CRS Report for Congress
Received through the CRS Web
Mandates Information Act:
Implications for Congressional Action on
Legislation Containing Private Sector Mandates
Updated May 15, 1998
Richard S. Beth
Specialist in the Legislative Process
Congressional Research Service ˜ The Library of Congress
This report describes provisions of the pending Mandates Information Act of 1998,
focusing on H.R. 3534 as reported from the House Committee on Rules. It summarizes
current procedures governing consideration of legislation containing mandates (enforceable
duties), especially unfunded intergovernmental mandates. It describes how the Mandates
Information Act would apply similar regulations to private sector mandates, including points
of order, requirements for cost estimates, application to legislative provisions on appropriation
bills, and application under restrictive special rules in the House. The report also describes
how the act would codify practices inhibiting dilatory use of these procedures in the House.
Mandates Information Act: Implications for Congressional
Action on Legislation Containing Private Sector Mandates
On May 13, 1998, the House began consideration of H.R. 3534,the Mandates
Information Act of 1998. The Senate Committee on the Budget has held hearings on
S. 389, a similar Senate bill. The Mandates Information Act would amend the
Unfunded Mandates Reform Act (UMRA) to place additional procedural restrictions
on congressional consideration of legislation imposing enforceable duties, or
mandates, on the private sector. Current UMRA procedures emphasize regulating
consideration of mandates on state, local, and tribal governments whose costs
Congress does not fund (“unfunded intergovernmental mandates”).
UMRA now requires the Congressional Budget Office (CBO) to estimate the
cost to public and private sector entities of carrying out proposed mandates. The
Mandates Information Act would require CBO also to estimate the effect of private
sector mandates on consumer prices, commodity supply, wages, benefits, job
opportunities, and small business growth and profitability.
UMRA establishes a point of order in each house against consideration of a
measure proposing intergovernmental mandates costing over $50 million (in 1996
dollars) unless the measure contains a mechanism to ensure that the federal
government will fund mandate costs. The Senate may consider a measure against
which this point of order is raised by voting to waive it; the House may do so by
voting to consider the measure despite the point of order. The Mandates Information
Act would add a similar procedure for any measure proposing private sector mandates
costing more than $100 million, whether federally funded or not. Under a committee
amendment to H.R. 3534, the point of order could not be raised against tax mandates
to the extent that the measure was revenue-neutral overall.
The Mandates Information Act strengthens UMRA’s present protections against
potential dilatory use of the point of order in the House by clarifying that (1) the point
of order must cite specific legislative provisions containing mandates; (2) the point of
order may be raised only once on private sector mandates in each piece of legislation;
and (3) the mechanism for disposing of points of order by vote extends to all points
of order under UMRA.
UMRA permits points of order against legislative provisions in appropriation
bills, but not against the bills themselves. In the Senate, such provisions may be
stricken from the bill, but UMRA does not specify the consequence of such a point
of order in the House. The Mandates Information Act would extend this point of
order to legislative provisions containing private sector mandates.
The Mandates Information Act would extend two other existing mechanisms to
private sector mandates. Under one of these, if CBO cannot determine the costs of
mandates in a measure, the measure is subject to the same point of order as if the
committee published no CBO estimate. Under the other, if the House considers a
measure containing mandates under a special rule restricting amendments,
amendments to strike the mandates remain in order unless specifically prohibited.
The Proposed Mandates Information Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Existing Requirements for Unfunded Mandates . . . . . . . . . . . . . . . . . . . . . . . . . 2
Cost and Funding of Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Procedural Mechanisms Regulating Mandate Legislation . . . . . . . . . . . . . . 3
Broadened CBO Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Point of Order Against Consideration of
Private Sector Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Strengthening Provisions Against Dilatory Use . . . . . . . . . . . . . . . . . . . . . . . . . 7
Application to Legislative Provisions
in Appropriation Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Other Provisions Governing Consideration of
Private Sector Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Requirement for Estimate of Private Sector Mandate Costs . . . . . . . . . . . 10
Backup Mechanism for Striking Mandates from Bill in the House . . . . . . 10
Mandates Information Act:
Implications for Congressional Action on
Legislation Containing Private Sector Mandates
The Proposed Mandates Information Act
On May 13, 1998, the House of Representatives began consideration of H.R.
3534, the Mandates Information Act of 1998 (H.Rept. 105-515). This measure
would amend the Unfunded Mandates Reform Act of 1995 (“UMRA”)1 and a related
provision of House rules (clause 5, rule XXIII).2 Consideration was expected to
continue during the week of May 18.
The provisions the Mandates Information Act would amend are ones that
prescribe procedural mechanisms to regulate House and Senate action on legislation
establishing federal mandates. Under UMRA, “mandates” are provisions of law or
regulation imposing enforceable duties either on state, local, or tribal governments,
or on private sector entities. In their present form, the procedural mechanisms of
UMRA and House rules emphasize chiefly the regulation of proposed mandates on
state, local, and tribal governments, called “intergovernmental mandates.” The
Mandates Information Act would extend similar mechanisms to mandates on the
This report first summarizes how UMRA now regulates congressional action,
especially on intergovernmental mandates. It then describes the provisions of
Mandates Information Act that would apply similar regulations to private sector
mandates. Third, it discusses ways in which the Mandates Information Act proposes
to enhance the capacity of UMRA to forestall potential dilatory use of its procedures
in the House. Finally, it looks at how the Mandates Information Act would affect
responsibilities that UMRA assigns to the Congressional Budget Office (CBO).
P.L. 104-4, 109 Stat. 48. The key provisions of UMRA are contained in “Part B—Federal
Mandates” of Title IV of the Congressional Budget and Impoundment Control Act of 1974
(P.L. 93-344, 88 Stat. 298, as amended). Where appropriate, citations are to this new Part
of Title IV, which was added to the Congressional Budget Act by UMRA; otherwise to
sections of UMRA as enacted. UMRA is codified as provisions of 2 U.S.C. §658.
As originally enacted, UMRA §107(a). In its present form, in U.S. Congress, House of
Representatives, Constitution, Jefferson’s Manual, and Rules of the House of
Representatives, One Hundred Fifth Congress, H. Doc. 104-272, 104th Cong., 1st sess.,
[compiled by] Charles W. Johnson, parliamentarian (Washington: GPO, 1997), §873c.
Hereafter cited as House Rules Manual.
Throughout, the report takes note of variations proposed in other versions of this
legislation in the 105th Congress. These other versions include chiefly S. 389 and
H.R. 1010, measures closely similar to each other that were introduced in March
1997. S. 389 was referred jointly to the Senate Committee on Governmental Affairs
and Senate Committee on the Budget, and the latter held a hearing on the measure on
February 12, 1998. Hearings of the Committee on Governmental Affairs were
anticipated, but no schedule had been announced by the time the House took up its
The House Committee on Rules held a joint subcommittee hearing on H.R. 1010
on October 30, 1997. Considerations raised at that hearing, especially about the
possible use of procedural mechanisms provided by the bill for dilatory or obstructive
purposes,3 led to the introduction of H.R. 3534,4 on which the full committee held a
hearing on March 27, 1998. On May 6, 1998, the House Committee on Rules marked
up H.R. 3534, and on May 7 the measure was reported.5
In marking up the measure for reporting, the Committee on Rules adopted an
amendment restricting the application of the procedural restrictions of UMRA to
measures with the net effect of reducing taxes.6 During floor consideration on May
13, the House adopted an amendment to extend the application of those procedural
restrictions to measures expanding intergovernmental mandates in the form of
Statement of the Honorable Rob Portman, testimony of the Honorable Rob Portman and the
Honorable Gary A. Condit, and testimony of the Honorable Bob Walker, to U.S. Congress,
House Committee on Rules, Subcommittee on Rules and Organization of the House and
Subcommittee on Legislative and Budget Processes, joint hearing on implementation of the
Unfunded Mandates Reform Act and proposals to expand that act, in particular, H.R. 1010,
Mandates Information Act of 1997, Oct. 30, 1997. Text available from the following two
web sites on the World Wide Web: [http://www.house.gov/rules_org/port03.htm] and
Statement of the Honorable Gary A. Condit to U.S. Congress, House Committee on Rules,
hearing on the Mandates Information Act of 1998, March 27, 1998. Text available from
U.S. Congress, House Committee on Rules, Mandates Information Act of 1998, report
together with dissenting views to accompany H.R. 3534, 105th Cong., 2nd sess., H.Rept. 105515, (Washington: GPO, 1988). Pagination not available.
Discussion of amendment to Sec. 4(a)(3) in “Analysis of the Legislation,” in Committee on
Rules, Mandates Information Act, report.
“Mandates Information Act of 1998,” proceedings in the House, Congressional Record, vol.
144, May 13, 1998, pp. H3229-H3231.
Existing Requirements for Unfunded Mandates
Cost and Funding of Mandates
A central intent of UMRA, as originally enacted, is to discourage Congress from
enacting intergovernmental mandates that are “unfunded.” For purposes of UMRA,
a mandate is unfunded to the extent that the legislation establishing it does not
authorize federal funding to pay the costs that the entities subject to it will incur in
carrying it out. A mandate is funded only if, for each fiscal year, the legislation either:
! provides new direct spending authority, such as entitlement authority, sufficient
to pay the estimated costs of the mandate; or
! authorizes appropriations for the purpose in amounts sufficient to meet the
estimated costs, and abolishes the mandate as of any fiscal year in which
sufficient funds are not actually appropriated, unless either:
(1) the funding agency determines that the costs of the mandate can be
met from the funds actually appropriated for the purpose;
(2) Congress enacts new law altering the mandate so that its costs can be
met from the funds appropriated; or
(3) Congress enacts new law providing that the mandate be unfunded.
For purposes of UMRA, a provision of law or federal regulation establishes a mandate
not only if it imposes an enforceable duty on other entities, but also if it would reduce
federal funding available to the pertinent entities to pay the costs of carrying out such
a duty.8 A provision of law requiring state, local, and tribal governments to forego
raising certain revenues is also an intergovernmental mandate, the cost of which is the
amount of revenue foregone.
Procedural Mechanisms Regulating Mandate Legislation
The provisions by which UMRA attempts to regulate congressional imposition
of mandates involve two chief mechanisms. First, the act provides for CBO to
estimate the costs of mandates in measures reported from committee in either
chamber, and for the reporting committees to provide additional information about
those mandates. CBO must provide such an estimate for measures in which the
annual costs of intergovernmental mandates exceed $50 million or those of private
Excepted from the operation of UMRA are requirements that: enforce constitutional rights;
involve rights against discrimination; enforce accounting and auditing procedures for federal
funds; provide emergency assistance to state, local, and tribal governments; are necessary for
national security or under treaty obligations; are designated as emergency legislation; or
involve social security. 2 U.S.C. §1503, §658(a) (Congressional Budget Act §422).
sector mandates exceed $100 million;9 otherwise, it may state only that the respective
threshold is not exceeded.
Second, the act establishes points of order that may be raised against House or
Senate consideration of those measures. Under present law, such a point of order
may be raised either:
! if the reporting committee has not published, either in its report or in the
Congressional Record, the CBO estimate of mandate costs;
! if the measure would increase the estimated unfunded annual cost of
intergovernmental mandates by more than the threshold amount.
The first of these points of order covers cost estimates on both intergovernmental and
private sector mandates, but may be raised only against initial consideration of the
measure. The second applies only to intergovernmental mandates, but may be raised
against both initial and final consideration, including consideration of a conference
report or amendment in disagreement between the houses. It may also be raised
against an amendment or motion (such as a motion to recommit with instructions)
offered during consideration of the measure.
In the Senate, if one of these points of order is raised against a measure, the
measure may not be considered unless either the Senate waives the point of order or
the chair overrules it. In the House, on the other hand, neither does the chair rule on
such a point of order, nor is any motion to waive it available. Instead, if the point if
order is raised, the House votes whether to consider the measure even though, as the
point of order asserts, the measure may contain an unfunded mandate. This
mechanism permits the House to avoid obliging the chair to determine, as if it were
a procedural matter, the question of whether a substantive provision of legislation
constitutes a mandate.
The House normally waives procedural requirements either by special rule or by
considering a measure pursuant to a motion to suspend the rules. The House may in
practice use the motion to suspend the rules to waive a prospective point of order
under UMRA. If a special rule proposes to waive this point of order, however,
UMRA permits a point of order to be raised against consideration of the special rule
itself. The House disposes of this point of order, too, by voting on whether or not to
consider the special rule despite the point of order.
Broadened CBO Responsibilities
One of the stated purposes of the Mandates Information Act (§3) is making
better information available to Congress about the prospective effects of mandates
proposed to be imposed on the private sector, thereby permitting it to distinguish
proposed mandates that “harm consumers, workers, and small businesses.” The
In 1996 dollars, adjusted for inflation. UMRA §424(a)(1) and §425(a)(2).
provisions most directly related to this informational purpose expand the required
contents of the estimates of private sector mandate costs CBO is to provide.
For measures that contain private sector mandates whose total cost exceeds the
statutory threshold, existing law requires CBO only to estimate the total direct cost
of those mandates, identify the amount of increased federal financial assistance made
available to meet those costs, and briefly explain the basis of each estimate.10 (For
private-sector mandates in the form of taxes, these estimates are prepared by the Joint
Committee on Taxation.) UMRA also calls for information about mandate costs and
benefits, relative impacts on the public and private sectors, and preemption of state,
local, and tribal law by federal law.11 These questions, however, are to be addressed
by the reporting committees, not in CBO estimates of mandate costs.
The Mandates Information Act (§4(a)(1)(B)) would require CBO estimates also
to state, for measures with private-sector mandate costs exceeding the threshold,
the impact (including any disproportionate impact in particular regions or
industries) on consumers, workers, and small businesses, including ... [analyses]
of the effect ... on consumer prices ... the actual supply of goods and services in
consumer markets ... worker wages, worker benefits, and employment
opportunities; and ... the hiring practices, expansion, and profitability of
businesses with fewer than 100 employees.
Development of such estimates would appear to require substantially broader and
more complex forms of economic analysis than those involved in the preparation of
the mandate cost estimates required of CBO under present law. Nevertheless, CBO,
in its cost estimate on H.R. 3534, concludes that it (and the Joint Committee on
Taxation) could carry out these responsibilities without “incurring significant
additional costs.” It bases this conclusion in part on the small number of bills likely
to contain private-sector mandates exceeding the threshold 12.
Point of Order Against Consideration of
Private Sector Mandates
The other chief purpose stated by the Mandates Information Act (§3(1)(B) is to
insure that “Congress acts on [proposed mandates on the private sector] only after
focused deliberation on the effects.” Toward this end, the central provision of the
Mandates Information Act (§4(a)(3)(A)) would extend the point of order against
consideration of legislation containing mandates to measures proposing private sector
Congressional Budget Office Cost Estimate in House Committee on Rules, Mandates
Information Act, report. See Statement and testimony of James L. Blum, Deputy Director of
the Congressional Budget Office, to House Committee on Rules subcommittees, joint hearing
on implementation of UMRA, October 30, 1997. Text available on the Internet at
mandates with costs in excess of the threshold. It would also extend to those
measures the procedural mechanisms by which the House and Senate dispose of this
point of order.
Under this provision, however, private sector mandates would still be treated
differently from intergovernmental ones. For one thing, the separate dollar thresholds
for intergovernmental and private sector mandates would be retained. More
significantly, in contrast to the treatment of intergovernmental mandates, the
Mandates Information Act would afford private sector mandates no exemption from
the point of order, even if their costs are funded (§4(a)(3)(b)).
This provision would have effects well beyond the purely informational, which
could alter significantly the way Congress considers legislation containing privatesector mandates. Under these provisions, the key point of order established by
UMRA could be raised against any measure proposing private sector mandates with
costs of the requisite amount, whether or not it also provided a mechanism to fund
those costs. In this respect, H.R. 3534 would regulate the consideration of measures
containing private sector mandates much more strictly than UMRA now does
measures proposing intergovernmental mandates. For intergovernmental mandates,
the point of order applies only when the mandates are not funded. For private sector
mandates, by contrast, the point of order would apply whether the mandates are
funded or not.
The exemption that UMRA now provides for intergovernmental mandates when
they are funded has the effect of encouraging Congress to provide such funding to
state, local, and tribal governments to carry out duties it imposes on them. This
arrangement presumably reflects a judgment that when the federal government
requires other governments to incur costs to carry out federal purposes, providing
federal funding to meet those costs may often be appropriate. By contrast, not
extending a similar exemption to private sector mandates appears to reflect a
judgment that such funding may often be inappropriate. Government carries out a
broad range of its functions by directing private entities to do things, for which they
typically receive no governmental compensation. Taxes, which constitute one
important form of private sector mandates, are especially pertinent in this regard.
Exactly to the extent that government paid private entities the amounts those entities
must pay the government in taxes, it would vitiate the purpose of imposing the taxes
in the first place, namely to raise revenue.
By not providing an exemption from the operation of the point of order against
consideration for funded private sector mandates, the Mandates Information Act
would have potentially broad effects on congressional consideration of measures. It
would permit any Member of each house to prevent that chamber, except by majority
vote, from considering any measure that would impose on private entities any duties
(of kinds covered by UMRA) that would cost more than approximately 40 cents per
The findings and purposes of the Mandates Information Act (§2 and §3) address
primarily the effects of private-sector mandates on consumers, workers, and small
businesses. The measure thereby appears to conceive the private sector chiefly in
terms of the economic activities of business enterprises. Such a view was implied
more strongly by a provision of H.R. 1010 (§5) that does not appear in H.R. 3534.
This provision expressed the sense of Congress that the government should fund the
costs to the private sector of complying with mandates through tax reductions, tax
abatements, or direct federal compensation. On this interpretation, the procedural
mechanism proposed by the Mandates Information Act could be understood to imply
a presumption that in general, government ought not to be restrained in making law
imposing costs or other duties on business enterprises.
On the other hand, the Mandates Information Act retains the definition of
“private sector” established by UMRA, which includes associations, nonprofit
institutions, and individuals, as well as profit-making enterprises. Under this concept
of the private sector, the Mandates Information Act might be interpreted as implying
a view that insofar as possible, government ought to be reluctant to make law
imposing costs or duties on citizens in general.
The amendment adopted by the House Committee on Rules in marking up H.R.
3534 mitigates the extent to which the legislation reflects either of these concepts.
This amendment alters §4(a)(3) to provide that no point of order against
consideration may be raised with respect to individual revenue provisions in a
measure. Instead, such a point of order may be raised on the basis of revenue
provisions only to the extent that the net increase in revenue resulting from all such
provisions in the measure exceeds the applicable threshold.13 Dissenting views in the
committee report object to this amendment, on the grounds that a measure increasing
tax revenues on one economic sector might be subject to a point of order under
UMRA if it dedicated the new revenues to any other social purpose than the relief of
tax burdens on another sector.14
Strengthening Provisions Against Dilatory Use
In the House, points of order raised under UMRA are disposed of not by a ruling
of the chair, but by a vote of the House on whether to consider the measure. The
House has recognized that this mechanism could potentially be subject to dilatory use.
Because the question of whether a mandate is present will receive no authoritative
settlement, Members might attempt to a raise point of order under UMRA
irrespective of whether the measure in question actually contains any mandates. To
preclude such practices, UMRA provides that the chair will not take cognizance of
a point of order under the act, and will not put to the House the question of
consideration, unless the Member raising it meets a “threshold burden” of specifying
“precise language” on which the point of order is “premised.”15
H.R. 3534 introduces several provisions (§4(a)(5) and §4(a)(6)), not included
in earlier versions of the Mandates Information Act, to clarify and strengthen these
defenses against dilatory use of UMRA points of order. First, these provisions make
Committee on Rules, Mandates Information Act, report.
explicit that the “language” specified must be “legislative language”; that is, language
in the measure itself.16
Second, these provisions also make explicit that the points of order subject to
this requirement include all those established by UMRA. This language presumably
ensures that the “threshold burden” will extend to the new point of order against
private sector mandates, as well as to the existing one against unfunded
intergovernmental mandates. The mechanism for disposing of the point of order by
the vote on consideration will presumably also extend to the new point of order.
It is less clear how this extension will affect the point of order that a reporting
committee has published no CBO estimate of mandate costs. The language may be
intended to preclude this point of order from being raised in cases when the only
reason the committee published no mandate cost estimate is that the bill contained no
mandates to begin with.
Third, these provisions also establish that only one point of order under UMRA
may be raised in relation to private sector mandates in a given measure. In principle,
this provision opens the possibility that the point of order raised might fail to specify
the most substantial mandates contained in a bill, or might even specify provisions that
did not in fact constitute mandates. This possibility, however, offers no prospect of
damaging the operation of the procedural mechanism, exactly because the effect of
the point of order does not depend on any ruling of whether it is substantively correct.
Even if the point of order fails to specify its premise adequately, the 20 minutes of
debate provided on the question of consideration would enable the House to become
aware of all mandate provisions in the bill that were of concern to Members. The
House would then vote on whether it wished to consider the bill containing those
provisions, whether or not they were comprehended in the initial point of order.
The only evident dilatory possibility not explicitly addressed by these provisions
appears to be that of raising an unfunded mandate point of order against legislation
that contained none. This action could be attempted by specifying, as the premise of
the point of order, legislative language that did not in fact establish any mandate. It
is not clear that the chair would accept such a specification as meeting the threshold
burden established by UMRA §426(b)(2). It does appear that the House has not
experienced any attempted resort to a practice of this sort.
Application to Legislative Provisions
in Appropriation Bills
The procedures established by UMRA are designed to apply to the consideration
of authorizing legislation, in which mandates would normally be established and their
funding authorized. UMRA addresses the actual provision of funds to entities that
incur the costs of mandates only by subjecting authorizing legislation to a point of
order if it affords no mechanism to ensure the funding of mandates it establishes.
House Committee on Rules, Mandates Information Act, report.
UMRA does not directly regulate the consideration of the appropriation bills in which
funds to meet the costs of mandates might be provided. Instead, UMRA explicitly
exempts appropriation bills from the operation of the points of order through which
its requirements are chiefly enforced.
Provisions establishing new or expanded mandates, however, might appear in
appropriation bills as legislative provisions, in spite of the general restrictions that
rules of both chambers place on such provisions. In its present form, therefore,
UMRA extends the point of order against consideration to individual legislative
provisions in (1) appropriation bills as reported, and (2) floor amendments, conference
reports, and amendments in disagreement between the houses, on appropriation bills,
if they increase the costs of intergovernmental mandates by amounts in excess of the
In the case of amendments, UMRA specifies that in the Senate, if the pertinent
point of order is sustained and not waived, the provision may not be considered. For
the House, if the point of order is raised against an amendment, the House may vote
against considering the amendment.18 In the case of a provision in a bill, for the
Senate, if the point of order is sustained and not waived, the provision is deemed
stricken. For the House, however, UMRA provides no similar mechanism. Instead,
enforcement would presumably have to proceed in accordance with the mechanism
generally provided for action on the point of order; that is, by a vote of the House on
whether to consider the provision despite the point of order.
It appears ambiguous how this mechanism would be applied to individual
provisions in appropriation bills. There is no normal procedure by which the House
votes on whether to consider a single provision of a bill. Yet the apparent intent of
the act is that raising the point of order against a provision in an appropriation bill (or
conference report) will lead to a House vote on whether to consider the provision.
The act does not specify what happens if the House then votes against consideration.
Presumably the text of the provision would be stricken from the bill; but if so, it is
unclear why the act does not so specify, when it explicitly makes just this specification
for the Senate. In the case of a conference report, also, striking a provision would be
tantamount to defeating the conference report.
The provision is presumably intended to work by preventing these situations
from arising. If the Committee on Appropriations knew that a provision of an
appropriation bill might be subject to the point of order, it might omit the provision
from the bill in advance, or seek a waiver from the Committee on Rules. In providing
such a waiver, however, the Committee on Rules would subject the special rule itself
to a point of order against consideration pursuant to UMRA, and therefore to a
House vote on whether to consider the rule. Similarly, if the Committee on
Appropriations knew that a provision of a conference report might be subject to the
point of order, it might omit the provision, or else report it in technical disagreement,
Because the House Committee on Appropriations typically reports appropriation bills as
original bills, there are usually no committee amendments. For this reason, the provisions of
UMRA referring to committee amendments to appropriation bills apply chiefly in the Senate.
so that it would be subject to a separate vote in the House without working the defeat
of the conference report.
Consistently with its other provisions, the Mandates Information Act (§4(a)(4))
would extend the application of the point of order against consideration to provisions
in appropriation bills that contain private sector mandates. The proposed legislation
does not resolve the existing potential difficulty with such a proceeding. Instead, it
extends that potential difficulty to legislative provisions involving private sector
mandates in appropriation bills and conference reports. As noted earlier, the
Mandates Information Act would apply to all private sector mandates, not just those
for which no funding mechanism is provided. The act might therefore result in a
substantial expansion of the number of special rules on appropriation bills that would
have to waive this provision. If so, the act could similarly expand the number of
special rules on which the House might have to vote whether to consider them.
Other Provisions Governing Consideration of
Private Sector Mandates
In addition to the central point of order discussed at the outset, UMRA
establishes several additional procedural mechanisms to regulate congressional
consideration of legislation containing mandates. The Mandates Information Act
extends the application also of some of these to private sector mandates.
Requirement for Estimate of Private Sector Mandate Costs
UMRA now provides that if CBO finds it not feasible to estimate costs of
intergovernmental mandates in a measure, it may report that determination, with
reasons, in lieu of an estimate. When this occurs, the measure may not be subjected
to the point of order that it contains unfunded intergovernmental mandates with costs
in excess of the threshold. The measure does, however, remain subject to the point
of order on the grounds that the committee has published no estimate of mandate
costs.19 Section 4(a)(2) of the Mandates Information Act would extend the
application of this point of order for lack of an estimate applicable to cases in which
CBO reports that an estimate of private sector mandate costs was not feasible.
Backup Mechanism for Striking Mandates from Bill in the House
Under UMRA, either chamber may consider a measure containing mandates in
spite of the restrictions UMRA places on doing so, if the point of order against doing
so either is not raised, is waived (in the Senate), or is superseded by a vote to consider
the measure despite the point of order (in the House). If the House did proceed to
consider a measure under these conditions, it might likely do so in Committee of the
Whole, and the special rule regulating its consideration might be one that restricted
amendments. UMRA amended House rules to provide that in such circumstances,
amendments to strike mandates whose unfunded costs exceed the applicable
threshold, if otherwise in order, remain in order unless the special rule specifically
waives this provision.20 The intent of this provision was to preserve the ability of the
House to eliminate unfunded intergovernmental mandates, even when it agreed to
consider a bill containing them.
This rule, as originally enacted, was drafted to cover amendments to strike all
unfunded mandates, including private sector mandates, which would not otherwise
be subject to procedural restrictions. The House therefore subsequently amended the
rule to apply only to the unfunded intergovernmental mandates covered by the point
of order discussed previously. Section 4(b) of the Mandates Information Act would
once again extend this protection to cover amendments that would strike private
sector mandates. The effect of this provision parallels that of the language extending
to private sector mandates the point of order against consideration.
Inasmuch as this provision affects only House proceedings, it does not appear
in S. 389, the Senate introduced version of the Mandates Information Act. This
difference is consistent with the usual practices of comity between the chambers, by
which they refrain from initiating legislation affecting each other’s own procedural
Rule XXIII, clause 5(c). In House of Representatives, House Rules Manual, §873c.