Green Room

As the Byrd Rule Flies: Why Dems Can’t Use Reconciliation to Pass Radical ObamaCare

posted at 3:17 pm on September 11, 2009 by

…Unless they’re willing to immolate themselves in the process — and probably lose the fight anyway.

Everybody is now slinging around the term “reconciliation process,” but I think most of us don’t really understand what the heck that means — other than a sneaky way to pass ObamaCare without having to break a Republican filibuster. So as a public service to all and none, I spent several hours figuring it out. Perhaps you can spend a few minutes reading this post and have at least the gist of it. (Because “the gist” is all that I was able to comprehend in those several hours!)

Note: I am not a lawyer; I may be completely, laughably wrong. If I do, I hope some reader who is a lawyer will comment, and I’ll correct any errors. Thanks.

The first question to ask is, what is the budget reconciliation process anyway? It’s an optional, speeded-up process to bring spending on federal programs (current or those being created by new legislation) into line — to reconcile expenditures — with the current budget resolution (typically one of the first substantive bills passed each year); current and future programs cannot spend more than the budget resolution allows, so they must be changed to conform to it whenever the budget resolution changes or when programs start costing significantly more than anticipated.

The primary purpose of reconciliation is to reduce the budget deficit, though it has sometimes been used to change programs in ways that increased the deficit instead. Still, that is it’s supposed purpose.

Congress can skip reconciliation and just pass bills normally; or it can skip passing them normally and use the reocnciliation process instead; they’re two different paths to enacting legislation.

When Congress uses reconciliation, rather than the normal process, the final bill is considered on a “expedited” basis: limited debate, restrictions on amendments (they must be “germane”), and in the Senate, no filibusters allowed. But in exchange, there are strict rules on what can and cannot be added into a bill during reconciliation, designed to prevent its abuse in precisely the way the Democratic leadership plans to abuse it.

The budget resolution always includes instructions; the instructions direct various committees in the House and Senate to craft legislation that changes program spending on, or the revenues extracted by, various federal programs. The purpose is to keep the deficit within that allowed by the budget resolution, or better yet to reduce the deficit below that level. The designated committees mark up legislation, which is then submitted to their respective Budget Committees in House and Senate.

The Budget Committees then incorporate all the parts into a single “omnibus budget reconciliation measure.” This is sent back to each chamber of Congress, subject to those expedited rules.

So how do Democratic leaders plan to abuse the reconciliation process? Simplified, the Democrats’ scheme is to take whatever health-care reform bills they get from House and Senate and send them to reconciliation, to be rewritten by the designated committees.

In those committees, the Democratic leadership plans to reinsert all the socialist elements that the Republicans and Blue Dog Democrats forced out (such as the government “option,” and federal funding for abortion) and strip out anything the opposition forced in (perhaps tort reform, or some mechanism to prevent illegal immigrants from benefitting). The final bill would then be allowed only limited debate and would not be subject to a filibuster in the Senate, requiring only 51 votes to pass, instead of 60 to invoke cloture.

Can they pull it off? During reconciliation, it’s certainly possible for new provisions to be attached to the reconciled bill. What’s to stop the majority delegates from adding onerous provisions that have nothing to do with reducing the deficit and may even increase it dramatically?

Enter the Byrd Rule. This legislation — Section 313 of the Congressional Budget Act (2 U.S.C. 644) — is named after its sponsor, Sen. Robert Byrd (D-WV, 79%). The Byrd Rule prevents “extraneous matters” from being added during reconciliation.

If any senator objects to a provision added during reconciliation ( by raising a “point of order”), the Presiding Officer of the Senate must either sustain or overrule the point; he takes his cue from the Senate Parliamentarian, currently Alan Frumin. If the Parliamentarian advises the Presiding Officer that the provision is indeed extraneous, the Presiding Officer will almost always sustain it.

If the point of order is sustained, then the extraneous matter is stricken from the bill… unless 60 senators vote to waive the Byrd Rule in that case, or to sustain an appeal from the ruling of the Presiding Officer (it amounts to the same thing). The upshot is that extraneous matters can only be inserted into the bill if a 60-vote supermajority supports them, the same number required to break a filibuster.

So what are “extraneous matters?” That’s the key question. The Byrd Rule defines them, as you can see in the links above. I’ll try to interpret them from legalese:

  1. If the provision doesn’t change outlays or revenues (the budget), or only in ways incidental to the rest of the bill. (This is actually two tests, so consider this items 1 and 2.)

In other words, you cannot hide behind the budget resolution if the provision has nothing to do with the budget. An example might be a bill authorizing the purchase of a bunch of advanced jet fighters; during reconciliation, delegates reduce the number of fighters purchased to remain under the budget resolution’s limit; but they also insert a provision to require all insurance companies to cover abortions. The latter would be considered an extraneous matter; for one reason, it doesn’t change either outlays or revenue.

  1. If the provision is outside the jurisdiction of the committee that submitted it.

In our example above, the abortion clause would violate a second Byrd Rule test, because abortion is outside the juristiction of the legislative committe tasked by the Budget Committee to write and submit the bill, probably the House or Senate Appropriations Committee, or the appropriate Defense subcommittee.)

  1. If the provision increases outlays or decreases revenue (that is, it increases the deficit)… and in addition, the provision as a whole goes against the instructions that the reporting committees sent to the Budget Committees under reconciliation — generally measures for reducing the deficit.

That is, suppose the Senate reporting committee sends a health-care reform bill to reconciliation to with instructions to reduce federal health-care expenditures; but the legislative committee inserts a provision instead to increase expenditures — say by implementing a government health-insurance program (or a government-funded co-op) that will operate at a loss, requiring heavy federal subsidies. Then any senator can later rise to a point of order that the added provision is an extraneous matter under test 4 of the Byrd Rule.

  1. If the provision increases outlays or decreases revenue after the fiscal years covered by reconciliation (no more than eleven years, counting the current year), unless the changes as a whole are budget neutral.

If the CBO projects that the added provision would increase the deficit even after ten years forward, then it’s considered “extraneous,” unless some other added provision balances it out.

  1. If the provision recommends changes to Social Security.

Test 6 has nothing to do with the ObamaCare; it’s included only for completeness.

In the present case, if a Budget Committee simply jacks up the original bill’s title and runs full-blown ObamaCare underneath it, the Byrd Rule could certainly be invoked for test 5, because adding, e.g., a government option would unquestionably increase federal outlays long after 2019; and it would probably also fail test 4, as I’m sure that Republicans would insist that reporting committee send instructions requiring at least deficit neutrality (since deficit reduction is the purpose of reconciliation)… which means any deficit increase, even within the ten-year window, would violate those instructions.

Note: The 110th Congress, with a Democratic majority following the 2006 elections, enacted a rule in both House and Senate prohibiting budget resolutions that allowed any deficit increase beyond $5 billion in any of four successive decades following 2018; but as this is just a rule, not U.S. Code, I’m assuming that they will just whisk it away if necessary to force ObamaCare on the American people. So let’s just pretend their own rules change doesn’t exist.

So what are the Democrats threatening? Here is their scheme:

  1. Replace whatever comes out of the House and Senate with full-blown ObamaCare in reconciliation. When some senator raises the obvious point of order, there are two avenues Democrats can take:
  2. They can somehow bribe, bully, or otherwise coerce the Senate Parliamentarian to issue a false ruling that ObamaCare doesn’t raise the deficit beyond the ten-year window, and that it doesn’t violate the Senate reporting committee’s instructions;
  3. Even if the Parliamentarian refuses to go along with the scheme, the Presiding Officer of the Senate can simply reject his decision and overrule the point of order anyway.
  4. At that point, the bill goes back to the Senate requiring only 51 votes for passage — unless Republicans and Blue Dogs can scrape together 60 Senate votes to sustain an appeal from the Presiding Officer’s ruling.

I believe the Democratic attempt will fail.

First, I’ve never heard anyone suggest that Alan Frumin is so partisan and corrupt tha the would join such a conspiracy; so we’re left with tactic 3 above.

Second, the Senate only operates at all because of comity; many ordinary procedures require unanimous consent, which is customarily given. Thus the minority conference and even individual senators have tremendous power to gum up the works and bring the entire body to a standstill, if they choose. But they would only do so under the most dire provocation. But tactic 3, telling the Parliamentarian to go jump in the Potomac and overruling an obviously proper point of order, would certainly qualify.

In fact, third, it might even be a sufficiently egregious violation of Senate protocol that enough Blue Dog or moderate Democrats join Republicans — and it would be all Republicans at that point, even the liberals — to prevent the omnibus bill from getting even a bare 51 votes.

There’s a very good chance that the Democrats would, in effect, declare all-out war against the Republicans, with all the dreadful consequences that would entail in the Senate… and then lose the critical battle anyway. Since they’re not political dunces, they won’t even try it if their own headcount, and their own conversations with Frumin, raise even the strong possibility that they will lose.

Which I believe is exactly what they’ll find. The Democrats are talking big, hoping to frighten the timid Republicans (or the Blue Dogs) into caving; but when it comes to the wall, I don’t think they have the guts to roll the bones for their entire political future.

Cross-posted to Big Lizards

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Second, the Senate only operates at all because of comity; many ordinary procedures require unanimous consent, which is customarily given. Thus the minority conference and even individual senators have tremendous power to gum up the works and bring the entire body to a standstill, if they choose.

I’m sure there’s at least one senator who would call for the reading of the entire bill at every appearance.

Farmer_Joe on September 11, 2009 at 4:00 PM

The one from OK at the very least.

Browncoatone on September 11, 2009 at 4:14 PM

good post, I concur.

The actual law is really only of symbolic value here, since no Federal Judge at any level would ever interfere with the internal operations of the Senate. (separation of powers, that kind of thing) BUT you hit the nail on the head – a sufficient enough provocation, and a minority can totally shut down the Senate for *All* business until the next election, just as you said.

Revoking Unanimous consent coud do things such as requiring the public reading of a 1,000 page bill at each hearing about it. Although I think that would be a perfect piece of poetic justice, in practical fact the Senate would shut down for the next 14 months. Also not a bad outcome, the way things are going.

WWS on September 11, 2009 at 4:23 PM

If all members of the senate were sane, I would agree. However, based on how Harry Reid has been behaving, I wouldn’t put anything past these guys. Rules are for other people. They may think they can do whatever they want, the MSM won’t cover, and the majority of the people will remain ignorant. The libs are power drunk and deranged.

conservativegrandma on September 11, 2009 at 4:41 PM

Another objection: if they try “reconciliation” they are declaring it is a budget bill, and a budget bill cannot originate in the Senate. The House would have to lead.

Chris_Balsz on September 11, 2009 at 7:26 PM

thank you for another wonderful post!

ginaswo on September 11, 2009 at 8:43 PM

This illustrates the Rules for Radicals thinking of Alinsky. The Democrats use the rules, the more complicated the better, when the rules suit their purpose. If the rules are complicated enough, then any argument they want to make can be applied.

When the rules work against them, they ignore the rules, argue against the rules.

There really is only one rule, the leftist democrats get what they want, or there will be war.

Skandia Recluse on September 11, 2009 at 8:52 PM

Wouldn’t it be luv-er-ly to respond to the next threat of ramming through the soi-disant reconciliation with:

“But that would violate the Byrd rule, that venerable lion of the Senate (who may have done questionable things in his past, but he should be forgiven due to his latter accomplishments) set and maintained as his life’s work. We simply must not do this, as he himself would tell you and will tell you if you call him to try to force a super-majority. Do be warned; don’t call at nap time, for he will be grumpy.”

Uncle Pinky on September 11, 2009 at 9:36 PM

I’ll need to delve onto this again tomorrow with a rested mind. Good work Dafydd ab Hugh. This deserves immediate promotion.

toliver on September 11, 2009 at 10:52 PM

i can’t figure these congresscritters out. with obamacare etc, they will be delegating so much of their power to the executive branch that there will be nothing much left. i find it hard to believe that the egotistic biden-ish blowhards love obama so much that they would do something that depletes their own power.

second, i don’t believe that they take kindly to being treated like doormats by rahm emanuel.

third, i can’t believe they don’t see that obama has no interest in the longevity of their careers or their political party. once obama gets what he wants, what does he need them for?

as far as the blue dogs in the house, if they’re threatened by getting cut off from democrat money, there is a solution: join the republican party. money and reelection problem solved.

casel21 on September 11, 2009 at 11:11 PM

Thank you for that explanation.

Viper1 on September 12, 2009 at 7:56 PM

Excellent post. I agree the anti leftist opposition can shut down the congress until the next election. Scorched earth. Sounds good to me.

elduende on September 13, 2009 at 3:35 AM

They Must not be willing to pull the trigger. They keep
trying to bully the week ones.

uber on September 13, 2009 at 10:23 PM

If the Dems are stupid enough to force reconciliation, they can kiss off doing any more business for the next 3 1/2 years.

GarandFan on September 14, 2009 at 12:08 PM

I hope they try all kinds of nonsense. It will be such a spectacle. Laughing in the face of tragedy as our country slips away.

Mae on September 15, 2009 at 4:38 AM