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Legislative Process 101—the Senate’s Byrd Rule

Winning the two Senate runoff elections in Georgia was a huge step towards rebalancing political power in Congress. 

Now with a 50/50 split in the Senate and Vice President Harris as the tie breaker, Democrats have 51 votes to pass their legislative priorities. This leaves Democrats three options 

  1. Engage in bad faith negotiations with Republicans and pass meager and sometimes harmful bipartisan legislation. 
  2. Use the budget reconciliation process, which only requires 51 votes to pass. 
  3. Eliminate the filibuster and pass bold comprehensive legislation!

Here at Indivisible we are deeply committed to eliminating the filibuster. That being said, we must consider all the legislative strategies available to us to gain real wins for people. To do that, we have to understand the reconciliation process!

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. But since reconciliation bills can’t be filibustered, jamming through major legislation using reconciliation is a tool that both Republicans and Democrats have used to pass legislation when faced with slim majorities. 

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 year 10; 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 means it loses its privileged status and has to pass through normal order, making it subject to the filibuster. 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

‘Merely Incidental’

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 Parliamentarian who tells the Presiding Officer how to rule on a point of order—whichever Senator (from the majority party) is in charge of running Senate business that day — to decide what is “merely incidental.”

On the Floor

If a reconciliation bill is brought to the floor containing provisions that violate the Byrd Rule, a Senator (usually from the opposing party) will raise a Point of Order on the bill, citing the Byrd Rule violation. The Senate Parliamentarian tells the Presiding Officer how to rule and the Presiding office will convey that to the Senate. 

Senators may then vote to overrule the Presiding Officer by taking a vote. To overrule the Presiding Officer on a reconciliation bill ⅗ majority is required to overrule the Presiding Officer and set a new precedent. 

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. Furthermore, there are anti-democratic ramifications of the Presiding Officer ignoring the Parliamentarian and creating new rules and precedents without a vote. 

How Senators Can Use Reconciliation to Their Advantage

Budget Reconciliation can be a great tool to make bold changes to taxes, revenues, and spending. For example, we can boost funding for programs that we love, end tax cuts for the rich, and make massive investments in communities. Senators should be prepared to accomplish as many of these policy priorities as possible via reconciliation.

However, for passing policies that don’t have a budget implication such as democracy reform, or even policies that require a lot of context and standards to be enacted (think labor and equity standards), reconciliation is not a strategic path. To enact these policies we must eliminate the filibuster and take away McConnell’s minority veto vote.