The House and Senate are in session this week. All eyes are on the Senate, where the chamber is expected to try and pass the “skinny” $71.7 billion reconciliation bill, which will fund U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). These are the last two remaining parts of the Department of Homeland Security appropriations that remain unfunded.
Reconciliation—a privileged process originally designed to implement changes to tax policy and entitlement spending (such as Medicare and Medicaid)—has become a tool of choice for Senate majorities in recent years. Its privileged status means it is not subject to a filibuster; it passes at simple majority without having to achieve the 60 votes normally required to invoke cloture (the process by which the Senate breaks a filibuster).
However, the substance of what can be included in a reconciliation bill is constrained by budget law; in common parlance, the Senate’s “Byrd rule.” Put in place by former Senate Majority Leader Robert C. Byrd and later codified into law, the rule is designed to keep the privileged reconciliation process from becoming a loophole around the legislative filibuster. In other words, it is designed to keep the reconciliation bills explicitly budgetary. The Byrd rule has six requirements:
- Provisions must have a budgetary effect (e.g.: change outlays or revenues);
- Committees must be in compliance with the reconciliation instructions, which are laid out in the budget resolution;
- Provisions must be within the jurisdiction of the committee that submitted them;
- The budgetary effects of provisions must be “merely incidental” to the non-budgetary components (e.g.: the policy impacts of the provisions cannot outweigh the fiscal effects);
- Provisions cannot increase the deficit beyond the budget window (typically ten years);
- Provisions cannot impact Social Security.
Any provisions within the reconciliation legislation that violate the Byrd rule can be stricken from the text by a point of order on the floor, unless 60 votes are secured to overturn the point of order.
The Senate’s parliamentarian—the referee of the Senate’s rules—has reportedly found multiple compliance issues with the ICE, Border Patrol, and ballroom funding in the current reconciliation bill. Specifically, certain language is outside the jurisdiction of the reconciled committee, in this case the Senate Homeland Security and Government Affairs Committee. This is a violation of Byrd’s committee jurisdiction rule, and various other elements violate the Byrd Rule’s “merely incidental” test. For example, the $1 billion Secret Service funding measure, tied to security upgrades within the White House, was found to have an expanded scope of jurisdiction that exceeded that of the Senate Judiciary Committee, which reported it.
The process of drafting a reconciliation bill in the Senate is iterative. Staff draft language, receive feedback from the parliamentarian, and re-draft with an eye toward compliance. It is expected that this will happen here as well, and that Senate Republicans will eventually end up with Byrd-compliant language that does what they need. As Senate Majority Leader Thune’s spokesperson quipped, “Redraft. Refine. Resubmit. None of this is abnormal during a Byrd process.”
In the face of a filibuster, or not receiving 60 votes, modern Senates now almost habitually resort to reconciliation and its simple majority vote threshold to try and jam through issues of importance. However, the process is fraught with challenge, as Senate Republicans are currently encountering, due to the narrow constraints of the Byrd Rule. This makes attempts to pass sweeping policy via reconciliation the legislative equivalent of trying to shove a camel through the eye of a needle.
It doesn’t have to be this way. The Senate is a deliberative institution with many tools at its disposal – including using the grueling physical process of the Senate’s rules – to grind down a filibustering minority. Senate Democrats successfully filibustered the Department of Homeland Security appropriations without ever having to pay an institutional price. In fact, outside of continued on-off cloture votes, the Senate majority never forced Democrats to the floor, never kept the Senate in session for a full week (or a weekend!), and never imposed a cost on Democrats for their obstruction.
Instead, Senate Republicans simply resorted to stripping ICE and Border Patrol out of the appropriations bill, in deference to demands from Democrats, and then pivoted to try and pass them in reconciliation.
As the Senate GOP now struggles to contort discretionary appropriations language to fit into a bill structure that was never designed for this purpose, it’s worth remembering that the Senate’s deliberative procedures contain a multitude of leverage points to try and pass legislation the old fashioned way, free of the constraints of the Byrd Rule. It only requires a Senate majority willing to lean in and try.
ICYMI…
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- Ryan Girdusky: The generational divide on the Iran war
- Chronicles Magazine: John Roberts, birthright citizenship, and our Constitutional straitjacket