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Rescissions, Rescissions: How Congress Can Use the Rescission Process Responsibly

Rescission authority is a hot topic, ever since Wall Street Journal investigative columnist Kim Strassel reminded Congress of a power it seemingly forgot it had.  The rescissions process is a powerful tool that allows Congress to cut spending free from the threat of a filibuster.  But while this procedural tool exists, Congress has to consider the political pros and cons of wielding such a weapon.

After annual appropriations bills are enacted, Congress and the President may cancel funding through what is known as the rescission process. Congress may always—and sometimes does—cancel appropriations that it has made, but the Congressional Budget and Impoundment Control Act of 1974 provides for special rescission legislation that is considered under expedited procedures, making it easier for a simple majority of each Chamber of Congress to revisit spending decisions. The Executive and Legislative Branches haven’t rescinded appropriations in this manner in nearly two decades, but the Trump Administration recently sent rescissions proposals to Congress. The Administration has proposed cutting only 0.4 percent of the Federal budget with its first rescissions package. Although the idea is not without merit—after all the Federal Debt is reaching crisis proportions—using the process in an overtly political manner could, in the long run, hamper the ability of Congress to make future bipartisan deals.

What is the rescission process?

If Congress revokes funding that has already been appropriated, the cancellation is known as a rescission. Congress could rescind appropriations by its normal procedures at any time, but here we are looking at a special category of rescission legislation that is governed by Title X of the Congressional Budget and Impoundment Control Act of 1974.  Congress enacted the law, more commonly referred to as the Budget Act of 1974, in response to a governing crisis which President Richard Nixon provoked when he refused to spend monies the Legislature had appropriated for various programs and initiatives. The President said the monies were not needed, but Congress objected, reminding him that his job was to faithfully execute the laws it passed, and the appropriation was one of those laws. President Nixon, irreparably weakened by the Watergate scandal, eventually acceded to Congress’ demands and signed the new law.  Congress limited the President’s ability to impound funds, but Members nonetheless recognized the President’s role in the policy-making process and enacted a set of procedures whereby the legislature and Administration could collaborate to revise spending policy after each year’s appropriations bills were enacted, as long as Congress had the final say.

In this special rescission process, if the President thinks it is necessary or desirable to withhold funding from some office or program, he may suggest that Congress cut certain spending. If Congress adopts a rescission bill or joint resolution within 45 days, government officials may not spend the previously appropriated money. The President begins the process by sending both Chambers of Congress a message indicating how much money he thinks should be cut; what agency and project the money was for; why it should not be spent; how withholding the money will affect fiscal policy, the economy, and the program it was intended for; and “all facts, circumstances, and considerations relating to or bearing upon the proposed rescission.” If the President proposes a rescission, Congress has 45 “calendar days of continuous session” to consider a bill or joint resolution to approve the recommendation. The phrase “calendar days of continuous session” means that if Congress adjourns for more than three days or adjourns sine die, those days are not counted for the purposes of the rescissions process.

A rescission bill is privileged, which means that it is pretty much guaranteed a vote on the Floor—regardless of the views of the Appropriations Committee.  Once a rescission bill or joint resolution is introduced in each Chamber, as with any other piece of legislation, it is referred to a Committee. After 25 days of continuous session after the bill is introduced, if the Committee has not acted to approve the bill, a Member who supports the bill, and who is seconded by one-fifth of his or her colleagues, may offer a motion to discharge the Committee from further consideration of the bill. Debate on the motion to discharge is limited to an hour. This discharge process effectively removes the bill from the Committee’s to-do list, and it means that if a majority of the Members of that Chamber support the bill, neither the Committee’s chairman nor the Committee members can stop it from moving forward.  Of course, the Committee can move the bill to the Floor using a more orderly process, but this provision allowing a Member to discharge the Committee almost guarantees the President a vote on his proposal, even if the Congress is controlled by the opposing party.

The time cap on debate on the motion also means that the rescission bill’s opponents may not filibuster it in the Senate. (The time limit is less critical in the House, where a bill’s opponents have far less leverage to slow-walk the process.)  The ability to force a vote on the Senate Floor requiring only a simple majority for passage is what makes this a powerful tool.  Essentially, the Senate can repeal with 51 votes an appropriation that may have required 60 votes to pass (due to the supermajority requirement to invoke cloture).

After a Committee reports the bill, or after the Committee is discharged, each Chamber may debate the bill on its Floor. In the House, the motion to proceed to consider the rescission bill is “highly privileged” and is in order “at any time” after the Committee reports it or is discharged. In the House, debate is limited to two hours. In the Senate, debate is limited to 10 hours, meaning the bill may not be filibustered. As with other legislation, a simple majority of the Members present and voting is required for passage. If the two Chambers approve different rescission legislation, they must reconcile the differences and adopt a final version. Like any other legislation, the final version goes to the President for approval. If the legislation fails, however, the Executive Branch must spend the money as the appropriations bills direct, and the President may not re-propose rescinding those particular funds.

If Congress enacts a rescission, it could cut more or less than what the President actually recommends. For instance, for Fiscal Year 1995, Congress initially appropriated $17 million for the Local Rail Freight Assistance Program. President Bill Clinton proposed rescinding that amount by $13.216 million. The House voted to cut $13.126 million, whereas the Senate Appropriations Committee recommended cutting $6.808 million. Ultimately, in Public Law 104-6, Congress cut rescinded $6.563 million—$6.653 million less than what the President requested.

How often have funds been rescinded using this process?

Between Fiscal Years 1974 and 2000, Presidents proposed 1,178 rescissions, and Congress approved 461 of these (although not all for the full amount). Presidents requested that over $76 billion be rescinded, and Congress cut about $25 billion. President Bill Clinton was the last chief executive to propose a rescission, in Fiscal Year 2000, and Congress declined his request. It has not been used since.

President Ronald Reagan holds the records for both the most rescissions proposed (Fiscal Year 1985) and most rescissions accepted (Fiscal Year 1981). In Fiscal Year 1981, President Reagan proposed 133 rescissions, totaling $15.362 billion, and Congress accepted 101, cutting $10.88 billion meaning Congress approved about 76 percent of President Reagan’s rescission requests, and about 71 percent of the total dollar value. In Fiscal Year 1985, the President was not as persuasive, as he proposed 245 rescissions, totaling $1.856 billion, and Congress accepted 98, but only cutting $173.7 million. In short, Congress approved of 40 percent of the proposed rescissions but only about 9 percent of the dollar amount of those proposals.

Although Presidents have not proposed rescissions since Fiscal Year 2000, even before then, there were a few years in which Presidents either did not propose any or Congress refused to approve them. In Fiscal Year 1988, President Reagan did not propose any rescissions. In Fiscal Years 1974, 1983, 1990, and 2000, the incumbent President proposed rescissions, but Congress refused the requests.

Should congressional Republicans use rescissions today?

Although rescissions have not been used since the Clinton Administration, discontent among conservatives with the most recent appropriations bill have led some to call on President Trump and Congress to revive the practice. In March, Republicans and Democrats agreed to spending bill totaling $1.3 trillion, which included funds for many Democratic priorities. Earlier this year, the Wall Street Journal editorial board noted, “Republicans have been getting pounded by their voters for passing a Democratic budget, with the exception of defense, despite having GOP majorities. A rescission vote can restore some of the political accountability that the filibuster blurs.” Along this line of thought, rescinding appropriations would be a politically advantageous way to satisfy an angry base in the run up to an election where Republicans are in danger of losing one or both Chambers.  Within this context, Republicans were initially talking about a $60 billion proposal that would have rescinded large portions of the omnibus appropriation bill passed in March.  After being advised by Congressional leaders that such a plan would fail, the White House instead announced that it would send a package of rescissions proposals totaling $15.4 billion to Congress, taken from prior year appropriations – including funding for one program that no longer exists.  This should be far more palatable to many legislators, though.  some, especially Democrats and even some Republicans who sit on the Appropriations Committees, have criticized this much smaller rescission plan. The Administration is reportedly considering additional proposals to be sent to Congress later, so debates over rescissions could continue for some time.

Rescinding appropriations makes sense well enough if Republicans use it with proper restraint. However, the congressional Republicans need to make sure that they do not take it too far. The problem with using rescissions to claw back too much against Democratic priorities is that both procedural and political dynamics within Congress make compromise with the Democrats either necessary or highly expedient to pass appropriations bills. Undoubtedly, most congressional Democrats would view the Republicans as treacherous for reneging on the appropriation deal they struck just months ago. Going forward, there would be absolutely no reason for Democrats in either Chamber to work with the Republicans to pass spending bills if they believed the priorities the Democrats insisted on would be immediately repealed by a rescission bill while the Republican spending priorities are maintained.

In the House, this is not so much of an issue, since the majority party can virtually always enact its legislation, provided its Members remain united. This will, however, present problems in the Senate. The expedited procedures of the rescission process effectively nullifies the filibuster, and the filibuster will become an even greater obstacle if Congress uses it to gut Democratic priorities this year. In the future, without having any reason to negotiate, expect the Democrats to filibuster much more actively (though some Republicans may argue that would be hard to do). The danger is that this, like the nuclear option initially deployed by former Senate Majority Leader Harry Reid and later employed by the Republicans, will be seen as a tit-for-tat escalation of the abandonment of Senate tradition and procedure.  Rescissions could become the next step in escalating partisan tensions within Congress, which works best when Members can come to a consensus on policy. Increasing partisanship within Congress is not the direction Republicans should be leading the institution.

Today, increased partisanship is especially worrisome since it could also threaten Congress’ goal of reforming its budget process. As American Action Forum’s Gordon Gray noted, “if employed to undermine tenuous political comprises, it [rescissions] could worsen rather than improve the environment for meaningful fiscal reforms.” Earlier this year, Congress created the Joint Select Committee on Budget and Appropriations Process Reform to recommend ways to improve how it makes its fiscal decisions. One key for this Committee to succeed is to recommend changes that have bipartisan, policy neutral support. If it tries to make changes that favor one policy solution over another (like cutting spending or raising taxes), it is bound to fail. If the Democrats perceive that the Republicans are backtracking on the most recent appropriations bill, they will have no reason to believe that Republicans are acting fairly negotiating other aspects of procedure. If Members cannot even agree to policy-neutral budget process reforms, how can they then proceed to changes to policy? Using rescissions this year would certainly reduce the deficit—and even modest reductions are achievements—but Republicans should prioritize greater, longer-term wins.

Conservative frustration with the recent spending bill is understandable, and some rescissions could in fact be in order. The majority could, for instance, withdraw funding from programs that are obsolete or failing, like the smaller rescission package submitted by the President does. If cuts like that are not Democratic priorities, they might event get the minority party to go along with them. But the procedural implications of using rescission bills too liberally would be a Pyrrhic victory that could ultimately further harm Congress’ health and strength. If Congress is weak and ineffective, that, too, would be a loss for the right, since a healthy democracy requires a healthy legislature.

Image source: Pexels

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.

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