Senator Robert Byrd of West Virginia would have been one hundred years old today, so it seems like a good time to look back on his career and think about how he is still relevant in our present era. Ira Shapiro has done that in an excellent piece that traces Byrd from his 1917 birth in South Carolina to his death in 2010. As part of that article, Shapiro has a lengthy exploration of the Byrd Rule which I won’t try to replicate here. What’s more important is to understand why the rule became necessary, and Shapiro explains that in an admirably concise manner:
Byrd’s belief in process and procedure was also why he was a key player in producing and enacting the Budget Control and Impoundment Act of 1974. He recognized that if Congress could not produce an overall budget, it would inevitably cede power to the executive branch. He was willing to tolerate a Budget Act that established procedures that were an exception to the normal Senate rules. But when Byrd saw the reconciliation procedure being abused by the Reagan administration, he moved quickly to limit the use of reconciliation by ensuring that it could only be used for budget purposes and not for “extraneous” matters.
That little paragraph makes it easy to see both why the Trump administration and the Republican congressional leadership have pursued the budget reconciliation process to repeal Obamacare and enact tax reform and why they have found the effort so vexatious. As the Senate became more polarized by party in the 1970’s, it became necessary to relax Senate rules to assure that some agreement on a budget could be achieved, because without any agreement on spending priorities, the administration would be forced or enabled to make those decisions unilaterally. As a result, the filibuster was eliminated for budget bills. Of course, this was immediately exploited by senators who saw their goals thwarted by the need to win a supermajority of votes and things were attached to the budget reconciliation bills that could not have passed during regular order.
Byrd’s solution was to empower the parliamentarian to strike things from reconciliation bills that had no obvious budgetary impact. He also found a way to cut down on shenanigans, like building out legislation that looks affordable in the short term but comes with giant balloon payments down the line. He did this by making sure that budget bills had to balance after ten years. Of course, accomplishing these things through rule-writing may sound easy but it actually required a large amount of intelligence and imagination. Byrd had both in abundance, but even he couldn’t anticipate every way in which the rules could be bent to violate the spirit of what he was trying to achieve.
I have written almost incessantly this year about the novel dual-budget reconciliation process the Republicans devised to push Trump’s legislative agenda on health care and taxes. The shortest formulation of this is that McConnell and Ryan took advantage of the fact that they created a budget reconciliation bill last year but never used it. In the end, a deal on spending was struck with the outgoing Obama administration which left an empty shell of a reconciliation bill that was then repurposed for eliminating Obamacare.
That this gambit was used at all is a legacy of Byrd’s work on the Budget Control and Impoundment Act of 1974 and his subsequent rule for limiting how that process could be hijacked. In this sense, Byrd both enabled the abuse and hamstrung those that attempted to carry it out.
Understanding this is mindbendingly complex, but bear with me.
The first key is that there is a limitation on the budget reconciliation process that says that there can be a maximum of three such regular order-exempt bills per year. One bill can deal with extending the debt ceiling and isn’t relevant here. One bill can deal with revenues and one bill can deal with expenses. Both health care and tax policy inevitably involve both revenues and spending, so what winds up happening is that the Senate can really only do one of these types of bills in any given fiscal year. That would ordinarily mean that if the Senate wanted to bypass the filibuster to repeal Obamacare and do tax cuts, they’d have to combine all of it into a single budget reconciliation bill.
You can thank Senator Byrd for creating that constraint, but Paul and McConnell sought to get around it by using last year’s unused bill to repeal Obamacare and then following that up by creating a second budget bill for taxes. You can’t actually have two separate budgets for a single fiscal year, and Byrd hadn’t anticipated that anyone would try something so brazenly dishonest.
It was imaginative on the Republican leaders’ part, but it presented some immediate hurdles. For starters, the Republicans could only use last year’s shell of a bill so long as they didn’t pass a new superseding budget. That meant that they needed to do Obamacare repeal very fast because otherwise this year’s budget work would be delayed. It also created an absolute deadline because, as the parliamentarian eventually ruled, once the fiscal year ended on September 30th, 2017, the opportunity to use last year’s budget would end, too.
Once they started their hasty work on Obamacare repeal, the Republicans quickly discovered another land mine Sen. Byrd had left for them. The Byrd Rule defines what is and is not germane to reconciliation bills and gives the parliamentarian the ultimate power to enforce those standards. This created a limitation on what kind of horse trading could be done to win over reluctant supporters of their health care reform efforts. Two clear examples of this were Senator Ted Cruz’s desire to offer cheap substandard catastrophic plans and Senator Rand Paul’s insistence that state regulators get cut out so that plans can be sold across state lines. Neither proposal met the germaneness standard. Less obviously, the rules did not allow old-fashioned pork barrel incentives like bridges or money for pet research projects to be used as incentives. These restrictions ultimately doomed the Republicans’ efforts to round up the fifty votes they needed for Obamacare repeal.
Another complication arose from the need to score the bills. The Congressional Budget Office has to score budget reconciliation bills because of requirements that Senator Byrd put in place. For example, someone must decide if provisions of the bills will lower revenue or increase spending, both within and beyond a ten-year window. In cases where there’s some ambiguity and the CBO hasn’t made a determination, the parliamentarian is authorized to make a judgment. Taken together, these two rules create a de facto requirement that the CBO be consulted. Of course, both the desperate skinny repeal effort and the last-second Graham-Cassidy hail mary were accompanied by devastating CBO scores that cratered any chance they had. When September 30th came and went, the Obamacare repeal effort was well and truly dead.
As I’ve already mentioned, the new budget process could not really begin until the health care process was completed. As a result, the tax reform was delayed. The House only recently completed their work on a budget and then rushed through a tax bill that has support from about twenty percent of the public. The Senate will take up their tax bill after the Thanksgiving break.
They will again be constrained in what kind of horse-trading they can do to win over wavering members. The Byrd Rule limitations on adding to the long term deficit are forcing the Senate to sunset tax cuts for ordinary citizens after ten years in order to have the money they need to enact permanent corporate tax cuts, and this is making their legislation politically untenable. As they try to sell their tax plan with pie-in-the-sky projections of economic growth based on “dynamic scoring,” they are having to face the countermessaging of a comparatively objective Congressional Budget Office that projects a massive increase in debt.
There are two ways to look at all of this. On the one hand, Senator Byrd would be deeply offended by what the Republicans are and have been attempting to do, as he spent much of his career trying to prevent the Senate from operating this way. But he inadvertently created the process that they’ve been trying to exploit. On the other hand, as imperfect as his design has proved to be, the obstacles he put in the Republicans’ path have so far worked to prevent them from achieving their aims.
So, on what would have been his one hundredth birthday, we have plenty of reason to think about his legacy and to thank him for his service.
