September 11, 2009

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

Hatched by Dafydd

...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 am, 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 Hot Air's rogues' gallery...

Hatched by Dafydd on this day, September 11, 2009, at the time of 1:41 PM

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It's an article remarkable for its straightforward boosterism of the most extreme congressional tactic Democrats might use to pass ObamaCare. Today in the Hill -- the largest circulation newspaper written for (and about) Congress -- we read an article ... [Read More]

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The Hill reports that not a single Republican supports the version of ObamaCare crafted by Senate Finance Committee Chairman Max Baucus (D-MT, 80%)... not even Sens. Olympia Snowe (R-ME, 12%), Chuck Grassley (R-IA, 76%), and Mike Enzi (R-WY, 96%), the... [Read More]

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The following hissed in response by: Neo

But then again there is the "nuclear option" or at least that is what it was called when the Republicans contemplated using it for Judicial appointments.

The "nuclear option" as I read it at the time was that the entire idea of a "supermajority" required for cloture was a "rule of the Senate" and it seems that you only need 51 votes to change a "rule of the Senate".

The idea was to call for a change to the rules, vote that cloture could be achieved with 51 votes (or whatever was possible over a simple majority), then vote on the matter at hand, then go back and restore the "old rule" using the same process that was used to change it, if desired.

Most Senators don't like this so it's not entirely clear if you could get 51 to change it, but from what I read, it has been done a couple of times in the past, but not on anything so big or controversial.

The above hissed in response by: Neo [TypeKey Profile Page] at September 11, 2009 2:33 PM

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