Reconciliation And The Byrd Rule

Reconciliation And The Byrd Rule


Leonard Zwelling

OK kids, time for some Senate arcana.

In 1974, a bill was passed and signed into law that enables the Senate to quickly resolve important fiscal and budgetary issues using a process called reconciliation. The Senate Parliamentarian must agree that there are only fiscal matters in the proposed reconciliation bill (see Byrd Rule in second attachment; for example not a proposal for DC statehood) and the Senate can pass the bill with only 50 plus one yea votes. Kimberly Strassel discusses the consequences of this action in the Wall Street Journal article above from January 29. The key here is that this process gets around the threat of the filibuster. It can be used once a session and has been so used over 20 times in the past. The many limits of the Byrd Rule (after Senator Robert Byrd, D-WV) make the decisions of the Parliamentarian key even though they may be overridden by the President of the Senate. That’s Kamala Harris for those of you without a program.

Why does this matter and if it does why now?

How the Biden Administration will meet its first major legislative challenge depends on the strategy selected by the Biden team to get its $1.9 trillion covid relief package through the Congress. The House is in majority Democratic hands and I suspect Speaker Pelosi can get the package through the House. The Senate is another matter.

The filibuster stands in the way as surely one (or more) Republicans (can you say Ted Cruz, Rand Paul and Josh Hawley) will block the huge spending bill for two reasons. First, it’s pretty pricey although perhaps less so than doing nothing. But second, it contains issues unrelated to covid relief like DC statehood and a $15 minimum wage that Republicans object to.

So this gets us to where?

The Biden team can insist the bill stays as it is. If they do that, it will go to the Senate and die a filibustered death as there is no way the Democrats can get 60 yea votes to invoke cloture and end the filibuster for the $1.9 trillion package.

The Biden team can break up the huge bill into pieces. Some, like the covid relief part, may be able to garner 60 votes for cloture given a filibuster is almost guaranteed on anything Biden proposes. Other parts would die. Biden press secretary Jen Psaki has said that the Biden team does not want to carve the bill up into pieces but wants it passed intact. That may be very unlikely at this time.

The third option is reconciliation. Here’s the problem. There are parts in the Biden bill that will not pass the Byrd Rule with the Senate Parliamentarian, but then Vice President Harris could overrule the Parliamentarian. Then the whole bill could go to the Senate needing only 50 votes for passage which assumes the Democrats hang together which is not assured.

The politics of this would end any hint of unity or bipartisanship that Mr. Biden claims to want.

This is a really hard place for the Biden folks. My guess is that at some point, the President will have to meet with the majority and minority leader to work out a deal that gets relief to struggling Americans and leaves other matters for later. That may well have happened with 10 Republican senators who have proposed a smaller relief bill on February 1.

If Biden goes the reconciliation route, he will end all hope of true reconciliation with the GOP and probably guarantee big losses during the midterms in 2022 for the Democrats making the same stupid mistake the Obama team made with the Affordable Care Act.

(Contrary to popular belief, the ACA was not passed using reconciliation, but rather Speaker Pelosi pushed a previously approved Senate version of the bill through the House. It’s a long story. It took a year and a half and I don’t think the Obama team ever recovered.)

Just say for me, this is going to be an early test of the true nature of the Biden Presidency. Does he really want unity or will he revert to power politics? Stay tuned.

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