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Understanding The Byrd Rule

I saw this Time article on reconciliation and the Byrd rule linked in a blog. It is riddled with errors. The most important seemed to me to be a fundamental misunderstanding of the Byrd Rule. The Time article states:

Republicans would invoke the Byrd rule which would require a 60-vote majority to overcome every five minutes, forcing Dems to pare down the bill and pass something much, much less ambitious. It took weeks to get a cloture vote to start the debate -- imagine how long it'd take to get the 2,074-page bill through God knows how many Byrd rule objections -- even if everyone proves to be germane.

The error is glaring and rather amazing. If in fact, every Byrd Rule point of order was subject to a cloture vote, there would be no point to reconciliation at all. And of course, Time gets it utterly wrong. In the very link Time provides, this is demonstrated to be so:

The definition of what constitutes "extraneous matter" is set forth in the Budget Act; however, the term remains subject to considerable interpretation by the presiding officer (who relies on the Senate Parliamentarian). The Byrd rule is enforced when a Senator raises a point of order during consideration of a reconciliation bill or conference report. If the point of order is sustained, the offending title, provision or amendment is deemed stricken unless its proponent can muster a 3/5 (60) Senate majority vote to waive the rule.

(Emphasis supplied.) In order to sustain a point of order, a majority of the Senate must vote to sustain. Not 60 votes. 51 votes (with the Vice President voting in case of a tie.) This is old news by the way. This was discussed ad nauseum during the Nuclear Option for judicial filibuster battles in 2005.

If the point of order is not sustained, then that's that. If the point of order is sustained, an amendment to waive the Byrd Rule for the provision in question would need 60 votes for cloture on the question.

The idea of reconciliation is to avoid the 60 vote requirement. Consistent with this, a point of order is decided by a majority vote.

There are other errors in the Time piece, but it remains a hectic day for me. But I wanted to point this out because in the following days, the Media, Village Wonks, bloggers and anti-PO commenters will fill the air waves and the blogs with an avalanche of misinformation. This is but one example.

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    The level of FUD out there about reconciliation (none / 0) (#1)
    by andgarden on Tue Nov 24, 2009 at 12:41:14 PM EST
    really makes me wonder.

    Next Congress the Senate needs to start from scratch on its rules. If the Republicans win it back (an outside possibility) so much the better.

    Perhaps (none / 0) (#4)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:05:26 PM EST
    But this is a stupid error by Time.

    Parent
    What else is new? (none / 0) (#8)
    by andgarden on Tue Nov 24, 2009 at 01:09:59 PM EST
    Anyone really interested in this stuff can find two pretty good CRS reports on the subject (RL32684 and RL32149).

    Parent
    You know (none / 0) (#11)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:12:08 PM EST
    it is pretty simple imo.

    Parent
    The Segregationists spent years (none / 0) (#14)
    by andgarden on Tue Nov 24, 2009 at 01:14:36 PM EST
    setting and imagining traps in the Senate rules. But of course as I say below, it's as simple as the majority wants it to be.

    Parent
    That's the bottom line (none / 0) (#16)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:15:06 PM EST
    Those two reports are about (none / 0) (#20)
    by oculus on Tue Nov 24, 2009 at 01:32:12 PM EST
    nominations submitted by the President.  This one is about budget reconciliation, but only through 2008.  link

    But what are the budget reconciliation rules for this Congress?  

    Parent

    It's a distinction without a difference (none / 0) (#22)
    by andgarden on Tue Nov 24, 2009 at 01:37:03 PM EST
    This is all about how you establish majority rule in the Senate.

    Parent
    Have fun, you three. (none / 0) (#23)
    by oculus on Tue Nov 24, 2009 at 02:23:28 PM EST
    The rule is simple (none / 0) (#26)
    by Big Tent Democrat on Tue Nov 24, 2009 at 02:37:11 PM EST
    Reconciliation instructions were issued already.

    The relevant committees have deliver bills compliant with those instruction.

    If reconciliation is invoked, the bills are submitted to the respective Budget Committees and merged. They are then trimmed of provisions that are believed to not conform to the Byrd Rule.

    The "regulatory" part of HCR would likely go.

    The public option, Medicaid expansion, mandates (the tax portion makes it budget germane) and even the Exchanges would survive.

    The Medicare Commission stuff would probably survive.

    The rule of thumb is "what is budget germane?"

    Do not let anyone tell you this is complicated. It is not.  

    Parent

    Thank you. Where may I find the (none / 0) (#28)
    by oculus on Tue Nov 24, 2009 at 02:41:09 PM EST
    already-issued reconciliation instructions?  I've searched but haven't located.

    Also, who decides whether the House and Senate bills go to reconciliation?  Just the Speaker and the Senate majority leader?  (Reid sd. he won't go that route, but who else gets to decide?)  

    Parent

    Getting warmer. (none / 0) (#31)
    by oculus on Tue Nov 24, 2009 at 02:52:29 PM EST
    FWIW, it's a blog post (none / 0) (#29)
    by gyrfalcon on Tue Nov 24, 2009 at 02:41:41 PM EST
    not a Time article per se, and therefore not subject to the considerably more rigorous editing and fact-checking that pieces in the actual magazine usually get (not that they're perfect by any means.)

    I knew who the writer was the minute I read your first words.  Jay Newton-Small is a proven idiot who gets just about everything wrong it's possible to get wrong, both on facts and "analysis."

    Your main point is surely correct.  Few, if any, of these dopes will even bother to try to figure out the Byrd rule, reconciliation and the rest of the procedures.  It'll be just a splatter-mess all over the MSM.

    Parent

    Isn't the point of order (none / 0) (#2)
    by Steve M on Tue Nov 24, 2009 at 01:01:16 PM EST
    ruled on by the chair in the first instance (with the advice of the parliamentarian, or not, as he chooses), and only then subject to appeal via floor vote?  Maybe it all comes out the same way (or not, if the "appeal" can be filibustered), but doesn't the presiding officer ordinarily make a ruling, as opposed to just saying "let's vote on it"?

    Correct (none / 0) (#3)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:05:05 PM EST
    But I assume Time's construct that the GOP will seek a floor vote.

    The vote on a point of order requires a simple majority to determine its outcome. It does not get adopted with 41 votes. It takes 51 votes.

    This was all discussed during the Nuclear Option days.

    The ignorance and stupidity of the Media never fails to astound.

    Parent

    Dems move to table the appeal (none / 0) (#10)
    by andgarden on Tue Nov 24, 2009 at 01:11:41 PM EST
    which also might be subject to unlimited debate. . .

    Parent
    Nah (none / 0) (#13)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:13:44 PM EST
    I think once there is a ruling on the point of order and you put it to a vote, that's that.

    Parent
    Well, there's an advantage to the motion to table (none / 0) (#17)
    by andgarden on Tue Nov 24, 2009 at 01:15:53 PM EST
    often employed in legislative bodies: you let your legislators be one step removed from the substance of the ruling.

    Parent
    steve m, now that Franken is safely (none / 0) (#5)
    by oculus on Tue Nov 24, 2009 at 01:06:38 PM EST
    sworn in, how about a diary about the procedure from here on out re reconciliation?  We are supposed to know this stuff already, but I don't.
    OK to link to kagro x.
    Thanks.

    Your grateful admirer

    Parent

    The call for a vote (none / 0) (#6)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:07:26 PM EST
    on a point of order can, under one theory, be filibustered. But that detracts from Time's argument. To wit, to even "filibuster" a provision, as Time would have it, the GOP would have to defeat a Dem filibuster of the GOP filibuster.  

    Parent
    Right (none / 0) (#18)
    by Steve M on Tue Nov 24, 2009 at 01:25:20 PM EST
    You definitely don't need 60 votes to overcome this Byrd Rule issue.  But with a friendly presiding officer you might only need 41!  It sounds like you and I are in complete agreement on the procedural context.

    Another popular meme in the media is that it supposedly all hinges on the decision of the Parliamentarian.  Procedurally this is simply false: the presiding officer makes the only ruling that counts, the official role of the parliamentarian is advisory at most.  But in the real world I think it's simply not the case that the Democrats are losing sleep at night, sweating bullets over the question of what the delphic Parliamentarian might do.  The reconciliation instruction for this year was written with health care in mind.  I'm pretty sure the Senate leadership has a very good idea of what is kosher to get through reconciliation and what is not.

    I think, by the way, that even if the polling on health care is mixed, the filibuster is not faring very well in the court of public opinion right now.  This unwritten requirement that you need 60 votes for everything is starting to get people to say "huh?"

    Parent

    I made that point about the Parliamentarian (none / 0) (#19)
    by andgarden on Tue Nov 24, 2009 at 01:28:43 PM EST
    months ago, as did others. What people fail to recognize is that the Senate is not only responsible for writing its own rules; it is also responsible for enforcing them.

    Parent
    LInk please: (none / 0) (#21)
    by oculus on Tue Nov 24, 2009 at 01:34:57 PM EST
    The reconciliation instruction for this year was written with health care in mind.  


    Parent
    I think, in principle, that the presiding officer (none / 0) (#7)
    by andgarden on Tue Nov 24, 2009 at 01:08:46 PM EST
    could even refuse to entertain the point of order.

    Parent
    Not call a vote? (none / 0) (#9)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:11:31 PM EST
    I suppose.

    Here's the thing, you could actually get the whole HCR bill passed through reconciliation if 51 are willing to ignore the Byrd Rule by voting down all points of order.

    Now THAT would be a nuclear option.

    Parent

    Correct (none / 0) (#12)
    by andgarden on Tue Nov 24, 2009 at 01:12:55 PM EST
    The point has been made previously, but the Senate majority is obviously free to do whatever it wants at any time. If it supposedly breaks its own rules, so what? There is no appeal.

    Parent
    Sure (none / 0) (#15)
    by Big Tent Democrat on Tue Nov 24, 2009 at 01:14:39 PM EST
    But I kind of like the idea of pretending to follow the rules while breaking them.

    Parent
    I think doing that would give Robert Byrd (none / 0) (#33)
    by pontificator on Tue Nov 24, 2009 at 03:22:55 PM EST
    a heart attack, and then we would be back to 59 Dems in the Senate.

    This is an excellent post, by the way.  There's very little good analysis in either the MSM or the blogs on how reconciliation would work, so I appreciate it.

    Parent

    A Byrd party switch? (none / 0) (#35)
    by andgarden on Tue Nov 24, 2009 at 03:30:54 PM EST
    I seriously doubt it. And of course if he had a real heart attack, we still wouldn't have a problem.

    Parent
    Would there even be 50+VP for reconciliation? (none / 0) (#24)
    by steviez314 on Tue Nov 24, 2009 at 02:26:00 PM EST
    How many "moderate" senators would we lose just by nature of going that route?

    I think Byrd might vote NO on the bill as a matter of procedural pride.  What about Webb and maybe some others?  

    I'd love to see a whip count of those who are YES votes, no matter how it's brought to the floor.

    I have addressed the point before (none / 0) (#25)
    by Big Tent Democrat on Tue Nov 24, 2009 at 02:33:42 PM EST
    In theory, there are sufficient votes. (Remember you can lose 10 Dem Senators.)

    In practice? I am not sure.

    But my view is that there are 2 ways to go here - 1 is trying reconciliation - the other is giving up the "reform" (no mandates) and switch to understanding this is just an assistance bill.

    Indeed, I would just push the Medicaid eligibility up higher and forget about the subsidies to avoid the Stupak problem.

    I have no objections to the "regulations" that Village Wonks are so enamored with.I do not think they mean a hill of beans though.

    Parent

    Medicare for all or most (none / 0) (#27)
    by MKS on Tue Nov 24, 2009 at 02:40:39 PM EST
    That would be a budget item--reconciliation would clearly apply....

    Parent
    If we go to reconciliation, we've already lost (none / 0) (#30)
    by steviez314 on Tue Nov 24, 2009 at 02:42:40 PM EST
    4 senators, so it's only 6 more.  I think we might lose a few but not 7.

    We;ve discussed the other issues before, but I wish you wouldn't so dismiss them.  For example, I am lucky enough to afford insurance (and even probably pay more than I am now), but I still dread every envelope I get from the insurance company, thinking they might be recinding the policy or that we might be at the lifetime limit (due to my wife's illness and treatment).  A regulation not allowing that IS helpful.

    Also, since we get the insurance through our small business (2 people), I would love the ability to shop in an exchange and combine with other small businesses to get cheaper large-group rates.

    Believe me, I want the public option, but I also value many of the other items in the bill.

    Parent

    If Obama and leadership go for reconciliation (none / 0) (#32)
    by magster on Tue Nov 24, 2009 at 02:53:04 PM EST
    There won't be many more than the 4 who already exist to stand in the way of the party, IMO.

    Parent
    We will definitely lose Robert Byrd himself (none / 0) (#34)
    by pontificator on Tue Nov 24, 2009 at 03:24:43 PM EST
    Ibelieve he's said as much, although I'm having trouble finding the link.

    Parent