Why reconciliation is a 'privilege' for lawmakers, not a right

WASHINGTON — House GOP leaders had a brief scare last week when they had to go back and fix several pages in their mammoth budget reconciliation bill that passed before Memorial Day.

That “privilege scrub” process, necessary to preserve a reconciliation bill’s filibuster-proof status in the Senate — is often confused with the “Byrd rule” — which restricts what can be included in a reconciliation bill in the Senate — as the two sets of limitations often overlap.

But unlike the Byrd rule, provisions found to be “fatal” after a privilege scrub can be the death knell for partisan reconciliation bills. If fatal provisions aren’t removed before the bill comes to the Senate, the entire package would revert to a regular bill subject to unlimited debate and 60-vote procedural thresholds.

That’s akin to a Byrd rule on steroids, since anything found to be a mere Byrd violation is surgically removed from a reconciliation bill, unless backers of the offending provision can get 60 votes to keep it. Debate on the broader bill then simply continues without the “Byrded out” language.

Accordingly, House GOP leaders held their “big, beautiful” bill at the desk while the scrub continued after passage, resulting in the resolution correcting the text that was adopted last week.

“If we send it over and they say, ‘we’re ruling against you,’ it’s a 60-vote bill, so you can’t play games,” as House Majority Leader Steve Scalise, R-La., explained.

While fixing fatality issues after passage is rare, it’s not unusual for House leaders to “self-execute” a big cure-all amendment to a reconciliation bill at the Rules Committee. Democratic leaders did that with their huge pandemic rescue package in February 2021, inserting a 195-page amendment to fix numerous issues, including fatal ones.

‘Legislative weapon’

The differences between fatal and “Byrdable” provisions in reconciliation can be murky. Generally, both processes are intended to avoid abuses of reconciliation to insert material that couldn’t otherwise pass, which critics argue tramples on the rights of the minority and individual senators.

“A reconciliation bill is a super gag rule, the foremost ever created by this institution. Normal cloture is but an infinite speck on the distant horizon when compared with a reconciliation bill,” the late Sen. Robert C. Byrd, D-W.Va., who authored his namesake rule, said in a 1989 floor speech. “So we ought to take the utmost care in handling this legislative weapon.”

As former Senate Parliamentarian Alan Frumin wrote in 2004, the expedited procedures afforded under reconciliation means “the traditional rights of senators to full debate and unlimited amendments are unavailable.”

Accordingly, Frumin continued, the parliamentarian’s office “has always proceeded with great caution in advising that a particular measure was entitled to reconciliation status.”

As Senate Budget Committee staff wrote in a massive 2022 history of the budget process, the list of fatal flaws has grown over the years and parliamentarians have “erected an increasingly exacting procedural doctrine of determining privilege.”

The original intent of reconciliation was to fill in the blanks of spending and revenue forecasts assumed in budget resolutions adopted by Congress. Reconciliation bills to make the necessary legislative changes to the tax code and federal programs were granted the special privileged status.

The early years of reconciliation starting in 1980 were a bit of a free-for-all without the guardrails that exist today, with numerous instances of nonbudgetary material making their way into reconciliation bills. Eventually, the Byrd rule was adopted starting in 1985 and later codified into law.

The Byrd rule is a six-pronged test:

—Reconciliation provisions must have a budgetary impact.

—They can’t result in a committee being out of compliance with its reconciliation instruction.

—A committee can’t include a provision in its title of the bill that’s in the jurisdiction of a different committee.

—Budgetary changes can’t be “merely incidental” to some other policy goal.

—The bill can’t increase deficits beyond the fiscal years covered by the budget resolution.

—No changes to Social Security.

Some of the same stipulations are reflected in what goes into the scrub for privilege violations.

The codified Byrd rule references a separate prohibition on Social Security changes from the 1974 law, for example. The existence of that section makes any changes to Social Security fatal to the bill’s status as a reconciliation bill. Hence the House’s corrections last week had to remove several references to the “Social Security Act.”

Foot faults

Privilege issues predate adoption of the Byrd rule.

In 1981, then-Senate Majority Leader Howard Baker, R-Tenn., told colleagues that so long as “a preponderance” of the subject matter in the bill had a budgetary impact, its privileged status would be protected.

That “preponderance” test has survived over the years, with parliamentarians reserving the right to declare the loss of privilege. But the definition of preponderance is considered subjective and hasn’t been put to the test, budget experts say.

Starting in 1984, still pre-Byrd rule, the parliamentarian advised that a House-passed reconciliation bill must follow the process for its creation laid out in the 1974 budget law or lose privileged status. One of those conditions is that the last step for a multi-committee reconciliation bill is for the Budget Committee to assemble the various pieces and report it out.

This stipulation led to a flurry of last-minute negotiations with GOP holdouts on the House Budget Committee in May, who could have stopped the bill in its tracks by bottling it up in that panel. If that hangup hadn’t been resolved, it could have proved fatal to Trump’s legislative agenda.

Another area of typical exposure to fatality issues is what’s known in reconciliation parlance as “jurisdictional foot faults.”

This is similar to the Byrd rule prohibition on a committee including subject matter in its part of a reconciliation bill that touches a different panel’s jurisdiction.

But the key difference is that a Byrd rule surgical strike applies when one reconciled committee is implicating another reconciled committee’s jurisdiction. A fatal jurisdictional flaw, by contrast, is when a committee’s title has material in it touching the jurisdiction of a committee that has no reconciliation instruction at all.

For example, House GOP leaders had to correct the text of their bill to remove $2 billion in the Armed Services title for military intelligence programs, since that touched the jurisdiction of Senate Intelligence. In fact, multiple Armed Services references to the term “intelligence” had to be removed.

Other examples noted in the voluminous 2022 Senate Budget Committee report:

—Attempting to pass a second reconciliation bill after reconciliation instructions have already been used for a first.

—Including material in a tax title that affects spending when only revenue changes are allowed; the typical way around this in recent years has been to combine the instruction into a flexible deficit target, without specifying revenue or outlays. There’s more overlap with the Byrd rule here, since that process also bars the tax committees from being out of compliance with their instruction.

And lawmakers can’t include provisions creating or changing a “fast-track” legislative process.

In 2015 when Republicans were attempting to repeal former President Barack Obama’s 2010 health care law, the parliamentarian flagged as fatal the House GOP provision to repeal the law’s Independent Payment Advisory Board. That section created expedited procedures, including limited Senate debate, for a Medicare cuts package developed by a 15-member independent board.

IPAB was part of the 2010 law enacted outside of reconciliation, along with a “sidecar” package done inside reconciliation. Just as Democrats wouldn’t have been allowed to create the fast-track IPAB process in a reconciliation bill, Republicans couldn’t use reconciliation to repeal it.

What’s next

Once fatalities in a reconciliation bill have been cured and the House-passed bill is allowed on the Senate floor, GOP leaders aren’t out of the procedural woods.

The “Byrd bath” needed to ensure compliance with that rule still applies. Senate committees are now busy litigating their versions of the bill — which will go into a substitute amendment to the House-passed bill — before Senate Parliamentarian Elizabeth MacDonough. Like Frumin, her predecessor and former boss, MacDonough is considered a staunch defender of Senate prerogatives.

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—David Lerman contributed to this report.