BCRA unlikely to survive the Parliamentarian? Hold your horses.

July 24th, 2017

On Friday, Senator Bernie Sanders released a document claiming that the Senate Parliamentarian was prepared to invalidate large portions of the BCRA as “noncompliant” with the Byrd Rule – the law that governs consideration of Senate reconciliation bills. Specifically, Sanders’ document highlighted restrictions on tax credits being used for abortion, and defunding of Palnned Parenthood, among others, as target for termination.

Two comments on this.

First, who is the Parliamentarian and what does her guidance mean? The Parliamentarian advises the Senate on the interpretation of its rules and vast array of complicated precedents. She’s the woman you’ll see advising the Senators as they take turns as the Presiding Officer.

The Parliamentarian’s advice is advisory. It is up to the Presiding Officer, and ultimately, the full Senate, to make parliamentary decisions.

The Parliamentarian has a unique role to play in the reconciliation process, which is how the Senate intends to consider the BCRA. Reconciliation is unique because it is not subject to the filibuster – and thus, the need to reach 60 votes to break the filibuster, and proceed. However, because of this privileged status, the process also has strict conditions for its use.

Reconciliation is governed by the Byrd Rule, which lays out six statutory criteria that provisions of this bill must meet. If any provision fails any one of these tests, it can be removed on a point of order.

The provisions of the Byrd rule, as summarized here, are as follows:

  1. The provision must change federal spending or revenue.
  2. If the bill does not reduce the deficit, as per the instructions outlined in the budget resolution, then any provision that results in either increased spending or decreased revenue is removed until it does meet those targets.
  3. The provision must only affect policies that fall under the jurisdiction of the specific committees that were instructed in the budget resolution.
  4. The provision’s effect on spending or revenues cannot be merely incidental to its policy impact.
  5. The provision cannot increase the federal deficit at some point in the future, beyond the 10-year budget window that is used to evaluate legislation.
  6. The provision cannot change Social Security.

You’ll notice that interpreting these six provisions is not a strict science. For example, what constitutes “merely incidental”? Applying these provisions is subject to precedent – that is, what has happened before in the Senate – but also a fair amount of subjectivity.

The Parliamentarian will review the bill, hear arguments from staff and senators regarding these provisions, and render her advisory ruling to the Senate about what is likely acceptable – and unacceptable – under the Byrd rule.

Second, what happens when the Parliamentarian renders her initial judgement? The key point here is that the judgement is, again, advisory, and the process is not final. Rather, it’s iterative.

Staff will have time to go through and change certain portions of the bill to help it comply, as was done in 2015 when the Senate considered repeal under reconciliation. (This process is colloquially referred to as a “Byrd bath.”) Staff can also re-argue certain portions of the bill, using their own interpretations of the Senate’s precedent.

Most important, however, is what happens on the Senate floor after the Parliamentarian renders her opinion.

To put it simply, the Parliamentarian advises, but the Senate, through its votes, ultimately determines whether or not a provision is compliant.

How does this work?

Provisions the Parliamentarian suggests may be “out of order” (that is, not compliant) will be subject to a point of order on the Senate floor. Essentially, this is a senator saying, “this does not comply with the Byrd Rule, and I move to remove it from the bill.”

At this point, the Presiding Officer must decide – is the point of order valid? If he says yes, the point of order is sustained and the provision is stricken from the bill. Due to the ambiguity inherent in some of the Byrd Rule tests (recall, what constitutes “merely incidental”?), the Presiding Officer has a fair amount of discretion in determining whether or not a point of order stands. To make these decisions, he relies on advice from the Parliamentarian on what the Senate has done previously.

Interestingly, past precedent on what constitutes “merely incidental” is relatively small. It has only been adjudicated 10 times since the Byrd Rule was enacted.

Alternatively, the Byrd Rule allows points of order to be “waived.” This requires 3/5 of senators to vote in favor (60 votes, if all 100 seats are filled).

Though the Sanders release was timed to make the Parliamentarian’s comments look final and immutable, the reality is that the reconciliation process is anything but cut and dried.

As with most things in the Senate, the process is the thing.