Tag Archives: Robert Byrd

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.

Past as Prologue? A Review of “The System”

A young president promising hope and change takes over the White House. Immediately embarking upon a major health-care initiative, he becomes trapped amidst warring factions in his party in Congress, bickering interest groups, and an angry public, all laying the groundwork for a resounding electoral defeat.

Barack Obama, circa 2009-10? Most definitely. But the same story also applies to Bill Clinton’s first two years in office, a period marked by a health-care debate in 1993-94 that paved the way for the Republican takeover of both houses of Congress.

In their seminal work “The System,” Haynes Johnson and David Broder recount the events of 1993-94 in detail—explaining not just how the Clinton health initiative failed, but also why. Anyone following the debate on Obamacare repeal should take time over the holidays to read “The System” to better understand what may await Congress and Washington next year. After all, why spend time arguing with your in-laws at the holiday table when you can read about people arguing in Congress two decades ago?

Echoes of History

For those following events of the past few years, the Clinton health debate as profiled in “The System” provides interesting echoes between past and present. Here is Karen Ignani of the AFL-CIO, viewed as a single-payer supporter and complaining that insurance companies could still “game the system” under some proposed reforms. Ironic sentiments indeed, as Ignani went on to chair the health insurance industry’s trade association during the Obamacare debate.

There are references to health care becoming a president’s Waterloo—Johnson and Broder attribute that quote to Grover Norquist, years before Sen. Jim DeMint uttered it in 2009. Max Baucus makes an appearance—he opposed in 1994 the employer mandate he included in Obamacare in 2009—as do raucous rallies in the summer of 1994, presaging the Obamacare town halls 15 years later.

Then there are the bigger lessons and themes that helped define the larger debate:

“Events, Dear Boy, Events:” The axiom attributed to Harold Macmillan about leaders being cast adrift by crises out of their control applied to the Clintons’ health-care debate. Foreign crises in Somalia (see “Black Hawk Down”) and Haiti sapped time on the presidential calendar and press attention, and distracted messaging. During the second half of 2009, Obama spent most of his time and energy focused on health care, leading some to conclude he had turned away from solving the economic crisis.

Old Bulls and Power Centers: “The System “spends much more time profiling the chairs of the respective congressional committees—including Dan Rostenkowski at House Ways and Means, John Dingell at House Energy and Commerce, and Patrick Moynihan at Senate Finance—than would have been warranted in 2009-10. While committee chairs held great power in the early 1990s, 15 years later House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid called most of the legislative shots from their leadership offices.

Whereas the House marked up three very different versions of health-care legislation in 1993-94, all three committees started from the same chairman’s mark in 2009. With Speaker Paul Ryan, like John Boehner before him, running a much more diffuse leadership operation than Pelosi’s tightly controlled ship, it remains to be seen whether congressional leaders can drive consensus on both policy strategy and legislative tactics.

The Filibuster: At the beginning of the legislative debate in 1993, Robert Byrd—a guardian of Senate rules and procedures—pleaded for Democrats not to try and enact their health agenda using budget reconciliation procedures to avoid a filibuster. Democrats (begrudgingly) followed his advice in 1993, only to ignore his pleadings 16 years later, using reconciliation to ram through changes to Obamacare. Likewise, what and how Republicans use reconciliation, and Democrats use the filibuster, on health care will doubtless define next year’s Senate debate.

Many Obama White House operatives such as Rahm Emanuel, having lived through the Clinton debate, followed the exact opposite playbook to pass Obamacare.

They used the time between 1993 and 2009 to narrow their policy differences as a party. Rather than debating between a single-payer system and managed competition, most of the political wrangling focused on the narrower issue of a government-run “public option.” Rather than writing a massive, 1,300-page bill and dropping it on Capitol Hill’s lap, they deferred to congressional leaders early on. Rather than bashing special interest groups publicly, they cut “rock-solid deals” behind closed doors to win industry support. While their strategy ultimately led to legislative success, the electoral consequences proved eerily similar.

Lack of Institutional Knowledge

The example of Team Obama aside, Washington and Washingtonians sometimes have short memories. Recently a reporter e-mailed asking me if I knew of someone who used to work on health care issues for Vice President-elect Mike Pence. (Um, have you read my bio…?) Likewise, reporters consider “longtime advisers” those who have worked the issue since the last presidential election. While there is no substitute for experience itself, a robust knowledge of history would come in a close second.

Those who underestimate the task facing congressional Republicans would do well to read “The System.” Having read it for the first time the week of President Obama’s 2009 inauguration, I was less surprised by how that year played out on Capitol Hill than I was surprised by the eerie similarities.

George Santayana’s saying that “Those who cannot remember the past are condemned to repeat it” bears more than a grain of truth. History may not repeat itself exactly, but it does run in cycles. Those who read “The System” now will better understand the cycle about to unfold before us in the year ahead.

This post was originally published at The Federalist.