Earlier this month, the Senate completed a marathon session to approve a budget. It’s a highly unusual situation, since the budget is for the government’s fiscal year that is currently ongoing and Congress will have to do a new budget in a few months anyways. What gives?
The Democrats want to pass a $1.9 trillion COVID relief bill, without Republican support. The only way to do this is by using a provision of the budget act known as the reconciliation process.
Reconciliation is a frequently misunderstood and often-abused provision of the 1974 budget law. The idea of reconciliation is supposed to be an accounting provision to make sure appropriators and tax policy writers stuck to the budget blueprint passed earlier in the years – but in reality, it has had the unintended consequence of being a vehicle to pass major economic legislation. This is the case because the budget reconciliation process, by law, cannot be filibustered. As a result, creative legislators have found ways to exploit this provision to pass major initiatives that would otherwise be unable to get the 60 votes needed to overcome a filibuster. It’s been used to pass everything from welfare reform to tax cuts to major health care reform.
But, to get to the reconciliation process, the Congress must first pass a budget that includes reconciliation instructions. No budget, no reconciliation. So this tends to be a viable option only in Congresses controlled by one party.
With the Democrats controlling both Chambers and the White House, the time is ripe for reconciliation legislation. President Joe Biden would like Congress to adopt a COVID-relief package that would cost the country $1.9 trillion. His proposal includes additional cash payments sent directly to Americans, increases in unemployment benefits, funding for vaccine distribution, and an increase in the Federal minimum wage to $15 per hour. Republicans have said the program is too costly and includes items irrelevant to the coronavirus crisis. Even Democratic Senator Joe Manchin of West Virginia, has expressed skepticism about some parts. As released, there’s no way President Biden’s plan would survive a filibuster, which normally requires 60 votes to end. What’s a newly elected President to do?
Whatever the President and his Democratic colleagues in Congress decide to do, they should reject dubious attempts to weaken the Byrd Rule, which is a critical safeguard preventing abuse of budget the reconciliation process.
Senator Bernie Sanders, the new Chairman of the Senate Budget Committee, has provided critical support for President Biden. The Budget Committee is responsible for drafting the annual budget resolution, a document that serves as a blueprint for Congress’ spending and tax legislation for the year. One part of the budget process is reconciliation, a special procedure for Congress to bring its fiscal legislation in line with the goals of the budget resolution. Reconciliation is a special procedure because reconciliation legislation is limited to 20 hours of debate, meaning it cannot be filibustered and is guaranteed a vote. Ending a filibuster by invoking cloture usually requires 60 votes, and a party rarely has that many seats in the Senate. Thus, reconciliation has become an appealing way for the Senate to pass controversial legislation that would otherwise not reach the 60-vote threshold to invoke cloture. Chairman Sanders crafted a budget resolution that would allow the Senate to pass the President’s plan via reconciliation, and early on the morning of Friday, February 5, the Senate agreed to it by a vote of 50-50, with Vice President Kamala Harris breaking the tie.
(Incidentally, the budget resolution that Congress adopted, S. Con. Res. 5, was for fiscal year 2021, which actually started on October 1, 2020—so we’re over four months into the fiscal year which this resolution covers. Later this calendar year, Congress can agree to another budget resolution that would cover fiscal year 2022, allowing for another round of reconciliation legislation.)
Trying to pass President Biden’s COVID-relief plan via reconciliation is not at all shocking since the parties have made a habit of it when they control both Chambers of Congress and the White House. For instance, the Republicans used it in 2017 to pass the Tax Cuts and Jobs Act and the Democrats used it in 2010 to enact Obamacare. The minority strongly dislikes the practice, since it’s an end-run around the filibuster, but it’s expected, since that’s how majorities operate these days.
Using reconciliation this way appeals to the majority, but the Senate has historically tried to rein in what you might call “partisan shenanigans.” It does so through the Byrd Rule, named after the late Senator Robert Byrd of West Virginia, who was undoubtedly one of the most adept students of Senate procedure of the last 50 or 100 years. In 1985, he and a bipartisan group of colleagues introduced an amendment to a reconciliation bill to modify the process. To them, the reconciliation bills that Congress had passed contained too many provisions that were substantially unrelated to the budget, and these had not place in a bill that was limited to 20 hours of debate. Byrd’s amendment created a point of order to eliminate such “extraneous” provisions, among other things. There are a number of rules to determine whether a provision is extraneous. For example, according to 2 U.S. Code 644, where the Byrd Rule lives in our Federal law books, a provision is extraneous if it does not have a budgetary effect or if its budgetary effect is “merely incidental.” So, for instance, a provision designating July 25 as “Christmas in July Day” would be extraneous since it would have no budgetary effect. On the other hand, a provision raising income taxes by 3 percent per tax bracket would not be extraneous, since that provision would have a clear and direct effect on the budget. Thus the Byrd Rule helps keep the Senate focused on the objectives of the budget process as a whole.
With the Byrd Rule on the books, the next step is enforcing it. To do this, if a Senator thinks a provision in a reconciliation bill violates the rule, he or she must raise a point of order. The Presiding Officer rules on whether the provision passes muster. If the Chair sustains the point of order, the provision comes out, unless its supporters can muster 60 votes to keep it in there. Ruling on points of order can be tricky business: Many (or even most) Members of Congress in each Chamber are not experts in the rules, and some rules, like the Byrd Rule, are so subtle that most Senators would not be able to interpret it properly. So they turn to an expert: the Senate Parliamentarian, the Chamber’s non-partisan umpire who provides guidance on their rules and precedents. The Parliamentarian reviews questionable provisions of reconciliation bills and offers opinions on their suitability. Normally, the Presiding Officer follows the Parliamentarian’s advice, on any matter pertaining to Senate procedure, not just the Byrd Rule. Following this long-standing practice would mean that a provision would fall if the Parliamentarian advises that it is extraneous.
The practice of following the Parliamentarian’s advice might mean that the Byrd Rule could pose a problem for Biden’s plan since at least one of its major provisions, the minimum wage increase, could be ruled extraneous. On the one side of the question are those who say that it is extraneous because it does not directly affect the government’s spending and revenues, and any effects would be “merely incidental.” On the other side are those who say that it would satisfy the Byrd Rule because fewer people would qualify for public assistance, which would diminish government outlays. It is almost guaranteed that a Senator will raise a point of order to a change in the minimum wage, so the Parliamentarian will likely need to issue an opinion on whether the provision satisfies the Byrd Rule.
If the Parliamentarian advises that a minimum wage increase is extraneous, Senate practice would suggest that the Presiding Officer follow her advice even if it means missing out on a major policy objective, raising the minimum wage. Some on the left, however, have argued that the Presiding Officer should ignore her opinion, if she advises that a minimum wage increase is extraneous. In that case, the Presiding Officer would simply rule that the provision in question satisfies the Byrd Rule, the point of order would not be sustained, and the provision would remain in place.
A Senator could, of course, appeal the ruling of the Chair to the entire Senate, a process which would overturn the Chair’s decision if successful. Normally, it takes only a simple majority for the Senate to overrule the Chair. But the Byrd Rule, along with several other budget rules, has an exception to regular order where an appeal of the Chair’s ruling requires a three-fifths supermajority to succeed. As a result, there is little to no chance a Republican could muster 60 votes to overturn the Chair’s decision in this case since there’s such strong Democratic support for President Biden’s agenda. Simply ruling that a provision is not extraneous would be an effective way to move a particular policy through the reconciliation process, especially if there’s strong support for it in the majority party.
Ignoring the Parliamentarian’s advice would advance a party’s policy objective, but it would have several negative consequences for the Senate. Though the Democrats would claim the Chair was exercising her constitutional prerogatives to rule on the point of order, the Republicans would see foul play in the fact that she ignored the Parliamentarian’s advice. The Republicans would undoubtedly view it as another erosion of the filibuster, a crucial protection of the minority. This would further chill relations between the two parties, reducing the likelihood for bipartisan compromise on major issues for the rest of the Congress.
Additionally, ignoring the advice of the Parliamentarian will leave the reconciliation process, and other aspects of Senate procedure, open to abuse. Such an action would weaken the tradition of following the Parliamentarian’s guidance. If the majority sees that this tactic is successful, what is to stop them from using it in the future? Also, there’s a general tendency for one party to replicate the successful—if bruising—tactics of their opponents. In fact, the Senate has seen this over the last few decades with various procedures. For instance, when in the majority, both parties have used the nuclear option to weaken the filibuster. Ignoring the Parliamentarian in this instance may lead to it becoming just another tool in the partisan’s toolbox.
The majority might want to add this tactic because the Senate has kept the legislative filibuster, which is beyond irritating to the party in control. If the Senate has an issue with the filibuster, it would be best to deal with the filibuster directly, rather than contort other procedures to satisfy the majority’s needs. Yes, the filibuster is an obstacle to the majority. Yet the Senate should keep it, but in a reformed fashion. If the Senate can’t agree to reform the filibuster, making hay of the Byrd Rule is not the next best option; it just makes the problem worse.
As the Senate majority considers any reconciliation legislation, they should consider how the Chamber has treated the Byrd Rule in the past before they do anything that might undermine it. The idea that the Presiding Officer should ignore the Parliamentarian has been floated before. In 2017, Senator Ted Cruz of Texas argued that former Vice President Mike Pence should have been prepared to ignore the Parliamentarian’s advice to push through elements of an Obamacare repeal. He advanced an argument that is similar to one being made to today’s argument in favor of using reconciliation to raise the minimum wage: The provisions he wanted to change would affect the budget. Even his Republican colleagues criticized the suggestion, to say nothing of those on the left. The Senate wisely elected not to pursue this course of action in 2017, and should the opportunity present itself this year, it should reject it again.
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.