On the heels of the Massachusetts election, it appears that the easiest route to health care reform (House concurrence to Senate-passed bill) is off the table. Most of the other options under discussion involve (in one way or another) use of “reconciliation”—a budget procedure that provides a fast-track to passage by circumventing a filibuster. Given all the attention to reconciliation, I thought a little primer on budget procedure might be helpful.
Why trust what you read on the Monkey Cage about reconciliation? Because I am a six-time winner of National Journal “Budget Battle” trivia contests! As proof, here I am with my 2002 mug. If you are ever in D.C., come by and I’ll show you my pennants, mouse-pads, and t-shirt (size XXL…maybe I’ll grow into it someday).
Credentials established, here are some key things to know about reconciliation:
1. What is it?
Reconciliation is an optional stage of the budget process established under the Congressional Budget Act (enacted in 1974 and as amended). Reconciliation is the process that Congress uses when it needs to make changes to law (affecting spending or taxes) in order to conform with budget levels set in the budget resolution. So if Congress found that it needed to reduce the deficit by $200 billion, reconciliation would be the legislative vehicle for proposing the mix of revenue and spending changes needed to reduce the deficit. For example, reconciliation could make changes to Medicare law to reduce outlays, or could make changes to the tax code to increase revenues. (Remember the days when Congress used to reduce the deficit?)
2. Why can’t senators filibuster reconciliation?
Simple. The Congressional Budget Act limits Senate consideration of reconciliation to 20 hours of debate and to 10 hours of debate on a reconciliation conference report. With a time certain for a vote, that means a minority cannot filibuster the effort to get to a vote. Why did senators create a fast-track for reconciliation in 1974? Chalk this one up to unanticipated consequences. Reconciliation was originally intended as a cleaning up mechanism to make the two congressional budget resolutions consistent with one another. When the Budget Act was revised and the second resolution dropped, reconciliation came to be used more aggressively for securing controversial policy changes.
3. How can the House and Senate use reconciliation to pursue health care reform?
In writing the budget resolution each year, legislators have the option of writing “reconciliation instructions” to the committees charged with coming up with revenue and spending changes. These directives grant the committee(s) the opportunity to develop a reconciliation bill (protected from a filibuster). Those changes come to the floor, packaged if need be by the Budget Committees, and then proceed through the legislative process under the Budget Act guidelines.
4. The last budget resolution agreed to in Congress (creating reconciliation instructions) applied to FY 2010. We’re now in FY 2011. Are they still valid instructions?
Yep. Although the news reporting on this issue has been uneven, my parliamentary sources tell me that Senate parliamentarians have over the past 20 years tried to err on the side of “making the budget act work.” In other words, when this issue has arisen in the past, Senate parliamentarians have advised that instructions remain viable until the end of the Congress (rather than the end of the fiscal year). (Although the precedent is apparently not written down, that would be the advice of the parliamentarian today.)
This is important, because it means that Congressional Democrats could start the process today for writing a reconciliation bill that addresses health care reform (rather than waiting for Congress to pass a FY2011 budget resolution—something unlikely to occur until spring). Just an aside—if Congress already has a set of operative instructions, that might reduce Democrats’ incentives to go to the effort to adopt a budget resolution for FY2011.
5. Is it really that simple?
Nope! This is the Senate we’re talking about!
Upset that reconciliation had become a vehicle for avoiding a filibuster of major policy change at times unrelated to deficit reduction, Senator Robert Byrd convinced his colleagues in the mid 1980s to place the “Byrd Rule” into the Budget Act. Under the Rule, the Senate is restricted from adding “extraneous matter” to a reconciliation bill or conference report. The Budget Act lays out the definition of “extraneous,” but in short these would be provisions that do not change revenues or outlays or would increase the deficit. Critical to its enforcement, the Byrd Rule requires 60 votes to waive any points of order that challenge the content of the bill under the Byrd Rule. But again, it’s not this simple. In practice, the Senate parliamentarians have become the arbiter of what counts as legit under the Byrd Rule. (Yes, senators could challenge the advice of the parliamentarian. And yes, the majority could fire the parliamentarian if they didn’t like his advice.) All this is important because it limits which health care provisions can be included in a reconciliation bill.
So, no, nothing regarding reconciliation is as simple or as fast as it may be seem. “If you want something done quickly, don’t send it to the Senate.”
6. So, is health care reform likely to happen this year?
Good question. Next?
7. Having made it to the end of your post, do I have a good chance of winning a National Journal budget battle?
Sorry. The contest was discontinued a few years ago, sometime after I won my second pennant. Just as well. It was hard to get excited about the prospects of winning a third.
{ 12 comments }
Sarah,
Great summary. Two questions:
1. Is it possible to fasttrack a reconciliation bill that’s already written without referring it to committee? That is, if the House passes the Senate bill as is, plus writes a reconciliation patch that’s already been negotiated w/the Senate, can the bill be introduced in the House, bypass committee and go to directly to the House floor (well, I guess to Rules, and then the floor), and then after passage be considered immediately by the Senate? I’ve seen some discussion that it would have to go through the committee process, but is there anything that requires that?
2. How flexible is the definition of “provisions” with regard to the Byrd rule? Could the authors fudge it so that each of the items that they feared was vulnerable to the Byrd rule be packaged in legislative language with something that was not vulnerable, or can the parliamentarian see through that and strike part of a “provision” if Senators try that?
Thanks for helping us sort this out.
Jon
Hard questions! Any more like that and I’ll have to hand over the Budget Battle shirt.
1. The Congressional Budget Act does say something about required committee action in the House, but as best I can tell the act is silent with regards to the issue in the Senate. (But it’s worth double-checking.)
According to the CBA, the House Rules Committee can make in order “amendments to achieve changes specified by reconciliation directives
contained in a concurrent resolution on the budget if a committee or committees of the House fail to submit
recommended changes to its Committee on the Budget pursuant to its instruction.”
Does that mean the entire process can essentially be driven by the Rules Committee? Possibly. But I’d want to probe further.
In the Senate, it’s possible that a House-passed reconciliation could be put straight on the calendar via the Senate’s Rule 14. But one would need to prowl through precedents to see whether reconciliation could be handled this way. CBA is silent, as best I can tell.
2. Can clever packaging circumvent the Byrd Rule? The parliamentarians are very smart, as is Senator Byrd. I’m skeptical this is feasible.
Hope that’s helpful.
Sarah
Really lucid and informative note, Sarah. I have a couple of questions.
1. If push came to shove on a parliamentarian’s ruling that reconciliation provision X is not extraneous under the Byrd Rule (when the truth is it is extraneous, which most contemplated true health care reform provisions would be), don’t you think at least a few (10?) Democrats would split off and vote with Republicans on the latter’s challenge to such ruling? With 50 sustainers needed, it seems like a lot of nose-holding would be required to build the requisite simple-majority coalition.
2. Related but more generally, do you know of instances in which the Senate Parliamentarian’s ruling has been challenged and turned over to the Senate for majoritarian resolution? I seem to recall that there was a CRS report on this years ago, and that there are a few instances in which a majority has, in effect, voted that the moon is made of green cheese. (I realize this is “on the other hand” with respect to question 1.)
Anyway, thanks for an interesting and clarifying note.
Keith
P.S. FYI, I have an answer to Q6.
Keith,
Thanks for the hard questions. (At this rate, I’ll be shipping out the shirt this weekend.)
1.
On question 1…It is certainly conceivable that a majority (41 GOP + 10 Dems) could be assembled to vote to overrule a (clearly erroneous) ruling of the chair. The data I’ve seen (cited below) suggest that about 75% of chair’s rulings are upheld in the Senate (83rd-108th congresses)— though most votes on appeals of rulings yield outcomes favored by the majority party. (Are patterns on Byrd Rule violations and appeals similar? CRS has compiled the data, though I don’t have it at hand.)
Given the difficulty Democrats have had in assembling 60 votes for health care reform, it is certainly plausible that defectors could side with the GOP were the chair to rule that a particular provision was not extraneous (when it clearly was).
2.
On question #2, yes, there are instances in which a chair’s ruling has been challenged, and a majority of the Senate has subsequently overturned the ruling of the chair (establishing for example that the moon is indeed made of green cheese). There is a CRS report by Stan Bach on Senate points of order in which I recall he tallied and discussed points of order and appeals outcomes.
There is also the episode of the Senate’s 1995-1996 tangle with its Rule 16 (affecting legislating on an appropriations bill). In effect, the ruling sustained Reid’s point of order against a Hutchinson appropriations amendment that was clearly legislating on an appropriations bill. On the motion to appeal the ruling, the GOP majority (with two Dem votes) overruled the chair.
That vote set a precedent that the Senate would no longer enforce its ban against legislating on appropriations bills. It took over a full year before a Senate majority (only GOP voting yea) agreed to reverse the precedent, thus reinstating the presiding officer’s ability to enforce the Senate’s rule.
That said, it would be useful to comb through the appeals (and the Byrd Rule related votes) to nail down the vote outcomes relative to majority party positions and the position of the presiding officer.
3. Q6 answer? Monkey Cage readers are all ears!
Hope that’s helpful (even if a bit indeterminate).
Sarah
Cites:
Den Hartog and Monroe have a 2009 working paper, “Partisan Support for Chairs’ Rulings in the House and
Senate”
http://faculty.ucmerced.edu/nmonroe2/Den%20Hartog%20and%20Monroe%20-%20Chairs’%20Rulings.pdf
The Stan Bach CRS report:
CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate
(I can’t seem to locate this on-line, so I might have the wrong report.)
Sarah,
If I’m interpreting the rules correctly, does it mean a measure like repealing the health insurance’s anti-trust exemption, which is not in the Senate bill, can’t be added via reconciliation?
Sarah, I think that you want this one: http://www.club.cc.cmu.edu/pub/wikileaks/wikileaks-crs-reports/98-306.pdf. The title is the same, but the author is listed as Valerie Heitshusen.
A follow-up to Jonathan Bernstein’s second question.
Could proponents of health care reform package an extraneous provision (likely to fall victim to a Byrd Rule challenge) with a valid provision and thus keep the Byrd Rule violation in the bill?
I suggested above that the parliamentarians are pretty smart and wouldn’t be fooled. Not only they smart, but they have to tools to forestall that tactic.
Under the Byrd Rule (embedded in the Budget Act), a point of order may be raised against a single provision or two or more provisions. The chair may sustain a point of order as to all of the provisions or only some of them.
So clever packaging might not be so clever.
Matt
Good question, and I can only hazard a guess.
The Byrd Rule in general prohibits inclusion in reconciliation of matter that’s not related to the deficit reduction goals of the budget process (meaning that it doesn’t bring about changes in outlays or revenues). (Note: The Byrd Rule has several more definitions of what counts as extraneous.)
If we assume that dropping the anti-trust exemption has no budgetary impact (or otherwise sets up a Byrd Rule violation), then senators would need to get 60 to keep the provision in the bill.
Would Dems be able to pick up GOP votes for that (to offset lost Dem votes like Ben Nelson’s)? Possibly, but unlikely given GOP’s recent voting behavior.
Sarah
Sarah, I’m a Canadian who has only a weak grasp of the complexities of procedural rules in the American Senate. I understand the advantages of using reconcilation in order to achieve health care reform. But could you clarify what the disadvantages are?
Many thanks
Katherine
Katherine,
Thanks for your question.
If one were interested in using reconciliation as a process for pursuing major health insurance reform, the major disadvantage would stem from the Byrd Rule. That rule was put into place precisely for the purpose of discouraging legislators from using reconciliation as a vehicle for major policy change.
Why would the Byrd Rule be so problematic? The problem is two-fold:
First, the rule targets provisions of (or amendments to) a reconciliation bill whose primary purpose is NOT deficit reduction. Because many of the elements of health care reform likely do not directly affect the level of government revenues or outlays, most such “policy” provisions could fall victim to a Byrd Rule challenge. Think about the provision that would prevent insurance companies from refusing to sell you insurance because of a “pre-existing condition.” That provision is unlikely to be valid under the Byrd Rule, and thus might be struck.
Second, and related, the Senate set the threshold for waiving the Byrd Rule (or overruling the chair’s rulings on points of order that stem from the Byrd Rule) at 60 votes. That’s likely out of reach for a party with fewer than 60 votes that pursues reform through reconciliation precisely because it does not have 60 votes to legislate the old fashioned way.
Why would reformers care if they lost a provision or two of health care reform? In other words, why would Byrd Rule problems be disadvantageous for reformers? Many policy analysts (and politicians) have suggested that health care reform is something like a three-legged stool. Get rid of one leg, and the whole stool tips over. In order for health care reform to “work” (i.e. expand access AND control costs AND keep insurance rates affordable), many argue that Congress would need to keep the whole package as a carefully knit whole. That seems an unlikely outcome given the limitations imposed by the 60 vote threshold of the Byrd Rule.
I would add one other implication of the Byrd Rule. Legislators like certainty. THey’d like to know as much as possible how things are going to turn out before they start casting votes. That becomes very hard to do if there’s a high chance if the Byrd Rule is likely to kill major provisions– but you don’t know for sure which provisions before the process gets underway.
Hope that’s helpful as a start.
Sarah
A few follow-ups to my earlier responses. I appreciate the many questions and corrections I have received since claiming expertise based on my collection of Budget Battle paraphernalia.
1. Committee consideration
In response to Jonathan’s question about whether reconciliation would have to come to the floor via the instructed House and Senate committees, that remains an unsettled question. It is not clear whether circumventing the instructed committees is possible without encountering significant obstacles.
2. Overturning rulings of the chair
In response to Keith’s question about appeals of the chair’s rulings, I should be more explicit about the size of the majorities required to overturn a ruling of the chair on budget-related points of order (including points of order that stem from the Byrd Rule). Only a supermajority of 60 can overturn rulings of the chair on points of order that stem from the Byrd Rule. Similarly, a supermajority of 60 is required to waive the Byrd Rule. (Just an aside—There are a handful of points of order provided for in the Budget Act that require only a simple majority to waive. But the points of order to which a health care package could be vulnerable require 60 votes to waive or to overrule on appeal.)
3. The 20-hour debate limit for reconciliation
A clarification of the time limitation for floor consideration of reconciliation bills in the Senate. I referred to a “time certain” for a vote. Because the Budget Act limits debate time (but not “consideration” time), time spent offering and voting on amendments (and motions and appeals, albeit none with debate) does not count under the 20 hour cap. (This is what gives rise to the “vote-a-rama” scene at the end of debate on the budget resolution in the Senate, when senators vote on often-times dozens of amendments at the close of the process.) In theory, if the minority kept offering amendments and refused to stop, the Senate would never get to a vote. Hence, “time certain” might not be so certain.
4. Expiration of committee instructions from the previous fiscal year
I suggested that the current parliamentary thinking appears to be that reconciliation instructions would only expire at the end of the Congress. While the FY2010 instructions have not expired at this point, it is currently unsettled as to when exactly in the current (111th) Congress they might expire — at the end of the Congress, or with the adoption of a new budget resolution.
5. Bottom line?
The bottom line, as I’ve tried to convey in the post and comments, is that reconciliation does not provide an easy vehicle for passing major policy change (and certainly less so when the parties are disposed to disagree strongly with each other). Sixty vote thresholds remain embedded in the fabric of reconciliation, even if the process is portrayed as a majoritarian work-around. I think it is also fair to say that the complexities and uncertainties about the application of reconciliation to health care reform raise innumerable questions that cannot be answered aprior (or easily in a blog post!).
Sarah
As requested, here is my (one-word) reply to Sara’s (point 3) reply to my (PS) reply to her earlier (Q6) question: What will happen with health care reform this year?
Gridlock.
True, the prediction is not exactly out-on-a-limb as of the [over-hyped] Massachusetts special election. However my collegues will attest to my year-old adherence to this prediction which, for many months, was a source of consternation and ridicule. The surrounding postings are as good as any I’ve seen–and much better than any journalism I’ve seen–in illucidating the severity of the supermajority procedural obstacles to passing major legislation. Thanks again to Sarah for initiating an interesting discussion.
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