Order Code RS22733
October 3, 2007
Senate Rules Changes in the 110th Congress
Affecting Restrictions on the Content of
Conference Reports
Elizabeth Rybicki
Analyst on the Congress and Legislative Process
Government and Finance Division
Summary
P.L. 110-81, the Honest Leadership and Open Government Act of 2007 (S. 1),
includes provisions that affect Senate rules concerning restrictions on conference reports
in two ways. First, it amends Senate Rule XXVIII concerning “out of scope material”
in conference reports. The modification to Rule XXVIII does not change existing
restrictions on the content of conference reports, but it does significantly alter how the
Senate may dispose of points of order raised under the rule. Second, the law establishes
a new Senate Rule XLIV concerning congressionally directed spending provisions.
Paragraph 8 of that rule creates a new restriction on conference reports; it precludes
them from including any specific items of discretionary or mandatory spending that were
not in either the House or Senate version of the legislation sent to conference. If a point
of order is raised against a conference report under either the modified Rule XXVIII or
under the new Rule XLIV, Paragraph 8, the rules allow the Senate to strike out the
offending portion of the conference recommendation, but agree to the rest of the
compromise. Furthermore, the Senate also can waive either of these rules with a three-
fifths vote of Senators duly chosen and sworn (60 Senators if there are no vacancies).
Senate rules have long placed restrictions on what can be included in a conference
report. The Senate changed its rules concerning conference reports on September 14,
2007, when the President signed S. 1, the Honest Leadership and Open Government Act
of 2007 (P.L. 110-81). Two of the changes that went into effect upon enactment of the
law affected the authority of conferees to include in their report matter that was not passed
by the House or Senate before the conference committee was appointed. Colloquially,
such provisions are sometimes said to have been “airdropped” into the conference report.
First, the enactment of S. 1 affected the consequences of violating the existing Senate
Rule XXVIII that precludes conference agreements from including policy provisions that
were not sufficiently related to either the House or the Senate version of the legislation
sent to conference. Such provisions are considered to be “out of scope” under long-
standing Senate rules and precedents. Second, S. 1 created a point of order in Paragraph

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8 of Rule XLIV that can be raised against “new directed spending provisions,”or
provisions in a conference report that provide specific items of appropriations or direct
spending that were not committed to the conference committee in either the House or
Senate versions of the legislation.
This report first gives a brief overview of what has been (and what will continue to
be) considered “out of scope” material under Senate rules and precedents. It then
discusses in detail the definition of a “new directed spending provision.” Finally, the
report describes the disposition and waiving of points of order raised against conference
reports containing “out of scope” material and “new directed spending provisions.” The
Box, at the end of the report, outlines the procedural steps for disposing of these points
of order when they are raised against conference reports.
The interpretation of Senate rules, of course, ultimately rests with the Senate, and the
implementation of the new rules will depend on Senate practice. The discussion here
should not be considered a substitute for consultation with the parliamentarian on specific
procedural problems and opportunities.
Senate Rule XXVIII: Out of Scope Material. Senate and House rules place
restrictions on the kinds of agreements conferees can propose to their two houses.
Implicit in the rules of both chambers is the requirement that conferees resolve the
differences committed to them by reaching agreements within what is known as “the
scope of the differences” between the House and Senate versions of the bill. The
conferees may accept the House position, the Senate position, or a position that is a
compromise between them. Any position that is not within this range of options exceeds
the scope of the differences between the two houses. It constitutes “matter not committed
to them by either House,”1 and makes their conference report subject to a point of order
on both the House and Senate floor.
In practice, these restrictions are not as stringent as they may seem on their face. The
House often waives its rules that restrict the authority of conferees, and the Senate has
developed precedents that grant its conferees considerable latitude in reaching agreements
with the House, especially when they are in conference with a bill from one house and a
single amendment from the other house that proposes to replace the entire text of the bill.2
Rulings and practices in the Senate have left the chamber with a body of precedents that
allow the inclusion of new matter as long as it is reasonably related to the matter sent to
conference.3
1 Senate Rule XXVIII, paragraph 2; see also House Rule XXII, clause 9.
2 Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure: Precedents and Practices,
101st Cong., 2nd sess., S.Doc. 101-28 (Washington: GPO, 1992), (Hereafter Riddick’s Procedure),
pp. 460-464.
3 The rules and precedents associated with Senate Rule XXVIII are more complicated than
summarized here. For more information, see CRS General Distribution Memorandum, Senate
Decisions Concerning the Authority of Conferees (Rule XXVIII), by Elizabeth Rybicki (available
from the author).

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The amendment to Senate Rule XXVIII did not alter the definition of what
constitutes “new matter.” As described below, the significant change to Rule XXVIII was
a change to the method for disposing of the point of order.
Senate Rule XLIV, Paragraph 8: New Directed Spending Provisions.
Paragraph 8 of the new Senate Rule XLIV established a new restriction on the content of
conference reports.4 Under the rule, a Senator can raise a point of order against provisions
of a conference report if they constitute “new directed spending provisions.” The rule
defines “new directed spending provisions” 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.
It is worth emphasizing that Paragraph 8 of Rule XLIV applies only to the
conference report, and not to the joint explanatory statement (also known as the statement
of managers) that accompanies it. Joint explanatory statements are signed by the
conferees, but, like reports of standing committees, are not voted on by the House or
Senate, and cannot be changed through any formal amendment process. It is the
conference report that contains the formal legislative language that will become law if
both chambers agree to the report and the measure is then signed by the President.
In contrast to Rule XXVIII, which applies to the full text of every conference report,
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.5
Discretionary spending is provided in appropriations acts, and generally funds routine
operations of the federal government. Mandatory spending, also referred to as direct
spending, is provided in substantive law, and generally funds entitlement programs, such
as Social Security and Medicare.6
A hypothetical example can illustrate the difference between the Rule XXVIII
“scope” point of order and the Rule XLIV, Paragraph 8, “new directed spending” point
of order. The House might pass an appropriations bill providing funding for several
specific projects. The Senate might pass this bill with an amendment in the nature of a
substitute, and the two houses then could agree to a conference. The conferees might
agree to include in the conference report funding for several similar projects that were not
listed in the House bill or in the Senate substitute. Under Rule XXVIII, the provision
4 The rest of Senate Rule XLIV, which establishes disclosure requirements for congressionally
directed spending items, limited tax benefits, and limited tariff benefits, is not addressed in this
report.
5 For more information on the applicability of Paragraph 8 of Rule XLIV, see a letter from the
Majority Leader inserted into the Congressional Record, daily edition, vol. 153 (September 24,
2007), pp. S11993-S11994.
6 For more information on discretionary and direct spending, see CRS Report RS20371, Overview
of the Authorization-Appropriations Process, by Bill Heniff Jr.

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including funding for additional projects would likely be considered to be reasonably
related to the matter sent to conference, and therefore not subject to a point of order.
Under Rule XLIV, Paragraph 8, however, provisions of this kind would likely be
interpreted to be “new directed spending provisions” and therefore subject to a point of
order.7
Disposing of the Point of Order. The enactment of S. 1 established a
procedure, identical in the amended Rule XXVIII and the new Rule XLIV, that allows the
Senate to strike “new matter” or “new directed spending provisions” from the conference
report but agree to rest of the terms of the compromise. It is not in order, however, for
either chamber to alter the text of a conference report, and therefore the process converts
the text of the conference compromise minus the “new matter” or “new directed spending
provisions” into an amendment. If the Senate agrees to this amendment, it is then sent to
the House for consideration in that chamber.
The change in the method of disposing of Rule XXVIII points of order could
significantly affect Senate practices. Under the former Rule XXVIII, when a scope point
of order was sustained against a conference report, the report was recommitted to the
conference committee, assuming the House had not yet acted on the conference report.
If the House had acted, then there was no conference committee to which the report could
be recommitted, and the report would fall, leaving before the Senate the bill and any
amendments that had originally been committed to conference. Before the enactment of
S. 1, if a point of order was sustained against a conference report under Rule XXVIII, the
conference report typically would either die or face an uncertain fate back in conference
committee. This fact likely affected the decisions of conferees to include provisions that
could be considered “new matter,” as well as the decisions of Senators about whether to
raise a point of order regarding a particular provision and risk the defeat of the conference
compromise as a whole.
Under the process established by the enactment of S. 1, 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 can make separate decisions regarding each provision.
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 will be stricken from the conference recommendation.
After all points of order raised under this procedure are disposed of, the Senate will
proceed 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.8 Amendments to this
7 On August 2, 2007, the Presiding Officer affirmed, in response to a parliamentary inquiry, that
“points of order concerning new directed spending will be considered pursuant to the new rule
XLIV, rather than the amended rule XXVIII” (Congressional Record, daily edition, vol.153
(August 2, 2007), p. S10718).
8 The form of the motion depends on what the House and Senate sent to conference. Very often,
(continued...)

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motion are not in order. The motion to agree to the bicameral compromise with the “new
matter” or “new directed spending provision” stricken is debatable “under the same
debate limitation as the conference report.”9 Under the regular rules of the Senate, debate
on conference reports is not limited. It is limited only if the Senate agrees to limit debate
by unanimous consent, if cloture has been successfully invoked on the conference report,
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). 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. The prohibition against amendments to a
conference report does not apply to amendments between the Houses. Accordingly, the
House could, under its procedures, agree to the modified compromise version as it was
received from the Senate, or offer further amendment(s) thereto. The House could also
request a further conference with the Senate, or choose to take no action at all on the new
compromise language.
The procedure for disposing of points of order under either Rule XXVIII or
Paragraph 8, Rule XLIV is similar to that currently followed for disposing of points of
order against conference reports under the “Byrd rule” (Section 313(d) of the
Congressional Budget Act). The Byrd Rule applies only to reconciliation measures,
however.10
Waiving the Rule. The new rules also create a mechanism for waiving the
restrictions on the content of conference reports. The points of order under Rule XXVIII
and Paragraph 8 of Rule XLIV can be waived with the support of three-fifths of all
Senators duly chosen and sworn (60 Senators if there are no vacancies). 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. Under the new procedures,
a motion to waive all points of order is not amendable, but a motion to waive points of
order against specific provisions is. As a result, it will be possible for a Senator to ensure
a vote on waiving all points of order under each rule, and, if successful, no separate
motions to waive points of order against individual provisions would be necessary.
8 (...continued)
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.
9 Paragraph 4(b)(2) of Rule XXVIII; Paragraph 8(b)(2) of Rule XLIV.
10 For more information on the Byrd Rule, see CRS Report RL30862, The Budget Reconciliation
Process: The Senate’s “Byrd Rule,” by Robert Keith.

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Time for debate on the 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 the rule in the conference report. Motions to waive
“scope” (Rule XXVIII) points of order would be made and considered separately from
motions to waive “new directed spending” (Rule XLIV, Paragraph 8) points of order.
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. The effect of overturning a ruling of the Chair
on appeal is quite different from the effect of agreeing to a motion to waive a rule. The
decision on an appeal stands as the judgment of the Senate and becomes a precedent for
the Senate to follow in future procedure. A decision to waive the rule, in contrast, does
not change the interpretation of the rule in future practice.
Table 1. Procedural Steps for Disposing of Rule XXVIII or Rule XLIV,
Paragraph 8 Point of Order (Including Motion to Waive)
1. Senator makes a point of order pursuant to Rule XXVIII or Rule XLIV, paragraph 8.
2. Senator may make a motion to waive the point of order.
Motion to waive is debatable for one hour, divided and controlled by party leaders or
their designees. Motion is in order even if a point of order has not been made.
3a. If three-fifths of Senators duly chosen and sworn vote in favor of the motion to waive,
then consideration of the conference report continues.
3b. If three-fifths of Senators duly chosen and sworn fail to vote in favor of the motion to
waive, then the Presiding Officer rules on the point of order.
The decision of the Presiding Officer can be appealed; appeal is debatable for one
hour, divided and controlled by party leaders or their designees, and requires a three-
fifths vote of Senators duly chosen and sworn to overturn.
4. If point of order is sustained, then provisions against which Senator raised the point of
order are stricken from the conference agreement.
5. After all points of order under either rule are disposed of, the Senate considers an
amendment that consists of the text of the conference agreement minus the stricken
provisions.
More formally, the motion before the Senate is typically either 1) to recede from the
amendment to the House bill and to concur in the bill with a further Senate
amendment; or 2) to recede from the disagreement to the House amendment and
concur in the House amendment with a further Senate amendment. The exact form
of the motion depends on what the House and Senate sent to conference. The motion
is considered under the same debate limitations, if any, that existed for the
conference report.
6. If the Senate agrees to the amendment, it is sent to the House for further consideration.

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