Parliamentarian to Say What Flies or Dies

Update 577 — That a Byrd up in the Sky?
Parliamentarian to Say What Flies or Dies

Yesterday, the Senate Parliamentarian denied Senate Democrats’ most recent attempt to include immigration reform in Build Back Better via the Byrd Rule.  In fairness, half of the current Senate will be disappointed with any Parliamentarian’s decision. Nevertheless, she will persist, applying the Byrd Rule to a flock of BBB provisions — perhaps as many as 80 of them, implicating hundreds of billions of dollars in spending — effectively rendering them eligible for the bill, or cooked.

Progressives cry fowl, seeing little to gain and much to lose in the process, already underway.  Is that the case? Here we provide a road map on the process behind Byrd rulings (aka Byrd Baths), what BBB provisions are on the table, and probable outcomes.
 

Best,

Dana

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Despite the Senate shelving a vote on Build Back Better until the new year, the chamber is still working toward a Christmas deadline as Senators’ staff raise inquiries with the Senate Parliamentarian regarding provisions in the $1.75 trillion reconciliation package. The Senate Parliamentarian began hearing challenges to BBB provisions on December 1 to determine whether certain provisions are permissible under the “Byrd Rule.”

While Democrats attempt to preempt Parliamentarian concerns, Republicans are expecting to raise over 80 complaints to gum up the works and see how much of BBB they can strip from the legislative package. Together, this process is known as the “Byrd Bath” and is critical in determining the final text of Build Back Better. 

As the Senate Parliamentarian prepares to offer her guidance on the various inquiries, Senate Democrats will ultimately have to determine what policies they are willing to leave on the cutting room floor if determined to be in conflict with the Byrd Rule. The Parliamentarian’s guidance is not binding, and the chamber can overrule her. The tension between the reform-skeptic and pro-reform wings of the caucus will be at center stage as critical provisions such as immigration reform, prescription drug pricing, and paid leave are threatened to be stripped from the final package.

Evolution of Byrd

The reconciliation process was established under the Congressional Budget Act of 1974 which created an expedited legislative process for Congress to implement budgetary changes. As Congress became increasingly partisan and the filibuster was used more frequently to stall legislation in the Senate, reconciliation has turned into the primary tool to pass the majority party’s legislative agenda with a simple majority.

In 1985, the Senate adopted the Byrd Rule (named after Sen. Robert Byrd D-WV) now section 313 of the CBA, which was meant to narrow the use of reconciliation and block the inclusion of “extraneous” provisions. The Byrd Rule has been in effect for 22 reconciliation bills. 

Under the Byrd Rule, a provision is considered “extraneous” and thus ineligible for reconciliation if it meets any of the following criteria:

1. it does not produce a change in outlays or revenues;
2. a change in outlays or revenue is merely incidental to the provision’s policy changes; 
3. itis outside the jurisdiction of the committee that submitted the title or provision;
4. the change in outlays or revenues does not comply with the relevant committee’s reconciliation instruction;
5. It increases the deficit outside the budget window (effectively 10 years though the Byrd Rule does not specify); or
6. it makes changes to title II of Social Security.

While the final authority on what provisions pass the Byrd Rule rests with the Senate’s presiding officer (Vice President Harris), it has become customary to defer to the advisory opinion given by the non-partisan Senate Parliamentarian. Currently, that role is held by Elizabeth MacDonough, who was appointed to the position in 2012 and has worked in the Senate Parliamentarian’s office since 1999. 

The Parliamentarian’s advisory opinions are reached after meetings conducted privately with Senators and staff. Occasionally the outcome of her decisions is reported by the news, but written statements are only sometimes given. The Parliamentarian needs to hear from both sides on a policy proposal before giving her opinion but does not personally seek out Senators; they have to come to the Parliamentarian with their budget proposals or challenges. 

Usually, items that violate the Byrd Rule will be taken out before the bill goes to the floor. But if a provision is found to be extraneous, it is subject to a “point of order” on the Senate floor, by which any Senator can demand that it be removed from the reconciliation bill taking a 60-vote majority to waive the point of order. Recent examples of Byrd Rule use include: 

• $15/hr Minimum Wage (2021): The House-passed version of the American Rescue Plan had included an increase in the federal minimum wage. While the Congressional Budget Office reported the provision had an impact on federal revenue and outlays, in the Parliamentarian’s opinion those changes were merely incidental to its non-budgetary components. 
• Defunding Planned Parenthood: In 2017, the Senate took up a reconciliation package to repeal the Affordable Care Act, which included cutting off federal funds to Planned Parenthood for one year. The Parliamentarian gave an advisory opinion that doing so would not comply with the Byrd Rule, because the budgetary change was merely incidental to its non-budgetary components.

Byrd and the BBBs

With Senate Democrats having drafted the House-passed Build Back Better to conform with Senate committee jurisdiction, the Parliamentarian has begun taking meetings for Byrd Rule challenges. Republicans are throwing everything against the wall to see what sticks. They are rumored to make more than 80 challenges to BBB provisions. While most of the rulings will likely go in favor of the Democrats, a few critical policies are receiving extreme scrutiny and are at serious risk of being drowned in the Byrd Bath: 

• Immigration Reform: Already twice this year the Parliamentarian has issued advisory opinions that major components of Democrats’ immigration reform agenda violate the Byrd Rule. In September, when asked if Congress could grant lawful permanent residency for undocumented immigrants through reconciliation, the Parliamentarian responded, “changing the law to clear the way to LPR status is tremendous and enduring policy change that dwarfs its budgetary impact.” Democrats went back to the drawing board and twice revised their language to make it Byrd compliant, but the Parliamentarian has rejected Democrats’ new proposal as well.
• Paid Leave: The original paid leave proposal in BBB that passed the Ways and Means committee mark-up was administered by the Treasury Department, but when the final bill passed the House, it was switched to be administered by the Social Security Administration. Sen. Manchin has claimed that this change will violate the Byrd Rule, but it is unclear how accurate that assessment actually is.
• $35 Insulin Price Cap: As part of the prescription drug negotiation section of BBB, Democrats have proposed capping the monthly price of Insulin at $35 for diabetics covered by private health insurance plans. However, there are concerns that the provision does not have a direct budget impact. The obvious workaround would simply be having the government cover excess costs rather than private health insurance, though that would put a sizable dent in federal outlays. 

Byrd in Hand or Hidden in Bush?

While the Senate Parliamentarian has become famous over the past year for deeming various provisions in reconciliation out of order, these decisions were not final. The chamber can pursue a few different options to receive guidance that are consistent with their policy goals and the chamber’s precedent. In 2001, Senate Majority Leader Trent Lott (R-MS) fired the Senate Parliamentarian for what he and other Senate deemed as inconsistent rulings on budget and reconciliation procedures. Lott ultimately replaced that Republican-promoted Parliamentarian, Robert Dove, with the previously Democratic-promoted Parliamentarian, Alan Frumin, who had been widely regarded as a balanced and consistent Parliamentarian.

The Parliamentarian’s decisions can also be overruled by the Senate. If a Senator raises a procedural objection to a provision and the Parliamentarian deems the provision out of order, the Senate can overturn the decision with a 60 vote threshold. However, the presiding officer of the Senate, constitutionally the Vice President, can overrule the Parliamentarian before the chamber votes on the procedural objection. In this case, the Senate would need to secure 60 votes to overrule the Vice President’s decision. In 1975, Vice President Nelson Rockefeller invoked this power when he ignored the Parliamentarian’s advice on changing Senate rules regarding the filibuster — a timely anecdote given the discussion around filibuster reform.

While Senate Democrats are unlikely to pursue either option of firing or unilaterally overruling the Parliamentarian, they will have to live with the costs associated with failing to do so. If Senate Democrats prefer to preserve the sanctity of the Parliamentarian and not question her opinions, millions could pay the price as immigration reform, prescription drug pricing, and paid leave are potentially chipped away in Build Back Better. And ultimately, allowing those provisions to be gutted could force many of these same Senators to pay their own price as they lose their jobs, and the majority, in 2022.

Before we sign off for the year, we want to thank all of the people who have taken the time to help us produce our updates. 

We do want to give some a special shoutout who have helped multiple times this year. Thank you to these folks and all not listed!