The "New" Earmark Point of Order for Appropriations Conference Reports
On June 18, 2007, the House adopted H.Res. 491 by unanimous consent, correcting problems with the enforceability of the Democrats’ current point of order on earmarks (clause 9 of Rule XXI). The current rule requires the Chairman of a committee to ensure that bills, manager’s amendments, and conference reports have a list of the earmarks contained in the measure and report, along with the name of the Member or Senator who requested the earmark.
The problem with the rule put in place at the beginning of the 110th Congress is that, as written and put into practice by the new Democratic Majority, there was no way to debate the point of order if a Member questioned the accuracy or completeness of the list. This is because it was the practice during the Republican Majority to routinely waive all points of order against bills and conference reports. Under the earmark rule, this creates a point of order against the rule for the bill or conference report, giving Members a chance to debate the question of earmarks. However, the Democrats instituted the practice of specifically not waiving the earmark rule, meaning that there was usually no way to get a separate debate on earmarks on a bill or conference report.
The new point of order created by H.Res. 491 partially restores the enforceability of the earmark rule to where it was in the 109th Congress by providing a point of order against a conference report to accompany a regular general appropriations bill (debatable as a question of consideration) for the failure to include a list of “air dropped” earmarks in the joint statement of managers. Unlike the current rule, this point of order does not have a congnizability standard, allowing members to question the accuracy or completeness of the list.
A Member can raise the point of order at the point the manager calls up the conference report by saying:
M. Speaker, I raise a point of order under section 1 of H.Res. 491 against the conference report for the failure to include a [complete/accurate] list of congressional earmarks.
If the rule providing for consideration of the conference report waives all points of order, the point of order automatically moves to the rule. The form of that point of order is:
M. Speaker, I raise a point of order against H.Res. ____ under section 2 of H.Res. 491 because the resolution contains a waiver of all points of order against the conference report and its consideration.
The point of order is then debated as a question of consid eration, debatable for 20 minutes, equally divided between the Member initiating the point of order and a Member opposed. If the House votes to not consider, the resolution or conference report cannot go forward.