The History of Reconciliation and the Byrd Rule

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

Mallock on the value of Labor

"Labor is the industrial exertion of a single man on some single piece of work, and on that single piece of work only, no matter what this may be—the carrying of a sack or the wheeling of a barrow, which requires no training at all; or the finishing of a chronometer, which requires the training of half a life-time. Ability is the industrial exertion of a single man, which affects simultaneously the labor of many men, multiplying or improving the results of it in each case."

(from "Who Are the Chief Wealth Producers" by W.H. Mallock.  in The North American Review, June 1893, p.653)

Bagehot on Conservatism

"The essence of Toryism is enjoyment. Talk of the ways of spreading a wholesome Conservatism throughout this country: give painful lectures, distribute weary tracts (and perhaps this is as well—you may be able to give an argumentative answer to a few objections, you may diffuse a distinct notion of the dignified dulness of politics); but as far as communicating and establishing your creed are concerned—try a little pleasure. The way to keep up old customs is, to enjoy old customs; the way to be satisfied with the present state of things is, to enjoy that state of things. Over the "Cavalier" mind this world passes with a thrill of delight; there is an exultation in a daily event, zest in the "regular thing," joy at an old feast. Sir Walter Scott is an example of this. Every habit and practice of old Scotland was inseparably in his mind associated with genial enjoyment. To propose to touch one of her institutions, to abolish one of those practices, was to touch a personal pleasure —a point on which his mind reposed, a thing of memory and hope. So long as this world is this world, will a buoyant life be the proper source of an animated Conservatism."

(From "Mr. Macaulay", p422 in Estimates of some Englishmen and Scotchmen, by Walter Bagehot)

James Fitzjames Stephen on democracy

The main thrust of Jame Fitzjames Stephen's book, Liberty, Equality, Fraternity, was a critique of John Stuart Mill's views from the position of orthodox Utilitarianism.  But Stephen's own views shifted markedly from the orthodox Benthamite position over time.  In March 1867, contemplating the Reform Act being considered by Parliament, he wrote:

"Our case is that the interests of all classes are substantially identical; that the existence of masses of wealth is essential to the employment of labour, and that realized capital forms the fund by which labour is supported and want relieved; that the existence of a large class which has leisure enough to learn to think, to insist upon all that we mean by refinement, and into which any one may by industry and good conduct earn an entrance for himself and his family, is essential not merely as a stimulus to industry, but for the purpose of conducting public business; and these facts, we further say, are as well known to the poor as to the rich, and as little likely to be forgotten or undervalued by them. They are and ought to be regarded as the natural friends and supporters of wealth and education, the willing and intelligent critics and followers of those who possess them. In a word, we regard the whole nation as an organized body, capable, to use Milton’s splendid language, "of the greatest designs that can be attempted to make a church or kingdom happy." Taking this view, it appears to us undignified, cowardly, and narrow-minded in the extreme for the upper classes to be looking out for substitutes for rotten boroughs, and to be admitting that they are altogether incompetent to the task of leading, persuading, and heading a majority. The justification, and the only possible justification, for their existence is that they are the natural leaders of the nation, the natural friends, instructors, and representatives of the poor. They are the officers of the regiment freely chosen by the men, who, as a matter of fact, actually do, and from the nature of things must, have in their hands the final and unquestionable sanction of physical force. Let them try to fill this position worthily, let them, really believe and act on the belief that they are not a privileged minority, but the natural leaders of the majority, and they will find their whole position infinitely strengthened and improved. They will be what they are and always have been, but their power will be held by a more secure tenure, and will rest on a broader basis. What they have to do is to lead the majority, not to admit themselves to form a minority. If they take the first course, they will constitute a natural aristocracy. If they take the second, they will degenerate into a paltry and narrow-minded clique. Nothing is so narrow, so bigoted, so essentially inaccessible to reason as a minority artificially invested with political power."

Leslie Stephen believed his brother "a good deal corrupted by old Carlyle."  Indeed, a few months after this piece was published, contemplating an article Thomas Carlyle on the topic, the tone of his views appear to have shifted substantially.

"The point on which we should be most inclined to agree with Mr. Carlyle is the unfitness of the bulk of the population and of any Government representing them for carrying out arduous schemes in the teeth of difficulties and in spite of opposition by systematic and careful legislation. The essence of legislation by a majority of the whole nation is to let people do as they like as much as possible, and to take a minimum of trouble. Such a democracy as we should have in England would have very little faith in legislation. They would simply turn their backs upon the devices for improving and governing the world which require constant adjustment and elaborate care, and the thing to apprehend would be that, after getting their elbows entirely free, they would settle down in a stolid, rather sluttish condition of ease and indifference. It may well be the destiny of the British empire under its new rulers to dwindle down by degrees to the condition of a larger Holland, prosperous and insignificant."

Yet, at an analytic level, Fitzjames Stephen was consistent in the Tocquevillian belief that: "Democracy is not a form of government, but a state of society" -- arguing that:

"The real importance of Reform Bills and other constitutional changes in countries in which the broad principles of legal government and equal legal rights are fully recognized, consists not in the fact that they alter its distribution of political power, but in the fact that they render its working safe and regular, and provide a legal channel for its exercise."

Utilitarianism and Moderation

"I cannot help persuading myself, that the disputes between contending parties between the defenders of a law and the opposers of it, would stand a much better chance of being adjusted than at present were they but explicitly and constantly referred at once to the principle of UTILITY. The footing on which this principle rests every dispute, is that of matter of fact; that is, future fact the probability of certain future contingencies. Were the debate then conducted under the auspices of this principle, one of two things would happen: either men would come to an agreement concerning that probability, or they would see at length, after due discussion of the real grounds of the dispute, that no agreement was to be hoped for. They would at any rate see clearly and explicitly, the point on which the disagreement turned. The discontented party would then take their resolution to resist or to submit, upon just grounds, according as it should appear to them worth their while according to what should appear to them, the importance of the matter in dispute according to what should appear to them the probability or improbability of success according, in short, as the mischiefs of submission should appear to bear a less, or a greater ratio to the mischiefs of resistance. But the door to reconcilement would be much more open, when they saw that it might be not a mere affair of passion, but a difference of judgment, and that, for any thing they could know to the contrary, a sincere one, that was the ground of quarrel.
...
The question is now manifestly a question of conjecture concerning so many future contingent matters of fact: to solve it, both parties then are naturally directed to support their respective persuasions by the only evidence the nature of the case admits of; the evidence of such past matters of fact as appear to be analogous to those contingent future ones. Now these past facts are almost always numerous: so numerous, that till brought into view for the purpose of the debate, a great proportion of them are what may very fairly have escaped the observation of one of the parties: and it is owing, perhaps, to this and nothing else, that that party is of the persuasion which sets it at variance with the other. Here, then, we have a plain and open road, perhaps, to present reconcilement: at the worst to an intelligible and explicit issue, that is, to such a ground of difference as may, when thoroughly trodden and explored, be found to lead on to reconcilement at the last. Men, let them but once clearly understand one another, will not be long ere they agree. It is the perplexity of ambiguous and sophistical discourse that, while it distracts and eludes the apprehension, stimulates and inflames the passions."

 -- (Jeremy Bentham, ch.4 in "A Fragment on Government")

Thiers on why the Convention wasn't able to crush Jacobin gangsterism

This, published in 1823, could easily be read as a justification of Thiers' approach to dealing with the Paris Commune in 1871:

"Barbaroux immediately proposed four formidable and judiciously conceived decrees:

By the first, the capital was to lose the right of being the seat of the national representation, when it could no longer find means to protect it from insult or violence.

By the second, the federalists and the national gendarmes were, conjointly with the armed sections of Paris, to guard the national representation and the public establishments.

By the third, the Convention was to constitute itself a court of justice for the purpose of trying the conspirators.

By the fourth and last, the Convention was to cashier the municipality of Paris.

These four decrees were perfectly adapted to circumstances, and suitable to the real dangers of the moment, but it would have required all the power that could only be given by the decrees themselves in order to pass them. To create energetic means, energy is requisite; and every moderate party which strives to check a violent party is in a vicious circle, which it can never get out of. No doubt the majority, inclining to the Girondins, might have been able to carry the decrees; but it was its moderation that made it incline to them, and this very moderation counselled it to wait, to temporize, to trust to the future, and to avoid all measures that were prematurely energetic. The Assembly even rejected a much less rigorous decree, the first of those which the commission of nine had been charged to draw up. It was proposed by Buzot, and related to the instigators of murder and conflagration. All direct instigation was to be punished with death, and indirect instigation with ten years' imprisonment. The Assembly considered the penalty for direct instigation too severe, and indirect instigation too vaguely defined and too difficult to reach. To no purpose did Buzot insist that revolutionary and consequendy arbitrary measures were required against the adversaries who were to be combated. 'He was not listened to, neither could he be, when addressing a majority which condemned revolutionary measures in the violent party itself, and was therefore very unlikely to employ them against it. The law was consequently adjourned; and the commission of nine appointed to devise means of maintaining good order, became, in a manner, useless."

(from p431, "The History of the French Revolution" by Adolphe Thiers")

Beyond the failed Presidential SCOTUS strategy

For over half a century, conservatives have struggled to rein in the Supreme Court.  In the 1960s the court crippled the criminal justice system, leading to the greatest spike of crime in American history.  In the 1970s, they imposed irreversible abortion legalization nationwide, polarizing the nation's politics to this day.  Throughout the past couple of decades, the Court has repeatedly continued to sweep aside incremental policy arrangements in favor of dogmatic rights and irreversible social experiments.  The expectation that courts will pick apart legislative compromises has scared Congress away from making them.

Following the appointment of Clarence Thomas in 1991, 8 out of 9 Supreme Court Justices had been appointed by Republican Presidents.  Yet, rather than rolling back prior encroachments, the past two decades have seen the tides of judicial liberalism wash further forward.

Quite simply, the conservative strategy of reshaping SCOTUS through Presidential appointments has failed.  There is very good reason to believe it would be just as unsuccessful if Trump were elected President this year.

People overestimate the interest of the President in nominating a candidate preferred by their party's base.  Presidents care primarily about their own personal reputation for the sake of popularity with the electorate as a whole.  This is why Dwight Eisenhower nominated the liberal Earl Warren, why Richard Nixon appointed five members to the court without entrenching a conservative majority, and why Donald Trump could be expected to do likewise.  It is the path of least resistance for a President who has no deep ideological attachment to the judicial cause.

Furthermore, if the President is more desperate than the Senate to fill a vacancy on the Court, the Senate can insist that the President nominate someone ideologically congenial to them.  Hence Justices Souter, Kennedy, and Stevens were appointed nominally under Republican Presidents, but in practice as the result of Democratic Senate majorities.  Not having a personal reputation at stake, a Senate majority party can be expected to hold firm for the sake of ideological principle where a President cannot.  In fact, it may be easier for the a Senate party to take a stand on principle when the President is a member of the other party.

But, the problem with judicial activism is a deeper one than SCOTUS membership.  On the surface, it has the lure of an easy way to bypass political tangles and solve social problems.  But, in reality, while Courts can easily launch half-baked forays, the end-run around the process of legislative consultation leaves their projects without deep public support and woefully ill-equipped to marshal the resources needed to effectively follow through.  Like an army equipped with artillery but no infantry, they may be able to destroy institutions, but lack the capacity to replace them.  This was made clear following Brown v. Board of Education, where little school desegregation occurred in practice until Congress and the executive branch put real resources behind the initiative.

While liberals regularly voice hopes that Courts might enact their dream social reforms through swiping decrees, some conservatives entertain similar delusions that the New Deal regulatory state could be rolled back by judicial fiat.

Alas, there is no easy alternative to the hard work of winning elections, building coalitions, and designing effective compromises, necessary to reform the regulatory and entitlement programs on which every sector of the economy and society relies to some extent.  Declare the Medicare program unconstitutional, and the problem of providing $650bn of healthcare needed by those out of work for reason of disability and old age remains.

The lure of the permanent victory through SCOTUS decree is fundamentally incompatible with democracy.  One should work to check the power of the Courts to do ill -- not to try to capture absolute power for one party in the belief that it can effectively solve complex social problems with delicate trade-offs through sweeping pronouncements.

The United States Constitution was designed on the premise that those in power naturally seek to extend their authority, and that each branch of government must be given the "necessary constitutional means and personal motives to resist encroachments of the others". The Supreme Court, being a panel of political-appointees, should be a part of the system of checks and balances, not above it.  It is foolish to expect a change in the membership to cause the Supreme Court to yield authority that it has usurped from elected officials.  Why should we expect Justices to give up their own power at the very moment that their allies have assumed a majority?

It should rather be up to Congress to take power back from the Supreme Court.  Article III of the Constitution specifies: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  The membership and size of these judicial authorities are also left to Congress.

During the first century of the American republic, Congress repeatedly altered the size of the Court, keeping it on a short leash.  As with the unelected 19th Century British House of Lords, it was clear that the power of Justices would be diluted by the addition of new members, should they flagrantly overstep their authority.  Like all the other branches of government, they were subject to checks and balances.  Court-packing was, of course, difficult -- as it is not easy to get legislation to seat additional Justices approved by House, Senate, and President -- but it was an effective gentle restraint. In practice this forced those seeking to enact projects of social reform to proceed through the longer path of securing broad public approval through elected legislatures, rather than attempting immediate nationwide revolution by legal decree.

Court-packing fell into disrepute when FDR sought to employ it to aggrandize his own power and impose his own agenda.  But he was frustrated by the congressional process working as intended.  Defensive court-packing, being essential to the balance of the constitution, should in no way be stigmatized.  Congress should therefore make it clear that members of the Supreme Court will find their personal power diluted whenever the institution oversteps its bounds.  This may erode the exulted status of the Supreme Court in society -- and that would be a good thing.

In more ordinary times, Senators should avoid being bullied into seating nominees made by the other party's President.  The past year should reassure those concerned that the sky would fall if SCOTUS went long without 9 Justices.  There is no reason why Senators shouldn't be able to insist that a seat be left open indefinitely unless a compromise replacement be seated.  Nor is there any reason why a nominee from each party couldn't be seated together as a compromise to preserve the balance of the court.  A court with an even number of justices might occasion circuit splits -- but, more likely it would cause Justices to behave less intransigently, and find some basis for agreement.  After all, as much as Supreme Court Justices might disagree with each other, they wouldn't want to let other Courts have the final say!