Senate Democrats are racing to get their major bill to tackle climate change and drug prices to the Senate floor on Saturday — but unlike a normal bill, Senate Majority Leader Chuck Schumer is busy, not just in whipping votes, but diving into arcane Senate rules, consulting a parliamentarian and tackling a series of negotiations commonly referred to as a “Byrd bath.”
The Inflation Reduction Act, based on a deal hashed out in recent weeks by Sens. Schumer and Joe Manchin (D-W.V.), is what’s known as a reconciliation bill, a type of legislation originally designed to reduce government spending. These bills have a significant advantage over regular bills: They sidestep the 60-vote threshold needed to bring most bills to the Senate floor, requiring only 50 votes. Because of this, lawmakers have used reconciliation to push a range of priorities from tax cuts to unemployment benefits in recent years.
But passing a reconciliation bill involves its own set of Senate procedures, separate from the usual rules that senators operate by when they consider a bill.
The specifics of how this is done — and whether Senate Democrats will succeed in the coming days — will come down to the details of what Senate Democrats are proposing and whether they can make the case that the bill will save the government money, said Sarah Binder, a senior fellow with the Brookings Institution and political science professor at George Washington University whose work focuses on legislative institutions.
Binder spoke to Grid about what it takes to pass a reconciliation bill and why so many major policies pass this way.
The following has been edited for length and clarity.
Grid: So Senate Democrats have struck a deal on a climate change and healthcare bill, but it’s a reconciliation bill. What should we expect to happen next?
Sarah Binder: Generally, the process with a reconciliation bill is that it doesn’t need to go through cloture [and get 60 votes], but the Senate does need to adopt a motion to proceed with the bill. And that’s what Schumer says he has teed up for Saturday afternoon.
Before they go to the floor, they do need to hear back from the Senate parliamentarian with her guidance on the guts of the bill and any provisions that violate the congressional Budget Act — which is the law that sets all the technicalities about what can be included in a reconciliation bill and what violates congressional budget law.
Some ask, can they just go ahead do the motion to proceed? Normally, you can filibuster the motion to proceed. Unless it’s a real reconciliation bill — so you need the parliamentarian to sign off that it’s a real reconciliation bill. In theory, Democrats are waiting for that. So let’s assume that happens between now and 2 p.m. Saturday. There’s a motion to proceed and it would just need to be a majority vote. If it were to be a 50-50 tie, the vice president would break the tie. And that would put the Senate package on the floor.
G: What happens next?
SB: This is all laid out in the Congressional Budget Act [of 1974]: It provides for 20 hours of debate on the package, evenly divided between the majority and the minority party. At the end of the 20 hours, the law says, “OK, debate is over.”
The law refers to 20 hours of debate, but that doesn’t include things like amendments, procedural movements and voting. That’s all outside of those confines of 20 hours. After debate is over, that’s when “vote-a-rama” starts. They start moving into voting. At this juncture, a couple things to keep in mind: First, in terms of process, the law doesn’t give any boundaries to tell you when vote-a-rama is over. It’s over when senators exhaust themselves and people are willing to agree to do a final round of votes. And the senators, not all of them are spring chickens — they’ll probably go through the night and then people will tire and decide this isn’t worth their time. They’ll reach an agreement and that’s what brings the process to an end.
The more complicated part is what happens when senators start offering amendments to the vote-a-rama that are all aimed at knocking out parts of the Democrats’ bill. This becomes a game of whether or not amendments themselves conform to the budget rule — in particular, the Byrd rule. The important thing to know about the Byrd rule is that most amendments Republicans want to propose will violate the Byrd rule because amendments under the Byrd rule have to be paid for. And any time there’s an effort to waive the Byrd rule, that’s a 60-vote requirement.
G: What is the Byrd rule, and why is it so important at moments like this?
SB: The Byrd rule came into being in the mid-1980s, when majorities begin to realize they have this reconciliation bill and it’s an opportunity to pack in everything they want to achieve. [Democratic West Virginia Sen.] Bob Byrd, who saw himself as a protector of the Budget Act, wanted to crack down. So he basically amends the Budget Act to include this thing called the Byrd rule. The goal of the Byrd rule was to keep reconciliation as close as possible to its original purpose, which is cutting back on spending.
It knocks out amendments to the bill that violate these six prongs. The most common prongs that get senators in trouble is one, you have to make sure your amendment is paid for. It has to be revenue-neutral over 10 years. The Bush tax cuts, for example, in 2001 — they had to be paid for according to the Byrd rule. You might think, “Hmmm, tax cuts, they’re almost permanently lowering revenues.” So [lawmakers] said, “For 10 years we’re going to cut your taxes, but on the day after 10 years, the law goes back to what it was before.”
Another prong is that the provisions have to directly affect the budget. The parliamentarian would say you’re violating the Byrd rule if they don’t. So one example is: Can we use reconciliation to ban the government from giving Medicaid money to Planned Parenthood? The Congressional Budget Office could tell you that money can be saved by cutting that use of funds. But everyone knew the purpose of that amendment would be to pursue an anti-abortion policy. The savings can’t be merely incidental to the underlying purpose of the amendment.
What’s probably been going on behind closed doors this week is Republicans arguing that some of the provisions on prescription drugs, in particular, may be violating that “merely incidental” rule.
G: We’ve been hearing a lot about the so-called “Byrd bath.” What part of the process does that refer to?
SB: During the Byrd bath, the questionable parts of the bill are fought out with the parliamentarian before the bill comes to the floor.
With this bill, the Republicans are going pretty hard after several of the healthcare provisions. If the parliamentarian were to advise, “You’re right, we have a problem here,” then Democrats are going to rewrite that part of the bill before the bill gets to the floor.
G: Who is the parliamentarian and what is her role?
SB: She’s the umpire. She is a nonpartisan. She was chosen by the majority leader. Parliamentarians tend to last a long time in their positions — they have managed to survive these very partisan politics by keeping in tact their reputation of these neutral arbiters. They would tell you, if they were able to talk, that their job is to make the budget law work — to keep it as close as possible to the framers who wrote the budget law and it’s current provisions.
Generally, the parties have decided they’re better off with a neutral parliamentarian. The one asterisk: She doesn’t actually make rulings, she just gives advice. She interprets things for the Senate. And the Senate could ignore what she says, but they tend not to. Majorities on both sides have been loath to ignore her. She’s the one who reads the rules, knows the precedents. She’s a source of information and senate history — parliamentary history.
G: Do budget reconciliation bills usually make temporary changes to law, like the Bush and Trump tax cuts?
SB: They can be permanent. Think of what everybody calls COBRA — that was the Consolidated Omnibus Budget Reconciliation Act of 1985. That policy was written into reconciliation. How they paid for it, I don’t know. But details aside, that’s an example of how these bills can make major permanent changes.
So reconciliation does become a source of major policy change. And you can imagine how that might be if you’re actually raising revenues for the government. Like the 1 percent excise tax on stock buybacks that Senate Democrats are proposing — if that goes through, that’s a permanent source of funding, hypothetically. It doesn’t necessarily have to turn into a pumpkin after 10 years.
G: With the 50-vote threshold that’s involved, do budget reconciliations make the Senate function more like the House?
SB: Only to the extent that things can be done by majority rule. But there’s no vote-a-rama in the House because the house has its Rules Committee. The House will set a rule that can be adopted by majority vote, and that will set how much time there will be for the bill. It will likely be a “closed rule,” which doesn’t allow for unlimited amendments. It’s a different kettle of fish than the Senate. There’s some opportunity in the Senate for the Majority Leader to kill debate — but he can’t stop vote-a-rama.
Thanks to Alicia Benjamin for copy editing this article.