There has been a lot of talk about using reconciliation lately. What is important is that reconciliation measures by law face only limited debate in the Senate, so, as a result, can’t be filibustered. Reconciliation measures can pass with a simple, Constitutional majority vote. Part of the what governs reconciliation is the Byrd rule. These are a set of parameters for what can and can’t be part of a reconciliation measure. Effectively every provision in the bill must affect the budget, or it can be removed by the Byrd rule. In theory, this very much restricts what reconciliation can be used for, but the decision of how to apply the Byrd rule is ultimately up to Joe Biden.
What is important is whose job it is to decide if a provision runs afoul of the Byrd rule. The Senate parliamentarian’s role is to make the determination and advise the presiding officer of the Senate, normally the Vice President, on how to rule. By tradition, the presiding officer essentially always rules in accordance with the parliamentarian’s advice, but technically the final decision is completely up to the presiding officer.
Normally, a senator raises a point of order, saying a provision in the reconciliation bill violates the Byrd rule. Assuming he or she agrees, the parliamentarian makes a determination, and tells the presiding officer that it does violate the Byrd rule. The presiding officer normally rules in accordance with the parliamentarian’s advice, and sustains the motion. The provision would be removed, unless 60 senators vote to waive the Byrd rule for that provision, allowing it to stay in the bill. Under reconciliation, it takes 60 votes to waive a point of order or overturn the chair’s ruling against a point of order.
As the presiding officer of the Senate, VP Joe Biden does not need to follow the advice of the parliamentarian. During debate on a reconciliation bill, he has the power to reject every point of order made about a provision that might violate the Byrd rule. And, if he did, it would take 60 votes to overrule him and remove the provision. Ultimately, Joe Biden could decide that nothing, or almost nothing, runs afoul of the Byrd rule, and allow practically anything to pass the Senate using reconciliation and a simple majority vote.
This would be a violation of Senate tradition re: reconciliation and the Byrd rule, but it is still technically allowed under a strict interpretation of the rules. It is important to remember that the “tradition” of reconciliation only dates back to its creation in 1974, and the Byrd rule was created in 1985.
Of course, the Republicans have decided to use a strict interpretation of the rules governing debate to violate Senate tradition by creating a de facto supermajority requirement for ever piece of routine business. If the Republican are willing to play hardball by with the Senate rules by filibustering everything, the Democrats have no other option but to respond in kind.
Using reconciliation for everything is not a perfect solution–ideally, the Senate would function according to the Constitution, and allow a simple majority to pass legislation through regular order. But If Democrats were willing to match Republican hardball tactics with hardball tactics of their own, they can technically use reconciliation to pass almost any law they want with a simple majority.
For more information on reconciliation and the Byrd rule, you can read the following Congressional Research Services report.





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Good reminder. Don’t forget that there’s another backup plan. If the parliamentarian disagrees with you, you fire him and replace him with a more compliant one. That’s how the current parliamentarian got his job, in 2001, during the Bush tax cuts. No one cared that they fired the parliamentarian then, and if history repeated itself, once again no one would care.
Jon I have a few ?? Isn’t reconciliation supposed to be used only for funding issues not to pass bills? Also, isn’t it only supposed to be used for extending funding for existing programs? If that’s the case isn’t Medicare the way to go here? Just extend Medicare to everyone and do through this process and move the fuck on already!
Technically that was the intent of how it was created but so what. The technical reasons behind the filibuster is that any senator should be allowed to debate an issue, clearly that is not how it is being used.
EPU-ed in an earlier thread, repeated here, because this issue is macro, yes. But it’s damned personal, too:
Those who have been baying about the federal government butting out [yes, Joe Scarborough, you] should only look at the obscene rate increases private companies are pushing through right now to know that too many states leave their citizens way too exposed to further victimization because of lack of regulation.
Kent, Byron, or whichever of your interns are scanning the blogs–this North Dakota voter supports the public option. And reconciliation. Now.
I remember sitting with a group early in Senator Dorgan’s congressional career, in his Fargo office, and him telling us he wasn’t going to be a lightning rod on a different issue. My husband Lincoln and I talked about that event in the weeks shortly before his death last summer.
We saw, we lived the healthcare system. And now I, without him, see the ravages the healthcare system has taken on others I care about.
Byron, Kent, I’m asking you to be the lightning rod now.
jon, your information has been invaluable, I bet plenty of our elected officials come to firedoglake just to see how things work in their own jobs
now as far as your post today, I want to invoke one of my fav southern sayings
“getr done”
r u listening democrats?
getr done!!!
put back in there some form of a public option, my personal preferance is a cost+ 10 percent medicare, this will help keep medicare solvent, save plenty of money, get some good inexpensive health care made available to most people and get the insurance companies to operate closer to realistic prices that will help our economy
I also want to see their baseball exclusion and allowed monopoly rescinded asap
GETR DONE!!!
Very informative post. Thanks.
It is difficult to imagine the Democrats playing hardball with Harry Reid as their leader.
Nerf Ball!
It all comes back to one basic notion for me:
“If the political leadership wanted a public option, then they would have passed it by now, rather than creating a facetious straw man argument about ’60 votes needed’.”
I don’t believe the Democrats anymore, when they say they support a public option in majority. They don’t act like it and they’ve had a year.
I’d like to be proven wrong. Really. I just don’t think it takes 25% of a presidential term in office to have still not yet resolved yes-or-no probably the biggest agenda item in his election campaign.
Biden should apply the Rehnquist, and as refined the Roberts rule, which is to say the Constitution is what I say it is and rules are what I say they are and any previous interpretations were either wrong, modified by the passage of time and/or events, or can be ignored.
IOKIYR In Charge.
Perhaps the rhetoric from CPAC will finally convince Obama and the rest of the democrats bipartisanship simply isn’t going to happen.
If you are getting that loose about the Senate rules, given that various Senators sit as the “presiding officer” during debate – remember the Al Franken denial of additional time – could not any Senator sitting in the role of “presiding officer” make the same determination without requiring VP Biden to be present. Unless the White House wants him there to make a big point.
I rescind that. Nerf is too rigid and structured for Reid.
Now if there was a sport where one loosely packed a handful of tepid oatmeal into a ball and tossed it underhand to one’s opponent…
Hah! Wanna bet? This time it’d be the equivalent of Nixon firing what’s his name.
Cox, I believe.
Nobody worried about the precedent that ignoring the Byrd rule would set, vis-a-vis the next time the R’s have a majority?
I heard Obama today calling Reid one of the toughest men he knows. Now I know why were in such trouble.
AKA the Strict Construction ism is only for those parts of the Constitution we say there for rule and the other parts we just make up as we go along like Corps. are people.
sure, for the MSM and republicans. Independent and Democratic voters would just be impressed they’re getting something done. So, you’re right, people would care, but it would be a net positive.
While we’re at it, let’s correct the second biggest fallacy out there. I can’t tell you how many times in the past week I’ve heard people say that “you need 51 votes for” fill-in-the-blank. Otherwise intelligent, informed people seem to have completely missed this most elemental point.
You don’t need 51 votes in the Senate for anything. You need 50 votes. The VP casts a tie-breaker. There is no way Biden votes against anything that can get 50 of these Democratic invertebrates to agree.
Competition is not even feasible in the current market, while jokingly high rate hikes are in the process of being enacted…
The Repubs don’t want health reform or a public option because it interferes with lobbyists, record profits, and the existing monopoly on the market. (not to mention a slew of other stuff) They’re just flat out saying “no” now! They’ve even given up the “we want reform” bit…and their followers won’t even care as long as they don’t get thrown in concentration camps by socialist secret black police…
These people voting Repub. don’t even realize they’re voting against their highest interests…they’re willing to pay for it, in times of record setting profits, based on their beliefs that “socialism” is coming and that “as universal rule, the public option doesn’t work.” Forget evidence…facts….who needs them? Any compromise is socialism.
For example:
I’d like to think that if these Senators who have voted “no” on the stimulus bill had actually not received any money for their districts, that their constituents would vote for somebody that cared about them in the upcoming elections….but that would be assuming that Republicans actually QUESTION their party’s leadership….somehow the lost jobs would be Obama’s fault, not theirs for voting “no.” These guys are seriously laughing all the way to the bank with these teabaggers…
I did not saving 51 votes in my post.
“Of course, the Republicans have decided to use a strict interpretation of the rules governing debate to violate Senate tradition by creating a de facto supermajority requirement for ever piece of routine business.”
You appear to be misleading your readers into believing that only the Republicans use the filibuster in this way. Of course, the Democrats do the exact same thing. They even used it on federal court nominees. So, a more accurate statement would have been something like, “In recent years, the minority party, whether Democrat or Republican, has violated Senate tradition…”.
Your bias has been revealed.
I understand. But the 51-vote canard is another one of those fallacies, like the reconciliation rules, that most people have all wrong. Reconciliation can be used for most important legislation, just as the Republicans have done so often. And it only takes 50 votes + Biden. Unfortunately most of the weasels in the Senate have never cast a significant truly meaningful progressive vote in their entire Senate careers. Today’s Democrats have made a living at being pussies and running away from fights. They are so good at doing that, it will be very difficult to get 30 of them to stand up, let alone 50.
Honestly you have to go back about 35 years to find any really bold Democratic votes in the Senate, and almost none of the current group of Senators was in the Senate then. Byrd, Inouye, and Leahy. That’s it.