Tag Archives: Mike Enzi

What You Need to Know about Budget Reconciliation in the Senate

After last week’s House passage of the American Health Care Act, the Senate has begun sorting through various policy options for health care legislation. But looming over the policy discussions are procedural concerns unique to the Senate. Herewith a primer on the process under which the upper chamber will consider an Obamacare “repeal-and-replace” bill.

How Will the Bill Come to the Senate Floor?

The bill that passed the House was drafted as a budget reconciliation bill. The phrase “budget reconciliation” refers to a process established by the Congressional Budget Act of 1974, in which congressional committees reconcile spending in programs within their jurisdiction to the budget blueprint passed by Congress. In this case, Congress passed a budget in January that required health-care committees to report legislation reducing the deficit by $1 billion—the intended vehicle for an Obamacare “repeal-and-replace” bill.

What’s So Important about Budget Reconciliation?

The Budget Act lays out specific time limits for debate in the Senate—20 hours of debate—and limits amendments to germane (i.e., relevant) topics. Normally, debate in the Senate is much more free-wheeling, with unlimited debate and amendments permitted on any issue. A senator could offer an amendment on Syria policy to a tax bill, for instance.

Under most circumstances, the Senate can only limit debate and amendments by invoking cloture, which requires the approval of three-fifths of all senators sworn (i.e., 60 votes). Because the reconciliation process prohibits filibusters and unlimited debate, it allows the Senate to pass reconciliation bills with a simple majority (i.e., 51-vote) threshold.

Why Does the ‘Byrd Rule’ Exist as part of Budget Reconciliation?

Named for former Senate Majority Leader Robert Byrd (D-WV), the rule intends to protect the integrity of the legislative filibuster. By allowing only matters integral to the budget reconciliation to pass the Senate with a simple majority (as opposed to the 60-vote threshold), the rule seeks to keep the body’s tradition of extended debate.

What Is the ‘Byrd Rule’?

Simply put, the rule prohibits “extraneous” material from intruding in budget reconciliation legislation. However, the term “Byrd rule” is technically a misnomer in two respects. First, the “Byrd rule” is more than just a longstanding practice of the Senate. After several years of operation as a Senate rule, it was codified into law beginning in 1985, and can be found at 2 U.S.C. 644. Second, the rule consists of not just one test to define whether material is “extraneous,” but six.

What Are the Six Different Types of Extraneous Material?

This chart from Senate Budget Committee staff highlights the six statutory definitions of “extraneous” material, provides some examples of each, and explains how the Senate rules on, and disposes of, material falling under each test.

So the Various Types of ‘Byrd Rule’ Violations Are Not Necessarily Equivalent?

Correct. While most reporters focus on the fourth test—when a legislative provision has a budgetary impact merely incidental to the provision’s policy change—that is not the only type of rule violation. Nor in many respects is it the most significant.

While violations of the fourth test are fatal to the provision—the extraneous material is stricken from the underlying legislation—violations of the third (material outside the jurisdiction of committees charged with reporting reconciliation legislation) and sixth (changes to Title II of the Social Security Act) tests are fatal to the entire bill.

Who Determines Whether a Provision Qualifies as ‘Extraneous’ Under the ‘Byrd Rule’?

As the chart notes, those determinations are made by the Senate Budget Committee chairman—currently Mike Enzi (R-WY)—or the chair, who normally acts upon guidance from the Senate parliamentarian.

How Does One Determine Whether a Provision Qualifies as ‘Extraneous’ under the ‘Byrd Rule’?

In some cases, determining compliance with the rule is relatively straight-forward. A provision dealing with veterans’ benefits (within the jurisdiction of the Veterans Affairs Committee) would clearly fail the third test in a tax reconciliation bill, as tax matters lie within the Finance Committee’s jurisdiction.

However, other cases require a more nuanced, textual analysis by the parliamentarian. Such an analysis might examine Congressional Budget Office (CBO) and other outside scores, to assess the provision’s fiscal impact (or lack thereof), the statute the reconciliation bill seeks to amend, other statutes cross-referenced in the legislation (to assess the impact of the programmatic changes the provision would make), and prior precedent on related matters.

When Does the Senate Assess Whether a Provision Qualifies as ‘Extraneous’?

In some respects, assessing compliance is an iterative process. Often, the Senate parliamentarian will provide informal advice to majority staff as they begin to write reconciliation legislation. While these informal conversations help to guide bill writers during the drafting process, the parliamentarian normally notes that these discussions do not constitute a formal advisory opinion; minority party staff and other interested persons are not privy to the ex parte conversations, and could in time bring her new information that could cause her to change her opinion.

Later in the process, as the reconciliation bill makes its way to the Senate floor, majority and minority leadership staff will gather for more formal discussions to assess which provisions qualify as “extraneous” under the “Byrd rule.” This process, informally known as the “Byrd bath,” allows for all sides to put their cases before the parliamentarian, who will normally provide more definitive guidance on how she would advise the chair to rule.

Do Debates about the ‘Byrd Rule’ Take Place on the Senate Floor?

They can, and they have, but relatively rarely. As James Wallner, an expert in Senate parliamentary procedure, notes, over the last three decades, the Senate has formally adjudicated only ten instances of the fourth test—whether a provision’s fiscal impacts are merely incidental to its proposed policy changes.

Because most determinations of “Byrd rule” compliance (or non-compliance) have been made through informal, closed-door “Byrd bath” discussions in the Senate parliamentarian’s office, there are few formal precedents—either rulings from the chair or votes by the Senate itself—regarding specific examples of “extraneous” material. As a result, the Senate—whether the parliamentarian, the presiding officer, or the body itself—has significant latitude to interpret the statutory tests about what qualifies as “extraneous.”

Can the Senate Overrule the Parliamentarian about What Qualifies as ‘Extraneous’ Under the ‘Byrd Rule’?

Yes, in two respects. The presiding officer—whether the vice president as president of the Senate, the president pro tempore (currently Sen. Orrin Hatch, R-UT), or another senator—can disregard the parliamentarian’s guidance and issue his or her own ruling. Alternatively, a senator could appeal the chair’s decision, and a simple majority of the body could overrule that decision. There is a long history of senators doing just that.

As a practical matter, however, such a scenario appears unlikely during the Obamacare debate, for two reasons. First, some senators may view such a move as akin to the “nuclear option,” undermining the legislative filibuster by a simple majority vote. The recent letter signed by 61 senators pledging to uphold the legislative filibuster indicates that at least some senators in both parties want to preserve the usual 60-vote margin for passing legislation, and therefore may not wish to set a precedent of allowing potentially “extraneous” material on to a budget reconciliation bill through a simple majority.

Second, if the Senate did overrule the parliamentarian on a procedural matter related to budget reconciliation, a conservative senator would likely introduce a simple, one-line Obamacare repeal bill and ask the Senate to overrule the parliamentarian to allow it to qualify as a reconciliation matter. Since many members of the Senate, like the House, do not actually wish to repeal Obamacare, they would likely decline to head down the road of overruling the parliamentarian, for fear it may head in this direction.

Can the Senate Waive the ‘Byrd Rule’?

Yes—provided three-fifths of senators sworn (i.e., 60 senators) agree. In the past, many budget reconciliation bills—like the Balanced Budget Act of 1997—passed with far more than 60 Senate votes, which made waiving the rule easier.

However, Republicans did not agree to waive the rule for extraneous material included in Senate Democrats’ Obamacare “fix” bill in March 2010. That material was stricken from the legislation and did not make it into law. For this and other reasons, it seems unlikely that eight or more Senate Democrats would vote to waive the rule for an Obamacare “repeal-and-replace” bill.

Didn’t Democrats Pass Obamacare through Budget Reconciliation?

Yes and no. They fixed portions of Obamacare—for instance, the notorious “Cornhusker Kickback”—through a budget reconciliation measure that passed through both houses of Congress in March 2010. But the larger, 2,400-page measure that passed the Senate on Christmas Eve 2009 was enacted into law first.

Once Scott Brown’s election to the Senate in January 2010 gave Republicans 41 votes, Democrats knew they could not go through the usual process of convening a House-Senate conference committee to consider the differences between each chamber’s legislation. A conference report is subject to a filibuster, and Republicans had the votes to sustain that filibuster.

Instead, House Democrats agreed to pass the Senate version of the legislation—the version that passed with 60 votes on Christmas Eve 2009—then have both chambers use a separate budget reconciliation bill—one that could pass the Senate with a 51-vote majority—to make changes to the bill they had just enacted.

This post was originally published at The Federalist.

One More Way Obamacare Is Hurting Families and Children

In case you hadn’t seen it, Sen. Enzi’s staff earlier today released a report outlining how Obamacare has reduced access to insurance coverage for children across the country.  Specifically, the onerous mandates imposed in Obamacare – coupled with the inept way the Administration has implemented the law – has resulted in 17 states not having access to child-only insurance policiesIn a total of 39 states, at least one insurance company has exited the child-only insurance marketplace.

These difficulties come because the Administration, in implementing the law, required insurance companies to accept ALL applicants for child-only insurance, regardless of health status.  Many companies, fearing (rightly) that they would be deluged with applications from individuals with costly medical conditions, decided to limit their involvement and/or exit the child-only insurance market entirely.  Now, thanks to these misguided policies under Obamacare, millions of Americans have no easy options to obtain health insurance coverage for their children.

Former Speaker Pelosi famously said we had to pass the bill to find out what’s in it.  Unfortunately, millions of American families seeking to obtain insurance coverage for their children are finding out that a provision designed to increase access to insurance coverage, particularly for children with pre-existing conditions, has in reality only served to decrease access.  And if this child-only insurance debacle portends similar problems as Obamacare gets rolled out fully in 2014, millions more Americans may find out the unexpected consequences of the 2,700 page health care law three years from now.

How Can You Implement a Law if You Can’t Deliver a Letter?

The Daily Caller reports today on a letter sent by HELP Committee Ranking Member Enzi to Vice President Biden, noting that the Vice President’s office has thus far failed to provide official transmittal of the Administration’s Medical Loss Ratio regulation to the Senate.  HHS has confirmed it sent the rule to the Vice President’s office, but the Vice President never delivered the rule to the Senate Parliamentarian.  And because the Vice President’s office has not done so, the Senate cannot debate or vote on legislation seeking to modify this new Obamacare mandate.

As a reminder, candidate Obama repeatedly pledged to televise all health care negotiations on C-SPAN – yet the Administration cannot deliver a letter to the Senate allowing an open debate on one of Obamacare’s regulations to occur.  More broadly, it’s worth asking:  How can this Administration implement a 2700 page law if it can’t deliver a simple letter…?

More Misinformation on Pre-Existing Conditions

In case you hadn’t seen it, the new website healthcareandyou.org launched on Tuesday.  Organized by several activist groups that support the law (e.g., the American Nurses Association), the website intends to provide “easy to understand information” about its contents.  Unfortunately, however, some of its statements are far from complete.  For instance, the video on the site’s homepage advertises “No Denials for Kids with Pre-existing Conditions.”  What it doesn’t mention however is the fact that, as Sen. Enzi’s HELP Committee staff discovered, families in 20 states are now unable to buy child-only insurance policies thanks to the new mandates imposed by the statute – meaning the promise of coverage for children with pre-existing conditions may turn out to be a hollow one.

Then there’s this apparently universal claim the website makes regarding pre-existing conditions:

No Denials Because of Pre-existing Conditions

Starting January 1, 2014, health insurance companies will no longer be able to refuse coverage or charge you a higher premium because of a pre-existing condition, including a disability.  A pre-existing condition is a health problem, disease or disability that an individual developed before they applied for health coverage.  Insurers will also no longer be able to base premium prices on gender or health status in the individual and small group markets.  Individuals who buy their coverage straight from insurance companies purchase coverage on the individual market. Small businesses that purchase health insurance for their employees buy it on the small group market.

Even one of the site’s sponsors, AARP, previously admitted that the blanket claims made on the website are FALSE:  Pre-existing condition protections do NOT extend to Medigap plans.  Yet the AARP-sponsored website doesn’t include a single mention that the law allows companies offering Medigap plans to continue imposing waiting periods on seniors with pre-existing conditions.  Funny that.

You may recall that Secretary Sebelius previously wrote she would not tolerate any “misinformation” regarding the health care law from entities offering health insurance products.  I’m sure that means her letter to the sponsors of the Health Care and You website is in the mail.

Obamacare Side Effect: At Least 20 States Not Selling Child-Only Policies

Sen. Enzi’s HELP Committee staff has compiled a report indicating the 20 states in which individuals cannot buy child-only health insurance policies.  That report can be found here.  It’s also worth noting that in a Politico story on the matter, advocates claim “that the damage could have actually been a lot worse, had [states] not taken aggressive action to intervene.”  It’s interesting first that having “only” 20 states not selling child-only policies is being claimed by some as progress, and second that the apparent “solution” to government intervention (i.e., a bad law passed by Congress) is yet more government intervention, in the form of “aggressive action” by state governments and regulators.  It’s enough to bring to mind the famous quote that “The nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.”

CBO: Obamacare Underfunded Coverage Program for Pre-Existing Conditions

The Congressional Budget Office this afternoon released a letter to Sen. Enzi regarding the funding levels for the high-risk pools created under the health care law.  The law capped total spending on the program at $5 billion between now and 2014, but CBO found that to meet full demand, an additional $5-10 billion in funding would be required.  Additionally, CBO found that while a fully funded program would enroll about 400,000 individuals in 2011, rising to as many as 700,000 participants in 2013, the current law method of capped funding would enroll an average of only 200,000 individuals between 2011-2013 – meaning as many as half a million individuals with pre-existing conditions could lose out on coverage opportunities due to the lack of full funding in the Democrat legislation.  CBO also pointed out that “most of these enrollees [in the risk pool] would have been uninsured” – meaning that the lack of full funding for the program will result in fewer people with pre-existing conditions obtaining coverage prior to 2014.

Today – 90 days following enactment – the high-risk pool created by the statute should be up and running – but Politico reported this morning that enrollment may not begin until “late summer or early fall.”  Now Congress’ non-partisan budget experts have estimated that the program is significantly under-funded, and will cover as many as 500,000 fewer individuals than demand would otherwise predict.  Both developments raise questions about the Administration’s implementation of the health care law, and why Democrats saw fit to spend money on other dubious spending priorities – backroom deals and a new $15 billion slush fund for jungle gyms and other pet projects – rather than fully funding coverage for individuals with pre-existing conditions.

The First Missed Deadline — But Not the Last

You may be aware that Section 1552 of the health care law – entitled “Transparency in Government” – requires the HHS Secretary to list on the Department’s website within 30 days “a list of all the authorities provided to the Secretary” under the Act.  Such a list could allow members of the public to determine what types of powers HHS will hold in the 159 new bureaucracies and programs established in the law.  Senators Grassley, Enzi, and Gregg sent the attached letter to Secretary Sebelius last week reminding her of her statutory obligation to issue such a list by April 23.  Yet Friday’s deadline came and went without such a list being publicly released, as the law required.

HHS’ non-compliance with its statutory requirements came during the same week in which the White House began mailing out millions of government-funded postcards touting a small business tax credit in the law and hired a political operative “to aid in selling health care” before the November mid-term elections.   So which is the Administration’s top priority: Implementing the law as required, or creating taxpayer-funded propaganda campaigns to bail out Democrats who voted for this unpopular government takeover of health care?


UPDATE:  Several folks have pointed out that HHS has a section of its website titled “Health Reform and the Department of Health and Human Services.”  It is in fact a list, and it does include the word “authorities” at the top, but it certainly doesn’t make more transparent what explicit authorities HHS believes it has as a result of the new law.  Instead, the website just lists the law’s table of contents, and allow individuals to pore through the law’s 2,800-plus pages to attempt to decipher the statute – hardly a victory for clarity and transparency in government.

It is far from an academic exercise to ask the department charged with interpreting much of the new law to provide its views of the scope – and limits – of the statute.  For instance, does HHS believe the law gives them the authority to deny patients drugs or therapies because bureaucrats consider them too expensive?  The Administration’s nominee to head Medicare, Donald Berwick, supports using such authority to deny patients access to life-saving treatments, writing that “the decision is not whether or not we will ration care – the decision is whether we will ration with our eyes open.”  It’s worth asking whether HHS has declined to release a clearer and more definitive list of the scope and limits of its authority under the law because it intends to use that law to impose arbitrary rationing of care by government bureaucrats.

Enzi Motion to Commit H.R. 4872 — Strike Employer Mandate

Senator Enzi has offered a motion to commit the health care bill to the Finance Committee with instructions to strike the employer mandate with an offset.


  • The health care bill requires that all employers with at least 50 full-time employees offer their employees the “opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan.”
  • Minimum essential coverage generally means coverage that covers at least 60 percent of the actuarial value of a full-coverage plan.
  • If an employer fails to offer such coverage, and at least one full-time employee of the employer receives a premium tax credit through the exchanges created by the bill, a tax is levied on the employer equal to $2,000 multiplied by the total number of employees employed by the employer (the first 30 employees are exempt from that count).
  • This is known as a “free rider” penalty, since it is designed to punish employers who do not offer government-approved coverage, if their employees receive a tax credit in the exchange.
  • This tax raises $52 billion over the next ten years.
  • The Enzi MTC would require the Senate Finance Committee to strike this job-killing mandate, and pay for it with an offset.


  • The free rider penalty is a tax on workers and take-home pay.
  • The Congressional Budget Office has repeatedly said that the increased costs of the employer mandate will be shifted to workers in the form of lower wages.
    • Employers may also respond by cutting jobs (particularly for low-income workers), outsourcing more jobs, or relying more on part-time workers.
    • An employer mandate will be especially harmful for small businesses that employ low-income wage workers at or near the minimum wage.
      • A study by Harvard Professor Kate Baicker found that low-income, minority workers would be the most affected by an employer mandate. Thus, among the uninsured, those with the least education face the highest risk of losing their jobs under employer mandates.
      • Employers may respond to the higher costs resulting from the mandate with fewer hours, increased outsourcing, or reliance on part-time workers.
      • Workers, not employers, bear the cost of employer mandates.  Then Congressional Budget Office Director Peter Orszag said, “The economic evidence is overwhelming, the theory is overwhelming, that when your firm pays for your health insurance you actually pay through reduced take-home pay. The firm is not giving that to you for free. Your other wages or what have you are reduced as a result. I don’t think most workers realize that.”  This mandate would require firms to pay for health insurance, resulting in lower wages.
      • The CBO wrote that creating different penalties for full and part time workers “would increase incentives for firms to replace full-time employees with more part-time or temporary workers.”
      • According to CBO, a “free-rider” penalty cause the greatest losses disproportionally among low-income workers.
      • Mandating that employers offer coverage is an additional financial burden on businesses, especially small businesses, which are already struggling with a slow economy and rapidly escalating health care costs.
      • Small and medium sized businesses, even those with over 50 employees, are a primary engine of economic growth and are particularly vulnerable to any new costs or mandates.

More on Jonathan Gruber

As the Obama Administration admits that it needs to “open…things up more” with regard to transparency in the health care debate, Senators Grassley and Enzi sent a letter to Jonathan Gruber yesterday.  You may recall that earlier this month, various media outlets discovered that Dr. Gruber had previously failed to disclose the nearly $400,000 in contracts he had obtained from HHS.  Also of note, Dr. Gruber also currently serves on CBO’s Panel of Health Advisers, and was quoted in an October 19 Washington Post article as “praising the CBO…for making the best of ‘an unbelievably hard job’” in scoring health reform proposals.  The fact that a paid (but undisclosed) Administration consultant was publicly quoted supporting CBO’s scoring models at a time Congress was considering health care legislation raises further questions about non-transparency and conflicts-of-interest – which the letter goes into in further detail.