from promulgating future rules in the "area" of concern until Congress passes new legislation authorizing it to issue rules on that subject would not appear to have a substantial basis in the CRA. Such argumentation would apparently be based on the notion that the "plain meaning" of the CRA's disapproval mechanism forecloses further rulemaking with respect to that subject matter unless Congress specifically reauthorizes such action in subsequent legislation. That is, since Congress can apparently only disapprove a rule as a whole, rather than pinpointing any particular portions, there is no sound basis for the agency to act without further legislative guidance where a rule deals exclusively with an integrated subject matter. The statute gives no indication as to how an agency is to discern

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what actions would be "substantially the same" and it would run the risk of a successful court challenge if it guessed wrong. It might be further argued that even if the agency promulgates new rules, which of course would be subject to CRA scrutiny, and Congress did not act to disapprove the new rules, that would not provide the necessary reauthorization since Section 801(g) of the act provides as a rule of construction that in the event of the failure of Congress to disapprove a rule "no court ... may infer any intent of Congress from any action or inaction of the Congress with regard to such, related statute, or joint resolution of disapproval." It is, of course, fundamental that statutory language is the starting point in any case of statutory construction. In recent years, the Supreme Court has shown a strong disposition to hold Congress to the letter of the language it uses in its enactments. In its ruling in Barnhart v. Sigmon Coal Co.69 the Court advised that the first step "is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.''70 "The inquiry ceases 'if the statutory language is unambiguous and the statutory scheme is coherent and consistent."71 In such cases, the Court has held, resort to "legislative history is irrelevant to the interpretation of an unambiguous statute."72 In Barnhardt the Court warned, "parties should not seek to amend [a] statute by appeal to the Judicial Branch."73 The plain meaning rule, however, is not an unalterable, rigid rule of construction and has been held inapplicable where it would "lead to an absurd result,"74 or "would bring about an end completely at variance with the purpose of the statute."75 "It is `a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme' ... Thus it is a more faithful construction of [a statute] to read it as a whole, rather than as containing two unrelated parts. It is the classic judicial task of construing related statutory provisions to make sense in combination."76 In the instant situation, it is arguably not likely that a court would hold that the "substantially the same" language of Section 801(b)(2) is unambiguous, either on its face or in the context of the statutory scheme. The direction of the provision is not a self-enforcing mandate; it clearly requires a further determination whether rules have been reissued in "substantially the same form" or whether a new rule is "substantially the same" as the one disapproved. The ambiguity raised is who makes those determinations and on what basis. The language of the provision, however, does not naturally or ineluctably lead to the conclusion that no further remedial rulemaking can take place unless Congress passes a new law. This reasoning is buttressed by Section 803(a) which contemplates that agency rulemaking must take place after a disapproval action if the authorizing legislation of the agency mandates that rules disapproved had to have been promulgated by a date certain. That provision extends the deadline for promulgation for one year "after the date of enactment of the joint resolution," not one year after Congress reauthorizes action in the area. The reasonable conclusion is that Congress understood that after disapproval, an agency, if it was under a mandate to produce a particular rule, had to try again. The question then is, how was it to perform this task. The answer lies in the legislative history of the act. The Congressional Review Act was part of Title II of the Small Business Regulatory Enforcement Fairness Act of 1996. That Title was a product of negotiation between the Senate and House and did not go through the committee process. Thus there is no detailed expression of its legislative history, apart from floor statements by key House and Senate sponsors, before its passage by the Congress on March 28, 1996 and its signing into law by the President on March 29. Thereafter, the principal sponsors of the legislation in the Senate (Senators Nickles, Reid and Stevens) and House (Representative Hyde) submitted identical

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joint explanatory statements for publication in the Congressional Record "intended to provide guidance to the agencies, the courts, and other interested parties when interpreting the act's terms."77 Although it is a post-enactment explanation of the legislation, it is likely to be accorded some weight as a contemporaneous, detailed, in-depth statement of purpose and intent by the principal sponsors of the law.78 The Joint Explanatory Statement directly addresses a number of issues that may arise upon enactment of a disapproval resolution and attempts to provide guidance for both Congress and agencies faced with repromulgation questions. At the outset, the Statement notes that disapprovals may have differing impacts on promulgating agencies depending on the nature and scope the rulemaking authority that was utilized. For example, if an agency's authorizing legislation did not mandate the promulgation of the disapproved rule, and the legislation gives the agency broad discretion, the authors deem it likely that it has the discretion whether or not to promulgate a new rule. On the other hand, the Statement explains that "if an agency is mandated to promulgate a particular rule and its discretion is narrowly circumscribed, the enactment of a resolution of disapproval for that rule may work to prohibit the reissuance of any rule."79 By implication, a congressional mandate to issue regulations that is not circumscribed would still be operative. But how would the agency be guided in that circumstance? The Statement addresses that very question: it is the obligation of Congress during the debate on the disapproval resolution "to focus on the law that authorized the rule and make the congressional intent clear regarding the agency's options or lack thereof after the enactment of a joint resolution of disapproval."80 Thereafter, "the agency must give effect to the resolution of disapproval."81 The full statement on the issue is as follows: Effect of enactment of a joint resolution of disapproval Subsection 801(b)(1) provides that "A rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval, described under section 802, of the rule." Subsection 801(b)(2) provides that such a disapproval rule "may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule." Subsection 801(b)(2) is necessary to prevent circumvention of a resolution disapproval. Nevertheless, it may have a different impact on the issuing agencies depending on the nature of the underlying law that authorized the rule. If the law that authorized the disapproved rule provides broad discretion to the issuing agency regarding the substance of such rule, the agency may exercise its broad discretion to issue a substantially different rule. If the law that authorized the disapproved rule did not mandate the promulgation of any rule, the issuing agency may exercise its discretion not to issue any new rule. Depending on the law that authorized the rule, an issuing agency may have both options. But if an agency is mandated to promulgate a particular rule and its discretion in issuing the rule is narrowly circumscribed, the enactment of a resolution of disapproval for that rule may work to prohibit the reissuance of any rule. The authors intend the debate on any resolution of disapproval to focus on the law that authorized the rule and make the congressional intent clear regarding the agency's options or lack thereof after enactment of a joint resolution of disapproval. It will be the agency's responsibility in the first instance when promulgating the rule to determine the range of discretion afforded under the original law and whether the law authorizes the agency to issue a substantially different rule. Then, the agency must give effect to the resolution of disapproval.

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The congressional experience with the disapproval of the OSHA ergonomics standard provides a useful lesson.82 This rule became the first, and only, rule to be disapproved thus far under the CRA. The principal sponsor of the resolution, Senator Jeffords, at the outset of the debate addressed the issue whether disapproval would disable OSHA from promulgating a new rule. Senator Jeffords referred to the above- discussed Joint Statement and noted that OSHA "has enormously broad regulatory authority," citing pertinent sections of the OSH Act providing expansive rulemaking authority. The Senator concluded that "I am convinced that the CRA will not act as an impediment to OSHA should the agency decide to engage in ergonomics rulemaking."83 What Senator Jeffords apparently understood was that while the agency had broad authority to promulgate rules, there was no congressional mandate to issue an ergonomics rule in the underlying law. As a consequence it was possible that no further rulemaking would occur, as implied by a letter to Senator Jeffords from Secretary Chao which indicated that a new rulemaking was only one of many options available to the Department should the rule be disapproved.84 In fact, OSHA made it clear on April 5, 2002, that no rulemaking was in the offing.85 On April 17, 2002, Senator Breaux and 26 cosponsors, many of whom had voted in favor of the disapproval resolution, introduced S. 2184, which would direct the Secretary of Labor to promulgate a new ergonomics rule and specifies in detail what should be included, what should not be included, and what evidence should be considered. Section 1 (b)(4) of the bill deems the direction to issue the rule "a specific authorization by Congress in accordance with Section 801 (b)(2)" of the CRA.86 An interesting contrast with the ergonomics situation was the consideration given by the key Senate sponsors of the Bipartisan Campaign Reform Act 2002 (BCRA),87 which requires that the Federal Election Commission (FEC) promulgate rules implementing the soft money limitations and prohibitions of Title I of the act no later than 90 days after its date of enactment,88 whether to introduce a CRA disapproval resolution with respect to the rules issued by the FEC on July 17, 2002.89 The Senate sponsors believed that the new rules, which became effective on November 6, 2002, undermine the BCRA' s ban on the raising and spending of soft money by federal candidates and officeholders and on national party use of soft money. Since the FEC was mandated to promulgate rules to implement the BCRA by a date certain, it could have been argued that, in contrast with the general discretion OSHA has with respect to whether to issue any ergonomics standard, if Congress disapproved the FEC' s soft money rule, the agency would be obligated to undertake a new rulemaking (to be completed within a year after the disapproval resolution was signed into law) that would reflect congressional objections to the rule. At the same time, in accordance with the understanding of the Joint Statement, it would have been arguably incumbent on Congress in its debates on any such resolution to clearly identify those provisions of the rule that are objectionable as well as those that are not. Whether this line of argument will be sufficient to withstand a challenge in the courts cannot be answered with any degree of certainty. Foreseeable obstacles may be the novelty of the issue, the amount of weight, if any, that a court will accord the post-enactment congressional explanation of the CRA, and the current inclination of the courts to give deference to the plain meaning of statutory language and to eschew legislative history. A new rule may be challenged on grounds of lack of authority as a consequence of the disapproval resolution either because Congress failed to articulate its objections to the rule, thereby providing no standards for the agency to apply in its rulemaking, or that the new rules were "substantially the same" as the old, disapproved rules and therefore invalid under the CRA.

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In the future, if Congress, considers a disapproval resolution, it should be mindful of the guidance provided by the Joint Statement. The Joint Statement declares that it is the congressional intent to make clear and specific identification of the options available to the agency, including identification of objectionable provisions in the proposed rule during the floor debates. In this way Congress provides an agency clear and direct guidance as to what it expects in the repromulgation process as well as a possible defense to a challenge based on the "substantially the same" language of the CRA.

CONCLUSION This chapter identifies structural and interpretive issues affecting use of the CRA. While there have been some instances of the law apparently influencing the implementation of certain rules, the limited utilization of the formal disapproval process in the ten years since enactment has arguably reduced the threat of possible congressional scrutiny and disapproval as a factor in agency rule development. The one instance in which an agency rule was successfully negated is likely a singular event not soon to be repeated. Presently, the Congress and the White House are in the hands of the same political party, the rules of the previous administration are no longer subject to the CRA, and the current administration appears to be establishing firm control of the agency rulemaking process through its administration of Executive Order 12,866.90 One commentator has observed that if the perception of a rulemaking agency is that the possibility of congressional review is remote "it will discount the likelihood of congressional intervention because of the uncertainty about where Congress might stand on that rule when it is promulgated years down the road," an attitude that is reinforced "so long as [the agency] believes that the president will support its rule."91 Indeed, there is growing evidence that a significant number of covered rules are not being submitted for review at all. Also, a potentially effective support mechanism, the in-depth, individualized scrutiny of selected agency cost-benefit and risk assessment analyses by GAO authorized under the Truth in Regulating Act of 2000, was never implemented for lack of appropriated funds. The CRA reflects a recognition of the need to restore the political accountability of Congress and the perception of legitimacy and competence of the administrative rulemaking process. It also rests on the understanding that broad delegations of rulemaking authority to agencies are necessary and appropriate, and will continue for the indefinite future. The Supreme Court's most recent rejection of an attempted revival of the nondelegation doctrine92 adds impetus for Congress to consider several facets and ambiguities of the current mechanism. Absent review, current trends of avoidance of notice and comment rulemaking, lack of full reporting of covered rules under the CRA, intrusive judicial review, and increasing presidential control over the rulemaking process will likely continue.

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SELECTED SOURCE READINGS Cohen, Daniel and Strauss, Peter L. "Congressional Review of Agency Regulations." Administrative Law Review 49 (Winter 1996): 95-110. Parks, Julia A. "Lessons in Politics: Initial Use of the Congressional Review Act." Administrative Law Review 55 (Fall 2003): 187-210. Pfohl, Peter A. "Congressional Review of Agency Rulemaking• The 104th Congress and the Salvage Timber Directive." 14 Journal of Law and Politics (Winter 1998): 1-31. Rosenberg, Morton. "Whatever Happened to Congressional Review of Agency Rulemaking9. A Brief Overview, Assessment, and Proposal for Reform." 51 Administrative Law Review (Fall 1999): 1051-1092

ENDNOTES 1

Section 804(3) excludes from the definition "(A) any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowance therefore, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing; (B) any rule relating to agency management or personnel; or (C) any rule of agency organization, or practice that does not substantially affect the rights or obligations on non- agency parties." 2 Attorney General's Manual on the Administrative Procedure Act 13 (1948). 3 Avoyelles Sportmsmen's League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983). 4 See, e.g., Chem Service, Inc. v. EPA, 12 F.3d 1256 (3d Cir. 1993)(memorandum of understanding); Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74 (4th Cir. 1993)(interpretative rules); National Treasury Employees Union v. Reagan, 685 F.Supp 1346 (E.D. La 1988)(federal personnel manual letter issued by OPM); New York City Employment Retirement Board v. SEC, 45 F.3d 7 (2d Cir. 1995)(affirming lower court's ruling that SEC "no action" letter was a rule within section 551(4)). 5 The General Counsel of the Government Accountability Office (GAO) has ruled that the 60day period does not begin to run until both Houses of Congress receive the required report. See B-289880, April 5, 2002, opinion letter to Hon. Edward M. Kennedy, Chairman, Senate Committee on Health, Education, Labor and Pensions from Anthony H. Gamboa, General Counsel. The situation involved a Department of Health and Human Service's (HHS) major rule published in the Federal Register on January 18, 2002 with an announced effective date of March 29, 2002. The House of Representatives, however, did not receive the rule until February 14, 2002. HHS thereafter delayed the effective date of the rule until April 15, 2002, in an attempt to comply with the CRA. But the Senate did not receive the rule until March 15, 2002. The General Counsel determined that the rule could not become effective until May 14, 2002, 60 days following the Senate's receipt, relying on the language of Section 801(a)(1)(A) of the act requiring that a copy of a covered rule must be be submitted "to each House of Congress" in order to become effective.

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Reviewing courts have generally applied the Administrative Procedure Act's good cause exemption, from which this language is obviously taken, narrowly in order to prevent agencies from using it as an escape clause from notice and comment requirements. See, e.g., Action on Smoking and Health v. CAS, 713 F.2d 795, 800 (D.C. Cir. 1987). However, since Section 805 precludes judicial review for any "determination, finding, action or omission under this chapter", there could be no court condemnation of a good cause determination. But the rule would still be subject to congressional vacation and retroactive nullification. 7 In Leisegang v. Sect'y of Veterans Affairs, 312 F.3d 1368, 1373-1376 (Fed. Cir. 2002), the appeals court held that Section 801(a)(3) "does not change the date on which [a major rule] becomes effective. It only affects the date when the rule becomes operative. In other words, the CRA merely provides a 60-day waiting period before the agency may enforce the major rule so that Congress has the opportunity to review the regulation." At issue in the case was the date from which certain veterans benefits would be calculated. The benefit statute provided that it would be the date of the issuance of the rule. The government argued that the CRA was a superceding statute and that the effective date was when the CRA allowed it to be operative. The appeals court agreed with the veterans that the date of issuance, as prescribed by the law, was determinative. 8 For an in-depth discussion of procedural issues that may arise during House and Senate consideration of disapproval resolutions, see Richard S. Beth, CRS Report RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act, October10, 2001 (CRA Procedure). 9 There is some question whether a motion to proceed is nondebatable because of the absence of language so stating. Arguably, the nondebatability of the motion is integral both to the scheme of the expedited procedure provisions as well as to the overall efficacy of the CRA' s statutory scheme and thus may be implied. Alternatively, debate on such a motion may be limited by Section 803(d)(2) which limits debate on joint resolutions, as well as "all debatable motions," to 10 hours. Ultimately, a resolution of this question by the Senate Parliamentarian, or the Senate itself, may be necessary. However, at the commencement of the debate on S.J.Res. 6, to disapprove the ergonomics rule, the presiding officer declared that "The motion to proceed is not debatable. The question is on agreeing to the motion." The motion was agreed to. 147 Cong. Rec. S 1831 (daily ed. March 6, 2001). At least one other precedent exists in which it was ruled that a motion to proceed to a budget resolution under the Budget Act was nondebatable despite the silence of the act on the matter. See, 127 Cong. Rec. S 4871 (May 12, 1981). 10 See discussion infra at pp 24-29.. 11 General Accounting Office, Reports on Federal Agency Major Rules, which may be found at [http://www.gao.govidecisionsimaj rule/maj rule.htm] 12 The turbulent history of the development of the ergonomics standard is recounted in CRS Report 97-724, Ergonomics in the Workplace: Is It Time for an OSHA Standard? 13 In a close floor vote, the rider proposed for FY1997 was deleted. 14 65 Fed. Reg. 68261 (2000). 15 P.L. 107-5. 16 P.L. 105-78. 17 See Allan Freedman, "GOP' s Secret Weapon Against Regulations: Finesse," CQ Weekly, September 5, 1998, at 2318-19 (Freedman).

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Freedman, supra note 17, at 2319-20. See 142 Cong. Rec. S 10723 (daily ed. Sept. 17, 1996). 20 29 Weekly Comp. Pres. Doc. 88 (1993). 21 22 U.S.C. 215 lb(b) and b(f)(1) (2000). 22 37 Weekly Comp. Pres. Doc. 216 (2001). 23 Compare Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Specter, 511 U.S. 462, 469 (1994), holding that the President is not subject to APA procedures since he is not expressly covered by its definition of agency, with Chamber of Commerce v. Reich, 74 F.3d 1311 (D.C. Cir. 1998) and National Family Planning Council v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992), allowing challenges to agency rules that were issued pursuant to presidential directive. 24 See, Restoration of the Mexico City Policy: Memorandum for the Administrator of the U.S. Agency for International Development, March 28, 2001, 66 Fed. Reg. 17303-17313 (March 29, 2001). 25 A companion bill, S. 1675, was introduced in the Senate by Senators Shelby and Bond. 143 Cong. Rec. S 1007 (daily ed. Feb. 25, 1998). 26 See H.Rept. 105-441, Parts 1 and 2 (105th Cong., 2d Sess.) (1998). 27 Section 4 (a)(3)(A). 28 P.L. 106-312, 114 Stat. 1248-50, 5 U.S.C. 801 note. 29 See introductory remarks on the measure at 147 Cong. Rec. H 2454 (daily ed. Oct. 21, 2003) 30 The experience with respect to the repeal of the ergonomics standard, discussed supra at 12-13, would appear to bear this out. 31 See, Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency Rules, 51 Duke L.J. 1059, 1089 (2001) ("The paucity of motions for disapproval resolutions indicates that agencies are not apt to focus on fast-track review as a check on their rulemaking discretion at least until late in the rulemaking process. Agencies might be likely to focus on such review when they adopt rules that they know will be unpopular in Congress, but even then they need not fear the ramifications of fast-track review unless they also believe that the president opposes the rule or is willing to compromise it to win other political battles. Fast-track review may have greater significance for midnight rules that are subject to review when a different president is in office.")(Seidenfeld). 32 S.J.Res. 17, dealing with the FCC's media ownership rule, which passed in the Senate but was not acted upon in the House. 33 See e.g., Reorganization Act Amendments of 1984, providing that both Houses of Congress had to pass a joint resolution approving a reorganization plan within 90 days of continuous session after the date of presidential submission or else it is deemed disapproved. 5 U.S.C. 906 (a) (1994). 34 Two bills introduced in the 106th Congress to revise the CRA utilized the joint resolution of approval approach. See S. 1348, 106th Cong., 1St Sess. (1999)(Sen. Brownback) S. 2670, 106th Cong., 2nd Sess. (2000)(Sen. Thomas). A similar approach is reflected in H.R. 110 introduced by Rep. Hayworth (with 25 co-sponsors) in the 108th Congress. All agency rules must be reported to Congress and may become effective only on passage, by means of a fast- track procedure applicable to both Houses, of an approval law, which is not subject to judicial review. 19

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S.J.Res. 50 and H.J.Res. 123, "relating to surety bond requirements for home health agencies under the medicare and medicaid programs... ." 36 Joint Explanatory Statement of House and Senate Sponsors, 142 Cong. Rec. E 571, at E 577 (daily ed. April 19, 1996); 142 Cong. Rec. S 3683, at S 3686 (daily ed. April 18, 1996)(Legislative History)(emphasis added). These identical detailed explanations by the legislative sponsors of the intent and scope of the CRA' s provisions appeared in the daily editions of the Congressional Record some three weeks after SBREFA was signed into law. In the absence of committee hearings and the sparse commentary during floor debate, these explanations represent the most authoritative contemporary understanding of the provisions of the law. It is, however, post-enactment legislative history and does not carry the weight that committee report explanations and floor debates provide. As one court dealing with the interpretation of a CRA provision stated, the post-enactment legislative history "buttresses the 'limited scope' of the CRA judicial review provision" but warned that "the lack of formal legislative history for the CRA makes reliance on this joint statement troublesome." See United States v. Southern Indiana Gas & Electric Co, discussed infra at note 54 and accompanying text. It has recently come to our attention that the permanent edition of the Congressional Record for the 104th Congress places the Senate sponsors Joint Explanation at April 18, 1996, the same date it appeared in daily edition. See 142 Cong. Rec. 8196- 8201. The House sponsors' Joint Explanation, which originally appeared in the daily edition of April 19, 1996, is now placed during the floor debate on SBREFA on March 28, 1996, the date of its passage. See 142 Cong. Rec. 6922-6930. There is no explanation for the earlier placement. As a consequence, we have determined to continue to treat the Joint Explanation as post-enactment legislative history that arguably merits close consideration by a reviewing court as a contemporaneous, detailed, in-depth statement of purpose and intent by the principal sponsors of the law. See discussion, infra, at pp. 27-33. 37 Defense Base Closure and Realignment Act of 1990, P.L. 101-510, sec. 2908 (b) 104 Stat. 1808, in note following 10 U.S.C. 2687 (2000). 38 See, 19 U.S.C. 2191-2193 (2000). 39 See, e.g., Reorganization Act of 1984, 5 U.S.C. 909-912 (2000). 40 See footnotes 1-4, supra, and accompanying text. 41 Legislative History, supra n. 36, at E 579, S 3687. 42 This practice has been long recognized and criticized in administrative law commentaries. See, e.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like — Should Federal Agencies Use Them To Bind The Public?, 41 Duke L.J. 1311 (1992). Cf. also, General Accounting Office, Federal Rulemaking: Agencies Often Published Final Actions Without Proposed Rules, GAO/GGD-98-126 (August 1998). 43 Legislative History, supra n. 36, at E 578, S 3687. 44 Anindication of the vast number of unreported covered rules came as a result of an investigation by the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs (Government Reform) which revealed that 7,523 guidance documents issued by the Department of Labor, the Environmental Protection Agency, and the Department of Transportation which were of general applicability and future effect had not been submitted for CRA review during the period March 1996 through November 1999. See "Non-Binding Legal Effect of Agency Guidance

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Documents," [http://www.congress.govicgi-lisicpquery/T?&report=hr1009&dbname =cp1068] H.Rept. 106-1009, 106th Cong., 2nd Sess. (2000). 45 P.L. 105-277, Division A, title III. 46 See [http://www.congress .govicgi-lisicpquery/T?&report=hr1009&dbname=cp1068] H.Rept. 106-1009, supra n. 44 at 4-5. 47 See letter dated June 11, 1997 to the Honorable Lamar Smith, Chairman, Subcommittee on Immigration and Claims, Senate Judiciary Committee, from Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, DOJ, and accompanying analysis dated June 10, 1997, at pp 9-11 (DOJ Memorandum). 48 1998 U.S. Dist. LEXIS 13470, 1998 WL842 181 (W. Texas), aff d 201 F.3d 551 (5th Cir. 2000). 49 Id. at note 15. 50 218 F.Supp. 3d 931 (S.D. Ohio 2002). 51 For background on the legal development of the issue, see CRS Report RS21424, Air Pollution: Legal Perspective on the 'Routine Maintenance' Exception to New Source Review, by Robert Meltz. 52 218 F.Supp. 2d at 949. 53 Id. 54 2002 U.S. Dist. LEXIS 20936; 55 ERC (BNA) 1597 (D.C. S.D. Ind. 2002). 55 2002 U.S. Dist. LEXIS 20936 at 13-14. 56 Id. at 15-16 and note 3. 57 This legislation establishes a government-wide congressional review mechanism for most new rules. This allows Congress the opportunity to review a rule before it takes effect and to disapprove any rule to which Congress objects." Legislative History, supra note 36, at E 575 and S 3683. 58 The disapproval of the ergonomics rule underlines a possible need for judicial review in certain instances where enforcement is necessary and appropriate to support the statutory scheme. That rule, which was broad and encompassing in its regulatory scope, raises the question as to how far can the agency go before it reaches the point of substantial similarity in its promulgation of a substitute. This issue is addressed in the next section. 59 142 Cong. Rec. H3005 (daily ed. March 28, 1996). 60 Legislative History, supra note 36, at 142 Cong. Rec. S 3683. 61 Id., at E 577 and S 3686. 62 See DOJ memorandum, supra n. 47, at 10 n.14. 63 44 U.S.C. 3507(d)(6)(2000). 64 See 44 U.S.C. 3512 (1994). 65 Compare United States v. Smith, 866 F.2d 1092 (9th Cir. 1980)(failure of Forest Service to file a plan of operations with OMB control number precluded conviction for failure to file) and Cameron v. IRS, 593 F.Supp. 1540, aff'd 773 F.2d 126 (6th Cir. 1984)(failure of IRS forms to have OMB control numbers did not violate section since it was a collection of information during the investigation of a specific individual or entity which is exempt under the provision). 66 5 U.S.C. 801(f). 67 5 U.S.C. 801(b)(2). 68 5 U.S.C. 803. 69 534 U.S. 438 (2002).

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Id. at 450. Id. 72 Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 808-09 n.3. Accord Connecticut National Bank v. Germain, 503 U.S. 249, 253-54 (1992); United States v.Daas, 198 F.2d 1167, 1175 (9th Cir. 1999), cert. denied 531 U.S. 999 (2000). 73 534 U.S. at 462.. 74 Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). 75 United Steelworkers v. Weber, 443 U.S. 193, 201 (1978). 76 United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) (holding, inter alia, that it is appropriate for a court to look at the history and background against which Congress was legislating). 77 Legislative History, supra, n. 36. 78 See e.g., North Haven Bd. of Education v. Bell, 456 U.S. 512, 530-31(1982); Pacific Gas & Electric Co. v. Energy Resources Conservation & Development Commission, 461 U.S. 190, 220 n.23 (1983); Grove City College v. Bell, 465 U.S. 555, 567 (1984). 79 Legislative History supra note 36 at S 3686. 80 Id. 81 Id. 82 See CRS Ergonomics Report, supra note 12. 83 147 Cong. Rec. S 1832-33 (daily ed. March 6, 2001) (emphasis added). 84 147 Cong. Rec. at S 1832. 85 CRS Ergonomics Report, supra note 12. 86 Id. 87 P.L. 107-55, 116 Stat. 81 (March 27, 2002). 88 Section 402 (c)(2). 89 Kenneth P. Doyle, Wertheimer, Bauer Debate Move to Void Soft Money Rule Before Senate Democrats, Bureau of National Affairs, July 19, 2002. A disapproval resolution of the FEC rules was introduced in the Senate, S.J.Res. 48, on October 8, 2002, but was never acted upon by either House. 90 See, e.g., Rebecca Adams, Graham Leaves OlRA With a Full Job Jar, CQ Week, Jan. 23, 2006; U.S. GAO. Rulemaking OMB's Role in Reviews of Agencies' Draft Rules anf the Transparency of Those Reviews, GAO-03-929 (September 2003; Stephen Power and Jacob M. Schlesinger, Redrawing the Lines: Bush's Rule Czar Brings Long Knife to New Regulations, Wall St. Journal, 6/12/02 at Al; Rebecca Adams, Regulating the Rulemakers: John Graham at OlRA, CQ Weekly, 2/23/02 at 520-526. 91 Seidenfeld, supra note 31, at 1090. 92 Whitman v. American Trucking Assn's, 531 U.S. 457 (2001). 71

In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.

Chapter 3

FEDERALISM, STATE SOVEREIGNTY, AND THE CONSTITUTION: BASIS AND LIMITS OF CONGRESSIONAL POWER* Kenneth R. Thomas SUMMARY The ratification of the U.S. Constitution, to a significant extent, defined the lines of authority between the state and federal governments. In recent years, the Supreme Court has decided a number of cases that address this historical relationship. This chapter discusses state and federal legislative power generally and focuses on a number of these "federalism" cases. The chapter does not, however, address the much larger policy issue of when it is appropriate — as opposed to constitutionally permissible — for federal powers to be exercised. The U.S. Constitution provides that Congress shall have the power to regulate commerce with foreign nations and among the various states. This power has been cited as the constitutional basis for a significant portion of the laws passed by the Congress over the last 50 years, and it currently represents one of the broadest bases for the exercise of congressional powers. In United States v. Lopez and subsequent cases, however, the Supreme Court did bring into question the extent to which Congress can rely on the Commerce Clause as a basis for federal jurisdiction. Another significant source of congressional power is based on the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Section 5 of that amendment provides that Congress has the power to legislate regarding its provisions. In the case of Flores v. City of Boerne, however, the Court imposed limits on this power, requiring that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end.

*

This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30315, dated January 24, 2007.

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The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. However, in New York v. United States and Printz v. United States, the Court did find that, under the Tenth Amendment, Congress cannot "commandeer" either the legislative process of a state or the services of state executive branch officials. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." The actual text of the amendment appears to be limited to preventing citizens from bringing diversity cases against states in federal courts. However, the Supreme Court has expanded the concept of state sovereign immunity to reach further than the text of the amendment, prohibiting citizens generally from bringing suits against states in federal court. There are exceptions to this limitation, however, and Congress also has a limited ability to abrogate such state immunity

INTRODUCTION The ratification of the U.S. Constitution, to a significant extent, defined the lines of authority between the state and federal governments. In recent years, the Supreme Court has decided a number of cases that address this historical relationship between the federal government and the states. This chapter discusses state and federal legislative power generally, and focuses on a number of these "federalism" cases.1 Issues addressed include congressional power under the Commerce Clause and the Fourteenth Amendment; limits on congressional powers, such as the Tenth Amendment; and state sovereign immunity under the Eleventh Amendment. The chapter does not, however, address the much larger federalism issue of when it is appropriate — as opposed to constitutionally permissible — for federal powers to be exercised.

POWERS OF THE STATES States may generally legislate on all matters within their territorial jurisdiction. This "police power" does not arise from the Constitution, but is an inherent attribute of the states' territorial sovereignty. The Constitution does, however, provide certain specific limitations on that power. For instance, a state is relatively limited in its authority regarding the regulation of foreign imports and exports2 or the conduct of foreign affairs.3 Further, states must respect the decisions of courts of other states,4 and are limited in their ability to vary their territory without congressional permission.5 In addition, the Supreme Court has found that states are limited in their ability to burden interstate commerce.6

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POWERS OF THE FEDERAL GOVERNMENT The powers of the federal government, while limited to those enumerated in the Constitution,7 have been interpreted broadly, so as to create a large potential overlap with state authority. For instance, Article I, § 8, cl. 18 provides that "[t]he Congress will have power ... To make all laws which will be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Early in the history of the Constitution, the Supreme Court found that this clause enlarges rather than narrows the powers of Congress.8 Congress has broad financial powers, including the power to tax and spend in order to pay debts and provide for the common defense and general welfare of the United States.9 Congress also has the power to borrow money and to appropriate money from the United States Treasury.10 The purposes for which Congress may tax and spend are very broad and are not limited by the scope of other enumerated powers under which Congress may regulate.11 On the other hand, Congress has no power to regulate "for the general welfare,” but may only tax and spend for that purpose. Congress also has broad authority over the commercial interests of the nation, including the power to regulate commerce,12 to establish bankruptcy laws,13 to coin money,14 to punish counterfeiters,15 to establish post offices and post roads,16 and to grant patents and copyrights.17 The Commerce Clause, discussed in more detail below, is one of the most farreaching grants of power to Congress. Regulation of interstate commerce covers all movement of people and things across state lines, including communication and transportation. Congress has broad powers over citizenship, including the power to define the circumstances under which immigrants may become citizens,18 and to protect the rights of those persons who have citizenship. The Fourteenth Amendment gives Congress the power to enforce the guarantees of the Fourteenth Amendment, including the right to due process and equal protection.19 This power extends specifically to the power of Congress to protect the rights of citizens who are at least 1820 to vote regardless of race, color, previous condition of servitude,21 or sex.22 Congress may also regulate the time, place, and manner of federal elections,23 and judge the result of such elections.24 Congress also has a number of other powers relating to elections and appointments.25 Congress has the power and authority to purchase and administer property, and has power over those jurisdictions that are not controlled by states, such as the District of Columbia and the territories.26 Congress is limited by the Fifth Amendment, however, in the taking of private property without compensation.27 Congress has numerous powers related to war and the protection of the United States and its sovereign interests.28

THE COMMERCE CLAUSE As noted above, the U.S. Constitution provides that Congress shall have the power to regulate commerce with foreign nations and among the various states.29 This power has been cited as the constitutional basis for a significant portion of the laws passed by the Congress

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over the last 50 years, and it currently represents one of the broadest bases for the exercise of congressional powers. In United States v. Lopez,30 however, the Supreme Court brought into question the extent to which the Congress can rely on the Commerce Clause as a basis for federal jurisdiction. Under the Gun-Free School Zones Act of 1990, Congress made it a federal offense for "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."31 In Lopez, the Court held that, because the Act neither regulated a commercial activity nor contained a requirement that the possession was connected to interstate commerce, the Act exceeded the authority of the Congress under the Commerce Clause. Although the Court did not explicitly overrule any previous rulings upholding federal statutes passed under the authority of the Commerce Clause, the decision would appear to suggest new limits to Congress's legislative authority. The scope and extent of the Commerce Clause does not appear to have been of particular concern to the framers of the Constitution.32 There are indications that the founding fathers considered the federal regulation of commerce to be an important power of the new Constitution primarily as a means of facilitating trade and of raising revenue.33 While the Anti-Federalists argued that the new Constitution gave too much power to the federal government, they apparently did not raise significant objections to the granting of power to regulate interstate commerce.34 The Supreme Court, however, developed an expansive view of the Commerce Clause relatively early in the history of judicial review. For instance, Chief Justice Marshall wrote in 1824 that "the power over commerce ... is vested in Congress as absolutely as it would be in a single government ..." and that "the influence which their constituents possess at elections, are ... the sole restraints" on this power.35 However, the issue in most of the early Supreme Court Commerce Clause cases dealt not with the limits of Congressional authority, but on the implied limitation of the Commerce Clause on a state's ability to regulate commerce.36 It has been suggested that the Commerce Clause should be restricted to the regulation of "selling, buying, bartering and transporting."37 In fact, much of the federal legislation approved of by the Supreme Court early in this century did relate to issues such as the regulation of lottery tickets,38 the transporting of adulterated food,39 and the interstate transportation of prostitutes.40 Moreover, during the early 1900s, the Supreme Court struck down a series of federal statutes that attempted to extend commerce regulation to activities such as "production," "manufacturing,"41 and "mining."42 Starting in 1937, however, with the decision in NLRB v. Jones & Laughlin Steel Corporation,43 the Supreme Court held that Congress has the ability to protect interstate commerce from burdens and obstructions that "affect" commerce transactions. In the NLRB case, the court upheld the National Labor Relations Act, finding that by controlling industrial labor strife, Congress was preventing burdens from being placed on interstate commerce.44 Thus, the Court rejected previous distinctions between the economic activities (such as manufacturing) that led up to interstate economic transactions, and the interstate transactions themselves. By allowing Congress to regulate activities that were in the "stream" of commerce, the Court also set the stage for the regulation of a variety of other activities that "affect" commerce. Subsequent Court decisions found that Congress had considerable discretion in determining which activities "affect" interstate commerce, as long as the legislation was "reasonably" related to achieving its goals of regulating interstate commerce.45 Thus the

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Court found that in some cases, events of purely local commerce (such as local working conditions) might, because of market forces, negatively affect the regulation of interstate commerce, and thus would be susceptible to regulation.46 The Court has also held that an activity which in itself does not affect interstate commerce could be regulated if all such activities taken in the aggregate did affect interstate commerce.47 Under the reasoning of these cases, the Court has upheld many diverse laws, including laws regulating production of wheat on farms,48 racial discrimination by businesses,49 and loan-sharking.50 The Lopez case was significant in that it is the first time since 1937 that the Supreme Court struck down a federal statute purely based on a finding that Congress had exceeded it powers under the Commerce Clause.51 In doing so, the Court revisited its prior cases, sorted the commerce power into three categories, and asserted that Congress could not go beyond these three categories: (1) regulation of channels of commerce, (2) regulation of instrumentalities of commerce, and (3) regulation of economic activities that "affect" commerce.52 Within the third category of activities that "affect commerce," the Court determined that the power to regulate commerce applies to intrastate activities only when they "substantially" affect commerce.53 Still, the Court in Lopez spoke approvingly of earlier cases upholding laws that regulated intrastate credit transactions, restaurants utilizing interstate supplies, and hotels catering to interstate guests. The Court also recognized that while some intrastate activities may by themselves have a trivial effect on commerce, regulation of these activities may be constitutional if their regulation is an essential part of a larger economic regulatory scheme. Thus, the Court even approved what has been perceived as one of its most expansive rulings, Wickard v. Filburn, which allowed the regulation of the production and consumption of wheat for home consumption.54 The Court in Lopez found, however, that the Gun-Free School Zones Act fell into none of the three categories set out above. It held that it is not a regulation of channels of commerce, nor does it protect an instrumentality of commerce. Finally, its effect on interstate commerce was found to be too removed to be "substantial." The Court noted that the regulated activity, possessing guns in school, neither by itself nor in the aggregate affected commercial transactions.55 Further, the statute contained no requirement that interstate commerce be affected, such as that the gun had been previously transported in interstate commerce.56 Nor was the criminalization of possession of a gun near a school part of a larger regulatory scheme that did regulate commerce.57 Finally, the Court indicated that criminal law enforcement is an area of law traditionally reserved to the states. 58 Consequently, the Court found that the Congress did not have the authority to pass the Gun-Free School Zone Act. It should be noted that the Lopez Court purported to be limiting, but not overruling, prior case law that had supported an expansive interpretation of the commerce clause. Consequently, most existing federal laws, which have traditionally been drafted to be consistent with this case law,59 would survive constitutional scrutiny even under Lopez. However, in at least one significant case, Congress passed a law, the Violence Against Women Act, that seemed to invoke the same concerns that the Court found in Lopez. Consequently, the relevant portion of that act was struck down in United States v. Morrison.60 In Morrison, the Court evaluated whether 42 U.S.C. § 13981, which provides a federal private right of action for victims of gender-motivated violence, was within the power of Congress to enact under the Commerce Clause. In Morrison, the victim of an alleged rape brought suit against the alleged rapist, arguing that this portion of the Act was sustainable

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because it addressed activities that substantially affect interstate commerce.61 The Court, however, noted that unlike traditional statutes based on the commerce clause, the activity in question had nothing to do with commerce or an economic enterprise. This point had been made previously in Lopez, and here the Court reaffirmed the holding that in order to fall under the acceptable category of laws that "substantially affect commerce," the underlying activity itself must generally be economic or commercial.62 As gender-motivated violence does not inherently relate to an economic activity, the Court held that it was beyond the authority of the Congress to regulate. In the case of Gonzales v. Raich,63 the Court evaluated an "as applied" challenge to the Controlled Substances Act as regards obtaining, manufacturing, or possessing marijuana for medical purposes. The case was brought by two seriously ill residents of California who used marijuana in compliance with the California Compassionate Use Act of 1996.64 The challenge was based on the argument that the narrow class of activity being engaged in — the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law — did not have a substantial impact on commerce, and thus could not be regulated under the Commerce Clause.65 In upholding the application of the Controlled Substances Act in the Raich case, the Court relied on its decision in Wickard v. Filburn,66 which held that "even if appellee' s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."67 The Wickard case upheld the application of the Agricultural Adjustment Act of 1938,68 which was designed to control prices by regulating the volume of wheat moving in interstate commerce. The Court in States, 529 U.S. 848 (2000), a criminal defendant challenged his conviction under 18 U.S.C. § 844(i), which, in part, makes it a crime to destroy by fire or explosive a building "used" in interstate commerce. Applying the statutory canon that one should interpret a statute to avoid constitutional doubt, Jones v. United States, 526 U.S. 227, 239 (1999), the Court held that the statute did not apply to a private residence that was "used" as collateral to obtain and secure a loan, "used" to obtain insurance, and "used" to receive natural gas from other sources. The Court construed the statute to require that a building protected by § 844(i) be "actively employed" for commercial purposes, id. at 855, arguing that a broader interpretation would extend the statute to virtually every arson in the country. A similar result occurred in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court considered a challenge to the Migratory Bird Rule, 51 Fed. Reg. 41217, which extended § 404(a) of the Clean Water Act (CWA), 33 U.S.C. § 1344(a) to nonnavigable, isolated wetlands. The Court held that this interpretation of the statute would raise serious constitutional questions, requiring, for instance, a close examination of precisely what activity was being regulated. Absent a clear statement from Congress that it intended the Clean Water Act to have such a broad reach, the Court found the rule was not supported by the statute. Id. at 173. See also Rapanos v. United States Army Corps of Engineers, 165 L. Ed. 2d 159, 201 (2006). Wickard held that the Congress could regulate not only the wheat sold into commerce, but also wheat retained for consumption on a fann.69 The Court did so on the theory that the

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while the impact of wheat consumed on the farm on interstate commerce might be trivial, it was significant when combined with wheat from other farmers similarly situated.70 Based on Wickard, the Court in Raich held that Congress could consider the aggregate effect that allowing the production and consumption of marijuana for medical purposes would have on the illegal market for marijuana.71 Of even greater concern was that diversion of marijuana grown for medicinal purposes for other uses would frustrate the federal interest in eliminating commercial transactions in the interstate market.72 In both cases, the Court found that the regulation was within Congress's commerce power because Congress had a rational basis to determine that production of a commodity meant for home consumption, be it wheat or marijuana, could have a substantial effect on supply and demand. In addition, because exempting the use of medical marijuana could undercut enforcement of the Controlled Substances Act, the Court found that the application in this case was within Congress's authority to "make all Laws which shall be necessary and proper"73 to effectuate its powers.

THE FOURTEENTH AMENDMENT Another significant source of congressional power is § 5 of the Fourteenth Amendment. The Fourteenth Amendment provides that states shall not deprive citizens of "life, liberty or property" without due process of law nor deprive them or equal protection of the laws. Section 5 provides that Congress has the power to legislate to enforce the amendment. The Fourteenth Amendment represented a significant shift of power in the nation's federal system. Until the passage of the Fourteenth Amendment, the Constitution was limited to establishing the powers and limitations of the federal government. However, the amendments passed immediately after the Civil War (the Thirteenth,74 Fourteenth, and Fifteenth75 Amendments), dramatically altered this regime. Passage of these amendments subjected a state's control over its own citizens to oversight by either the federal judiciary or Congress. The most significant impact of the Fourteenth Amendment has been its implementation by the federal courts, as state legislation came under scrutiny for having violated due process or equal protection. However, Congress has also seen fit to exercise its power under the Fourteenth Amendment to address issues such as voting rights and police brutality. The scope of Congress's power under §5 of the Fourteenth Amendment, however, has been in flux over the years. In Katzenbach v. Morgan,76 the Court held that §5 of the Fourteenth Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment as defined by the courts, but to help define its scope. In Katzenbach, the Court upheld a portion of the Voting Rights Act of 1965 that barred the application of English literacy requirements to persons who had reached 6th grade in a Puerto Rican school taught in Spanish. In upholding the statute, the Court rejected the argument that Congress's power to legislate under the Fourteenth Amendment was limited to enforcing that which the Supreme Court found to be a violation of that amendment. Rather, the Court held that Congress could enforce the Fourteenth Amendment by "appropriate" legislation consistent with the "letter and spirit of the constitution." The rationale for this holding appears to be that Congress has the ability to evaluate and address factual situations that it determines may lead to degradation of rights protected under

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the Fourteenth Amendment. This is true even if a court would not find a constitutional violation to have occurred. In fact, what the Court appeared to have done was to require only that Congress establish a rational basis for why the legislation was necessary to protect a Fourteenth Amendment right. Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. Mitchell,77 the Court struck down a requirement that the voting age be lowered to 18 for state elections. In prohibiting Congress from dictating the voting age for state elections, a splintered Court appears to have supported Congress's power to pass laws that protect Fourteenth Amendment rights against state intrusions, but rejected the ability of Congress to extend the substantive content of those rights. As 18-year-olds are not a protected class under the Fourteenth Amendment, the Court found that Congress was attempting to create, rather than protect, Fourteenth Amendment rights. More recently, in the case of Flores v. City of Boerne,78 the Court struck down the Religious Freedom Restoration Act (RFRA) as beyond the authority of Congress under §5 of the Fourteenth Amendment. For many years prior to the passage of RFRA, a law of general applicability restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of the First Amendment, had to be justified by a compelling governmental interest. However, in the 1990 case of Oregon v. Smith,79 the Court had lowered this standard. The Smith case involved members of the Native American Church who were denied unemployment benefits when they lost their jobs for having used peyote during a religious ceremony. The Smith case held that neutral generally applicable laws may be applied to religious practices even if the law is not supported by a compelling governmental interest. RFRA, in response, was an attempt by the Congress to overturn the Smith case, and to require a compelling governmental interest when a state applied a generally applied law to religion. The City of Boerne case arose when the City of Boerne denied a church a building permit to expand, because the church was in a designated historical district. The church challenged the zoning decision under RFRA. The Supreme Court reiterated that §5 of the Fourteenth Amendment gave the Congress the power to enforce existing constitutional protections, but found that this did not automatically include the power to pass any legislation to protect these rights. Instead, the Court held that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. For instance, the Court's decision in Katzenbach v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of minorities being denied suffrage in this country. In contrast, the Court found no similar pattern of the use of neutral laws of general applicability disguising religious bigotry and animus against religion. Rather than an attempt to remedy a problem, RFRA was seen by the Court as an attempt by Congress to overturn an unpopular Supreme Court decision. The law focused on no one area of alleged harm to religion, but rather just broadly inhibited state and local regulations of all types. Consequently, the Court found RFRA to be an overbroad response to a relatively nonexistent problem. The scope of the enforcement power under § 5 of the Fourteenth Amendment also has become important in cases where the Court has found that Congress has overreached its power under other provision of the Constitution, or is limited by some provision thereof. For instance, as discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state sovereign immunity generally prohibit individuals from suing states for damages under federal law.80 However, the Supreme Court has also held that Congress can abrogate state sovereign immunity under the Fourteenth Amendment.81 This means that in

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many cases, litigants suing states will have to find a Fourteenth Amendment basis for federal legislation in order to defeat an Eleventh Amendment defense. For instance, a significant amount of federal legislation is clearly supported by the commerce clause, but it might not be supported under §5. Recently, the Court decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority for such legislation. In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,82 the Supreme Court considered an unfair competition suit brought by a New Jersey savings bank against the state of Florida. The New Jersey savings bank had developed a patented program where individuals could use a certificate of deposit contract to save for college. The state of Florida set up a similar program, and the College Savings Bank sued Florida for false and misleading advertising under a provision of the Trademark Act of 1946 (Lanham Act),83 alleging that Florida had made misleading representations about its own product. The Court first noted that under Seminole Tribe of Florida v. Florida, Article I, powers such as the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of Congress's power under §5 of the Fourteenth Amendment. Although the Fourteenth Amendment provides that no state shall "deprive a person of ... property ... without due process of law," the Court found that the unfair trade in question, which consisted of allegedly inaccurate statements made by the state of Florida about its own saving program, did not infringe on any exclusive property right held by the College Savings Bank. As the Court found that Congress had not established an authority under the Fourteenth Amendment to abrogate the state's immunity, the College Savings Bank could not proceed against the state of Florida for unfair trade practices. Even if a property interest is established, it would still need to be determined that the Congress had the authority to protect that property interest under the Fourteenth Amendment. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,84 the Court, in a decision concerning the same parties as the case discussed above, considered whether the College Savings Bank could sue the state of Florida for patent infringement. Congress had passed a law specifically providing that states could be sued for patent violations,85 citing three sources of constitutional authority: the Article I Patent Clause,86 the Article I Interstate Commerce Clause87 and §5 of the Fourteenth Amendment. As the Court had previously precluded abrogation of sovereign immunity through the exercise of Article I powers, the question became whether Congress had the authority to pass patent legislation under §5 of the Fourteenth Amendment. Unlike the previous case, the Court found that, under a long line of precedents, patents were considered property rights. However, the Court had to further consider whether the protection of such a property right under §5 of the Fourteenth Amendment was "appropriate" under its ruling in City of Boerne. Consequently, the Court evaluated whether a federal right to enforce patents against states was appropriate remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners. Specifically, the Court sought to evaluate whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment violation that the Congress could redress. The Court noted that Congress had failed to identify a pattern of patent infringement by the states, and that only a handful of patent infringement cases had been brought against states in the last 100 years. The Court also noted that Congress had failed to establish that state remedies for patent infringement were inadequate for citizens to seek compensation for

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injury. In fact, the state of Florida argued that no constitutionally based violation had occurred, as it had procedures in place that would provide the necessary due process for patent infringement by the state to be challenged. Consequently, the Court found that the exercise of §5 of the Fourteenth Amendment in this context would be out of proportion to the remedial objective. The Court engaged in a similar analysis, with like results, in evaluating the application of age discrimination laws to the states. In Kimel v. Florida Board of Regents,88 the Court noted that the Age Discrimination in Employment Act of 1967, while a valid exercise of Congress's commerce power, could not be applied to the states unless Congress also had the power to enact it under §5 of the Fourteenth Amendment. The Kimel Court held, however, that age is not a suspect class, and that the provisions of the ADEA far surpassed the kind of protections that would be afforded such a class under the Fourteenth Amendment. Further, the Court found that an analysis of the Congress's ability to legislate prophylactically under section §5 required an examination of the legislative record to determine whether the remedies provided were proportional and congruent to the problem. A review by the Court of the ADEA legislative record found no evidence of a pattern of state governments discriminating against employees on the basis of age. Consequently, the Court held that a state could not be liable for damages under the ADEA. Similarly, the application of Title I of the Americans with Disabilities Act (ADA) to states was considered in the case of the Board of Trustees v. Garrett,89 again with similar result. In Garrett, the Court evaluated whether two plaintiffs could bring claims for money damages against a state university for failing to make reasonable employment accommodations for their disabilities; one plaintiff was under treatment for cancer, the other for asthma and sleep apnea. Although disability is not a suspect class and thus discrimination is evaluated under a rational basis test, the Court had previously shown a heightened sensitivity to arbitrary discrimination against the disabled.90 Further, Congress had made substantial findings regarding the pervasiveness of such discrimination. However, the Supreme Court declined to consider evidence of discrimination by either the private sector or local government, and dismissed the examples that did relate to the states as unlikely to rise to the level of constitutionally "irrational" discrimination. Ultimately, the Court found that no pattern of unconstitutional state discrimination against the disabled had been established, and that the application of the ADA was not a proportionate response to any pattern that might exist. However, the Court reached a different conclusion in the case of Nevada Department of Human Resources v. Hibbs.91 In the Hibbs case, an employee of the Nevada Department of Human Resources had a dispute with the Department regarding how much leave time he had available under the Family and Medical Leave Act of 1993 (FMLA). The FMLA requires employers to provide employees up to 12 weeks of unpaid leave to care for a close relative with a "serious health condition."92 In Hibbs, the Court held that Congress had the power to abrogate a state's Eleventh Amendment immunity under the FMLA, so that a state employee could recover money damages. The Court found that Congress had established significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the states, and that history was sufficient to justify the enactment of the legislation under § 5. The standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational-basis test, such was at

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issue in Kimel and Garrett, so it was easier for Congress to show a pattern of state constitutional violations. Even where the Eleventh Amendment and state sovereign immunity are not at issue, the Court may be asked to consider whether the Fourteenth Amendment establishes a sufficient basis for a federal law that does not appear to have a constitutional basis elsewhere in the Constitution. For instance, in United States v. Morrison,93 discussed previously,94 the Court found that Congress, in creating a federal private right of action for victims of gendermotivated violence, had exceeded its authority under the Commerce Clause. Consequently, the plaintiff in that case made the alternate argument that the federal private right of action could be sustained under § 5 of the Fourteenth Amendment. This argument, however, suffered from two major defects. First, the Court has long held that the Fourteenth Amendment provides Congress with the authority to regulate states but not individuals.95 In Morrison, however, the civil case had been brought against the individuals alleged to have engaged in the offense. The plaintiff attempted to avoid this problem by arguing that there is pervasive bias in various state justice systems against victims of gender-motivated violence, and that providing a federal private right of action was an appropriate means to remedy this "state action." However, the Court rejected this argument, finding that the remedy did not meet the City of Boerne test of "congruence and proportionality to the injury to be prevented or remedied and the means adopted to that end."96 Because the federal private right of action was not aimed at the allegedly discriminatory actions by state officials, but was instead directed against the individual engaging in the violence itself, the Court found that the action could not be supported by reference to the Fourteenth Amendment.97 The Court again considered the issue of Congress's power under § 5 of the Fourteenth Amendment in Tennessee v. Lane.98 In the Lane case, two paraplegic plaintiffs alleged that the state of Tennessee and several of its counties violated Title II of the ADA, which requires that the disabled be provided access to public services, programs, and activities, by failing to provide physical access to state courts.99 The Court held that Title II, as applied to this right of access to the courts, was a proper exercise of Congress's authority under § 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity Similar to its holdings in the Garrett and Hibbs cases, the Court found that Congress had established sufficient evidence of the sustained denial of persons with disabilities of access to the courts.100 In applying the Boerne congruence and proportionality test, the Court in Lane distinguished the rights Congress intended to protect in Title II (access to public services, programs, and activities) from the Title I employment rights that had been struck down in Garrett. While both Titles I and II were intended to address unequal treatment of the disabled (which is only a constitutional violation when it is irrational), the Court held that Title II was also intended to reach the more rigorously protected rights of the Due Process Clause of the Fourteenth Amendment, such as the right of access to the courts.101 The Court stated that the due process rights Congress sought to protect under Title II required a standard of judicial review at least as searching as the sex-based classifications the Court considered in Hibbs.102 The limited nature of Title II as a remedy for the denial of the right of access to courts also informed the Court's holding that the measure is a valid prophylactic remedy.103 Congress's authority under § 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity appears strongest when the focus of the prophylactic measure at issue

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is conduct that actually violates a constitutional right. In United States v. Georgia,104 a disabled state prison inmate who used a wheelchair for mobility alleged that the state of Georgia violated Title II of the ADA in relation to his conditions of confinement. The Court reiterated its holding in Lane that Title II is a constitutional exercise of Congress's Fourteenth Amendment powers. It went on to state that Title II was valid as applied to the plaintiff's cause of action, because he alleged independent violations under § 1 of the Fourteenth Amendment concerning his prison treatment.105

THE TENTH AMENDMENT The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive content, so that certain "core" state functions would be beyond the authority of the federal government to regulate. Thus, in National League of Cities v. Usery,106 the Court struck down federal wage and price controls on state employees as involving the regulation of core state functions.107 The Court, however, overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority.108 In sum, the Court in Garcia seems to have said that most disputes over the effects on state sovereignty of federal commerce power legislation are to be considered political questions, and that the states should look for relief from federal regulation through the political process.109 This appeared to have ended the Court's attempt to substantively limit federal government regulation of the states. The Court soon turned, however, to the question of how the Constitution limits the process by which the federal government regulates the states. In New York v. United States,110 Congress had attempted to regulate in the area of low-level radioactive waste. In a 1985 statute, Congress provided that states must either develop legislation on how to dispose of all low-level radioactive waste generated within the state, or the state would be forced to take title to such waste, which would mean that it became the state's responsibility. The Court found that although Congress had the authority under the Commerce Clause to regulate lowlevel radioactive waste, it only had the power to regulate the waste directly. Here, Congress had attempted to require the states to perform the regulation, and decreed that the failure to do so would require the state to deal with the financial consequences of owning large quantities of radioactive waste. In effect, Congress sought to "commandeer" the legislative process of the states. In the New York case, the Court found that this power was not found in the text or structure of the Constitution, and it was thus a violation of the Tenth Amendment. A later case presented the question of the extent to which Congress could regulate through a state's executive branch officers. This case, Printz v. United States,111 involved the Brady Handgun Act. The Brady Handgun Act required state and local law-enforcement officers to conduct background checks on prospective handgun purchasers within five business days of an attempted purchase. This portion of the Act was challenged under the Tenth Amendment, under the theory that Congress was without authority to "commandeer" state executive branch officials. After a historical study of federal commandeering of state

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officials, the Court concluded that commandeering of state executive branch officials was, like commandeering of the legislature, outside of Congress's power, and consequently a violation of the Tenth Amendment. Although the federal government is prohibited from commandeering either the legislature or executive branch of a state, this does not appear to be the case with state judicial branches. The federal judicial system and the state judicial system were not intended to be as separate as the other branches of government, and the Supremacy Clause of the Constitution explicitly provides that state courts must follow federal law, even if it overrides state laws or constitutions.112 So, there appears to be less of a concern regarding the "commandeering" of state courts. A key distinction between constitutional "substantive regulation" and unconstitutional "commandeering" appears to be whether or not the federal mandate in question is regulating state activities or whether it is seeking to control the manner in which states regulate private parties. Thus, for instance, the Court recently held in Reno v. Condon113 that the Driver's Privacy Protection Act of 1994, which regulates the sale of personal information gathered from persons seeking drivers licenses, was substantive regulation, not commandeering. In that case, the Court found that the state was not being directed on how to regulate its citizens, but rather on how to treat information that had been elicited from those citizens. However, because the regulation affected both state governments and private resellers of such information, the Court reserved the question as to whether a law, which only regulated state activities, would be constitutionally suspect.

ELEVENTH AMENDMENT AND STATE SOVEREIGN IMMUNITY The Eleventh Amendment and state sovereign immunity provide an example of the complicated interaction between the powers of the federal government, the state, and the individual. The basic issue to be addressed here is the extent to which individuals can sue a state under federal law.114 The answer to this question may vary based on a number of factors, including what law the suit is being brought under, whether the state has taken action to make itself amenable to such law, and what relief is being sought. The starting point for such a discussion is usually the Eleventh Amendment. The Eleventh Amendment reads as follows: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." The actual text of the Amendment appears to be limited to preventing citizens from bringing diversity cases against states in federal courts. However, the Supreme Court has expanded the concept of state sovereign immunity to reach much further than the text of the amendment. The Eleventh Amendment, the first amendment to the Constitution after the adoption of the Bill of Rights, was passed as a response to the case of Chisholm v. Georgia.115 Immediately after the adoption of the Constitution, a number of citizens filed cases in federal court against states. One of these, Chisholm, was a diversity suit filed by two citizens of South Carolina against the State of Georgia to recover a Revolutionary War debt. In Chisholm, the Supreme Court noted that Article III of the Constitution specifically grants the federal courts diversity jurisdiction over suits "between a State and citizens of another

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State."'116 Thus, the Court held that this grant of jurisdiction authorized the private citizen of one state to sue another state in federal court without that state's consent. The states were outraged that such a suit could be brought in federal court, protesting that the drafters of the Constitution had promised the states they would not be sued by their debtors in federal courts Almost immediately after the decision of the Chisholm cases, resolutions were introduced in Congress to overturn it, the end result being the Eleventh Amendment. The amendment ensured that a citizen of one state could not sue another state in federal court — in other words, a citizen could not sue under federal diversity jurisdiction without a state's permission. However, even after the Eleventh Amendment was passed, a number of cases were filed against states by private citizens, with jurisdiction based on federal question rather than diversity. Under this reasoning, if a citizen of a state sued his or her own state in federal court, the prohibition of the Eleventh Amendment would not apply. Consequently, for a number of years after the passage of the Eleventh Amendment, this type of case was entertained by the federal courts. However, this line of cases was ended by the case of Hans v. Louisiana.117 In Hans v. Louisiana, the Court provided for an interpretation of the Eleventh Amendment that allowed the Court to move beyond the literal text of that amendment. Under the reasoning of the Court, the Eleventh Amendment was not so much an amendment to the original structure of the Constitution as it was an attempt to overturn a specific court decision that had misinterpreted this structure. According to this line of reasoning, the Eleventh Amendment was not an amendment, but a restoration of the original constitutional design. Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent cases was not the Eleventh Amendment, but the issue of state sovereign immunity State sovereign immunity means that a state must consent to be sued in its own court system. This concept is based on early English law, which provided that the Crown could not be sued in English courts without its consent. The doctrine of sovereign immunity was in effect in the states that were in existence at the time of the drafting of the Constitution. Further, various writings by the founding fathers seemed to support the concept.118 Thus, the issue before the Court in Hans was whether the grant of jurisdiction to federal courts under Article III of the Constitution had abrogated state sovereign immunity The Hans Court found that Article In did not have this effect. Although the Hans Court answered the issue of whether adoption of Article DI of the Constitution had waived state sovereign immunity in federal courts, it left a number of questions unanswered. For instance, the question as to whether there are any instances where Congress could, by statute, abrogate a state's sovereign immunity, so that a citizen could sue a state under federal law. In Seminole Tribe of Florida v. Florida,119 the Court seemed to answer that in most cases, such suits would not be accepted. The Seminole case involved the Indian Gaming Regulatory Act of 1988, which provided Indian tribes with an opportunity to establish gambling operations. However, to establish such gambling, the Indian tribes had to enter into a compact with the state in which they were located. The states, in turn, were obligated to negotiate with the Indian tribes in good faith, and this requirement was made enforceable in federal court. Thus, the question arose as to whether the tribes could sue the states under the Eleventh Amendment. The Court in Seminole found it important to establish what constitutional authority was being exercised by the passage of the Indian Gaming Law. The Court determined that the power being exercised was the Indian Commerce Clause,120 which is found in Article I. The

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Court had found previously in Pennsylvania v. Union Gas,121 that the Commerce Power, as a plenary power, was so broad that of necessity it required the ability to abrogate state sovereign immunity In Seminole, however, the Court overturned Union Gas, holding that as the Eleventh Amendment was ratified after the passage of the Constitution and Article I, it was a limitation on Congress's authority to waive a state's sovereign immunity under that Article. The Court did indicate, however, that Congress can abrogate state sovereignty under the Fourteenth Amendment. While the logic behind this distinction is unclear,122 it means that in many cases, litigants suing states will try to find a Fourteenth Amendment basis for federal legislation to defeat an Eleventh Amendment defense. A question left unanswered by the Hans decision was whether the Eleventh Amendment, which prohibited Congress from abrogating a state's sovereign immunity in federal court, extended to a state's own courts. In Alden v. Maine,123 the Supreme Court found that the same principles of sovereign immunity identified in Hans would prevent Congress from authorizing a state to be sued in its own courts without permission. As in Hans, the Court acknowledged that the literal text of the Eleventh Amendment does not prohibit such suits, as its language addresses only suits brought in federal courts. Consequently, the Court relied instead on the proposition that sovereign immunity is a "fundamental postulate" of the constitutional design, and is not amenable to congressional abrogation. The same reasoning that prohibited these suits from being brought in federal court, a deference to the "respect and dignity" of state sovereignty, led the Court to conclude that it would be anomalous to allow such cases to be brought instead in state court. In Federal Maritime Comm'n v. South Carolina State Ports Authority, the Court addressed the issue of whether state sovereign immunity extended to proceedings before federal agencies.124 In this case, the South Carolina State Ports Authority denied a cruise ship permission to berth at the state's port facilities in Charleston, South Carolina, contending that the primary purpose of the cruise was for gambling. The cruise ship company, Maritime Services, filed a claim with the Federal Maritime Commission (FMC) arguing that South Carolina had discriminated against it in violation of the Shipping Act of 1984 and sought, among other things, damages for loss of profits.125 The Port Authority, however, successfully moved to dismiss the complaint, arguing that it was inconsistent with the concept of state sovereign immunity In reviewing the case, the Court analogized between the FMC' s quasi-judicial proceedings and traditional judicial proceedings, while noting that "[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.126 Consequently, the Court agreed that state sovereign immunity bars the FMC from adjudicating damage claims made by a private party against a nonconsenting State.127 In dissent, however, Justice Breyer noted that agency administrative proceedings are not judicial proceedings and that the ultimate enforcement of such proceedings in a court is done by the federal agency, to which state sovereign immunity does not apply. Thus, while an agency remains capable of enforcement actions against states in federal court, it cannot use its own adjudicative process to determine whether to do so, but must rely on its investigatory powers.128 According to Justice Breyer, "[t]he natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement."129

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CONCLUSION In conclusion, it would appear that the status of the state in the federal system has been strengthened by recent Supreme Court opinions. Although the Court has not scaled back the federal government's substantive jurisdiction significantly, it has to some extent prevented the expansion of Congress's power under the Commerce Clause and under §5 of the Fourteenth Amendment. Further it has created a variety of obstacles as to how these powers can be executed, forbidding Congress under the Tenth Amendment from commandeering the authority of state legislative and executive branches, and limiting the authority of Congress to abrogate state sovereign immunity Ultimately, however, Congress retains significant powers under the Constitution and, under the Supremacy Clause, may require the enforcement of its laws in both state and federal court.

ENDNOTES 1

Portions of this report were prepared by Kristin Thornblad, legal intern. See, e.g., U.S. Const. Art. I, §10, cl. 2 ("No State shall ... lay any Impost or Duties on Imports or Exports.") 3 "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War unless actually invaded, or in such imminent Danger as will not admit of delay." U.S. Const., Art. I,§ 10, cl. 3. 4 "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." U.S. Const. Art. IV, § 1. This "Full Faith and Credit Clause" gives Congress what amounts to enforcement authority over the required recognition by each state of the judgments, records, and legislation of other states. 5 "... [N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as Congress." U.S. Const., Art. IV, §3, cl. 1. 6 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 7 Article I, § 1, of the Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States." Unlike a typical grant of power to states Article I, § 1, does not grant to Congress "all legislative power," but rather grants to Congress only those specific powers enumerated in §8 and elsewhere in the Constitution. 8 As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819): "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." 9 "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United 2

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States; but all Duties, Imposts and Excises shall be uniform throughout the United States." U.S. Const., Art. I, §8, cl. 1. 10 "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const., Art. I, §9, cl. 7. 11 United States v. Butler, 297 U.S. 1 (1936). 12 "To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Article I,§ 8, cl. 3. 13 U.S. Const., Art. I, §8, cl. 4. 14 U.S. Const., Art. I, §8 cl. 5. 15 U.S. Const., Art. I, §8, cl. 6. 16 U.S. Const., Art. I, §8, cl. 7. 17 U.S. Const., Art. I, §8, cl. 8. 18 "The Congress shall have power ... To establish an uniform Rule of Naturalization." U.S. Const., Art I, § 8, cl. 4. "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const., Amend. XIV, §1. 19 "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amend. XIV, § 1. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Id. at §5. 20 U.S. Const., Amend. XXVI. 21 U.S. Const., Amend. XV. 22 U.S. Const., Amend. XIX. 23 "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." U.S. Const., Article I, §4, cl. 1. While the Fifteenth Amendment and the other voting rights guarantees noted above protect only against state action, congressional authority under this clause includes protection of the electoral process against private interference. A variety of enactments can be traced to this authority, including campaign finance laws and the Hatch Act (insofar as it applies to federal elections). 24 "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Article I, §5, cl. 1. The House and the Senate act as judicial tribunals in resolving contested election cases. 25 E.g., U.S. Const., Amend. XIV, §2 (apportionment). 26 "The Congress shall have power ... To exercise exclusive Legislation in all Cases whatsoever, over such District ... as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dockYards and other needful Buildings." Article I, §8, cl. 17. "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States... ." Article IV, § 3, cl. 2. 27 "[N]or shall private property be taken for public use, without just compensation." U.S. Const., Amend V Implicit in the Fifth Amendment's requirement that just compensation

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be paid for private property that is taken for a public use is the existence of the government's power to take private property for public use. 28 See, e.g., U.S. Const. Art. I, § 8, cl. 10 ("The Congress shall have power ... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations"); U.S. Const., Art. I, § 8, cl. 11 ("... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."); U.S. Const., Art. I, §8, cl. 12 ("To raise and support Armies... ."). 29 U.S. Const., Art. I, §8, cl. 3. 30 514 U.S. 549 (1995). 31 18 U.S.C. §922(q)(1)A). 32 Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 443-44 (1941); Greenspan, The Constitutional Exercise of the Federal Police Power: A Functional Approach to Federalism, 41 Vanderbilt Law Review 1019, 1022-24 (1988). Those materials which do address Congressional control over commerce focus on the necessity of uniformity in matters of foreign commerce, although the drafters clearly intended domestic commerce to be regulated as well. P. Kurland & R. Lerner, THE FOUNDER'S CONSTITUTION 477-528 (1987). 33 Alexander Hamilton, CONTINENTALIST, No. 5, 18 Apr. 1782 (Paper 3:75-82) as reprinted in P. Kurland & R. Lerner, supra note 32 ("The vesting of the power of regulating trade ought to have been a principal object of the confederation for a variety of reasons. It is as necessary for the purposes of commerce as of revenue.") 34 Greenspan, supra note 32 at 1023. 35 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1, 197-98 (1824). 36 See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827). 37 United States v. Lopez, 514 U.S. at 593 (Thomas, J., dissenting). 38 Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903). 39 Hippolite Egg Co. v. United States, 220 U.S. 45 (1911). 40 Hoke v. United States, 227 U.S. 308 (1913). 41 United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895). 42 Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936). 43 301 U.S. 1 (1937). 44 301 U.S. at 41. 45 United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working conditions). 46 312 U.S. at 121. 47 Wickard v. Filburn, 317 U.S. 111 (1942). 48 id. 49 See Heart of Atlanta Motel v. United States, 370 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 241 (1964). 50 Perez v. United States, 402 U.S. 146 (1971). 51 Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995). 52 The Court failed to note that to some extent, the three categories are intertwined. For instance, the first category, the regulation of "streams" or "channels" of commerce, allows regulation of the creation, movement, sale and consumption of merchandise or services. But the initial extension of the "streams" of commerce analysis by the Court to intrastate trade was justified by the "effect" of these other activities on commerce. See

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NLRB v. Jones & Laughlin, 301 U.S. 1, 31 (1936). Similarly, the second category, which allows the regulation of such instrumentalities of commerce as planes, trains or trucks, is also based on the theory that a threat to these instrumentalities "affects" commerce, even if the effect is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27 (1911)(regulation of intrastate rail traffic has a substantial effect on interstate rail traffic). Thus, the final category identified by the Court appears to be a catch-all for all other activities which "substantially affect" commerce. 53 514 U.S. at 559. 54 Wickard v. Filburn, 317 U.S. 111 (1942). 55 514 U.S. at 564. The Court rejected arguments that possession of guns in school affected the national economy by its negative impact on education. Id. 56 514 U.S. at 561. 57 514 U.S. at 560. 58 514 U.S. at 580 (Kennedy, J., concurring). The Court has reiterated its concern over extending Commerce Clause powers to Congress in areas of the law traditionally reserved to the states. See, e.g., Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 174 (2001) (rejecting an interpretation of the Clean Water Act which allowed regulation of nonnavigable, isolated wetlands as infringing upon the "traditional and primary state power over land and water use"). 59 See, e.g., 18 U.S.C. §247 (2000)(forbidding obstruction of persons in the free exercise of religious beliefs where the offense "is in or affects interstate or foreign commerce.") 60 529 U.S. 598 (2000). 61 Id. at 609. 62 requirement that a commerce clause regulation be economic or commercial has been influential in a number of subsequent statutory interpretation cases. In Jones v. United States, 529 U.S. 848 (2000), a criminal defendant challenged his conviction under 18 U.S.C. § 844(i), which, in part, makes it a crime to destroy by fire or explosive a building "used" in interstate commerce. Applying the statutory canon that one should interpret a statute to avoid constitutional doubt, Jones v. United States, 526 U.S. 227, 239 (1999), the Court held that the statute did not apply to a private residence that was "used" as collateral to obtain and secure a loan, "used" to obtain insurance, and "used" to receive natural gas from other sources. The Court construed the statute to require that a building protected by § 844(i) be "actively employed" for commercial purposes, id. at 855, arguing that a broader interpretation would extend the statute to virtually every arson in the country. A similar result occurred in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court considered a challenge to the Migratory Bird Rule, 51 Fed. Reg. 41217, which extended § 404(a) of the Clean Water Act (CWA), 33 U.S.C. § 1344(a) to nonnavigable, isolated wetlands. The Court held that this interpretation of the statute would raise serious constitutional questions, requiring, for instance, a close examination of precisely what activity was being regulated. Absent a clear statement from Congress that it intended the Clean Water Act to have such a broad reach, the Court found the rule was not supported by the statute. Id. at 173. See also Rapanos v. United States Army Corps of Engineers, 165 L. Ed. 2d 159, 201 (2006).

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125 S. Ct. 2195 (2005). Cal. Health & Safety Code Ann § 11362.5 (West Supp. 2005) (providing for the legal possession of medical marijuana by a patient or primary care-giver, upon the written or oral recommendation of a physician). 65 125 S. Ct. at 2211. 66 317 U.S. 111 (1942). 67 Id. at 125. 68 52 Stat. 31. 69 Id at 128-29. 70 Id. at 127. 71 125 U.S. at 2207. 72 Id. 73 U.S. Const., Art. I, § 8. 74 U.S. Const., Amend. XBI (prohibiting slavery). 75 U.S. Const., Amend. XV (voting rights). 76 384 U.S. 641 (1966). 77 400 U.S. 112 (1970). 78 521 U.S. 507 (1997). 79 494 U.S. 872 (1990). 80 See notes 90-104 and accompanying text, infra. 81 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996); See discussion infra notes 95-98 and accompanying text. 82 527 U.S. 666 (1999). 83 15 U.S.C. § 1125(a). 84 527 U.S. 627 (1999). 85 Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), 35 U.S.C. §§ 271(a). 86 U.S. Const. Art. I, § 8, cl. 8. 87 U.S. Const. Art. I, § 8, cl. 3. 88 528 U.S. 62 (2000). 89 531 U.S. 356 (2001). 90 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). 91 538 U.S. 721 (2003). 92 29 U.S.C. § 2612(a)(1)(C). 93 529 U.S. 598 (2000). 94 See supra notes 60-61 and accompanying text. 95 See Shelley v. Kraemer, 334 U.S. 1, 13 (1948). 96 521 U.S. at 526. 97 529 U.S. at 626. 98 541 U.S. 509 (2004). 99 One plaintiff in Lane claimed he was unable to appear to answer criminal charges on the second floor of a courthouse that had no elevator. The second plaintiff, a certified court reporter, claimed she was denied the opportunity both to work and to participate in the judicial process because she was unable to access numerous county courthouses. 64

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95

The Court cited congressional evidence that legislative attempts preceding Title II inadequately addressed the problem of patterned unconstitutional treatment in access to the courts. 541 U.S. at 526. 101 The Court held that it need not examine Title II as a whole when evaluating the remedy's congruence and proportionality to the injury of disability discrimination in access to the courts. The relevant inquiry solely concerned Title II' s scope as applied to the rights associated with access to judicial services. The Court cited as precedent for this limited application approach the Garrett case, in which it considered only Title I of the ADA for purposes of Fourteenth Amendment analysis. Based on this narrow scope of inquiry, the Court determined that both the pattern of past discrimination in access to the courts and the failure of previous legislative attempts to remedy the injury were sufficient to hold that Title II is a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. 102 U.S. at 529. As noted by Chief Justice Rehnquist in dissent, 541 U.S. at 541-42 (Rehnquist, C.J., dissenting), the congruence and proportionality analysis in the majority opinion in Lane did not limit itself to historical examples of the disabled being denied due process, but also cited a history of disparate treatment in other less protected areas. See id. at 524-25. 103 Title II does not require states to compromise the integrity of public programs or make unduly burdensome changes to public facilities. 541 U.S. at 532. Rather, states need only take reasonable measures to comply with Title II regulations. Id. 104 125 S. Ct. 877 (2006). 105 Id. at 881. 106 426 U.S. 833 (1976). 107 National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the wages and hours of certain state and local governmental employees, was undoubtedly within the scope of the Commerce Clause, but it cautioned that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner 108 469 U.S. 528 (1985). Justice Blackmun' s opinion for the Court in Garcia concluded that the National League of Cities test for "integral operations" in areas of traditional governmental functions had proven impractical, and that the Court in 1976 had "tried to repair what did not need repair." 109 See also South Carolina v. Baker, 485 U.S. 505 (1988). 110 505 U.S. 144 (1992). 111 521 U.S. 898 (1997). 112 "The Constitution and the Law of the United States ... shall be the Supreme Law of the Land; and the Judges of every State shall be bound thereby... ." U.S. Const., Art. VI, cl. 2. 113 528 U.S. 141 (2000). 114 It should be noted that not all suits in which a state is involved is a "suit" against a state. In Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004), the Court addressed state sovereign immunity in the context of bankruptcy proceedings. In that case, the Court addressed whether Eleventh Amendment immunity extended to an adversary proceeding initiated by a debtor seeking an undue hardship discharge of her state-held

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student loan debt. The Court held that the proceeding did not constitute a suit against the state for purposes of the Eleventh Amendment. The Court noted that the bankruptcy petition in question was an in rem proceeding, so that the court's jurisdiction was over the petitioner's debt, rather than over her person or the state. Id. at 448. Thus, the federal bankruptcy court's exercise of jurisdiction over the state-held debt did not infringe upon the state's sovereignty immunity Id. at 450. 115 2 U.S. (Dall.) 419 (1793). 116 U.S. Const., Art. DI, §2. 117 134 U.S. 1 (1890). 118 See Alden v. Maine, 527 U.S. 706, 2248 (1999). 119 517 U.S. 44 (1996). 120 U.S. Const., Art. I, § 8, cl. 3. 121 491 U.S. 1 (1989). 122 One apparent argument is that the Fourteenth Amendment was passed after the Eleventh Amendment and thus, unlike legislative powers found in Article I of the Constitution, it can be seen as an alteration of the restrictions of the Eleventh Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996). However, as is discussed in detail below, the Supreme Court has held that state sovereign immunity preceded and predated the Constitution. Alden v. Maine, 527 U.S. 706, 2248 (1999). Consequently, all the Articles of the Constitution could arguably be seen as altering the restrictions of the state sovereign immunity. Another argument made by the Court in Seminole is that the Fourteenth Amendment was designed to alter the pre-existing balance between state and federal power at the time of its passage. This argument is more plausible, but is still difficult to differentiate between Congress' power under the Fourteenth Amendment and Congress' power under the Articles of the Constitution. Like the Fourteenth Amendment, the Articles of the Constitution were clearly intended to alter the balance between state and federal power at the time of the passage of the Constitution, which included state sovereign immunity This is exemplified by the Supremacy Clause, U.S. Const., Art. VI, cl. 2 which provides that laws passed under the Articles of the Constitution would be supreme over state law. 123 527 U.S. 706 (1999). 124 122 S. Ct. 186 (2002). 125 46 U.S.C. App. § 1701 (1994 & Supp. V). 126 122 S. Ct. at 1874. 127 The Court noted that "[there are] numerous common features shared by administrative adjudications and judicial proceedings." 122 S. Ct. at 1872. "[F]ederal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcript of testimony and exhibits together with the pleadings constitutes the exclusive record for decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record." Id. 128 Justice Breyer noted that after this decision "a private person cannot bring a complaint against a State to a federal administrative agency where the agency (1) will use an

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internal adjudication process to decide if the complaint is well founded, and (2) if so, proceed to court to enforce the law." Id. at 1881. 129 Id.

In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.

Chapter 4

RESCISSION ACTIONS SINCE 1974: REVIEW AND ASSESSMENT OF THE RECORD* Virginia A. McMurtry SUMMARY The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). Under the ICA, unless Congress takes action to approve a rescission request from the President within the 45-day review period prescribed by the law, the funds must be released. With respect to a presidential rescission message, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress on its own accord may initiate rescission actions, by cancelling previously appropriated funds in a subsequent law. According to data compiled by the Government Accountability Office (GAO), from FY1974 to FY2006, Presidents requested 1,178 rescissions under the ICA, totaling somewhat over $76 billion. Close to a third of the proposals were approved by Congress, with approximately 40% of the total dollar amount of presidential rescission requests ($25 billion) enacted by Congress. The sum of rescissions requested by the President and subsequently enacted exceeded $1 billion in only four of the 30-plus years (FY1981, FY1982, FY1992 and FY1994). During this period Congress initiated 1,610 rescission actions amounting to $143.5 billion, over five times the total of presidentially requested rescission subsequently enacted, reflecting a trend toward an increasing number of rescissions being initiated by Congress. The Line Item Veto Act of 1996 (P.L. 93-344), in effect for less than eighteen months before being overturned by the Supreme Court in 1998, gave the President enhanced rescission authority by reversing the burden of action regarding rescission proposals; cancellations of the President became permanent unless disapproved by Congress (ultimately requiring rejection by a 2/3 majority in both chambers). During this time, the President also *

This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33869, dated February 7, 2007.

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had authority to cancel new items of direct spending and certain targeted tax benefits as well as items of discretionary spending. Figures from the Congressional Budget Office indicate that the 82 cancellations made by President Clinton in FY1998 (including those overturned) totaled some $355 million, with a projected five-year savings just under $1 billion. President Clinton's use of the short- lived enhanced rescission authority thus was not notably different from the prior annual record of presidential rescissions under the ICA framework. During his first six years in office, President George W. Bush sent no formal ICA rescission requests to Congress, but some controversy developed over his use of alternative means to propose spending reductions. President Bush, while evidently reluctant to use existing rescission authority contained in the ICA, has called repeatedly for enactment of a measure that would give the President greater authority to reject items of spending. Such a bill passed the House in the 109th Congress and was reported in the Senate. A contentious issue is whether such a measure might give preference to presidential spending priorities over congressional spending priorities, arguably affecting the legislative power of the purse.

INTRODUCTION The federal budget process involves both Congress and the executive branch. The Constitution provides in Article I that "no money shall be drawn from the Treasury but in consequence of appropriations made by law... ." Article II stipulates that the President "shall take care that the laws be faithfully executed." The practice of impoundment reflects this sharing of powers between the branches in the implementation of the federal budget. The term "impoundment" refers to executive actions to withhold or delay the spending of funds provided in law. The term "rescission" denotes one type of impoundment, that involving permanent cancellation of the funds. While instances of presidential impoundment date back to the early 19th century, Presidents usually sought accommodation rather than confrontation with Congress.1 This changed during the Nixon Administration (1969-1974), when impoundment of funds developed into a major conflict, eventually involving the courts as well as Congress and the President.2 This report begins by reviewing the framework for handling rescissions established by the Impoundment Control Act of 1974 (ICA, 88 Stat. 332) and by amendments to it in 1987 (101 Stat. 786). A section with review and analysis of data on rescission requests and outcomes pursuant to the 1974 law follows, including comparisons among the respective Administrations. Attention then turns to actions which took place during the brief period that the Line Item Veto Act of 1996 (LIVA, P.L 104-130, 110 Stat. 1200) was in force. During his first six years as President, George W. Bush sent no formal ICA rescission requests to Congress, but some controversy developed over his use of "cancellation statements" proposing spending reductions. The final section of the chapter provides some concluding observations.

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IMPOUNDMENT CONTROL ACT OF 1974 The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). The act established two categories of impoundments: deferrals, or temporary delays in funding availability; and rescissions, or permanent cancellation of the designated budget authority. The ICA also established new reporting requirements that remain in effect.3 The 1974 law required the President to inform Congress of all proposed rescissions and deferrals and to submit specified information regarding each such action in a special message. The President may combine several rescission requests in a single impoundment message. Section 1014 of the 1974 law also stipulated that the President transmit to Congress each month a cumulative report on the status of impoundment actions. In 1975, various of these reporting duties were transferred from the President to the Director of the Office of Management and Budget (OMB) via Executive Order 11845.4 The ICA also required the Comptroller General of the General Accounting Office (GAO, now the Government Accountability Office), to oversee executive compliance with the law and report to Congress if the President fails to report an impoundment or improperly classifies an action. Both messages from the President and communications from the Comptroller General are published in the Federal Register and subsequently printed as House documents.5 The act further stipulated different procedures for congressional review and control of the two types of impoundment. With a rescission, the funds must be made available for obligation unless both Houses of Congress take action to approve of the rescission request within 45 days of "continuous session."6 Recesses of more than three days are not counted. In practice, this usually means that funds proposed for rescission not approved by Congress become available for obligation after about 60 calendar days, although the period can extend to 75 days or longer.7 The funds may be withheld from obligation until the 45-day period elapses or Congress disapproves the rescission. Congress may alter the amount proposed for rescission by the President, either increasing or decreasing it, as well as approving or disapproving the rescission request in toto. Section 1017 of the ICA establishes expedited procedures for congressional action on "any rescission bill introduced with respect to a special message" submitted by the President. In the fall of 1987, as a component of legislation to raise the limit on the public debt (P.L. 100-119) that also included changes in the Gramm-Rudman-Hollings Act, Congress enacted several other budget process reforms as well. Section 206 effectively eliminated presidential deferrals for policy reasons.8 Section 207 involved the use of rescission authority. It provides a statutory prohibition against the practice, sometimes used by Presidents when Congress failed to act on a rescission proposal within the 45-day period, of resubmitting a new rescission proposal covering identical or very similar matter. By using such resubmissions repeatedly, the President might continue to tie up the funds even though Congress, by its inaction, had already rejected virtually the same proposal. The legislative history of the 1974 act suggests that prohibiting this practice of seriatim rescission proposals may be consistent with the original intent of Congress. The prohibition on seriatim rescissions in Section 207 applies for the duration of the appropriation, so that it may remain in effect for two or more fiscal years.9

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RESCISSION ACTIONS SINCE 197410 The Impoundment Control Act has been in effect for over 30 years. According to an assessment of congressional power over impoundments since 1974, coauthored by a former director of the Congressional Budget Office (CBO), "Although the courts did much to curb presidential impoundments, through Title X of the new Budget Act, Congress also helped itself to recapture its influence over the impoundment of funds."11 In the first few years following enactment of the 1974 law, Congress approved presidential requests in a number of separate rescission bills. Subsequently, Congress tended to act upon rescission messages from the President in supplemental and regular appropriations measures, rather than in individual rescission bills. Under the ICA, unless Congress takes action to approve of a rescission request from the President within the 45-day period, the funds must be released. In practice, however, congressional action on rescission requests has often occurred after the expiration of the 45-day review period, so that funds are formally available for obligation for some time before being permanently rescinded. As noted previously, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress of its own accord may initiate rescission actions, by cancelling previously appropriated funds in a subsequent law. Such factors can create ambiguities in interpreting data on rescissions proposed by the President and congressional action on them. For example, are funds originally proposed for rescission in a special message, but which again become available for obligation before Congress permanently rescinds them, to be considered as "congressional approval of a President's request" or as a "rescission initiated by Congress"? Table 1 provides data on rescissions from FY1974 through FY2005 as compiled by GAO. According to GAO's methodology, eventual congressional action on a rescission proposed by the President is generally considered as "approval of a President's request" even if the 45-day period has elapsed.12 Data in Table 2 reflect the outcome of rescission requests of the Presidents since 1974, providing percentages of their respective requests approved by Congress, both in relation to total dollars requested for rescission and to the number of separate proposals, by year and by Administration. In the early months under the new framework, the number of presidentially proposed rescissions increased. In particular, President Ford attempted to rescind funding that Congress had added to the President's budget, mainly involving domestic social programs, but the effort met with limited success. As characterized by Louis Fisher, "Instead of performing as a restriction on Presidential power, it [the new law] was interpreted by the [Ford] Administration as a new source of authority for withholding funds... . Rescission proposals came up by the bushel; wholesale they were rejected.”13 As indicated in Table 2, some 34% of President Ford's rescission proposals were accepted by Congress. In terms of the percentage of the total dollar amount requested during the Administration and approved by Congress, President Ford had less overall success (16%) than any of his successors.

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Table 1. Rescissions of Appropriated Funds, FY1974-FY2005 Fiscal Year

Number Proposed by the President

Total Amount Proposed by President for Rescission

Number Approved by Congress

1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total 19742005 Average per FY

2 87 50 20 12 11 59 133 32 21 9 245 83 73 0 6 11 30 128 7 65 29 24 10 25 3 3 0 0 0 0 0 1,178

$495,635,000 $2,722,000,000 $3,582,000,000 $1,926,930,000 $1,290,100,000 $908,700,000 $1,618,100,000 $15,361,900,000 $7,907,400,000 $1,569,000,000 $636,400,000 $1,856,087,000 $10,126,900,000 $5,835,800,000 $0 $143,100,000 $554,258,000 $4,859,251,000 $7,879,473,690 $356,000,000 $3,172,180,000 $1,199,824,000 $1,425,900,000 $407,111,000 $25,260,000 $35,040,000 $128,000,000 $0 $0 $0 $0 $0 $76,022,349,690

37

$2,375,698,428

Number Initiated by Congress

Total Amount of Rescissions Initiated by Congress

0 38 7 9 5 9 34 101 5 0 3 98 4 2 0 1 0 8 26 4 45 25 8 6 21 2 0 0 0 0 0 0 461

Total Amount of Presidential Requests Approved by Congress $0 $386,295,370 $148,331,000 $813,690,000 $518,655,000 $723,609,000 $777,696,446 $10,880,935,550 $4,365,486,000 $0 $55,375,000 $173,699,000 $143,210,000 $36,000,000 $0 $2,053,000 $0 $286,419,000 $2,067,546,000 $206,250,000 $1,293,478,548 $845,388,805 $963,400,000 $285,111,000 $17,276,000 $16,800,000 $0 $0 $0 $0 $0 $0 $25,006,704,719

3 1 0 3 4 1 33 43 5 11 7 12 7 52 61 11 71 26 131 74 81 248 104 96 43 105 61 67 76 47 49 77 1,610

$1,400,412,000 $4,999,704 $0 $172,722,943 $67,164,000 $47,500,000 $3,238,206,100 $3,736,490,600 $48,432,,000 $310,605,000 $2,188,689,000 $5,458,621,000 $5,409,410,000 $12,359,390,875 $3,888,663,000 $325,913,000 $2,304,986,000 $1,420,467,000 $22,526,953,054 $2,205,336,643 $2,374,416,284 $18,868,380,121 $4,974,852,131 $7,381,253,000 $4,180,814,234 $5,081,426,930 $3,757,774,500 $5,148,137,497 $4,621,092,342 $3,123,436,524 $10,515,464,056 $6,351,133,468 $143,493,143,006

14

$78,145,922

50

$4,484,160,719

Source: Government Accountability Office, Updated Rescission Statistics, Fiscal Years 1974-2005, GAO Report B-306473, November 4, 2005.

In contrast to the record in the Ford Administration, President Carter requested far fewer rescissions, but enjoyed much greater success in gaining congressional approval. During the Carter Administration, the same political party (Democrats) controlled both Houses of

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Congress along with the White House. Allen Schick has suggested that given the common party identity, President Carter was "reluctant to propose rescissions, and Congress [was] reluctant to disapprove those proposed." Some 90% of the rescissions proposed by President Carter involved defense programs, including the cancellation of the B-1 bomber.14 The Administration of President George W. Bush ( "Bush In provides a special case with respect to the record of rescissions since 1974. The Republican Party maintained a majority in the House for the first six years of this Administration, and likewise in the Senate for over four years, but President Bush submitted no rescission requests to Congress. Although the figures of zero are duly entered in the accompanying Tables 1 and 2, comparisons in this section generally refer to the Ford through Clinton administrations. Developments during the "Bush II" Administration are addressed separately, below. The decline in rescission requests during the Carter Administration proved only temporary. During his first year in office President Reagan submitted more rescission proposals (133) than had President Carter during his entire administration. The largest number of rescission requests in any year (245 in 1985) occurred during the Reagan Administration, as did the greatest amount in terms of total dollars involved (more than $15 billion in 1981). Somewhat coincidentally, President Reagan saw the same percentage acceptance overall of his rescission proposals as the total dollar value — 36% (see Table 2). While President Reagan' s rescission requests focused almost exclusively on domestic programs, most of the Reagan proposals reflected program cuts rather than targeted terminations via rescissions as during the Nixon Administration. The aggregate percentage approval figure of slightly over a third for the Reagan Administration's requests masks substantial differences from year to year, however. As one assessment concluded, Although President Reagan was, nevertheless, reasonably successful in using this [rescission] device in fiscal years 1981-1982, obtaining congressional approval for almost 70 percent of the dollar value of his requested rescissions, the tool was essentially useless to the president in fiscal years 1983-87, when Congress approved less than 2 percent of the value of his rescission requests.15

Table 2. Rescissions Requested by the President and Approved by Congress, 1974-2005 Fiscal Year/ Administration

Number of Rescissions Requested by President

1974 1975 1976 1977 1978 1979 1980 1981

2 87 50 20 12 11 59 133

Total Dollar Amount of Rescissions Requested by the President $495,635,000 $2,722,000,000 $3,582,000,000 $1,926,930,000 $1,290,100,000 $908,700,000 $1,618,100,000 $15,361,900,000

Percent of President's Proposals Accepted by Congress 0% 44% 14% 45% 42% 82% 58% 76%

Percent of Total $ Amount Requested Approved by Congress 0% 14% 4.1% 42% 40% 80% 48% 71%

Rescission Actions Since 1974: Review and Assessment of the Record 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Ford (FY1974FY1977) Carter (FY1977FY1981) Reagan (FY1981FY1989) G.H.W. Bush (FY1989- FY1993) Clinton (FY1993FY2001) G.W. Bush (FY2001FY2005) Average per FY, 1974-2005

32 21 9 245 83 73 0 6 11 30 128 7 65 29 24 10 25 3 3 0 0 0 0 0 152

$7,907,400,000 $1,569,000,000 $636,400,000 $1,856,087,000 $10,126,900,000 $5,835,800,000 $0 $143,100,000 $554,258,000 $4,859,251,000 $7,879,473,690 $356,000,000 $3,172,180,000 $1,199,824,000 $1,425,900,000 $407,111,000 $25,260,000 $35,040,000 $128,000,000 $0 $0 $0 $0 $0 $7,935,013,000

16% 0 33% 40% 5% 3% 0 17% 0 27% 20% 57% 69% 86% 33% 60% 67% 68% 0 0 0 0 0 0 34%

55% 0 9% 19% 1% 1% 0 1% 0 6% 26% 58% 41% 71% 68% 70% 48% 48% 0 0 0 0 0 0 16%

122

$5,750,816,000

56%

44%

604

$43,436,587,000 36%

36%

169

$13,292,982,690 20%

18%

166

$6,749,315,000

67%

54%

0

0

0

0

38

$2,452,333,861

39%

33%

105

Source: Government Accountability Office, 2005.

The absence of any rescission requests in FY1988, for the first time since enactment of the ICA, reflected a special situation. In November of 1987 a compromise agreement was announced, resulting from the "Budget Summit" between the White House and Congress. The summit deal specified two-year limits on discretionary spending for domestic programs, international affairs, and defense. Provisions of the agreement were implemented as a part of an omnibus appropriations measure (P.L. 100-202, 101 Stat.1329-1) and a reconciliation bill

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(P.L. 100-203, 101 Stat. 1330). Apparently, President Reagan decided not to submit formal rescission requests for fiscal 1988, which might have been perceived in Congress as violating the spirit if not the letter of the agreement. He did, however, send a message to Congress identifying "wasteful items earmarked in the FY1988 full-year continuing resolution," with a transmittal letter stating the following: Accordingly, I am informally asking that the Congress review these projects, appropriations, and other provisions line by line and either rescind or repeal them as soon as possible. I reserve the option of transmitting at a later date either formal rescission proposals or language that would make the funds available for more worthwhile purposes, for any or all of these items.16

President Reagan refrained from using the rescission mechanism only temporarily. Before he left office, in January of 1989, the President transmitted a package of six new rescission proposals affecting FY1989.17 The Administration of George H.W. Bush had an approval rating for rescission requests considerably below that for President Reagan, and about the same overall as that of President Ford, with 20% of the total dollars requested approved, and 18% of the total proposals accepted. During the presidential election year of 1992, however, the use of rescissions became a controversial and highly partisan political issue to an extent not seen since the conflicts of the Nixon Administration.18 During the first four months of calendar year 1992, President Bush requested 128 rescissions, totaling almost $7.9 billion, while reportedly attempting to portray the Democratic-Party-controlled Congress as more interested in securing domestic "pork" projects for their constituents than in reducing the budget deficit. Over $7 billion of these proposed rescissions affected the Defense Department, mainly for weapons programs that the Administration wanted to terminate or items that Congress added to earlier defense budgets.19 Many of the nondefense rescissions were for small earmarked projects, added by Congress. In response to the four packages of rescissions requested by President Bush in 1992, the House and Senate Appropriations Committees devised their own alternative packages. A conference version with an $8.2 billion package of rescissions was signed into law on June 4, 1992 (P.L. 102-298). Although the conference agreement contained over $7 billion in defense funds, only about $1.7 billion of that total came from programs that the Administration had wanted to rescind. In toto, the law approved less than $2.1 billion of the rescissions requested by President Bush, but added more than $6 billion in congressionally initiated cuts.20 As indicated in Table 2, the Clinton Administration ranked at the top of the list of Presidents since 1974 with respect to the percentage of rescission proposals accepted (67%) and percentage of the total dollar amounts requested that were approved by Congress (54%). During his first two years (1993-1994) the Democratic Party controlled both houses of Congress as well as the White House, while in the remainder of his term, Republicans controlled the House and Senate. Yet President Clinton achieved his greatest success rate with rescissions, with respect to percentage of total dollar amount requested that was ultimately rescinded, in FY1995, when Congress was controlled by the opposition party.

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Table 3. Summary of Enacted Rescissions, 1974-2005 Fiscal Year

Amount Requested by Amount of Enacted President, Enacted Rescissions, Initiated By Congress

1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total

$0 386,295,370 148,331,000 813,690,999 518,655,000 723,609,000 777,696,446 10,880,935,550 4,365,486,000 0 55,375,000 173,699,000 143,210,000 36,000,000 0 2,053,000 0 286,419,000 2,067,546,000 206,250,000 1,293,478,548 845,388,805 963,400,000 $285,111,000 $17,276,000 $16,800,000 $0 $0 $0 $0 $0 $0 $25,006,704,719

$1,400,412,000 4,999,704 0 172,722,943 67,164,000 47,500,000 3,238,206,100 3,736,490,600 48,432,000 310,605,000 2,188,689,000 5.458,621,000 5,409,410,000 12,359,390,875 3,888,663,000 325,913,000 2,304,986,000 1,420,467,000 22,526,953,054 2,205,336,643 2,374,416,284 18,868,380,121 4,974,852,131 $7,381,253,000 $4,180,814,234 $5,081,426,930 $3,757,774,500 $5,148,137,497 $4,621,092,342 $3,123,436,524 $10,515,464,056 $6,351,133,468 $143,493,143,006

Total Dollar Amount % of Total of Budget Authority Enacted, Rescinded Requested by President $1,400,412,000 0% 391,295,074 1.3% 148,331,000 0% 986,412,943 82.5% 585,819,000 88.5% 771,109,000 93.8% 4,015,902,546 19.4% 14,617,426,150 74.4% 4,413,918,000 98.8% 310,605,000 0% 2,224,064,000 1.6% 5,632,320,000 3% 5,552,620,000 2.6% 12,395,390,876 0.3% 3,888,993,000 0% 327,966,000 0.6% 2,304,986,000 0% 1,706,886,000 16.8% 24,594,499,054 8.4% 2,411,586,643 8.6% 3,687,894,832 35.6% 19,713,768,926 4.3% 5,938,252,131 16.2% $7,666,364,000 3.7% $4,198,090,234 0.4% $5,098,226,930 0.3% $3,757,774,500 0% $5,148,137,479 0% $4,621,092,342 0% $3,123,436,524 0% $10,515,464,056 0% $6,351,133,468 0% $168,499,847,523

Source: Government Accountability Office, 2005.

As reflected in columns on the right side of Table 2, President Clinton submitted relatively fewer rescission requests per year than did his predecessors. In seven of his eight years in office, the number of rescissions requested by President Clinton was below the 19742005 average of 38 per year. Further, the ranking of the Administrations by average number of rescissions requested per year (to adjust for terms ranging from roughly two and a half to

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eight years), places President Clinton (annual average of 21 rescissions) only above George W. Bush (with zero). President Reagan not only submitted the most rescissions in toto (604), but was also number one with respect to a yearly average (76 rescission requests), followed by President Ford (61), President George H. W. Bush (42), and President Carter (31). Table 3 presents data on the total dollar amount of all enacted rescissions, and of the amounts, respectively, proposed by the President and initiated by Congress. During the Ford Administration, virtually all rescissions were congressionally initiated. In contrast, during the first three years President Carter was in office, a preponderance of enacted rescissions came from presidential messages (FY1977, 82.5%; FY1978, 88.5%; and FY1979, nearly 94%). Rescissions requested by President Reagan likewise predominated during the first two years of his term; in FY1981, over 74% of the total amount rescinded came from presidential proposals, and in FY1982, nearly 99%. The variations from year to year within administrations, as compared with the record of the respective Presidents overall, constitute a noteworthy feature of the data in Tables 1 and 2. Both the number and dollar amount of rescission requests submitted by the President have fluctuated widely in the 30-plus years of experience under the Impoundment Control Act. While President Clinton had the most success during a single year — 86% of rescission proposals approved by Congress in 1995 — none of his requests were approved in 2000. Reflecting on rescissions under the ICA from the perspective of the mid-1990s, Allen Schick concluded, Rescissions invite conflict between the President and Congress. Every one is a presidential demand that Congress cancel resources it had previously appropriated. By implication, rescissions tell Congress that it erred the first time around and that it wasted government funds. This is not a message that appeals to legislators, especially when it comes from a president who has different budget priorities.21

The experience during the 1992 election year provided a prelude to a very significant development in rescissions since 1974, the increase in number of congressionally initiated rescissions. By the end of FY1992, Presidents had proposed over 1,000 rescissions under the ICA, with Congress approving about a third of the Presidential requests, along with over 300 congressionally initiated rescissions.22 During the period from 1974-1992, the total amount rescinded came to nearly $107.7 billion, of which over 80% came from congressionally initiated rescissions. In 1993 testimony, Milton Socolar, from the GAO Office of General Counsel, called attention to this development: The data suggest an evolution in the use of rescissions as a budgetary tool... . (T)he share of total enacted rescissions originally proposed by the president has fallen and the share originating in the Congress has increased... . As the Congress has come to embrace an equivalent or greater amount of reductions than proposed by presidents, the debate has shifted from deciding whether to cut to deciding where to cut [emphasis in original] 23

According to Mr. Socolar, however, these enacted rescissions often had no effect in reducing total spending if an equivalent amount of budget authority was added to another program, thereby reflecting a shift in priorities rather than a reduction in total spending.

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The proportion of enacted rescissions initiated by Congress rather than by presidential request has continued to expand (see Table 3). The share of total dollars rescinded originating with Congress exceeded 91% in FY1992 and FY1993, and by FY1997 and FY1998, over 99%. Since FY1982, the percentage of total rescissions enacted included in presidential messages reached double digit figures in only three years: almost 17% in FY1991, nearly 36% in FY1994, and 16% in FY1996. Since FY2000, all rescissions enacted have been congressionally initiated. President George W. Bush has submitted no rescission requests to Congress. One factor that may have contributed to the growth of rescissions initiated by Congress relates to the limits on discretionary spending dating to the Budget Enforcement Act (BEA) of 1990.24 As noted previously, Congress came to include rescission provisions in regular or supplemental appropriations measures. An appropriations measure could include rescissions of previously appropriated funds in order to accommodate additional monies for other purposes. The rescission mechanism on occasion might have proved useful in efforts to avoid breaching a particular spending cap and possibly triggering across-the-board cuts.

DEVELOPMENTS IN THE CLINTON AND GEORGE W. BUSH ADMINISTRATIONS In the last decade, other presidential actions relevant to the review of rescissions have occurred. For a brief period President Clinton had new authority to rescind funds under the Line Item Veto Act of 1996. President George W. Bush has refrained from requesting rescissions under the ICA, but has issued presidential statements calling for "cancellation" of certain funding. President Bush also has supported amending the ICA to provide for expedited rescissions.

Line Item Veto Act (LIVA) of 1996 The Line Item Veto Act of 1996 amended the ICA to give the President "enhanced rescission authority" to cancel certain items in appropriations and entitlement measures and also certain narrowly applicable tax breaks. The act authorized the President to cancel in whole any dollar amount of discretionary budget authority (appropriations), any item of new direct spending (entitlement), or limited tax benefits with specified characteristics, contained in a bill otherwise signed into law. The cancellation was to take effect upon receipt in the House and Senate of a special notification message. "Cancellation" in this context meant to prevent from having legal force; in other words, provisions canceled never were to become effective unless Congress reversed the action of the President by enacting a "disapproval bill." The President was only to exercise the cancellation authority if he determined (1) that such cancellation would reduce the federal budget deficit, and (2) it would not impair essential government functions or harm the national interest; and (3) he notified the Congress in a special message of any such cancellation within five calendar days after enactment of the law providing such amount, item, or benefit. The act provided 30 days for the expedited congressional consideration of disapproval bills to reverse the cancellations contained in the

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special messages received from the President. Detailed provisions for expedited consideration of the disapproval bill in the House and Senate were outlined. Since the President would presumably veto the disapproval bill, a 2/3 majority in both the House and Senate ultimately would be necessary to override and disapprove of cancellations. The law became effective on January 1, 1997, but was subsequently overturned by the Supreme Court on June 25, 1998 (Clinton v. New York City).25

LIVA Cancellations by President Clinton On August 11, 1997, President Clinton exercised his new veto authority for the first time by transmitting two special messages to Congress, reporting his cancellation of two limited tax benefit provisions in the Taxpayer Relief Act of 1997 (P.L. 105-34, 111 Stat. 788) and one item of direct spending in the Balanced Budget Act of 1997 (P.L. 105-33, 111 Stat. 251).26 On October 6, 1997, President Clinton exercised the new authority to veto items in appropriations bills by cancelling 38 projects contained in the FY1998 Military Construction Appropriations Act (P.L. 105-45, 111 Stat. 1142).27 On October 14, 1997, President Clinton vetoed 14 projects in the Department of Defense Appropriations.28 On October 16, 1997, he used the cancellation authority on a provision in the Treasury and General Government Appropriations relating to pension systems for federal employees.29 On October 17, 1997, the President applied his veto to eight more projects, this time in the Energy and Water Appropriations Act.30 On November 1, 1997, President Clinton exercised his line item veto authority in two appropriations acts, canceling seven projects in the VA/HUD measure and three projects in the Transportation Act. On November 20, 1997, the President canceled two projects from Interior and five from the Agriculture Appropriations Act. On December 2, 1997, President Clinton exercised his line item veto authority one last time by canceling a project in the Commerce-Justice-State appropriations measure. All together in FY1997, President Clinton issued 11 special messages containing 82 cancellations under the LIVA. The 38 cancellations in the Military Construction Appropriations bill, however, were rejected with the congressional override of the presidential veto of the bill disapproving the cancellations.31 The cancellation of the provision in the Treasury bill providing for an open season for federal employees to switch pension plans was held impermissible under the law, and a District Court judge ordered its reinstatement early in 1998.32 So slightly more than half of the original cancellations (43 of 82) remained in effect when the Supreme Court overturned the LIVA in June 1998. According to figures provided by the Congressional Budget Office (CBO), President Clinton's cancellations in FY1998 under the LIVA amounted to about $355 million out of a total budget of $1.7 trillion (less than 0 02%). Of this total, about $30 million came from the 39 cancellations overturned, leaving a net budgetary effect for FY1998 of $325 million. CBO estimated total savings over a five-year period from the FY1998 cancellations as less that $600 million.33 Table 4 presents data for FY1998 both from rescission requests under the Impoundment Control Act and from cancellation actions under the Line Item Veto Act. The figures are not entirely comparable, since cancellations under the LIVA included not only actions affecting

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items in appropriations acts, but also items of new direct spending and targeted tax benefit provisions. The combined totals are of course larger than those for the ICA or LIVA alone. Nonetheless, if the bottom line totals in Table 4 were substituted for the ICAonly data for FY1998 in Tables 1 and 2, the most notable feature, arguably, is that the larger combined totals only marginally impact the broader picture of the data over the three decades. The number of rescissions/cancellations, total dollar amounts from the President, and total dollar amounts accepted by Congress would not become anywhere near the highest during the period. The percentage of the President's proposals accepted by Congress actually drops slightly when the LIVA cancellations are included (from 67% to 60%). Only the percentage of the combined total dollar amount called for by the President and accepted by Congress would set a new high of 90%, as compared with 80% for President Carter in FY1979, the prior record. With respect to comparing figures across administrations (see bottom of Table 2), the addition of the LIVA data would leave the percentage of President Clinton's proposals accepted by Congress unchanged, but increase the percentage of total dollar amount requested and approved by Congress to 56%. Table 4. Rescission Requests and Cancellation Actions by the President and Approval by Congress, FY1998 Authority for Rescission/ Cancellation

Number of Rescissions/ Cancellations

Total Dollar Amounts of President’s Requests/ Cancellations

Impoundment

25

Control Act Line Item Veto Act of 1996 Total

Percent of President’s Proposals Accepted by Congress

$25,260,000

Total Dollar Amounts of President’s Proposals Accepted by Congress $17,276,000

67%

Percent of Total $ Amount Requested Approved by Congress 48%

82

$355,000,000

$325,000,000

52%

92%

107

$380,260,000

$342,276,000

60%

90%

Source: Government Accountability Office, 2005; Congressional Budget Office, 1998.

Developments in the George W. Bush Administration As noted previously, President Bush submitted no formal rescission requests under the ICA during the first six years of his Administration. Some controversy occurred, however, regarding presidential statements calling for "cancellation" of certain funds. On October 28, 2005, President Bush forwarded to Congress a package of $2.3 billion in rescissions. As explained in an OMB press release, "Unused balances in 55 Federal programs would be rescinded in keeping with the President's pledge to reduce unnecessary spending elsewhere in the budget as hurricane recovery efforts continue."34 In a press briefing, OMB Director Joshua Bolten further explained:

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Congress eventually approved $400 million of the proposed $2.3 billion in cancellations forwarded by the President.36 According to OMB staff, the October package constituted a proposal for cancellations, not rescission requests under the ICA, and agencies were told not to withhold funds in anticipation of an impending rescission. The Comptroller General, however, deemed it necessary to contact each agency affected by the President's proposal, since GAO has responsibility under the ICA to monitor possible impoundments of budget authority. In a letter to then OMB Director Bolten, the Comptroller General "identified 12 instances where agencies withheld budget authority from obligation in direct response to the October 28 proposal totaling over $470 million," with an attachment table detailing each case in point. In what arguably amounted to an indirect admonishment of OMB, the letter closed with this advice: In the future, when the President chooses to propose cancellations of budget authority rather than rescissions of budget authority pursuant to the procedures specified in the Impoundment Control Act, your office should ensure that agencies appreciate the distinction and do not withhold budget authority from obligation in anticipation of a possible rescission. Agencies that withhold budget authority in this manner violate the Impoundment Control Act.37

In an apparent effort to avoid any further confusion, an OMB memorandum went out to all federal agencies the following month, emphasizing the important distinction between proposed cancellations like those contained in the FY2007 Budget and rescission requests identified in special messages from the President pursuant to the ICA. Under the ICA, funds requested to be rescinded may be withheld for 45 days of continuous congressional session. In contrast, cancellations such as those in the FY2007 budget "are proposals subject to the normal legislative process" and should not be withheld "pending congressional action on the President's proposed legislation."38 The revised version of OMB Circular A-11, "Preparation, Submission, and Execution of the Budget," issued on June 30, 2006, reiterated the differences between a rescission under the ICA and cancellation proposals by the President to reduce budgetary resources, with the latter such amounts not to be withheld from obligation and "subject to the normal apportionment instructions."39 Meanwhile, GAO found that agencies were not improperly withholding funds proposed for cancellation in the President's FY2007 budget submission. The Chairman and Ranking Minority Member of the Senate Appropriations Committee requested such an assessment from GAO in March 2006. In a letter sent in early August 2006, the Comptroller General reported that GAO identified proposed cancellations in the FY2007 Budget affecting 40 programs. According to GAO, in only one instance were funds "mistakenly" withheld by an agency, and the funds were released following GAO's inquiry about them.40 The George W. Bush Administration has offered no public explanation as to why the President chooses to propose cancellations rather than formal rescissions under the ICA. As noted already, an apparent advantage of the rescission request option is that under the ICA,

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the funds identified in a special message from the President typically may be withheld from obligation for a period of about two months. President Bush, while evidently reluctant to use existing rescission authority provided in the ICA, has repeatedly called for enactment of a measure that would give the President greater authority to reject items of spending and that also would pass constitutional muster.41 On March 6, 2006, President Bush sent a draft bill titled the "Legislative Line Item Veto Act of 2006" to Congress,42 and the measure was introduced the next day as H.R. 4890 and S. 2381 (109th Congress). Title notwithstanding, the bills would have amended the Impoundment Control Act of 1974 (ICA) to incorporate a typical expedited rescission framework, intended through procedural provisions to require an up-or-down vote on presidential requests to cancel certain previously enacted spending or tax provisions. In testifying on H.R. 4890, Edward Lorenzen, Policy Director of the Concord Coalition, stated, "President Bush has never used his authority under current law to submit rescissions of earmarks or other spending he considers low priority, so it is unclear whether granting him this additional authority would have much of an impact at all."43 The House passed H.R. 4890 by vote of 247-172 on June 22, 2006,44 but floor action on a companion measure did not occur in the Senate before the 109th Congress adjourned.45 On January 24, 2007, the Senate failed to invoke cloture in order to vote on similar expedited rescission provisions, offered by Senator Judd Gregg as a floor amendment to H.R. 2, the Fair Minimum Wage Act of 2007.46

SOME CONCLUDING OBSERVATIONS According to GAO data, from FY1974 to FY2006, Presidents requested 1,178 rescissions under the ICA, totaling somewhat over $76 billion. Close to a third of the proposals were approved by Congress, with approximately 40% of the total dollar amount of presidential rescission requests ($25 billion) enacted by Congress. The sum of rescissions requested by the President and subsequently enacted exceeded $1 billion in only four of the 30-plus years since the ICA was enacted (FY1981, FY1982, FY1992 and FY1994). During the same period Congress initiated 1,610 rescission actions amounting to $143.5 billion, over five times the total dollar amount of presidentially requested rescissions enacted. The trend toward an increasing number of rescissions being initiated by Congress has already been noted. Whether considering rescissions requested by the President, presidential rescission proposals enacted by Congress, and/or rescissions initiated directly in Congress, from FY1974 to FY2006, the totals appear modest compared with annual budget outlays topping $2.5 trillion in FY2006 and federal budget deficits exceeding $300 billion in three of the last four years.47 Acting CBO Director Donald Marron provided this assessment at a 2006 hearing: Presidents have made very little use of the authority to recommend rescissions. From 1976 through 2005, Presidents proposed about $73 billion in rescissions, about one-half of 1 percent of the more than $15 trillion in total discretionary budget authority legislated in those years.48

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Supporters of changing the ICA framework to make it easier for the President's rescission proposals to prevail point to limitations in the current process as contributing to the low number of rescissions in the last 30 years. Under the ICA, there is no requirement that Congress even consider a President's rescission requests. Funds proposed for rescission by the President in a special message must be made available for obligation unless Congress acts to approve the President's requested rescission(s) within 45 days of continuous session. The ICA, moreover, allows the President to request rescissions only of discretionary spending, a portion of the budget which accounts for 38% of annual outlays, while 62% of outlays go to mandatory spending (controlled by law other than appropriations acts, including net interest).49 The record of cancellations during the brief time in FY1997 and FY1998 that the 1996 LIVA was in effect arguably serves to rebut such criticisms of the current ICA process. As discussed above, the LIVA reversed the burden of action regarding rescission proposals; cancellations of the President became permanent unless disapproved by Congress (ultimately requiring rejection by a 2/3 majority in both chambers to override a presidential veto of a disapproval bill). During this period the President also had authority to cancel new items of direct (mandatory) spending and certain targeted tax benefits as well as items of discretionary spending. CBO figures indicate that all the cancellations made by President Clinton in FY1998 (including those overturned) totaled some $355 million, with a projected five-year savings just under $1 billion. When the cancellations disapproved by Congress are excluded, the estimated amount to be saved over five years was less than $600 million.50 The brief experience in the Clinton Administration does not necessarily reflect how enhanced rescission authority might be exercised by other Presidents in other circumstances. Still, "President Clinton's use of the 1996 line-item veto statute is consistent with how little the 1974 law' s rescission system has been used."51 Another concern, in terms of budgetary impact of rescissions under the ICA, is that funds rescinded do not necessarily reduce outlays; monies rescinded may simply allow for increased spending elsewhere. As Acting CBO Director Marron testified in 2006, "Under current practice, rescissions seem to have been used primarily to pay for other spending, rather than to reduce spending overall."52 Some proposals to modify the ICA framework have sought to avoid this outcome. The LIVA provided for a "lockbox" mechanism to ensure that deficit reduction would result from cancellations. In 2006 the Legislative Line Item Veto Act (H.R. 4890, 109th Congress) as passed by the House and Title I of the Stop Over Spending Act (S. 3521, 109th Congress) as reported in the Senate both specified that amounts rescinded would be dedicated only to deficit reduction and not be used as an offset for a spending increase elsewhere.53 Although many observers do not view modifying the ICA framework to give the President expanded rescission authority as an effective means to achieve significant savings or deficit reduction, a number of studies indicate that governors use the stronger item veto mechanism to favor executive priorities over legislative priotities.54 In 1995, during hearings on the Line Item Veto Act, then CBO Director Robert Reischauer testified that, rather than generating much budgetary savings, granting the President item veto or enhanced rescission authority would have a more important impact in giving presidential spending a preference over congressional spending. Presidents could use expanded rescission authority to redirect greater resources to their own spending agendas.55

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A similar perspective on possible effects of proposals such as those to expand the President's rescission authority appeared in testimony by GAO Assistant Comptroller General Harry Havens in 1992. According to Mr. Havens, the most significant impact would likely be in the balance of power between the legislative and executive branches and not in budgetary savings. Various item-veto or rescission proposals "would represent a major shift of power from Congress to the President in an area that was reserved to Congress by the Constitution and which has historically been one of clear legislative primacy."56 The experiences in 1992 with the George H.W. Bush Administration's rescission proposals and the congressional response, as discussed above, arguably prove illustrative regarding the subject of competing spending priorities between the President and Congress. Using the existing ICA framework, President Bush transmitted four special messages proposing 128 rescission and totaling almost $7.9 billion. The House and Senate Appropriations Committees reviewed the President's request, and each chamber reported and passed substitute packages. A conference version containing $8.2 billion was signed into law, containing less than $2.1 billion of the President's proposals but over $6 billion in congressionally initiated cuts. During Senate floor debate on its substitute rescission package in 1992, Senator Robert Byrd, Chairman of the Appropriations Committee, referred to the President's recent reference to the "wasteful spending" of Congress, and stated the following: So to hear the Chief Executive speak on that occasion, to the effect that only Congress is guilty of wasteful spending — and the President singled out some examples of what he considered to be wasteful spending, and the Senate has gone along with some of them, but the President did not say anything about wasteful spending in the executive branch. Let me bring a few examples of wasteful spending to the attention of my colleagues, and to the attention of the American people.57

Senator Byrd then proceeded to describe examples of what he termed "wasteful executive branch spending" included in the Senate substitute, such as a grant from the National Science Foundation to study sexual aggregation of fish in Nicaragua, or from NIH to study the incidence of dental fear in the population.58 Supporters of the existing ICA framework might note that in 1992 the President was able to gain public attention for his proposed rescissions. When Congress crafted an alternative package of rescissions, largely congressionally initiated and saving more than the President's requested rescissions, the spending priorities of Congress ultimately prevailed, arguably upholding the power of the purse. Reviewing the history of impoundments, a law review article in 1974 stated, "Every President from George Washington to Richard Nixon almost certainly has impounded appropriated funds."59 The framework established by the ICA in 1974 has provided the opportunity for greater accountability in reporting of rescissions and for increased congressional oversight and control of impoundment actions. Although budgetary savings realized from rescissions since 1974 appear modest, any budgetary tool that helps restrain spending, even in a small way, may prove useful in a time of large budget deficits.

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APPENDIX: IMPOUNDMENT DATA AND REPORTING REQUIREMENTS Until the 1970s, accurate and systematic data concerning impoundments were often lacking.60 Congress first attempted to facilitate the availability of relevant data by stipulating reporting requirements in the Federal Impoundment and Information Act of 1972.61 However, there was an initial delay in OMB's compliance with the law, and subsequent concerns in Congress about the completeness of the information provided.62 On March 8, 1973, Congress sought to tighten up the requirements by requiring quarterly reports on impoundment actions from OMB.63 The Impoundment Control Act of 1974 established the current reporting requirements. As noted above, the law requires the President to inform Congress of all proposed rescissions and to submit certain information regarding each such action. The President may combine several rescission requests in a single impoundment message. The law also requires the Comptroller General of the Government Accountability Office (GAO) to oversee executive compliance with the law and report to Congress if the President fails to report an impoundment or improperly classifies an action. Both the messages from the President and the communications from the Comptroller General are to be printed in the Federal Register and issued as House documents.64 Section 1014 of the 1974 law also stipulated that the President transmit to Congress each month a cumulative report on the status of impoundment actions.65 In 1975 various of these reporting duties were transferred from the President to the Director of OMB via Executive Order 11845.66 Although President George W. Bush has submitted no rescission requests to Congress, there were two deferral requests from the Administration in FY2001, and the monthly cumulative reports from OMB appeared through September, 2001. There have been no cumulative reports on rescissions and deferrals since June 17, 2002, because there have been no presidential messages. OMB stated in the last report that as of June 1, 2002, no funds were being deferred.67 Therefore, according to OMB, "Pursuant to P.L. 93-344, until such time as the President transmits a special message on Congress on subsequent rescission proposals or deferrals no cumulative reports are required to be transmitted to the Congress."68 For a number of years OMB prepared informal reports at the end of each fiscal year, which provided a convenient resource for compiling aggregate data on rescissions. These year-end reports also proved useful as research reference documents, since the October cumulative report would commence with the new fiscal year and would not capture actions occurring during September, the final month of the previous fiscal year. These reports were apparently discontinued in the 1990s.69 The House Appropriations Committee also has compiled data on rescissions. In interpreting the respective sources, it is necessary to keep in mind that the Appropriations Committee includes in "rescissions approved by Congress" congressionally initiated actions to cancel funds previously appropriated, even in the absence of a rescission request by the President. The approach used by the Appropriations Committee makes sense from the perspective of tracking the status of appropriations law and any amendments thereto. On the other hand, OMB, in reporting rescissions pursuant to the 1974 law, only considers the outcome of rescissions proposed by the President — what was requested by the President and what action was taken by Congress, if any.

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From 1974 until 1992 GAO on occasion informally provided a variety of statistical data on rescissions proposed and enacted pursuant to the ICA. Following the increased level of interest in rescissions, GAO decided in 1992 to regularize the data collection and reporting processes with respect to rescissions. Beginning with a submission dated April 30, 1992, GAO has periodically provided to Congress updated rescission data in a standardized format. One table shows by fiscal year from 1974 to the present the aggregate number and amount of rescissions: proposed by the President, enacted by Congress, and initiated by Congress, with grand totals for each category. A second table indicates by fiscal year from 1974 to the present, by administration, the aggregate number and amount of rescissions proposed and enacted, as well as those congressionally initiated, with grand totals for each category. GAO acknowledged that the 1992 compilation reflected a number of revisions and adjustments to previously submitted historical tables. For example, we have added several rescissions which were not styled as such in the applicable legislation; credited certain rescissions to a different fiscal year than we had previously credited them; and added additional rescissions which our initial search, for various reasons, did not discover.70

In the letter accompanying the tables, GAO noted that should the need for further adjustments be identified, they would be included in future submissions. There was also a discussion of scope and methodology for the compilations by GAO of the historical data on rescissions.71 The most recent submission from GAO covers the period from FY1974 to FY2005.72 Most of the figures presented in this chapter are derived from that 2005 compilation. Since no rescissions were requested in FY2006, discussion sometimes refers to the first six years of the George W. Bush Administration, although the formal GAO update covering FY2006 has not yet appeared.

ENDNOTES 1

For a history of presidential impoundment before 1974, see Louis Fisher, Presidential Spending Power (Princeton, NJ: Princeton University Press, 1975), pp. 147-201; and Ralph S. Abscal and John R. Kramer, "Presidential Impoundment Part I: Historical Genesis and Constitutional Framework," Georgetown Law Journal, vol. 62 (July 1974), pp. 1549-1618. 2 In contrast to previous impoundment actions, President Nixon impounded larger amounts of funds, ignored explicit expressions of intent by Congress that funds be spent, tried to terminate entire programs rather than just selected projects, systematically attempted to withhold funds from programs not included in the President's budget, and asserted formal constitutional power to impound. See James P. Pfiffner, The President, the Budget, and Congress: Impoundment and the 1974 Budget Act (Boulder, CO: Westview Press, 1979), pp. 40-44. 3 See Appendix for further discussion of reporting requirement for presidential impoundment actions and of sources for impoundment data. 4 Specifically, President Gerald Ford conferred upon the OMB Director the functions of transmitting copies of the special rescission and deferral messages to the Comptroller

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General and to the Office of the Federal Register, and also the responsibility of submitting to Congress the monthly cumulative report. U.S. President, 1974-1976 (Ford), Executive Order 11845, "Delegating Certain Reporting Functions to the Director of the Office of Management and Budget," Mar. 24, 1975, Weekly Compilation of Presidential Documents, v. 11, Mar. 31, 1975, p. 304; also see 40 F.R. 13299. 5 For example, see U.S. Congress, House, Rescissions: Message from the President of the United States Transmitting Six New Rescission Proposals Affecting Programs in the Departments of Housing and Urban Development, Interior, Justice, and Labor, Pursuant to 2 U.S.C. 683(a)(1), H. Doc. 101-20, 101" Cong., 1" sess., (Washington: GPO, 1989); and Review of Rescissions, Deferrals and Revised Deferrals: Communication from the Comptroller General of the United States Transmitting a Review of the Seventy-three Rescission Proposals, Three New Deferrals and Three Revised Deferrals Reported in the President's Third Special Message for Fiscal Year 1987, Pursuant to 2 U.S.C. 685, H. Doc. 100-60, 100th Cong., 1" sess., (Washington: GPO, 1987). 6 In contrast, the original provisions of Title X allowed a deferral to continue in effect for the period proposed by the President (not to extend beyond the end of the fiscal year so as to become a de facto rescission), unless either the House or Senate took action to disapprove it. Such procedures, known as a one-house legislative veto, were invalidated by the 1983 Supreme Court decision in INS v. Chadha (462 U.S. 919). City of New Haven v. United States (809 F. 2d 900, D.C. Cir. 1987) held that the deferral authority conveyed to the President in the 1974 law was inseverable from the one-house veto provision. Thus, the invalidation of the legislative veto also invalidated the deferral authority, except for what were considered to be "routine" deferrals, authorized by sources predating the ICA. 7 In the past OMB sometimes expanded the 45-day period during which the funds were unavailable by initiating a deferral prior to formally reporting the rescission to Congress. In one case in 1986, nearly six months elapsed between the effective date of a specific appropriation and the submission of the ICA-required rescission message. See CRS Report RL33365, Line Item Veto: A Constitutional Analysis of Recent Proposals, by Morton Rosenberg, p. 9. 8 Section 206 of P.L. 100-119 served to codify the Appeals Court decision in the New Haven case. The provision in the 1974 law, as amended, now authorizes the President to defer funds only for contingencies, efficiency, or where specifically provided by law. Section 206 also reaffirmed certain provisions of the 1974 law relating to enforcement responsibilities of the Comptroller General, who is empowered to sue the executive for violations of the Impoundment Control Act. 9 See "Joint Explanatory Statement of the Committee of Conference," in U.S. Congress, Increasing the Statutory Limit on the Public Debt, Conference Report to Accompany H.J.Res. 324, H.Rept. 100-313, 100th Cong., Pt sess. (Washington: GPO, 1987), pp. 6768. 10 This section updates and expands upon previous work of the author. See Virginia A. McMurtry, "The Impoundment Control Act of 1974: Restraining or Reviving Presidential Power?" Public Budgeting & Finance, vol. 17, fall 1997, pp. 42-47. 11 Rudolph G. Penner and Alan J. Abramson, Broken Purse Strings: Congressional Budgeting, 1974-88 (Washington: Urban Institute, 1988), p. 19. 12 See Appendix for further discussion of GAO's methodology. 13 Fisher, Presidential Spending Power, pp. 200-201.

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Allen Schick, Congress and Money (Washington: Urban Institute Press, 1980), pp. 405406. Rudolph G. Penner and Alan J Abramson, Broken Purse Strings (Washington: Urban Institute Press, 1988), p. 120. 16 U.S. President, Message Transmitting a Request to Consider the Rescission or Repeal of Spending Projects that were Included in the 1988 Continuing Resolution (P.L. 100-202), March 14, 1988, H. Doc. 100-174, 100th Cong. 2nd sess. (Washington: GPO, 1988), p. 1. 17 U.S. President, Message Transmitting Six New Rescission Proposals Affecting Programs in the Departments of Housing and Urban Development, Interior, Justice, and Labor, Pursuant to 2 U.S.C. 683(a)( 1), Jan. 19, 1989, H. Doc. 101-20, 101" Cong., 1" sess. (Washington: GPO, 1989). 18 See CRS Issue Brief (archived) 1B92077, Rescission of Funds for FY1992: Presidential Proposals and Congressional Actions, Virginia A. McMurtry, Coordinator (available from author). 19 See CRS (archived) Report 92-415, Rescissions of Department of Defense Funds During the Bush Administration, by Stephen Daggett and Paul Potamianos. 20 See U.S. Congress, Rescinding Certain Budget Authority, and for other purposes, conference report to accompany H.R. 4990, 102nd Cong., 2nd sess., H.Rept. 102-530 (Washington: GPO, 1992). 21 Allen Schick, The Federal Budget: Politics, Policy, Process (Washington: The Brookings Institution, 1995), p. 175. 22 See CRS Issue Brief (archived) IB92077, Rescission of Funds for FY1992: Presidential Proposals and Congressional Actions, Virginia A. McMurtry, Coordinator (available from author). 23 Milton Socolar, Use and Impact of Rescission Procedures, GAO Testimony, T-OCG-93-5 (Washington: Mar. 10, 1993), pp. 2-3, 6. 24 The BEA was enacted as Title XIII of the Omnibus Budget Reconciliation Act of 1990 (104 Stat. 1388, 1-630). See "Budget Enforcement Acts of 1990 and 1997," in CRS Report RL30795, General Management Laws: A Compendium, Clinton Brass, Coordinator. 25 further background on the LIVA, see CRS Report RL33635, Item Veto and Expanded Impoundment Proposals: Legislative History and Current Status, by Virginia A. McMurtry. 26 The cancellation messages were published in the Federal Register and also as congressional documents. See Office of Management and Budget "Cancellation Pursuant to the Line Item Veto Act: Taxpayer Relief Act of 1997," Federal Register, vol. 62, no. 155, Aug. 12, 1997, p. 43265; and Message from the President transmitting "A Cancellation of Two Limited Tax Benefits Contained in the Taxpayer Relief Act of 1997, pursuant to Public Law 104-130 Sec. 2(a)," 105th Cong., Pt sess., H.Doc. 105-116 (Washington: GPO, 1997). The Office of the Federal Register, Archives and Records Administration assembled and continues to maintain a site with the "History of Line Item Veto Notices," providing links to all 82 of the cancellation notices as they appeared in the Federal Register, along with other relevant information, available electronically at [http://www.access.gpo.gov/nara/ nara004.html]. 27 See CRS Report 97-210, Appropriations for FY1998: Military Construction, by Mary T. Tyszkiewicz, for further discussion of these cancellations. 15

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See CRS Report 97-205, Appropriations for FY1998: Defense, by Stephen Daggett, for further discussion of these cancellations. 29 See CRS (archived) Report 97-991, President Clinton's Use of the Line Item Veto: Assessing Cancellation No. 97-56, Pertaining to Retirement Systems for Federal Employees, by Virginia A. McMurtry, for further discussion of this cancellation. 30 See CRS Report 97-207, Appropriations for FY1998: Energy and Water Development, by Marc Humphries and Carl E. Behrens, for further discussion of these cancellations. 31 0n November 13, 1997, the President vetoed H.R. 2631, the first disapproval bill to reach his desk under the provisions of the 1996 law. The House voted to override on Feb. 5, 1998 (347-69), and the Senate did likewise on Feb. 25, 1998 (78-20); so the disapproval bill was enacted over the President's veto (P.L. 105-159). 32 U.S. District Court for the District of Columbia, Order by Judge Thomas Hogan regarding Civil Action No 97-2399, Jan. 6, 1998. Judge Hogan' s order found that the President lacked authority under the LIVA to make this cancellation, and so it was "invalid and without legal force and effect." 33 Congressional Budget Office, "The Line Item Veto Act After One Year," CBO Memorandum, April 1998, pp. 12-13. Had the 39 cancellations that were no longer in force as of April 1998 been included, CBO estimated the total five-year savings as just under $1 billion. 34 OMB, "President Bush Requests Rescission and Reallocation Packages," Oct. 28, 2005. Available electronically at [http://www . whitehous e . gov/omb/pubpres s/2005/ factsheet_rescission.pdf]. 35 White House, "Press Briefing by Conference Call with OMB Director Joshua Bolten, "Oct. 28, 2005. Available electronically at [http://www.whitehouse.gov/news/releases/ 2005/10/20051028-9.html]. 36 OMB, "Fiscal Year 2006: Keeping the Commitment to Restrain Spending," Dec. 22, 2005. Available electronically at [[http://www.whitehouse.gov/omb/pubpress/2005/ fact_sheet_restraining _spending_122205.pdf 37 GAO, Comptroller General, "Impoundments Resulting from the President's Proposed Rescissions of October 28, 2005," B-307122, Mar. 2, 2006, p. 2. 38 OMB, Memorandum M-06-10, "Reminder: Treatment of the Cancellation Proposals in the President's FY2007 Budget," Apr. 7, 2006. 39 OMB Circular No. A-11 (2006), Section 112, p. 2. 40 The Maritime Administration had withheld $2 million from a guaranteed loan program. See GAO, Comptroller General, "Status of Funds Proposed for Cancellation in the President's Fiscal Year 2007 Budget," B-308011, Aug. 4, 2006, pp. 1-2. 41 See CRS Report RL33635, Item Veto and Expanded Impoundment Proposals: Legislative History and Current Status, by Virginia A. McMurtry. 42 President's message, along with press briefing and fact sheet available electronically at [http://www.whitehouse.govinewskeleases/2006/03/20060306-5.html]. 43 U.S. Congress, House Committee on the Budget, Line-Item Veto: Perspectives on Applications and Effects, hearing on H.R. 4890, 109th Cong., 2nd sess., May 25, 2006 (Washington: GPO, 2006), pp. 18-19. 44 Line Item Veto Act of 2006," debate and vote in the House, Congressional Record, daily edition, vol. 152, June 22, 2006, pp. H4433-41, H4467-93.

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For further discussion of legislative consideration of H.R. 4890 and related Senate bills in the 109th Congress, see CRS Report RL33635, Item Veto and Expanded Impoundment Proposals: Legislative History and Current Status, by Virginia A. McMurtry. 46 Floor vote was 49-48; 60 votes are needed to invoke cloture. See Congressional Record vol 153, Jan. 24, 2007, p. S 1019. 47 U.S. Treasury Department, Monthly Treasury Statement, October 2006, and OMB, Fiscal Year 2007 Historical Tables (Wshington: GOPO, 2006), p. 26. 48 U.S. Congress, Senate Budget Committee, To Consider S. 2381, A Bill to Amend the Congressional Budget & Impoundment Control Act of 1974 to provide Line Item Rescission Authority, hearing, 109th Cong., 2nd sess., May 2, 2006, p. 2. Available electronically at [http://budget.senate.gov/republican/hearingarchive/testimonies/2006/ 2006-05- 01Marron.pdf]. Note that the CBO total covers FY1976-FY2005, whereas the GAO data cited above encompasses FY1974-FY2005. 49 CRS Report RL32812, The Budget for Fiscal Year 2006, by Philip D. Winters. 50 Ibid. 51 To Consider S. 2381..., p. 3. 52 Ibid. 53 See CRS Report RL33517, Legislative Line Item Veto Act of 2006: Background and Comparison of Versions, by Virginia A. McMurtry. 54 U.S. Congress, House Committee on Rules, Item Veto: State Experience and Its Application to the Federal Situation, Comm Print, 99th Cong., 2nd sess., (Washington: GPO, 1986). 55 Line Item Veto, joint hearings before the House Committee on Government Reform and Oversight and the Senate Committee on Governmental Affairs, 104th Cong., 1" sess. (Washington: GPO, 1995), p. 62. 56 U.S. Congress, House Committee on Rules, Legislative Line-Item Veto Proposals, hearing, 102nd Cong., 2nd sess. (Washington: GPO, 1992), p. 274. 57 Sen. Robert Byrd, "Rescission of Certain Budget Authority," remarks in the Senate, Congressional Record, vol. 138, May 5, 1992, p. 10143. 58 Ibid. 59 Niles Stanton, "History and Practice of Executive Impoundments of Appropriated Funds," Nebraska Law Review, vol. 53, no. 1, 1974, p. 207. 60 For example, the Senate Subcommittee on the Separation of Powers under the late Sen. Sam Ervin in 1968 requested a complete listing of impoundment actions since 1945 from the Bureau of the Budget, but received only a listing of selected examples. See Frank Church, "Impoundment of Appropriated Funds: The Decline of Congressional Control over Executive Discretion," Stanford Law Review, vol. 22, June 1970. p. 1243. 61 This requirement was enacted as an amendment to a measure increasing the public debt ceiling, P.L. 92-599, 86 Stat. 1325. 62 U.S. Congress, Senate Committee on Governmental Affairs, Office of Management and Budget: Evolving Roles and Future Issues, Committee Print., 99th Cong., 2nd sess. (Washington: GPO, 1986), p. 29. 63 P.L. 93-9, 87 Stat. 7. 64 For example, see U.S. Congress, House, Rescissions: Message from the President of the United States Transmitting Six New Rescission Proposals... . Pursuant to 2 U.S.C. 683(a)(1), H. Doc. 101-20, 101" Cong., 1" sess. (Washington, GPO, 1989); and Review of

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Rescissions, Deferrals and Revised Deferrals: Communication from the Comptroller General of the United States Transmitting a Review of the Seventy-three Rescission Proposals, Three New Deferrals and Three Revised Deferrals Reported in the President's Third Special Message for Fiscal Year 1987, Pursuant to 2 U.S.C. 685, H. Doc. 100-60, 100th Cong., 1St sess. (Washington: GPO, 1987). 65 The cumulative reports are published in the Federal Register and issued as House documents. 66 Specifically, President Ford conferred upon the OMB Director the functions of transmitting copies of the special rescission and deferral messages to the Comptroller General and to the Office of the Federal Register, and also the responsibility of submitting to the Congress the monthly cumulative report. U.S. President, 1974-1976 (Ford), Executive Order 11845, "Delegating Certain Reporting Functions to the Director of the Office of Management and Budget," Mar. 24, 1975, Weekly Compilation of Presidential Documents, v. 11, Mar. 31, 1975, p. 304; 40 F.R. 13299. 67 OMB explained that on May 31, 2002, two previously reported FY2002 deferrals were reapportioned, "removing the deferral designations based on a recent analysis that determined that the funds do not meet the definition for deferrals contained in P.L. 93344." See OMB, Report on Rescissions and Deferrals, printed as H. Doc. 107-226, 107th Cong., 211`1 sess., June 17, 2002 (Washington: GPO, 2002), p. 3. 68 Ibid., p.3. 69 The last End-of Year Report contained in the CRS files was dated of Oct. 9, 1996. 70 Letter from Comptroller General to Sen. Robert Byrd, Chairman, Senate Appropriations Committee, Apr. 30, 1998. Reprinted in Congressional Record, vol. 138, May 5, 1992, p. 10145. 71 Ibid., pp. 10145-10148. 72 See GAO, Comptroller General, B-306473, Updated Rescission Statistics, Fiscal Years 1974-2005, Nov. 4, 2005.

In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.

Chapter 5

GRASSROOTS LOBBYING: CONSTITUTIONALITY OF DISCLOSURE REQUIREMENTS* Jack Maskell SUMMARY Certain legislative proposals, such as S. 1, 110th Congress, and H.R. 4682, 109th Congress, seek to extend public reporting requirements for some activities intended to stimulate “grassroots” lobbying. The activities involved in “lobbying,” including the stimulation of “grassroots” lobbying, clearly implicate and involve freedoms protected by the First Amendment, including speech, associational rights, and the right to petition the government. The courts have long found, however, that certain burdens on these fundamental rights may be tolerated in a statute when the statute seeks to promote significant governmental and societal interests, when the burdens on such activities are, at the most, indirect (such as in disclosure laws), and when the statute is drawn with enough precision so that a correlation exists between the information required to be disclosed and the achievement of the interests asserted as the law’s justification. Under such standards, the courts have upheld against facial First Amendment challenges required disclosures and detailed reporting in the areas of lobbying activities and campaign finance regulation to promote the interests of preventing corruption and limiting the undue influences of monied and powerful interests, as well as preventing merely the appearance of such corruption or influence, in basic governmental and democratic processes. The apparent trend in more recent judicial decisions seems to allow the legislatures some leeway in determining which activities are relevant to the goals of preserving the integrity of, for example, their own legislative process, and so to include also in required disclosures some activities that are more on the periphery and not necessarily themselves directly involved in such process, but are intended to result in direct contacts and to significantly influence a legislator.

*

This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33794, dated January 12, 2007.

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In both state and federal courts, state provisions that reach “indirect” or “grassroots” lobbying have been upheld against facial constitutional challenges. The courts have noted that the Supreme Court in 1954 expressly upheld required lobbying disclosures relating to “direct” pressures on legislators by lobbying groups themselves, by their hirelings or through their “artificially stimulated letter campaigns.” In addition, the courts have seemed to recognize the growth of importance of such “grassroots” lobbying efforts in the legislative process, and the increased need for legislators and others to be able to identify and assess the pressures on legislators being stimulated (and financed) by interest groups by such methods. Under the analysis applied in these cases, it would appear that a federal statute that requires only disclosure and reporting, and does not prohibit any activity, and that reaches only those who are compensated to engage in a certain amount of the covered activity, would appear to fit within those types of provisions that have been upheld in judicial decisions when the statute is drafted in such a manner so as not to include groups, organizations, and other citizens who do no more than advocate, analyze, and discuss public policy issues and legislation. Even with the probability of such a crafted disclosure statute withstanding a facial challenge, the law could still at some point be subject to an “as applied” challenge if a particular group or organization could show a reasonable probability that the disclosures required would result in harassment or