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.
Speaking for me only
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