(Editor's Note: This piece first appeared in the Washington Examiner on November 29, 2017.)
This week’s rush by Republicans to pass tax reform reveals the limits of majority rule in the Senate.
Early in the year, Republicans decided to use the special budget process known as reconciliation to pass their tax bill in anticipation of Democratic obstruction. They did so because reconciliation bills cannot be filibustered. The support of a simple majority of senators is all that’s needed to overcome any effort to delay an up-or-down vote on final passage.
This feature of the reconciliation process is the most well-known, given the tendency common today to view Senate dysfunction solely through the lens of minority obstruction. From this perspective, reconciliation offers the majority party a way to pass its agenda over the objections of the minority party.
But this is a simplistic view of the legislative dynamics inherent in reconciliation. It overlooks other features of the process that complicate the majority’s efforts to pass tax reform and exacerbate the Senate’s underlying problems.
Created in 1974, the reconciliation process was designed by Congress to facilitate the alignment of current revenue and spending levels with those established in the annual budget resolution. To expedite the effort in the Senate, debate time on such measures was limited to 20 hours. Yet doing so led senators to see reconciliation bills as vehicles to which they could attach policies unrelated to the federal budget that would otherwise be subject to a filibuster.
The Senate adopted the so-called Byrd Rule in the mid-1980s to stop reconciliation from being used to circumvent the filibuster for non-budgetary matters. Made permanent in 1990, this rule prohibits amendments that would add extraneous material to a reconciliation bill. A provision is deemed extraneous if it meets one of six tests. In the context of tax reform, the most relevant tests are those prohibiting the inclusion of provisions that are not in the Finance Committee’s jurisdiction, do not change spending or revenue levels, or that cause deficits to increase in the out-years.
Under the Byrd Rule, a senator may raise a point of order against any provision in a reconciliation bill (or a pending amendment) on the basis that it is extraneous. If the Senate’s presiding officer sustains the point of order, the targeted provision is stricken from the bill (or the amendment). A senator may waive the point of order before the presiding officer rules so long as three-fifths of the Senate (typically 60 members) agrees to do so. The Byrd Rule thus limits what a Senate majority can pass using the reconciliation process.
Together, these features of the reconciliation process (expedited debate and amendment restrictions) complicate significantly the Republicans’ effort to pass tax reform. For starters, 20 hours does not give GOP leaders much time to reconcile member concerns regarding Obamacare’s individual mandate, pass-through income, state and local tax deductions, and the deficit. To put things in perspective, 20 hours would allow each member just 12 minutes to speak on the Senate floor if all 100 of them participate in the debate.
Further complicating matters is the fact that the 20-hour clock starts winding down as soon as the Senate votes to proceed to the tax bill. Once commenced, a final passage vote will occur at the end of debate time, regardless of whether Republicans have the votes to prevail. The only way Republicans can avoid defeat is to pivot to something else on the Senate’s agenda. However, pivoting does not solve the GOP’s time problem because it does not reset the 20-hour clock. Instead, the countdown resumes where the Senate left off when the debate starts again in the future. But at that point, Republicans will have even less time than they did on their first try.
Senators are slightly better off when it comes to amendments. This is because they can continue to offer amendments after the 20-hour debate time expires during a period known as a vote-a-rama. Even so, a vote-a-rama is not an ideal environment in which to weigh rationally the pros and cons of various tax policy changes. Absent unanimous consent, votes are triggered immediately after an amendment is offered, leading most amendments to be rejected simply for lack of familiarity with their provisions.
The Byrd Rule’s restrictions on extraneous provisions makes it harder for senators to amend the underlying legislation. While the Byrd Rule applies to all senators, it advantages the party and committee leaders over the rank-and-file. Determining whether an amendment is subject to a Byrd Rule point of order usually requires a score from the Congressional Budget Office or Joint Committee on Taxation. But those scores take time and are practically impossible for rank-and-file senators to get during vote-a-rama. Absent such information, it is practically impossible for senators to demonstrate that their amendments are Byrd-compliant and thus eligible for inclusion in the underlying legislation.
Reconciliation’s debate limits and amendment restrictions impede the natural rhythm of the legislative process in the Senate and drive decisionmaking behind closed doors to informal meetings held under the auspices of the party leaders. In such an environment, the act of persuading reluctant members to support the legislation assumes a different character.
Under ordinary circumstances, a deliberative and inclusive process helps reconcile member concerns with the underlying legislation to produce the votes necessary for passage. This is because the willingness of senators to torpedo a bill declines as it progresses through the legislative process if that process provides them with the opportunity to debate and offer amendments addressing their concerns. Such a process allows senators to justify their support for the overall package despite their opposition to specific provisions.
In contrast, using the reconciliation process to pass an imperfect bill negotiated behind closed doors does not allow for the kind of fluid process that’s sometimes needed to foster legislative compromise on controversial issues. That takes time and requires that senators feel that their amendments received a fair hearing on the floor. Reconciliation’s tight schedule and amendment restrictions preclude both. For these reasons, members may find it easier to oppose a reconciliation bill.
On paper, the reconciliation process makes it possible for a majority to overcome minority obstruction. In reality, it also makes the Republicans’ task that much harder.