Legislative Process 101—the Senate’s Byrd Rule

Budget reconciliation, or just “reconciliation,” is a legislative maneuver that allows Congress to pass legislation with only 51 votes in the Senate. Normally, legislation requires 60 votes to pass the Senate, a bar that is set higher intentionally to prevent the majority party from jamming bills through. But since reconciliation bills can’t be filibustered, jamming through major legislation using reconciliation is exactly what Republicans tried to do in 2017 and 2018.

Special rules for reconciliation

The reconciliation process comes with some extra strings attached in the Senate. Since reconciliation was originally supposed to be used to reduce the deficit, the rule is that only provisions directly impacting government spending or taxes can be passed through reconciliation. This means anything going through reconciliation has to directly impact the federal budget—and if it doesn’t, then the Senate can’t pass it through reconciliation.

This rule is called the Byrd rule, after Senator Robert Byrd, a Senator from West Virginia who was its principal sponsor. The Byrd rule has been law since 1990, and has been used successfully dozens of times to block so-called “extraneous” (unrelated) provisions that shouldn’t get passed through reconciliation.

“The Byrd Bath”

How does the Senate weigh whether something is related to the budget or “extraneous”? They apply six criteria to decide whether a provision breaks the Byrd rule:

  • It does not have a budgetary effect;

  • It has a budgetary effect, but the effect is not what the budget resolution called for;

  • It’s outside the jurisdiction of the committee recommending it;

  • It does have a budget effect, but a “merely incidental” one (more on this below);

  • It increases the deficit beyond a certain number of years; or

  • It’s about Social Security.

If a provision violates the committee of jurisdiction or Social Security criteria, then reconciliation can’t be used for any part of the bill, which usually means the bill is dead. If it violates any of the other criteria, then the provision is taken out but the rest of the legislation remains intact.

The Senate Budget Committee is required to analyze the entire bill and identify any provisions that could potentially break the Byrd rule. This behind-the-scenes period, where provisions are scrutinized for compliance with the Byrd rule, is referred to as the “Byrd bath.” Once finished, the Budget Committee releases a list of provisions that could potentially violate the Byrd rule. If Republicans and Democrats don’t agree, each side may put out separate lists.

Senators still follow the Byrd rule

The most debatable of the Byrd rule criteria is whether a provision has a budgetary effect that is “merely incidental.” The Byrd rule gives considerable discretion to the Senate’s Presiding Officer—whichever Senator (from the majority party) is in charge of running Senate business that day — to decide what is “merely incidental.”

The Senate Parliamentarian gives a recommendation as to whether a provision is “merely incidental” or not. Although it is only a recommendation and not binding, longstanding precedent calls for the Presiding Officer (and the rest of the Senate) to follow the recommendation of the Parliamentarian.

Scholars who study the Senate believe this would be incredibly rare and can’t remember a recent example of the Presiding Officer failing to follow the advice of the Parliamentarian. The Parliamentarian’s role involves the rule of law: the Parliamentarian (and the Presiding Officer) are bound to apply precedent, and the current Parliamentarian has a reputation as an impartial referee.

Tell your Senators to follow the rules

When the Senate tries to use reconciliation to pass a piece of major legislation (like the Trump Tax Scam), the majority party often try to push the limits of what can be included so the bill can be as expansive as possible.

Tell your Senators you don’t want them to break decades of precedent in order to pass major legislation. Specifically, when Senators are trying to include a provision such as defunding Planned Parenthood in a piece of legislation, your Senators should:

  • Raise a point of order against provisions that violate the Byrd rule.

  • Follow the ruling of the Senate Parliamentarian on questionable or controversial provisions.