Un-Byrdened: The Senate
Parliamentarian Has Reset The Game
Rulings by Elizabeth MacDonough take big bites out of the
GOP’s “Big Beautiful Bill”
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The arcane world of parliamentary rules and procedures is
not normally riveting drama. Few outside Congress know what a legislative “Byrd
bath” is, and fewer still likely know the name Elizabeth MacDonough, the
current Senate Parliamentarian.
Yet behind the scenes this weekend and into Monday in the
Senate, MacDonough heard arguments from partisans and issued several key
rulings, deciding what can stay in and what must come out of Trump’s “Big
Beautiful Bill” under rules governing the so-called “reconciliation” process.
You may have heard about some of the worst things the GOP
poured into the bill. Huge cuts to SNAP benefits. A provision aimed at
kneecapping judicial review. Gutting of federal agencies and attacks upon the
rights of federal workers. Restrictions on AI regulation by the states. Even
the selling off of millions of acres of pristine federal land for development.
How did all these fare after MacDonough and her office
reviewed them? What came out of the bill, stayed in it, or only survived after
significant modification?
The process is ongoing, but we have some early answers.
Before we jump into the specifics of this odious bill, let’s have a quick
review of “reconciliation,” how it’s different than “normal” legislation under
something called the “Byrd” Rule, and what part the Senate Parliamentarian
plays. Then we’ll get to the juicy parts, which I’m happy to report have given
Democrats many reasons to cheer.
Reconciliation, the Byrd
Bath and the Parliamentarian
That header may sound like a C.S. Lewis novel, but the
mechanics of what the Senate is currently doing matter a great deal to the
entire nation. So it’s worth breaking these down and getting a firmer grasp of
each.
When typical bills originate in the House and go to the
Senate for approval, they are subject to the filibuster rule. That means that
any senator can keep debate from ending by lodging a filibuster. To break a
filibuster, you need a three-fifths vote, or 60 senators to agree. In a closely
divided Senate, that makes it very hard to get most legislation through. There
has to be pretty solid bipartisan support.
But the filibuster doesn’t apply to all types of bills. The
most important exception is a “reconciliation” bill. The name comes from the
process where Congress “reconciles” federal laws on taxes and spending with the
targets set by the annual budget. It’s basically a way to make the budget match
the law.
One of the primary jobs of Congress (though you wouldn’t
know it from the past few years under GOP control) is to pass a budget and then
appropriate funds. This process is difficult enough, but it would probably
flounder entirely if the filibuster rules applied to reconciliation bills, too.
Because reconciliation is a key exception to the filibuster
rule, you can imagine what the temptation is: loading everything you can into
it and calling it a “reconciliation” bill. That’s what the GOP did with the
budget bill. It’s loaded down with all kinds of things that would normally be
subject to the filibuster were they in a stand-alone bill.
Enter the Byrd Rule. It’s named after the late Sen. Robert
Byrd of West Virginia and it’s been in place for 40 years. The Byrd Rule says
that extraneous matters can’t get shoved into a reconciliation bill.
What’s extraneous? There’s a laundry list that keeps out
any provisions that budget beyond 10 years, are outside of a committee’s
jurisdiction, are outside the budget instructions, or make changes to social
security. But the big sticking point is this: it excludes anything that doesn’t
change federal spending or revenue and excludes it where the budgetary effect
is merely “incidental” to the actual policy goal.
It’s that last point that is the real stickler. How do you
decide whether something is actually “incidental” to the budget in its effect?
And who gets to decide that?
Enter the Senate Parliamentarian. Think of her as a
legislative referee. Her role is non-partisan, and she’s a crucial gatekeeper
to keeping the Senate on the straight and narrow. Her job is to help ensure
there are no B.S. provisions labeled as “budgetary” that are actually sneaky
policy directives.
Before the Senate gets to vote on the reconciliation, both
sides make their case to the Parliamentarian, and she makes her rulings,
washing out things that don’t meet the criteria. And that’s why it’s called a
Byrd bath!
One day you’re in, the
next you’re out
For weeks, I have fielded panicked messages from readers
about truly bad provisions in the bill. In response, I have cautioned patience
and to trust the process, hard as that can be these days.
While it’s true that the GOP majority could vote to
overturn the Senate Parliamentarian on her specific rulings, this would open a
very big door that can’t easily be closed, if and when the Democrats retake
control of government.
Let’s take a broader view to understand the GOP’s reluctance to take this
drastic step. Republicans’ primary objectives are centered around passing tax cuts for their wealthy
donor class while cutting government subsidies and support for the working
class and the poor. Most of this can be accomplished under the current
reconciliation rules, including the Byrd Rule.
Democrats, by contrast, are stymied in many of their key
bills that would secure voting rights, eliminate gerrymandering, and add two
new states to the union. When they are back in power, they could use this
precedent to simply tack these measures onto reconciliation bills and then
overrule the Senate Parliamentarian when she rejects them. That could enshrine
Democratic majorities for a generation.
Majority Leader John Thune (R-SD) is reluctant to open that door so
widely, at least within the reconciliation process. And he has indicated that
he will respect MacDonough’s decisions. “We’re not going there,” Thune said when asked by reporters about possibly overruling her.
I would be very surprised if he changed his mind,
particularly with any of the provisions MacDonough has so far disallowed. In my
view, they’re just not big enough for him to risk upsetting the whole apple
cart.
Still, for the GOP, some of the rulings that came out over
the weekend and into today have got to sting. Let’s take a look at some
biggies.
Kneecapping the
judiciary
When the Trump White House began losing its cases before federal district
court judges and was being enjoined nationwide wherever it turned, Sen. Chuck
Grassley (R-IA) had an idea: what if the law required parties suing over
executive orders to post a bond to cover the government’s potential costs and damages from an
injunction if they later lost on appeal?
Grassley made clear his objective when he first announced the proposal.
“Individual district judges—who don’t even have authority over any of the other
92 district courts—are single-handedly vetoing policies the American people
elected President Trump to implement,” he declared.
That might have made for good headlines and praise from
MAGA, but it didn’t set him up well for consideration by MacDonough. In fact,
she washed the whole thing clean out of the bill in the Byrd Bath. After all,
how does this have anything but an incidental effect on the budget, while its
non-budgetary policy objectives were crystal clear, thanks to Grassley?
The provision is gone.
Starving the poor
Another big win for Democrats came when a key provision of the bill,
which would have “saved” the federal government $128 billion in food assistance
subsidies, got drowned in the Byrd Bath, too.
The House version of the bill had attempted to shift
SNAP-related costs over to the states. Because many states cannot provide these
benefits on their own, this would have resulted in loss of food assistance
coverage for millions of poorer Americans. MacDonough ruled that the impact on
the budget was incidental to the true policy objectives.
With a $100 billion hole blown in their plans, the GOP is
now scrambling to find a way to close the gap created by its $4.5 trillion in
tax cuts and its new defense and other spending.
Maybe give up on some of those cuts and expenditures? Just
a thought.
REINS on our agency
This one comes off as wonky, but it’s important.
Sen. Mike Lee (R-UT), one of the worst members of the
Senate, had inserted a proposal known commonly as the “REINS Act” across state
legislatures that have enacted it. It ought to expand congressional control
over federal policy by subjecting any future proposed agency actions to
congressional approval before they could take effect.
This would have essentially ground all new regulation to a standstill,
and unsurprisingly, the Parliamentarian threw it out on Sunday.
Exactly what this proposal has ever had to do with the
budget, which wasn’t wholly incidental to its primary anti-agency policy
objectives, has never been clear.
Auctioning off our
federal lands
One of the worst ideas contained in the bill came from
Senator Lee. His proposal would have subjected millions of acres of federally
protected lands to commercial sale. The idea received widespread condemnation
but had gained traction among the anti-environment, “drill, baby, drill” wing
of the Republican Party.
MacDonough swooped in late last night with a ruling axing this provision
from the bill. Lee may try to reword the language, but word from congressional
observers is that Republican senators from Montana
and Idaho oppose the land sale as well, meaning it would likely get voted out
if Lee ever managed to get it past MacDonough.
Attacking immigrants
The bill had included some highly troubling language that
expanded state-level enforcement powers on immigration and limited immigrants’
access to public benefits, on top of efforts discussed above to restrict
judicial review of federal immigration policy.
As Migrant Insider reported, the bill’s controversial immigration-related provisions would
have
·
allowed states to conduct border security and immigration
enforcement;
·
blocked certain grant funding to “sanctuary jurisdictions”;
·
created a fund allowing local officials to arrest
individuals suspected of being in the U.S. unlawfully; and
·
barred most non-citizens from receiving SNAP benefits.
MacDonough ruled that none of these met the Byrd Rule
requirements because they were all policy first, budget afterthought. Nice try,
though.
Exploiting our natural
resources
In addition to nixing the land sale of millions of acres of federal
property, the GOP loaded down the bill with provisions that read like a fossil
fuel industry wish list. Here are some provisions they ran up the flagpole but MacDonough refused to salute:
·
Deeming offshore oil and gas projects as “automatically
compliant” with the National Environmental Policy Act in order to nullify
environmental review processes;
·
Requiring offshore oil and gas leases to be issued to
successful bidders within 90 days after the lease sale;
·
Removing the Interior Secretary’s discretion to reduce fees
for solar and wind projects on BLM land;
·
Requiring the Interior Secretary to hold yearly geothermal
lease sales; and
·
Creating a pay-to-play system for natural gas exports by
allowing exporters to simply pay a fee to have their projects be deemed “in the
public interest,” a requirement for project approval.
Coming for our federal
workers
Several of the bill’s provisions took direct aim at our
federal workforce and the protections that federal workers currently enjoy.
The big one would have allowed the executive branch to reorganize
federal government agencies, including consolidating or eliminating whole
agencies immediately and without Congressional oversight. Attorney General Pam
Bondi is trying to do this very thing presently by gutting the Bureau of
Alcohol, Tobacco, Firearms and Explosives. Following MacDonough’s ruling, Bondi
may now have to go through a normal congressional process to get approval.
Here are some other provisions relating to our federal
workforce that MacDonough just washed out of the bill:
·
Increasing the Federal Employees Retirement System
contribution rate for new civil servants that would have reduced take-home pay
if they did not agree to become “at-will” employees;
·
Adding a $350 fee for federal employees just to file a case
with the Merit Systems Protection Board, which adjudicates appeals brought by
federal civil servants;
·
Granting authority for agencies to unilaterally rescind
funds through “incentive programs” that allow federal employees to identify
“unnecessary expenditures”;
·
Mandating the sale of all the USPS’s electric vehicles and
supporting infrastructure; and
·
Prohibiting agencies from implementing, administering or
enforcing any rules with budgetary effects unless explicitly required by
statute.
Killing off the CFPB
A top priority for Senate Republicans has been to gut the
agency that Sen. Elizabeth Warren (D-MA) had once worked so hard to
establish—the Consumer Financial Protection Bureau (CFPB). That agency is
tasked with protecting Americans from rampant financial fraud, which is one
reason why Republicans and their big bank backers hate it so much.
The bill going into the Byrd Bath contained a zeroing-out
provision that would have stripped away $6.4 billion in funding for the CFPB.
MacDonough advised against the provision, however, sending its supporters
scrambling to find a way that their defunding can still pass muster.
Warren was jubilant at the news. “Democrats fought back, and we will keep
fighting back against this ugly bill,” said Warren, who is the top Democrat on the Senate Banking
Committee. She added that the GOP proposals “are a reckless, dangerous attack
on consumers and would lead to more Americans being tricked and trapped by
giant financial institutions and put the stability of our entire financial
system at risk–all to hand out tax breaks to billionaires.”
State regulation of AI
There was one provision that snuck past: a limitation for 10 years on states’ ability to regulate
artificial intelligence.
That it survived the Byrd Bath caught me off guard at
first. But before we all get too worked up about this one negative outcome,
there are two important considerations.
First, at the urging of Sen. Ted Cruz (R-TX), who chairs
the Senate Committee on Commerce, Science and Transportation, the AI regulation
provision was significantly reworked precisely so it didn’t become one more of
MacDonough’s Byrd droppings.
Under Cruz’s revised provision, states would be prohibited from
regulating AI, but only if they want access to federal funding from the Broadband Equity,
Access and Deployment program. Compare that to the House version of the bill,
which mandated a 10-year,
across-the-board moratorium on state laws regulating AI models and systems and
was not tied in any way to funding.
Second, this is likely only a temporary victory for the
provision’s backers. Three GOP senators, Sens. Josh Hawley (R-MO), Marsha
Blackburn (R-TN) and Ron Johnson (R-WI), have already signaled their opposition
to it. That’s probably enough to sink it. And Cruz’s colleague from Texas, Sen.
John Cornyn (R-TX), even signaled that its path ahead was fraught given
widespread resistance to the limitations.
The Senate knows that if the provision is left in, that
could doom the whole bill when it gets sent back to the House. Rep. Marjorie
Taylor Greene (Q-GA), for example, claimed she hadn’t read that part of the
bill before voting on it and is really mad at someone other than herself.
“I am 100 percent opposed, and I will not vote for any bill that destroys
federalism and takes away states’ rights, ability to regulate and make laws
when it regards humans and AI,” Greene told reporters, after voting for just such a bill. (Perhaps she
should have had AI read it for her.)
Rulings still to come
MacDonough has still to rule on a number of provisions, but
every indication is that to date she is doing a stellar job of keeping the bill
neat, free of incidental add-ons, and far less dangerous than it could have
been.
She has yet to rule on the biggest question of them all,
known widely as the “current policy baseline.” This is an accounting trick that
the GOP is using to claim that tax cuts that are extended don’t actually cost
anything, even though they will actually cost $3.76 trillion over the next 10
years. Add that to the $441 billion in new expenditures and you get to $4.2
trillion in new extended tax breaks and outlays.
Further, if the Republicans decide to tinker around more
with Medicaid, including setting up a fund to help rural hospitals survive
their cuts to the program, they could wind up running afoul of the Byrd Rule.
They have got to be cautious about how they plan to make up for shortfalls for
states that will be hardest hit.
These questions aside, there are already plenty of reasons
to cheer MacDonough’s work. She’s truly an unsung hero: a nonpartisan and
unbiased civil servant whose decisions are sparing millions of Americans from
significant pain and suffering, not to mention shielding our environment and
our federal lands from the worst excesses of the GOP.
Elizabeth MacDonough, our Senate Parliamentarian, here’s to
you!