Reconciliation originated with the 1974 Congressional Budget and Impoundment Control Act – initially to facilitate deficit-reduction, by allowing points of order to be called to restrict revenues and spending. In 1975, Russell Long realized that it could be used to limit debate on and restrict amendments to tax legislation from his committee.[1] From 1980, reconciliation bills increasingly included non deficit-reduction items, such as those violating jurisdictions of other committees, increasing spending or reducing revenues.[2]
In 1981, a contested ruling by parliamentarian Bob Dove permitted the new GOP majority to push through a springtime reconciliation bill to cut $35 billion from the budget. That action ran counter to the early design of the Budget Act, which contemplated reconciliation as a year-end process allowed only after Congress adopted a second budget resolution.[3]
On June 22 1981, the Senate agreed with majority leader Baker and minority leader Byrd to strike extraneous matters from S.1377 the year’s Omnibus Reconciliation Act. Baker feared that allowing such extraneous provisions to be included in a reconciliation bill “would evade the letter and spirit of rule XXII” and “create an unacceptable degree of tension between the Budget Act and the remainder of Senate procedures and practice."[4]
The Byrd rule originated on October 24, 1985, when Senator Robert C. Byrd, offered Amendment No. 878 (as modified) to S.1730, the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985. The 1985 reconciliation bill, Byrd argued, included 122 extraneous provisions. He charged reconciliation was a “Pandora’s Box”, and a threat to “the deliberative process in this US Senate”.[5] The Senate adopted the amendment by a vote of 96-0. On December 19, 1985, the Senate adopted a resolution that extended the application of portions of the statutory provision to conference reports and amendments between the two Houses.[6]
On Oct 13, 1989, the Senate adopted an amendment, sponsored by the leadership of both parties, which went further than the Byrd Rule in its definition of extraneousness, and sought to combat the tactical use of reconciliation to restrict debate. Mitchell asserted repeatedly: “The purpose of the reconciliation process is to reduce the deficit.” He argued that “the reconciliation process has in recent years gone awry. The special procedures included in the Budget Act as a way of facilitating deficit reduction items became a magnet to other legislation which is unrelated to the objective of reducing the deficit.” Senator Byrd argued: “A reconciliation bill is a super gag rule, the foremost ever created by this institution. Normal cloture is but an infinite speck on the distant horizon when compared with a reconciliation bill… a super, super, colossally super, gag rule”.[7]
The Byrd rule was formalized as part of the 1990 bipartisan budget deal, and incorporated it into the CBA of 1974 as Section 313 (2 U.S.C. 644).[8]
In 1993, when Clinton and Mitchell wanted to use reconciliation to pass healthcare reform, Byrd declared it out of bounds, and the parliamentarian agreed.[9]
In 1993, the reconciliation process faced its biggest challenge. As the deficit reduction bill headed to conference with the House, Senator Domenici unveiled a list of nearly 200 provisions in the House-passed bill that, he said, would trigger parliamentary objections if they were included in the final version.[10] Representative John Dingell protested that reconciliation “made the Senate parliamentarian more powerful than the Speaker of the House."[11] Dan Rostenkowski fumed after over 80 pages of statutory language with broad bipartisan support were stripped out of a Medicare title.[12] In December 1993, Martin Olav Sabo, chairman of the House Budget Committee complained that the Byrd rule greatly distorted the balance of power between the two bodies and that strict enforcement of the Byrd rule “requires that too much power be delegated to unelected employees of the Congress.” He denounced the bar against including authorizations savings in reconciliation, the forcing of piecemeal legislation, incentives to use counterproductive drafting techniques to mitigate effects, and a bar against provisions achieving savings or promoting efficiency when the Congressional Budget Office was unable to assign particular savings to them. The Joint Committee on the Organization of Congress was directed to make recommendations on changes in the budget process . The 103rd Congress saw 3 bills moved to more clearly delineate the Byrd rules. Yet, none of these managed to pass.[13]
Richard May, Republican staff director of the House Budget Committee during the 1995 budget debate called the Byrd Rule a "very convenient excuse" used by senators who oppose a House-passed proposal. May alleged that "the interpretation of the Byrd Rule would change, depending on what the issue was."[14]
On 21 May 1996, Minority Leader Daschle raised a point of order challenging an attempt by the Republican majority to pass a trio of reconciliation bills, one of which would have cut taxes but would not have contributed to deficit reduction. Democrats were concerned that this was an attempt to use reconciliation to pass legislation that normally would require 60 votes, and that it would establish a precedent that would open the floodgates for the majority to circumvent filibusters on a vast array of legislation. Following the advice of parliamentarian Robert Dove, the presiding officer, James Inhofe (R–OK), rejected the point of order. Daschle appealed the ruling and after extended debate, the chair's ruling was upheld on a strict party-line vote, 53–47.[15] Yet, the upshot of Daschle's maneuver -- bringing a vote on a procedural question – was precisely to cement the precedent (that reconciliation could be used to cut taxes) he was trying to stop. However, in this 1996 debate, Daschle also got the parliamentarian to rule that tax cuts moved under reconciliation protections could not last beyond the time frame of the budget resolution, unless they were offset in some way.[16]
Democrats were furious at Dove – Jim Exon (D-NE), then the Budget Committee's ranking Democrat, arguing: “Today's parliamentarian rules in favor of the people who appointed him.” [17] Dove later had a change of heart and grew to believe that it was inappropriate to use reconciliation to cut taxes.
Republicans have argued that in 1997, reconciliation was used to protect a deficit-reduction package backed by President Bill Clinton that included permanent tax cuts. But Democrats responded that this legislation was a legitimate use of reconciliation because it also called for offsetting tax increases and spending cuts, and because its overall aim was to reduce the deficit.[18]
Budget resolutions for FY2000 and FY2001 were the first to recommend substantial reductions in revenue through the reconciliation process without offsetting savings to be achieved in spending programs. Democrats did not contest the use of reconciliation for tax cut bills in 1999 and 2000.[19] In 2001, Democrats did not challenge the use of reconciliation to pass the first round of President Bush's tax cuts with less than 60 votes, even though parliamentarian Dove had since disavowed his 1996 decision. Democrats believed that Republicans, given their intensity concerning the tax cuts, would again use a ruling from the chair to establish another precedent that would further limit minority rights.[20]
Rick Santorum argued that "the suggestion that you can use reconciliation to raise taxes but not cut taxes doesn't make a whole lot of sense." Robert Byrd argued that this use of the reconciliation process to cut taxes, was an inversion of its original intent – to reduce the deficit.[21] In the 110th Congress, the House and Senate adopted rules changes barring the consideration of legislation under reconciliation that would lead to deficit increases.[22]
[1] Robert Dove at Mar 12, 2010 American Enterprise Institute discussion on "Use of Senate Filibuster" http://www.c-spanvideo.org/program/id/220941 at approximately 0:51:30 to 0:52:30
[2] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[3] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[4] Budget Process Law Annotated – 1993 edition, William Dauster, pp229-246.
[5] 131 Cong. Rec. 28968 (1985), Senate - Thursday, October 24, 1985
[6] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[7] Budget Process Law Annotated – 1993 edition, William Dauster, pp229-246.
[8] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[9] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[10] "Running up against the Byrd Rule", September 4, 1993, Richard E. Cohen, The National Journal, Vol. 25, No. 36; Pg. 2151
[11] "Running up against the Byrd Rule", September 4, 1993, Richard E. Cohen, The National Journal, Vol. 25, No. 36; Pg. 2151
[12] "The Octopus That Might Eat Congress" by David Baumann, The National Journal, May 14, 2005
[13] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[14] "The Octopus That Might Eat Congress" by David Baumann, The National Journal, May 14, 2005
[15] "Legislative Obstructionism," Annual Review of Political Science Vol. 13: 297-319 (May 2010), Gregory Wawro and Eric Shickler.
[16] Parks, Daniel J. "Byrd Seeks a Way to Stop Tax Bill From Passing by Simple Majority Vote." CQ Weekly Online (March 10, 2001)
[17] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[18] Parks, Daniel J. "Byrd Seeks a Way to Stop Tax Bill From Passing by Simple Majority Vote." CQ Weekly Online (March 10, 2001)
[19] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[20] "Legislative Obstructionism," Annual Review of Political Science Vol. 13: 297-319 (May 2010), Gregory Wawro and Eric Shickler.
[21] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[22] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
In 1981, a contested ruling by parliamentarian Bob Dove permitted the new GOP majority to push through a springtime reconciliation bill to cut $35 billion from the budget. That action ran counter to the early design of the Budget Act, which contemplated reconciliation as a year-end process allowed only after Congress adopted a second budget resolution.[3]
On June 22 1981, the Senate agreed with majority leader Baker and minority leader Byrd to strike extraneous matters from S.1377 the year’s Omnibus Reconciliation Act. Baker feared that allowing such extraneous provisions to be included in a reconciliation bill “would evade the letter and spirit of rule XXII” and “create an unacceptable degree of tension between the Budget Act and the remainder of Senate procedures and practice."[4]
The Byrd rule originated on October 24, 1985, when Senator Robert C. Byrd, offered Amendment No. 878 (as modified) to S.1730, the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985. The 1985 reconciliation bill, Byrd argued, included 122 extraneous provisions. He charged reconciliation was a “Pandora’s Box”, and a threat to “the deliberative process in this US Senate”.[5] The Senate adopted the amendment by a vote of 96-0. On December 19, 1985, the Senate adopted a resolution that extended the application of portions of the statutory provision to conference reports and amendments between the two Houses.[6]
On Oct 13, 1989, the Senate adopted an amendment, sponsored by the leadership of both parties, which went further than the Byrd Rule in its definition of extraneousness, and sought to combat the tactical use of reconciliation to restrict debate. Mitchell asserted repeatedly: “The purpose of the reconciliation process is to reduce the deficit.” He argued that “the reconciliation process has in recent years gone awry. The special procedures included in the Budget Act as a way of facilitating deficit reduction items became a magnet to other legislation which is unrelated to the objective of reducing the deficit.” Senator Byrd argued: “A reconciliation bill is a super gag rule, the foremost ever created by this institution. Normal cloture is but an infinite speck on the distant horizon when compared with a reconciliation bill… a super, super, colossally super, gag rule”.[7]
The Byrd rule was formalized as part of the 1990 bipartisan budget deal, and incorporated it into the CBA of 1974 as Section 313 (2 U.S.C. 644).[8]
In 1993, when Clinton and Mitchell wanted to use reconciliation to pass healthcare reform, Byrd declared it out of bounds, and the parliamentarian agreed.[9]
In 1993, the reconciliation process faced its biggest challenge. As the deficit reduction bill headed to conference with the House, Senator Domenici unveiled a list of nearly 200 provisions in the House-passed bill that, he said, would trigger parliamentary objections if they were included in the final version.[10] Representative John Dingell protested that reconciliation “made the Senate parliamentarian more powerful than the Speaker of the House."[11] Dan Rostenkowski fumed after over 80 pages of statutory language with broad bipartisan support were stripped out of a Medicare title.[12] In December 1993, Martin Olav Sabo, chairman of the House Budget Committee complained that the Byrd rule greatly distorted the balance of power between the two bodies and that strict enforcement of the Byrd rule “requires that too much power be delegated to unelected employees of the Congress.” He denounced the bar against including authorizations savings in reconciliation, the forcing of piecemeal legislation, incentives to use counterproductive drafting techniques to mitigate effects, and a bar against provisions achieving savings or promoting efficiency when the Congressional Budget Office was unable to assign particular savings to them. The Joint Committee on the Organization of Congress was directed to make recommendations on changes in the budget process . The 103rd Congress saw 3 bills moved to more clearly delineate the Byrd rules. Yet, none of these managed to pass.[13]
Richard May, Republican staff director of the House Budget Committee during the 1995 budget debate called the Byrd Rule a "very convenient excuse" used by senators who oppose a House-passed proposal. May alleged that "the interpretation of the Byrd Rule would change, depending on what the issue was."[14]
On 21 May 1996, Minority Leader Daschle raised a point of order challenging an attempt by the Republican majority to pass a trio of reconciliation bills, one of which would have cut taxes but would not have contributed to deficit reduction. Democrats were concerned that this was an attempt to use reconciliation to pass legislation that normally would require 60 votes, and that it would establish a precedent that would open the floodgates for the majority to circumvent filibusters on a vast array of legislation. Following the advice of parliamentarian Robert Dove, the presiding officer, James Inhofe (R–OK), rejected the point of order. Daschle appealed the ruling and after extended debate, the chair's ruling was upheld on a strict party-line vote, 53–47.[15] Yet, the upshot of Daschle's maneuver -- bringing a vote on a procedural question – was precisely to cement the precedent (that reconciliation could be used to cut taxes) he was trying to stop. However, in this 1996 debate, Daschle also got the parliamentarian to rule that tax cuts moved under reconciliation protections could not last beyond the time frame of the budget resolution, unless they were offset in some way.[16]
Democrats were furious at Dove – Jim Exon (D-NE), then the Budget Committee's ranking Democrat, arguing: “Today's parliamentarian rules in favor of the people who appointed him.” [17] Dove later had a change of heart and grew to believe that it was inappropriate to use reconciliation to cut taxes.
Republicans have argued that in 1997, reconciliation was used to protect a deficit-reduction package backed by President Bill Clinton that included permanent tax cuts. But Democrats responded that this legislation was a legitimate use of reconciliation because it also called for offsetting tax increases and spending cuts, and because its overall aim was to reduce the deficit.[18]
Budget resolutions for FY2000 and FY2001 were the first to recommend substantial reductions in revenue through the reconciliation process without offsetting savings to be achieved in spending programs. Democrats did not contest the use of reconciliation for tax cut bills in 1999 and 2000.[19] In 2001, Democrats did not challenge the use of reconciliation to pass the first round of President Bush's tax cuts with less than 60 votes, even though parliamentarian Dove had since disavowed his 1996 decision. Democrats believed that Republicans, given their intensity concerning the tax cuts, would again use a ruling from the chair to establish another precedent that would further limit minority rights.[20]
Rick Santorum argued that "the suggestion that you can use reconciliation to raise taxes but not cut taxes doesn't make a whole lot of sense." Robert Byrd argued that this use of the reconciliation process to cut taxes, was an inversion of its original intent – to reduce the deficit.[21] In the 110th Congress, the House and Senate adopted rules changes barring the consideration of legislation under reconciliation that would lead to deficit increases.[22]
[1] Robert Dove at Mar 12, 2010 American Enterprise Institute discussion on "Use of Senate Filibuster" http://www.c-spanvideo.org/program/id/220941 at approximately 0:51:30 to 0:52:30
[2] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[3] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[4] Budget Process Law Annotated – 1993 edition, William Dauster, pp229-246.
[5] 131 Cong. Rec. 28968 (1985), Senate - Thursday, October 24, 1985
[6] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[7] Budget Process Law Annotated – 1993 edition, William Dauster, pp229-246.
[8] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[9] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[10] "Running up against the Byrd Rule", September 4, 1993, Richard E. Cohen, The National Journal, Vol. 25, No. 36; Pg. 2151
[11] "Running up against the Byrd Rule", September 4, 1993, Richard E. Cohen, The National Journal, Vol. 25, No. 36; Pg. 2151
[12] "The Octopus That Might Eat Congress" by David Baumann, The National Journal, May 14, 2005
[13] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
[14] "The Octopus That Might Eat Congress" by David Baumann, The National Journal, May 14, 2005
[15] "Legislative Obstructionism," Annual Review of Political Science Vol. 13: 297-319 (May 2010), Gregory Wawro and Eric Shickler.
[16] Parks, Daniel J. "Byrd Seeks a Way to Stop Tax Bill From Passing by Simple Majority Vote." CQ Weekly Online (March 10, 2001)
[17] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[18] Parks, Daniel J. "Byrd Seeks a Way to Stop Tax Bill From Passing by Simple Majority Vote." CQ Weekly Online (March 10, 2001)
[19] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[20] "Legislative Obstructionism," Annual Review of Political Science Vol. 13: 297-319 (May 2010), Gregory Wawro and Eric Shickler.
[21] Taylor, Andrew. "Law Designed for Curbing Deficits Becomes GOP Tool for Cutting Taxes." CQ Weekly Online (April 7, 2001): 770-770.
[22] "The Budget Reconciliation Process: The Senate’s 'Byrd Rule'", Robert Keith, CRS Report to Congress, 20 March 2008. http://budget.house.gov/crs-reports/RL30862.pdf
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