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8 questions about the Senate's Byrd Rule you were too embarrassed to ask

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On Friday, the House of Representatives passed a budget reconciliation bill repealing key segments of Obamacare and prohibiting the payment of any federal funds to Planned Parenthood. The primary purpose of this bill is to set up a confrontation with President Obama. This bill next moves to the Senate, where several of its key provisions will likely be killed by the Byrd Rule.

1) What is budget reconciliation?

The 1974 Budget Act (as updated) requires* Congress to come up with a spending plan, or "budget resolution," every year. A budget resolution might instruct multiple House and Senate policy committees to report bills to reconcile current law with the budget plan. A budget reconciliation bill bundles these statutory changes together.

The critical feature of budget reconciliation bills for this post is that they cannot be filibustered in the Senate. So if the Senate majority party has a tax or spending proposal it really wants to pass, the budget reconciliation process may be its best option.

2) What if the Senate majority really wants to pass something that doesn't affect the budget? Can it use the budget reconciliation process?

This brings us to the Byrd Rule. The Byrd Rule is a section of the budget law that prevents non-budgetary policy proposals from being slipped into a "budget" bill or offered as an amendment on the Senate floor. Any senator can raise a point of order against a provision or amendment that violates the Byrd Rule, and it takes 60 votes to waive the Byrd Rule.

In simpler terms: The Byrd Rule prevents senators from trying to get their favorite policies past the 60-vote threshold they would normally need to get past a filibuster.

3) How does the Byrd Rule affect the Republican bill?

A quick read of the House bill (H.R. 3762) suggests that at least two sections are vulnerable:

  1. A repeal of an Obamacare mandate that employers provide health insurance for their employees. The Congressional Budget Office estimates that this provision will increase the number of uninsured by 675,000 and lead to higher tax revenues, assuming that employers pay higher wages instead of providing health care insurance.
  2. A provision defunding Planned Parenthood. Republicans could get past the Byrd Rule if they simply banned any spending on women's health, but that would be political suicide. But if the GOP proposal is to spend the same funds using different health care providers, that's policy-related, not budgetary. Dinged.

Notably, the CBO estimate makes clear that the House bill recently dropped a provision to eliminate the Independent Payment Advisory Board, which the Senate parliamentarian had already singled out as vulnerable to the Byrd Rule. The CBO report states that this provision would not affect the budget until 2022, at which point eliminating the IPAD means forgoing the $7.1 billion it would save from 2022 to 2025.

4) Oh, that makes me so mad/glad! Why does the Byrd rule exist?

The 1974 budget process was only intended to provide an end run around the Senate filibuster for essential budget policy decisions. Senators never intended to create the loophole that ate the rule.

But as this Congressional Research Service report points out, Senate committees soon began including extraneous policy provisions in their "budget" legislation. This came to a head in 1985, when the Senate, led by then-Minority Leader Robert Byrd (D-WV), amended the budget process to apply the restrictions applied above. Byrd's amendment was adopted 96-0.** The rationale for the rule, both then and now, was 1) to protect reconciliation bills from being bogged down by controversial policy riders, and 2) to protect the Senate filibuster.

5) Wait, senators deliberately protected filibustering?

Unanimously. The "budget reconciliation" loophole could have been used to exempt the majority party's agenda from obstruction by declaring each part of the agenda a "reconciliation" bill. Realizing this, senators plugged the leak ASAP.

The broader point is that the filibuster has persisted in the Senate to this point because, at some level, senators know they can get rid of it and choose not to do so. The filibuster is not an accident of history; it is a choice.

6) Can Senate Republicans save the bill by firing the Senate parliamentarian?

As suggested by Ted Cruz? It is true that the parliamentarian makes initial recommendations regarding the application of the Byrd Rule, and can be fired. But the parliamentarian's role is to provide advice to the Senate's presiding officer: Joe Biden. Like most modern vice presidents, Biden does not act as the Senate's traffic cop on a daily basis, but on critical days — say, consideration of a budget reconciliation bill — he could show up and issue critical rulings on the application of the Byrd Rule, disregarding a newly installed and 100 percent Republican party-hack parliamentarian as he sees fit. It is not clear that firing the parliamentarian would solve the Republicans' problem.

7) Can Senate Republicans just repeal the Byrd Rule?

No. The Byrd Rule is part of a law, not the rules of the Senate. If the Republicans wanted to "go nuclear," they could bring up their policy items as a separate bill and then use a "nuclear option" approach to impose majority cloture on legislation ... but that seems unlikely.

8) How will I be affected if the Republicans win (or lose)?

In the short run, not at all. This is the most fascinating part to me: The Republicans know this bill will never become law. It will be vetoed, and the veto will be sustained. This fight is really about exactly which provisions are in the bill when it fails.

Behind this windmill tilting is an illuminating view of the goals of current Republican lawmakers politicians. They invest great effort — even reshaping their institutions — not in changing public policy but in staging political confrontations.

And some Republican senators have already declared that they won't vote for the budget reconciliation bill anyway, because it doesn't contain some of the provisions of Obamacare that they would like to pretend to repeal. As provisions of the bill fall victim to the Byrd Rule, it is possible that more senators will be disappointed that this bill-that-will-never-be-law does not contain more provisions-that-never-had-a-chance, and the bill will fail to pass the Senate.

* "Requires" — it's not like legislators will actually be thrown in jail or defeated for reelection if they don't come up with a budget resolution. This year is the first time since 2009 that both chambers have agreed on a budget resolution.

** I'm skipping over some boring details that are laid out in the CRS report. The Byrd Rule was adopted in stages over a six-year period.