To expand on the information provided earlier about why the stimulus package will require 60 votes to pass in the Senate, when I last left it, I'd provided only this:

The bill will be subject to a point of order due to its deficit spending, but the point of order can be waived by a 3/5 vote of the Senate. So that means passage would ultimately have required 60 votes whether Republicans filibustered or not.

But that's only about as much as you'll get from the traditional media. The bill will require 60 votes because it will. Go away. Stop asking. It's too intense for you!

Well, for most people perhaps, that's a valuable service. You know what's got to happen, and you have an inkling as to why. But for those of you who care to know exactly why, I'm going to see what I can do about that.

From what we can gather from the news, the 60 vote threshold is necessary because the bill violates "the Budget Act." And if your paper gives you the details, you can pick up that 60 votes are necessary to waive a point of order against bills that add to the deficit.

That's true. But I like to proceed on everything from the standpoint of insisting, "Prove it!" It's all usually quite true, but proving it to myself means I look up and learn the rules. And then I can write things on my blog that make crazy people want to read it. Then I think you get famous and win a million dollars or something.

So, what's "the Budget Act?" Well, it seems to be a lot of things. For one, it's the Congressional Budget Act of 1974, aka Titles I-IX of P.L. 93-344. (That's Public Law 93-344, or the 344th Public Law enacted by the 93rd Congress.) But it's also become a catch-all that's used to include a couple other related pieces of legislation that have amended the original Budget Act, like the Balanced Budget and Emergency Deficit Control Act of 1985 (P.L. 99-177, aka Gramm-Rudman-Hollings), the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987 (P.L. 100-119), the Budget Enforcement Act of 1990 (Title XIII of the Omnibus Budget Reconciliation Act of 1990, P.L. 101-508), Title XIV of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66), and Title X of the Balanced Budget Act of 1997 (P.L. 105-33).

These pieces of legislation set up the current budgeting, authorization and appropriations process used by the Congress annually. Those terms, by the way, are not interchangeable. The links are to glossary definitions of the different kinds of bills that enact the different parts of the process, and it's useful to review them, not necessarily for this story, but for understanding future issues.

Basically, the budget (in Congressional terms, as distinct from the President's proposed budget document, which is basically just a suggestion, and does not bind anyone to its terms) is a distinct piece of legislation, a House Concurrent Resolution that does not make law, but binds the Congress to its terms once adopted. That resolution allocates spending limits for the Appropriations Committee, which assigns its 13 subcommittees to divvy up their pieces of the pie. But the appropriators are also (at least technically) bound by the work of the authorizing committees, in that they're not supposed to appropriate more money (though they can appropriate less) than is authorized. So the Budget Committee says, "These are the limits for everyone's spending," the bills passed by the authorizing committees say, "this is how much the Congress will allow to be spent on the programs covered by this bill," and the appropriators say, "here is some specific amount of money for the programs you guys authorized, but not more than the budget resolution says we could spend." If everything works according to plan, anyway. Like most rules, there are mechanisms for waiving some or all of them.

Now back to our story...

Between the various Budget Acts and subsequent budget resolutions, the Congress has established various rules that restrict their spending ability, most of which can be triggered by points of order against bills that violate these rules. This set of rules is distinct from the standing rules that govern floor and committee procedures. Instead, they're statutory provisions that bind future Congresses to certain budgetary procedures. The various acts and resolutions establish points of order that, if raised against bills or amendments that break the rules, can have the effect of preventing them from consideration (and therefore passage). The points of order possible are numerous and cover several distinct aspects of the budget and spending process, but are not self-enforcing. They have to be affirmatively raised by a Member during consideration of the bills or amendments in question in order to be effective.

So, to which point of order is the stimulus bill subject? It's hard to tell whether or not some of them apply for sure, but at a minimum, it appears the stimulus package could be expected to be subject to a point of order established in Section 201 of the FY2008 Budget Resolution (S.Con.Res. 21 in the 110th Congress).

That CRS report summarizes it by saying this section:

A CRS report that I found, which is now out of date, summarized the predecessor to this rule, saying it:

prohibits consideration in the Senate of any direct spending measure or revenue legislation that would increase or cause an on-budget deficit for the first fiscal year covered by the most recently adopted budget resolution, the period of the first five fiscal years covered by the most recently adopted budget resolution, or the first five fiscal years following the first five fiscal years covered by the most recently adopted budget resolution.

It also notes that the point of order may be waived by... a 3/5 vote of the Senate. For the record, that's 3/5 of Senators "chosen and sworn" -- 60 in a full Senate (just like cloture).

That predecessor is pretty much the same in its effects, with the exception of the way it describes how to calculate the ten year budget windows it uses. Instead of two five year windows, the current rule uses windows figured by using the current year plus the next four, and a longer current year plus nine formulation. The 60 vote waiver -- the important part for this discussion -- is unchanged.  

What about a primary source? OK, fine:

SEC. 201. PAY-AS-YOU-GO POINT OF ORDER IN THE SENATE.

     (a) Point of Order-

           (1) IN GENERAL- It shall not be in order in the Senate to consider any direct spending or revenue legislation that would increase the on-budget deficit or cause an on-budget deficit for either of the applicable time periods as measured in paragraphs (5) and (6).

           (2) APPLICABLE TIME PERIODS- For purposes of this subsection, the term `applicable time period' means either--

                 (A) the period of the current fiscal year, the budget year, and the ensuing 4 fiscal years following the budget year; or

                 (B) the period of the current fiscal year, the budget year, and the ensuing 9 fiscal years following the budget year.

           (3) DIRECT SPENDING LEGISLATION- For purposes of this subsection and except as provided in paragraph (4), the term `direct spending legislation' means any bill, joint resolution, amendment, motion, or conference report that affects direct spending as that term is defined by, and interpreted for purposes of, the Balanced Budget and Emergency Deficit Control Act of 1985.

           (4) EXCLUSION- For purposes of this subsection, the terms `direct spending legislation' and `revenue legislation' do not include--

                 (A) any concurrent resolution on the budget; or

                 (B) any provision of legislation that affects the full funding of, and continuation of, the deposit insurance guarantee commitment in effect on the date of enactment of the Budget Enforcement Act of 1990.

           (5) BASELINE- Estimates prepared pursuant to this subsection shall--

                 (A) use the baseline surplus or deficit used for the most recently adopted concurrent resolution on the budget; and

                 (B) be calculated under the requirements of subsections (b) through (d) of section 257 of the Balanced Budget and Emergency Deficit Control Act of 1985 (as in effect prior to September 30, 2002) for fiscal years beyond those covered by that concurrent resolution on the budget.

           (6) PRIOR SURPLUS- If direct spending or revenue legislation increases the on-budget deficit or causes an on-budget deficit when taken individually, it must also increase the on-budget deficit or cause an on-budget deficit when taken together with all direct spending and revenue legislation enacted since the beginning of the calendar year not accounted for in the baseline under paragraph (5)(A), except that direct spending or revenue effects resulting in net deficit reduction enacted in any bill pursuant to a reconciliation instruction since the beginning of that same calendar year shall never be made available on the pay-as-you-go ledger and shall be dedicated only for deficit reduction.

     (b) Supermajority Waiver and Appeals-

           (1) WAIVER- This section may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.

           (2) APPEALS- Appeals in the Senate from the decisions of the Chair relating to any provision of this section shall be limited to 1 hour, to be equally divided between, and controlled by, the appellant and the manager of the bill or joint resolution, as the case may be. An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required to sustain an appeal of the ruling of the Chair on a point of order raised under this section.

     (c) Determination of Budget Levels- For purposes of this section, the levels of new budget authority, outlays, and revenues for a fiscal year shall be determined on the basis of estimates made by the Senate Committee on the Budget.

     (d) Sunset- This section shall expire on September 30, 2017.

     (e) Repeal- In the Senate, section 505 of H. Con. Res. 95 (108th Congress), the fiscal year 2004 concurrent resolution on the budget, shall no longer apply.

You'll note the repeal provision at the bottom. That repeals the old version of this point of order which had a sunset date of September 30, 2008. Why September 30th? Because that's the date on which the federal fiscal year ends.

So I think that's it. Section 201(b)(1) of S. Con. Res. 21, passed by the 110th Congress, appears to be at least one reason why it will take 60 votes to pass the stimulus bill in the Senate, and likewise any conference report arising from it. I'm not yet entirely clear whether any other points of order apply, and if so, whether there would be any particular reason for raising one versus the other, or even whether you can raise them all. But this one seems the most clearly applicable, though I could still be wrong about that. Nobody's really saying just yet exactly which one it is.

But this, I guess, is why when you read about it in the traditional media, they just say, "the Senate will require 60 votes to pass it," and it's left at that. Still, it'd be nice if they held themselves to the "Prove it!" standard once in a while.

This should also, by the way, partly explain for some of you why Senate Democrats aren't "forcing the Republicans to actually filibuster" the bill if they want to require 60 votes to pass it. It would require 60 votes anyway, filibuster or not.

Don't you think Senators could have avoided a lot of headaches for themselves and their constituents if they'd said something about that? Maybe they did, I don't know. I didn't ask any of them.