Overview
Notwithstanding House passage of a revised repeal and replace measure Thursday, this past month saw House Republican lawmakers hit speed bump after speed bump in their effort to fulfill a seven-year promise to repeal and replace the Affordable Care Act. The difficulty faced by House leaders in piecing together the votes needed to make it to the finish line led to the casting of blame — in seemingly all directions.
Conspicuously missing from those held responsible? The late Sen. Robert C. Byrd, D-W.Va., and the rule he grafted onto the budget reconciliation process — a rule that strengthens the hand of the Senate majority leader while weakening that of the speaker of the House.
Reconciliation is a special budget process established in the Congressional Budget Act of 1974. It shields certain legislation impacting the deficit, spending, or the debt limit from the threat of filibuster in the Senate. The process was intended to make it easier for Congress to bring revenues, spending and the debt limit into conformity with a budget resolution agreed upon by the House and Senate.
As Congress began using the reconciliation process, Sen. Byrd decried what he viewed as rampant abuses through the inclusion of what he termed to be “extraneous” items unrelated to the federal budget. Contending this to be a misuse of the reconciliation process, Sen. Byrd drafted the rule that now bears his name prohibiting the inclusion of extraneous provisions in reconciliation measures, establishing one of the most consequential — and least understood — hurdles for reconciliation legislation.
During his more than 50 years serving in the Senate, Byrd took on the role of protector of the institution, its traditions, and its unique place in our constitutional government. The inclusion of extraneous provisions in a piece of legislation shielded from filibuster, he felt, threatened the deliberative nature of the Senate.
Years later, explaining his reservations about using the reconciliation process for consideration of then-President Clinton’s health care bill, he stated the legislation — important as it was — was “so complex, so far-reaching that” it warranted substantial and significant debate before the Senate. Stated differently, “The reconciliation process was never, never, never, intended to be used as a shield for controversial legislation.”
In practice, while the reconciliation process strengthens the Senate majority leader’s position by giving him the ability to move legislation with only a simple majority in an institution generally requiring 60 votes, the Byrd rule weakens the speaker of the House by limiting his freedom to negotiate the contents of the bill. The most recent manifestation of these weaknesses — Speaker Ryan’s inability to barter on the repeal of substantive provisions of the ACA — compounded the challenge House Republicans faced in securing the votes they needed to punt the issue over to the Senate.
Outlined below are some of the details of how the reconciliation process functions.
Reconciliation 101
The reconciliation process is a tool to bring revenue and spending into conformity with a budget resolution agreed to by the House and Senate. The first step in the process is adoption by both chambers of Congress of a budget resolution containing reconciliation instructions. The instructions directly specified committees to report legislation affecting revenue, spending or the debt limit by a specific amount. For example, the reconciliation instructions for the budget resolution for fiscal year 2017 instructed the four committees that oversee the implementation of the Affordable Care Act to reduce the deficit by $1 billion.
The process brings with it several procedural rules intended to speed Senate consideration of reconciliation legislation, chief among them a 20-hour limit on debate; a non-debatable motion to proceed to the bill; and a strict germaneness test for amendments. In effect, in a Senate in which neither party has the super majority (60 votes) necessary to limit debate on traditional legislation, a reconciliation bill can be passed with only a simple majority (51 votes).
This benefit, however, does not come without a cost. There are specific content restrictions on what can be included in reconciliation legislation. To receive expedited consideration, the legislation must concern only revenue, spending or the debt limit; and as noted further below, it may not contain any extraneous or non-germane amendments or provisions.
The Byrd Rule’s Function and Operation
The Byrd rule ensures Congress adheres to its mandate of including only provisions dealing with revenue, spending and the debt limit by subjecting “extraneous” provisions to parliamentary objections during the Senate’s consideration of reconciliation legislation. The Byrd rule treats as “extraneous” any provision that:
- Does not produce a change in outlays or revenues
- Produces an outlay increase or revenue decrease when the instructed committee fails to achieve its reconciliation instructions
- Is outside the jurisdiction of the committee that submitted the provision for inclusion in the reconciliation measure
- Produces a change in outlays or revenues, which is merely incidental to the non-budgetary components of the provision
- Would increase the deficit for a fiscal year beyond those covered by the reconciliation measure
- Recommends changes in Social Security
In practice, in advance of sending a reconciliation measure to the floor, the Senate Budget Committee will often compile a list of potentially extraneous provisions that may be in violation of the Byrd Rule for the Parliamentarian’s consideration and review. If a Byrd Rule point of order against a provision as “extraneous” is sustained, the provision is stricken from the bill (or the amendment fails, as the case may be). Appealing that determination requires an affirmative vote by 60 senators.
If a provision deemed “extraneous” is included in the conference report for a reconciliation bill, consideration becomes considerably more complicated. In such a scenario, if a point of order is raised and sustained against a conference report, the material deemed in violation is stricken. The Senate will then proceed, “without intervening action,” to consider whether to send the conference report without the stricken provision back to the House, prolonging the process and possibly unwinding compromises underlying the bill.
The Role of the Senate Parliamentarian
The reconciliation process makes the Parliamentarian of the Senate one of nation’s most powerful, if somewhat obscure, federal officials. Tasked with advising the presiding officer of the Senate on the conduct of Senate business, the Parliamentarian, interpreting the rules and precedents, determines what provisions or amendments qualify as “extraneous” for the purposes of the Byrd rule, and are thus stricken.
By way of example, when the Senate was considering the Health Care and Education Reconciliation Act of 2010 — the reconciliation bill accompanying the ACA — provisions of the bill included amendments to the Higher Education Act of 1965’s treatment of Pell grants. A point of order was raised because the provisions did not provide for a change in outlays or revenues rendering it “extraneous” under the Byrd rule. As such, the point of order was sustained by the chairman upon the advice of the Parliamentarian and the provision was struck.
Similarly, an amendment offered by Sen. Tom Coburn, R-Okla., to the same bill would have helped protect Second Amendment rights. Despite a motion to waive the Byrd rule, the amendment fell as “extraneous” because it was outside of the committee’s jurisdiction. Similar treatment was given to an amendment offered by Sen. Lisa Murkowksi, R-Alaska, which aimed to provide an inflation adjustment for the additional hospital insurance tax on high-income tax payers. In both cases, the sponsors moved to waive the application of the Byrd rule; and in both cases, their efforts were rejected, thereby causing the amendments to fall.
Though some argue that the Presiding Officer has the authority to rule against the Parliamentarian, history indicates the opposite. Invariably, the Presiding Officer will defer to the Parliamentarian’s advice. In fact, in 2001, then-Senate Parliamentarian Robert Dove’s Byrd rule decisions frustrated Senate Republicans to such a degree that it was easier to dismiss him entirely rather than accept his interpretations.
According to reports, one such ruling concerned whether a Republican plan to set aside more than $5 billion to cover expenses related to natural disasters could be retained in a budget reconciliation measure. Under the Byrd rule, Dove reasoned, such a provision could remain in the measure only if Republicans could muster 60 votes to keep it. Rather than have the Presiding Officer overrule the decision of the Parliamentarian, Dove was fired, demonstrating the influence and power of the Senate Parliamentarian’s opinions.
The Byrd Rule and Repeal and Replace of ACA
In piecing together the votes needed to pass legislation through the House, the speaker and the leadership will commonly negotiate a bill’s contents, adding, amending or striking provisions to address the needs or demands of legislators whose votes are needed.
With reconciliation legislation, the speaker’s freedom to barter is limited. The House leadership ran headlong into this issue in attempting to craft a health care reform bill on which all members of their caucus could agree.
Among the provisions floated by Freedom Caucus members that would be considered “extraneous” were those eliminating essential health benefits, repealing other provisions found in Title I of the ACA, and permitting insurers to sell policies across state lines.
While inclusion of extraneous provisions will not impede passage by the House of a reconciliation bill (and the bill passed by the House appears to contain some extraneous provisions), House members know such provisions will necessarily be dropped in the Senate, making them unlikely to be included in whatever bill is sent to the president.
And although House leaders may promise to include extraneous provisions in non-reconciliation legislation scheduled for consideration later this year (such as an infrastructure bill), the path for such legislation would be less certain as it would require 60 votes in the Senate.
Conclusion
The decision earlier this year to limit use of the filibuster during Senate consideration of Supreme Court nominations, and the move in 2013 to restrict its use with confirmation of presidential nominees, has focused discussion inside the Beltway on traditional rights of senators to engage in extended debate, and the extent to which this right should be further curtailed.
Senator Byrd’s contribution to the reconciliation process stands in contrast to this trend, restricting the scope of legislation eligible for protection from filibuster in the Senate, and thereby limiting the likelihood it will be used to propel controversial bills through both chambers without bipartisan support.
While President Trump, Speaker Ryan, and the House leadership succeeded in securing 217 votes for their health care reform legislation, the challenges they faced getting to the finish line demonstrated how the allure of reconciliation, with its promise of lowering procedural hurdles in the Senate, can frustrate leadership in its efforts to cobble together the votes necessary to send the legislation across the Capitol.
So, perhaps what the House has experienced with health care reform is how Senator Byrd imagined the process to work. In any event, his legacy of strengthening the Senate (and protecting the rights granted the minority in the upper chamber) at the expense of the House, makes it more likely those working health care reform (and other controversial legislation such as tax reform) through the legislative process will have to either keep that legislation narrowly targeted — or reach across the aisle for bipartisan support — if they wish to have their bill land on President Trump’s desk for signature.
Update: This article has been updated to include information about the House vote Thursday to pass a new version of the ACA repeal and replace measure.
Darryl Nirenberg is a partner at Steptoe & Johnson LLP in Washington, DC, where he promotes and protects clients’ interests before Congress, federal agencies, and the White House, with a focus on clients engaged in consumer products and services. Chelsea Gold is a legislative assistant in Steptoe’s Washington office, where she focuses on legislative and regulatory matters.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] 2 U.S.C. § 644 (1985).
[2] Sen. Robert C. Byrd & Senate Historical Office, The Senate of the Roman Republic: Addresses on the History of Roman Constitutionalism (1995); Sen. Robert C. Byrd & Wendy Wolff, The Senate, 1789-1989: Classic Speeches, 1830-1993 (vol. 3, 1994); Senator Robert C. Byrd & Wendy Wolff, The Senate, 1789-1989: Historical Statistics, 1789-1992 (vol. 4, 1993); Sen. Robert C. Byrd & Mary Sharon Hall, The Senate, 1789-1989: Addresses on the History of the United States Senate (vol. 1, 1989).
[3] Sen. Robert Byrd, Address on the Senate Floor (Apr. 5, 2001).
[4] Id.
