Order Code RL34462
Earmark Reform: Comparison of New House and
Senate Procedural Rules
April 24, 2008
Sandy Streeter
Analyst on the Congress and Legislative Process
Government and Finance Division

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Earmark Reform: Comparison of New House and
Senate Procedural Rules
Summary
During 2007, both the House and Senate established similar new earmark
transparency procedures for their respective chambers. They both require public
disclosure of approved spending earmarks (as well as limited tariff or tax benefits)
and the identification of their congressional sponsors. In addition, they require
disclosure of further information from each congressional sponsor, such as a
certification that the sponsor has no direct financial interest. Finally, each House also
established procedures regarding new spending earmarks added to conference
reports.
The House established its procedures through adoption of two House
resolutions. On January 5, 2007, the House completed action on H.Res. 6 (110th
Cong.), adopting the rules of the House, including new provisions in House Rule
XXI to require public disclosure of approved earmarks, their sponsors, and the
additional information. On June 18, 2007, the House adopted H.Res 491 (110th
Cong.), to require transparency for new spending earmarks added to conference
reports on regular appropriations bills.
The Senate included its new parliamentary rule in the Honest Leadership and
Open Government Act of 2007 (P.L. 110-81), which became law on September 14,
2007. This act used the term “congressionally directed spending item” rather than
earmark, but is otherwise similar to the House requirement. It also includes a
procedure to strike new items of spending added to conference reports.
The new House rule generally prohibits consideration of a measure, manager’s
amendment, or conference report unless a list of earmarks and the name of each
sponsoring Member (or a statement that there are no earmarks) is available before
consideration. The new Senate rule prohibits a vote on a motion to proceed to
consider a measure or a vote on adoption of a conference report, unless the chair of
the committee or Majority Leader certifies that a complete list of earmarks and the
name of each Senator requesting each earmark is available on a publicly accessible
congressional website 48 hours before the vote.
Both House and Senate rules require earmark sponsors to provide similar
information on each earmark to the committee of jurisdiction, but these rules include
different public disclosure requirements regarding the information. Neither
requirement is enforced by points of order. In the House, the applicable committee
is to make “open to public inspection” the Member’s entire written statement on
certain approved earmarks. The Senate rule requires the applicable committee to
make available on the Internet the certifications of no financial interest.
With regard to certain spending earmarks first specified in conference, the
House requires public disclosure of those earmarks and the names of those Members
that requested each earmark identified. The Senate rule provides a procedure to
strike certain new items of spending, including earmarks, from a conference report.

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Contents
Earmark Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Spending Earmark Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Limited Tariff Benefit Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Limited Tax Benefit Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Public Disclosure Procedures on Earmark Requests . . . . . . . . . . . . . . . . . . . . . . . 3
Earmark List and Congressional Earmark Sponsors . . . . . . . . . . . . . . . . . . . 3
House Rule XXI, clause 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Senate Rule XLIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Specified Information (Including Certifications) From Congressional
Earmark Sponsors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Classified Earmarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conference Report Procedures Affecting New Earmarks . . . . . . . . . . . . . . . . . . . 9
House Standing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Senate Rule XLIV, Paragraph 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Earmarks and Leverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Earmark Reform: Comparison of New
House and Senate Procedural Rules
During 2007, both the House and Senate established new earmark transparency
procedures for their separate chambers. They provide for public disclosure of
approved earmarks and the identification of their congressional sponsors.1 In
addition, they require disclosure of further information from each congressional
sponsor, such as a certification that the sponsor has no financial interest in the
earmark. Each House has also established procedures regarding new spending
earmarks added to conference reports.
The House established its procedures through adoption of two House
resolutions. On January 5, 2007, the House completed action on H.Res. 6 (110th
Cong.), adopting the standing rules of the House, including a new provision to
require public disclosure of approved earmarks and sponsors as well as the additional
information. On June 18, 2007, the House adopted H.Res 491 (110th Cong.), to
require transparency for new spending earmarks added to conference reports on
regular appropriations bills.
In the Senate, a new parliamentary rule was included in the Honest Leadership
and Open Government Act of 2007 (P.L. 110-81), which became law on September
14, 2007. The new rule provides for public disclosure of each “congressionally
directed spending item,” its sponsors, and “no financial interest” certifications. It
also includes a procedure to strike certain new items of spending added to conference
reports.
This report describes and compares the new House and Senate procedures
including an additional House requirement regarding the use of earmarks as leverage
for votes. Section 404 of H.Res. 6 added:
! one new clause (9) to House Rule XXI; and
! two new clauses (16 and 17) to House Rule XXIII.
Together they provide the new House procedures, except those regarding new
earmarks added in conference. These additional procedures were adopted in H.Res.
491, which did not amend House rules, but instead is a House standing order which
1 This report uses the term earmark to apply to congressional earmark as used in the House
rule and congressionally directed spending item as used in the Senate rule, as well as limited
tax or tariff benefits (see Earmark Definition section below).

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will be effective during the 110th Congress. Section 521 of P.L. 110-81 includes new
Senate Rule XLIV.2
Earmark Definition
For purposes of the new procedures discussed below, both House and Senate
rules3 provide definitions for spending earmarks, limited tax benefits, and limited
tariff benefits.
Spending Earmark Definition
The spending earmark definitions in House Rule XXI, clause 9, and Senate Rule
XLIV are identical, except the identification of earmark requesters.
For purposes of all the disclosure requirements above, a spending earmark is a
provision in legislation or report language4 that meets specific criteria. First, the
provision or language is primarily included at the request of a Representative,
Delegate, the Resident Commissioner, or Senator under the House rule (or a Senator
under the Senate rule). Second, the provision or language provides, authorizes, or
recommends a specific amount of discretionary budget authority, credit authority, or
other spending authority for certain purposes (1) with or to an entity,5 or (2) targeted
to a specific state, locality, or congressional district. The purposes are a contract,
grant, loan, loan guarantee, loan authority, or other expenditure. Finally, any of the
above spending set asides that are selected through a statutory or administrative
formula-driven or competitive-award process are excluded.
The definition is broad. It includes earmarks funded or recommended in
appropriations legislation, as well as other non-appropriations legislation (such as
authorizations), conference reports, and accompanying report language.

2 This public law also amended Senate Rule XXVIII, Conference Committees; Reports;
Open Meetings, to significantly alter the procedure for disposing of points of order against
“out of scope material” in conference reports. 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.
3 House Rule XXI, clause 9(d) and Senate Rule XLIV, paragraph 5.
4 The term report language refers to information provided in reports accompanying
committee-reported legislation as well as joint explanatory statements, which are attached
to conference reports. Although the entire document is generally referred to as a conference
report, it comprises two separate parts. The conference report contains a conference
committee’s proposal for legislative language resolving the House and Senate differences
on a measure, while the joint explanatory statement explains the conference report. If
enacted, the bill text has statutory effect; the joint explanatory statement does not.
5 Examples of an entity include a specific university or college, unit of a local or state
government, or museum.

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Limited Tariff Benefit Definition
The definitions in the House and Senate rules are identical. Such tariff benefits
are defined as “a provision modifying the Harmonized Tariff Schedule of the United
States in a manner that benefits 10 or fewer entities.” This definition targets
provisions in “miscellaneous duty suspension bills” or “miscellaneous tariff bills”
(MTBs) which seek to temporarily reduce or eliminate tariffs on imports of particular
commodities. The vast majority of tariff suspensions are on chemicals, raw
materials, or other components used in the manufacturing process.6
Limited Tax Benefit Definition
In contrast to the previous definitions, the House and Senate definitions of
limited tax benefits are somewhat different. Under the Senate rule a limited tax
benefit is defined as a revenue provision that provides a tax deduction, credit,
exclusion, or preference to a particular beneficiary or limited group of beneficiaries
under the tax code and contains eligibility criteria that are not uniform in application
with respect to potential beneficiaries of the provision.
The House rule is more specific, and uses the term limited tax benefit to apply
to (1) a revenue-losing provision that provides a tax deduction, credit, exclusion, or
preference to no more than 10 beneficiaries under the tax code and contains
eligibility criteria that are not uniform in application with respect to potential
beneficiaries of the provision; or (2) a tax provision that provides one beneficiary
with transitional relief from a change to the tax code.
Public Disclosure Procedures on Earmark Requests
Earmark List and Congressional Earmark Sponsors
The new rules in both the House and Senate include parliamentary procedures
regarding greater transparency of congressional sponsors of earmarks.
House Rule XXI, clause 9. This rule prohibits House consideration of
legislation, certain amendments, or conference reports, unless either
! a list of earmarks in such legislation, amendment, conference report,
or any accompanying report language and the name of any House
Member7 who requested an earmark(s) on the list is made available;
or
! a statement that there are no earmarks is made available.
6 For more on miscellaneous bills, see CRS Report RL33867, Tariff Modifications:
Miscellaneous Tariff Bills, by Vivian C. Jones.
7 This provision applies to any Representative, Delegate, or the Resident Commissioner
requesting an earmark on the list. The name of any Senator requesting such an earmark that
appears in a conference report or accompanying joint explanatory statement is also required.

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Only selected amendments to legislative measures are covered under this rule:
amendments in committee-reported legislation and manager’s amendments. A
manager’s amendment is an amendment offered at the outset of consideration for
amendment by a member of a committee of initial referral, under the terms of a
special rule.8 Major legislation is typically brought up on the House floor by a
special rule, which provides the terms for consideration of the measure, and may also
limit consideration of floor amendments, specify the order for consideration of
specific amendments, or waive various House rules. After the House adopts a special
rule, by a majority vote, Members consider the measure on the House floor. House
Rule XXI, clause 9, does not cover certain forms of amendments,9 such as an
amendment between the Houses,10 an amendment automatically agreed to upon
adoption of a special rule, an amendment offered during floor consideration, or a
committee amendment in the nature of a substitute made in order as original text for
purposes of amendment.11
Under the House rule, the required list of earmarks (and congressional sponsors)
or statement that there are no earmarks must be disclosed in specified public
documents. For committee-reported legislation and conference reports, either a list
or statement must be included in the applicable report language. Regarding
non-reported legislation, the chair of each committee of initial referral is required to
have a list or a statement printed in the Congressional Record prior to consideration
of the legislation. The proponent of a manager’s amendment must also have a list or
statement printed in the Congressional Record prior to consideration of the
amendment.
While the House has established rules designed to provide time for Members
to review the contents of committee reports, conference reports, and joint explanatory
statements before floor consideration, the House may waive these requirements. In
cases in which a committee provides time for review, Members have an opportunity,
for example, to draft amendments striking specific earmarks in a reported bill or
lobby against a conference report. Under House Rule XIII, clause 4(a), committee-
reported legislation may not generally be considered on the House floor until the
accompanying committee report has been available to Members for at least three
8 A committee of initial referral refers to each committee to which a legislative measure is
referred upon introduction of the legislation. In the House, bills are sometimes initially
referred to more than one committee. The rule does not, however, cover committee(s) to
which a bill is referred after an initial referral(s).
9 Letter from the Office of the Parliamentarian to the Committee on Rules, inserted in the
Congressional Record by Rep. Sessions, Congressional Record, daily edition, vol. 153,
October 3, 2007, pp. H11184-H11185.
10 To resolve differences between the House- and Senate-passed versions of a measure,
Congress may refer the measure to a conference committee or, in other circumstances,
Congress may consider amendments between the Houses.
11 In this situation, a special rule provides for a committee amendment to replace the entire
text of the measure and allows that committee amendment to be subsequently amended in
two degrees, as if it were the original text of the measure. For more information, see CRS
Report 98-995, The Amending Process in the House of Representatives, by Christopher M.
Davis.

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calendar days.12 House Rule XXII, clause 8(a), provides a similar three-day
availability requirement for conference reports. The conference report and attached
joint explanatory statement must be available in the Congressional Record for at least
three calendar days prior to consideration, and copies of the conference report and
joint explanatory statement must be available for at least two hours before
consideration.13 The House, however, typically adopts special rules providing for
consideration of conference reports that waive all points of order, including these.
The new earmark and sponsor disclosure requirements are not self-enforcing;
a Member must raise a point of order on the House floor against consideration of the
legislation, amendment, or conference report.
A point of order raised under this subsection may be based only on the failure
to include a list of earmarks (and sponsors) or a statement that there are no earmarks
in the report language or Congressional Record, as applicable.14 In response to a
parliamentary inquiry, the Speaker pro tempore explained that the new rule
... does not contemplate a question of order relating to the content of the
statement offered in compliance with the rule. Argument concerning the
adequacy of the list or the probity of a disclaimer is a matter that may be
addressed by debate on the merits of the measure or by other means collateral to
the review of the chair.15
Each committee, therefore, is left solely responsible for determining the contents of
the list.
The House rule prohibits House consideration of a special rule that waives the
new public disclosure requirements, and includes a special procedure to implement
this new prohibition. If a Member raises a point of order against considering a
special rule that includes such a waiver, the presiding officer does not rule on the
point of order. Instead the House decides, by majority vote, whether to consider the
special rule.16 The House rule provides 20 minutes of debate, equally divided and
controlled by the initiator of the point of order and an opponent. No other
intervening motion is allowed, except one that the House adjourn. This procedure
effectively allows the House to decide by a separate vote whether to allow this public
disclosure requirement to be waived.17
12 For more details, see CRS Report RS22015, Availability of Legislative Measures in the
House of Representatives (The ‘Three-Day Rule’), by Elizabeth Rybicki.
13 Ibid.
14 House Rule XXI, clause 9(c).
15 Congressional Record, daily edition, vol. 153, May 10, 2007, p. H4880.
16 The method of resolving a point of order by a question of consideration is similar to that
provided in Section 426 of the Congressional Budget Act for dealing with special rules that
waive the application of Section 425 of the act prohibiting the consideration of legislation
that includes an unfunded federal intergovernmental mandate.
17 Points of order raised under this requirement are based solely on whether the rule includes
(continued...)

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Senate Rule XLIV. This rule provides different procedures from the House,
but it is also intended to improve public disclosure of earmarks including the name
of each Senator who requested any identified earmark. New Senate Rule XLIV
prohibits a vote on a motion to proceed to consider any committee-reported
legislative measure (and any amendment included in the text of the reported bill) or
non-reported Senate legislative measure, unless the chair of the applicable committee
or the Majority Leader (or designee) provides certain certifications.18 Similarly, the
Senate can not vote on adoption of a conference report unless the chair or Majority
Leader (or designee) makes a similar certification.
The chair or Majority Leader must certify that a list (or a chart or other similar
form) of all earmarks (including those in the applicable measure, conference report,
or accompanying report language, if any) and the name of each Senator who
submitted a request for each item listed has been available on a publicly accessible
congressional website for at least 48 hours before such vote.19 In the case of
measures, they must also certify that the list of earmarks (and Senate sponsors) on the
congressional website are in a searchable format. Lists associated with conference
reports should also be in a searchable format, but only to the extent technically
feasible.
If the presiding officer sustains a point of order against a vote on a motion to
proceed, consideration on the motion is suspended until a certification is made and
the sponsor (or designee) of the motion requests consideration to resume. Under
Rule XLIV, paragraph 3, if a point of order is sustained against a conference report,
it would be set aside.
These rules are not self-enforcing; a Senator must raise a point of order against
the vote.20
Senate Rule XLIV provides two procedures to waive these requirements and
restricts appeals of the presiding officer’s rulings on such points of order. Unlike the
House, the Senate does not have a generally applicable mechanism to waive its rules.
Although a waiver motion is available for points of order under the Budget Act and
17 (...continued)
a waiver of Rule XXI, clause 9, and not whether such a waiver is necessary. For example,
a point of order was raised against the consideration of a special rule providing for
consideration of the conference report for the Department of Defense appropriations act for
FY2008 because it waived all rules of the House, including Rule XXI, clause 9 and H.Res.
491. Congressional Record, daily edition, vol. 153, November 8, 2007, pp. H13312-
H13314.
18 The Senate typically decides to consider a measure by unanimous consent, but may also
do so by a motion to proceed, which requires a majority vote to adopt. House-passed
measures not reported from a Senate committee are not included because they do not include
earmarks requested by Senators.
19 Under the rule, the certification authority rests with the Majority Leader (or his designee)
and committee chairs, not subcommittee chairs.
20 For general information on points of order in the Senate, see CRS Report 98-306, Points
of Order, Rulings, and Appeals in the Senate, by Valerie Heitshusen.

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similar requirements, the Senate standing rules must typically be waived by
unanimous consent (that is, no Senator objects to a unanimous consent request to
waive a rule).21 The new Senate rule, however, incorporates a waiver motion similar
to that used under the Budget Act, and allows any Senator to make a motion to waive
any of these points of order. An affirmative vote of three-fifths of all Senators (60,
if there are no vacancies) is required to adopt the motion. Senators may debate the
motion for up to one hour, with the time equally divided and controlled by the
Majority and Minority Leaders (or their designees). These points of order may also
be waived if the Majority and Minority Leaders jointly agree that “such a waiver is
necessary as a result of a significant disruption to Senate facilities or to the
availability of the Internet.”22
The Senate rule restricts appeals of the chair’s rulings on these points of order.
Any Senator may appeal the presiding officer’s ruling on most Senate rules. Such
appeals are generally debatable, and debate may be ended by cloture (requiring three-
fifths vote of all Senators to adopt the cloture motion) or by a motion to table, which
would uphold the chair’s ruling. The appeal procedure included in the new rule
allows only one appeal and limits debate to one hour. A majority vote is generally
required to overrule the chair’s ruling under Senate rules as well as under the new
rule.23 It is important to note that while appeals are not uncommon, the Senate rarely
overturns the rulings of the presiding officer.24
Amendments in the reported bill or offered from the floor that include earmarks
are covered under the rule, but the procedures differ. Those amendments in the text
of the reported bill are subject to the same point of order described above that applies
to reported measures. Regarding amendments offered from the floor, the rule
recommends that the sponsor of an amendment that includes an additional earmark25
ensure, as soon as practicable, that (1) a list of each earmark and (2) the name of any
Senator requesting each earmark on the list be printed in the Congressional Record.
This includes full-substitute amendments offered from the floor. As in the House,
amendments between the Houses are not covered under this new rule.
21 Ibid.
22 Senate Rule XLIV, paragraph 12.
23 In the case of points of order under the Budget Act and similar requirements for which a
three-fifths vote would be required for a waiver, any appeal would likewise require a three-
fifths vote of all Senators.
24 CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate, by Valerie
Heitshusen. In the House, a Member may appeal the presiding officer’s ruling on a point
of order; however, such appeals are routinely tabled. No rulings have been overturned in
over a half a century. See CRS Report 98-307, Points of Order, Rulings, and Appeals in the
House of Representatives, by Valerie Heitshusen.
25 An additional earmark is one that is not included in the measure as placed on the Senate
calendar or as reported by a committee or included in any accompanying committee report.

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Specified Information (Including Certifications)
From Congressional Earmark Sponsors
Both House and Senate rules26 require earmark sponsors to provide similar
information on each earmark to the committee of jurisdiction, but these rules include
different public disclosure requirements regarding the information. Neither
requirement is enforced by points of order.
These rules require each Member requesting an earmark in legislation
(conference report or accompanying report language) to submit specific written
information to the chair and ranking member of the committee of jurisdiction. Each
sponsor shall submit in writing (1) the sponsor’s name; (2) in the case of a spending
earmark, the name and address of the intended recipient27 or, if there is no
specifically intended recipient, the intended location of the activity; (3) in the case
of a limited tax or tariff benefit, the sponsor must identify the individual or entities
reasonably anticipated to benefit, to the extent known by the sponsor; (4) the purpose
of the earmark; and (5) a certification of no pecuniary interest in such earmark.
While the House rule requires a certification that neither the Member nor the
Member’s spouse have any financial interest in the earmark, the Senate rule requires
a certification that neither the Senator nor the Senator’s immediate family have any
pecuniary interest, consistent with paragraph 9 of the new rule.28
Regarding the differing House and Senate public availability requirements, in
the House, the applicable committee is to make “open to public inspection” the
Member’s written statement on any earmark included in a measure or conference
report. Each House committee has the discretion to determine its own public
disclosure procedures. The Senate rule, on the other hand, recommends that each
committee make available only the certification of “no pecuniary interest” for each
earmark included in a Senate measure reported or considered by the Senate,
conference report, or report language, if any. In addition, under the Senate rule,
committees are to make the certifications available for public inspection on the
Internet, as soon as practicable.
Classified Earmarks. The Senate rule specifically recommends that the
committees of jurisdiction include on these lists applicable classified spending
earmarks to the greatest extent practicable, consistent with the need to protect
national security (including intelligence sources and methods). The information for
26 House Rule XXIII, clause 17, and Senate Rule XLIV, paragraph 6.
27 The Senate rule requires the “name and location”of the intended recipient.
28 For more information on the Senate pecuniary interest certification requirement, see
Senate Select Committee on Ethics, Dear Colleague Letter, Definition of “Immediate
Family” for Requested Appropriations, September 12, 2007, available at
[http://ethics.senate.gov/], visited February 19, 2008. For more information on the House
requirement, see House Committee on Standards of Official Conduct’s Advisory
Memorandum, Financial Interests under the New Earmark Rules, March 27, 2007, available
at [http://www.house.gov/ethics], visited Feb. 19, 2008.

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each earmark identified should include an unclassified program description, spending
amount, and name of Senate sponsor. The House rule does not include a specific
provision on classified earmarks. Public disclosure of these earmarks and their
sponsors are made under the disclosure requirements as discussed above.
Conference Report Procedures Affecting New
Earmarks
A new House standing order (adopted under H.Res. 491, 110th Congress) and
Senate Rule XLIV29 both address certain spending earmarks, sometimes referred to
as “air-drops,” added in a conference report (and joint explanatory statement under
the House rule) that were not specified in the House- or Senate-passed versions of the
applicable bill (or in the accompanying House or Senate committee reports in the
House rule). The House rule provides a public disclosure requirement for such
earmark add-ons, while the Senate rule provides a procedure to strike certain add-
ons, including certain earmarks.
House Standing Order
This order provides a congressional public disclosure requirement for spending
earmarks added to certain conference reports or accompanying joint explanatory
statements during the remainder of the 110th Congress. The disclosure requirement
only covers conference reports to regular appropriations bills, it does not cover other
spending measures or revenue or tariff measures.
H.Res. 491 reiterates the prohibition in Rule XXI, clause 9 against consideration
of a conference report, specifically as it relates to air-dropped earmarks in conference
reports for regular appropriations bills. Analogous to Rule XXI, it requires the joint
explanatory statement include a list of earmarks added to the conference report or
joint explanatory statement, and the name of any Member or Senator who requested
an earmark(s) on the list. As with the House public disclosure procedures described
above, the disposition of a point of order under H.Res. 491 is not based on the
sufficiency of such a list. Unlike points of order raised under Rule XXI, clause 9(a),
however, points of order under H.Res. 491 are not resolved by a ruling of the
Presiding Officer. Whereas under Rule XXI, clause 9(a) the Presiding Officer rules
based on whether the required list (or statement) has been provided, under the
standing order, a point of order is resolved by a question of consideration.
The standing order also prohibits consideration of a special rule waiving this
new requirement. Under Rule XXI, clause 9(b), the Presiding Officer does not rule
on a point of order against consideration of a special rule that waives the
requirements of clause 9(a). Instead, as discussed above, the House decides, by
majority vote, whether to consider it. Similarly, under H.Res. 491, the Presiding
Officer does not rule on points of order raised against consideration of a special rule
29 Senate Rule XLIV, paragraph 8.

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waiving the application of the standing order, and the point of order is resolved by
a question of consideration.
As a result, a point of order made against either the conference report for a
regular appropriations bill or a special rule waiving the requirement of the standing
order would be disposed of by a question of consideration. As with Rule XXI, the
standing order provides for 20 minutes of debate, equally divided and controlled for
considering these questions of consideration. Due to this provision, the standing
order allows the House to debate and vote on whether to consider a conference report
(or special rule waiving the requirement) even when the standing order may not have
been violated.30
Senate Rule XLIV, Paragraph 8
The Senate rule establishes a new procedure to strike certain new spending
earmarks, as well as other spending, added to conference reports.31 It applies to
provisions providing funds (both discretionary and direct (or mandatory) spending),
but not provisions authorizing or re-authorizing funds. The new rule also does not
apply to limited tax or tariff benefits added in conference.
The new provision in Senate Rule XLIV concerning conference is not directed
against congressionally directed spending items, as are the provisions concerning
disclosure described above, but instead allows any Senator to raise a point of order
against any provision or provisions in a conference report that contain a specific
spending level for a specific program, project, activity, or account when no specific
funding level was provided for the applicable item in the House- or Senate-passed
versions of the measure. The Presiding Officer may sustain points of order against
one or more provisions in the conference report. This rule does not apply to language
in joint explanatory statements, only those provisions in the legislative text of
conference reports.
The new rule supplements Senate Rule XXVIII, which generally prohibits
conferees from including in a conference report a new matter not dealt with in either
the House- or Senate-passed versions of a measure. Under current Senate practice
and precedents, however, earmarks air-dropped into conference reports are not
typically interpreted as new matter. Rule XXVIII provides that in cases in which one
of the versions of the bill is an amendment in the nature of a substitute, which is
typically the case, the conferees may include a germane modification of the subjects
in disagreement. Under existing precedents, earmarks added to a conference report
are often considered germane modifications. For example, regular appropriations
30 For example, a point of order was raised against the consideration of a special rule
providing for consideration of the conference report for the Department of Defense
appropriations act for FY2008 because it waived all rules of the House, including Rule XXI,
clause 9 and H.Res. 491. Congressional Record, daily edition, vol. 153, November 8, 2007,
pp. H13312-H13314.
31 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.

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CRS-11
measures provide funding to each department and large independent agency by
distributing the spending among several accounts.32 Funding levels for programs,
projects, or activities within an account, such as most earmarks included in legislative
text, are generally considered germane modifications.
A Senator may raise a point of order under Rule XLIV against any provision or
provisions in a conference report that contain a specific spending level for a specific
program, project, activity, or account when no specific funding level was provided
for the applicable item in the House- or Senate-passed versions of the measure. If a
point of order is sustained, the offending provision is stricken from the conference
report. After all points of order have been dealt with, the Senate decides whether to
send to the House the remaining text of the conference report. The decision is
debatable under the same limitations that may apply to the conference report, and no
amendments are allowed. The Senate may waive this point of order with regard to
a single provision or all provisions constituting new directed spending or appeal the
Presiding Officer’s ruling by a supermajority vote. Three-fifths of all Senators must
vote to waive the rule or overrule the Presiding Officer’s decision.
Under this new Senate rule, any Senator may propose a motion to waive all
points of order provided in this new rule with respect to a pending measure or
motion. A three-fifths vote of all Senators is required to adopt the motion. All
motions to waive all such points of order against the pending measure or motion are
collectively debatable for no more than one hour, equally divided and controlled by
the Senate Majority and Minority Leaders (or their designees). Such motions are not
amendable.
Earmarks and Leverage

The House rule prohibits a Member from conditioning the inclusion of an
earmark in a measure, conference report, or report language on any vote cast by
another Member.33 There is no similar Senate requirement.
32 Each account, generally, includes similar programs, projects, or items, such as a “research
and development” account or “salaries and expenses” account. For small agencies, a single
account may fund all of the agency’s activities. These acts typically provide a lump-sum
amount for each of these accounts. A few accounts include a single program, project, or
item, which the appropriations acts fund individually.
33 House Standing Rule XXIII, clause 16. While there is no point of order established under
this provision, an alleged violation may give rise to a collateral challenge in the form of a
question of the privileges of the House pursuant to Rule IX. See, for example, consideration
of H.Res. 1040 (110th Congress) in the Congressional Record, daily edition, vol. 154, March
12, 2008, pp. H1552-H1553.

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