National Review
Democrats flirt with the destruction of another Senate guardrail
Senate Democrats, considering the destruction of another set of Senate rules, may want to hear the words of English lawyer and Chancellor Sir Thomas More to his son-in-law centuries ago: And when the last law was passed and the Devil turned on you – where would you hide, Roper, all the laws being flat? Then-Senator Harry Reid started this modern cut of the rules in 2013. He used the “nuclear option” to lower the vote limit for confirmation in order to stack the DC Circuit Court of Appeals. Senator Mitch McConnell escalated using the same standard to confirm the nominees for the Supreme Court. While majority leader Chuck Schumer plays with the idea of blowing up legislative obstruction as well, he is potentially about to unravel another important – albeit less well-known – Senate rule in pursuit of a comprehensive COVID relief bill under the terms of “Budget Reconciliation”. We are talking about the Byrd Rule (in honor of the late Senator Robert Byrd), which limits the majority’s ability to insert irrelevant legislative assets into budget-related proposals and still approve them with a simple majority vote in that process. Senator Byrd saw the danger of using reconciliation, which limits amendments and debates, to seek broader, non-budgetary legislation outside the regular order. As an advocate for the right of all senators to debate and amend legislation, he linked these restrictions to the reconciliation process. This is for a greater good: the Byrd Rule protects Social Security from the reconciliation process, for example, while limiting committees to proposals in its jurisdiction and requires that the budget relevance of any proposal considered under this process be more than “merely incidental”. What that means is that major changes in legislative policy can be made only when all senators have the right to fully debate and amend the legislation – and to obstruct it. Reconciliation, otherwise, “streamlines” this process at the expense of the minority. Today, fueled by anger and revenge, Senate leaders don’t care about the reasons behind the rules; they just want to pass their legislation as soon as possible. Most of the attention in recent weeks has been on the $ 15 minimum wage contained in the COVID relief package. This hardly meets the reconciliation standard alone, but there will be further violations of Byrd’s rule in the bill that the House will send to the Senate. That is why Senate Democrats can aim to break the glass in Senate rules. As described by parliamentary expert Martin Gold, there are two ways to achieve this. First, there is the most targeted attack on Byrd’s Rule. Let’s say that Vice President Harris is in the presidency when a senator raises a point of order against, for example, the minimum wage increase. The Senate parliamentarian informs her that this specific section of the reconciliation bill is out of order. Despite all the evidence and precedent that the section is out of order, the VP decides otherwise. Now, the section needs only a simple majority to pass. However, if a senator who supports Byrd’s rule challenges the chair’s decision, a 60-vote majority will be required to override Harris. This is a high barrier. So here, the president’s decision, which would likely remain, changes the precedent so that any other item of the bill that violates Byrd’s rule can be considered acceptable under the new standard set by the vice president. Republicans would have loved this when they were trying to get rid of the Affordable Care Act, but they respected Senate rules that protect minority rights. This limited and surgical attack on Byrd’s Rule would still disturb the precedent forever. In the meantime, there is a broader attack that can be implemented. In this scenario, the majority leader comes to the table and says that renouncing Byrd’s Rule requires only simple majority voting. It is clear from the rules and precedents that this is false. If the chair decides that it takes 60 votes to waive the Byrd Rule, the majority leader then appeals to the chair’s decision, which requires a simple majority vote to revoke. Bingo – the protections of the Byrd Rule have died, and now a simple majority vote is enough to place any legislative proposal that the majority wants in the budgetary reconciliation project, bypassing the legitimate debate and amendments. The outcome of this action would threaten any rule in the Senate. If at any time the majority wants to get rid of any rules, all they will have to do is appeal the decision of the table and gather a simple majority – silencing the opposition and forcing their will on the American people. Once upon a time, the United States Senate was considered the largest deliberative body in the world. As Thomas Jefferson predicted, there were rules that protected the minority and allowed for full debate. Unfortunately, it seems that the current Senate majority cares little about the precedents that gave the US Senate that title. But some caution on your part may be a well-advised self-interest; tables are known to change. Editor’s Note: This piece has been updated with a corrected version of the quote attributed to Sir Thomas More.