Reconciliation and Health Care: Who Decides?

Over at Mother Jones, Kevin Drum asks a budget question that’s likely to be asked repeatedly in the coming weeks.  When it comes to the ability of the Byrd Rule to thwart the use of reconciliation for health care reform…

The basic rule is that anything that doesn’t affect the budget is off limits and would have to be discarded, but in practice only an expert could tell us which provisions are likely to fall foul of the reconciliation rules.  So who’s an expert on this kind of thing? (Italics are mine.  See below.)

A number of people are indeed experts on this subject.  Over at the Congressional Research Service, Bob Keith is one of the best.  If you really want to get into this, take a look at Bob’s report from last March.

But the only “expert” that will really count in this case is the Senate parliamentarian, who has the responsibility to determine which provisions run afoul of the Byrd Rule.

For those who don’t know, the Byrd Rule, named for West Virginia Senator Robert Byrd, was designed to prevent filibusterproof reconciliation from being used to pass things in the Senate that had nothing to do with the budget.

It’s all spelled out in Section 313 of the Congressional Budget Act.  It’s complicated even for budget wonks, but a provision triggers Byrd Rule issues if it…

1. Doesn’t produce a change in outlays or revenues;
2. Produces changes in outlays or revenue that are incidental to the non-budgetary parts of the provision;
3. Is outside the jurisdiction of the committee that submitted the title or provision to be for included in the reconciliation bill;
4. Increases outlays or decreases revenue if the provision’s title, as a whole, fails to achieve the committee’s reconciliation instructions;
5. Increases net outlays or decreases revenue during a fiscal year after the years covered by the reconciliation bill unless the provision’s title, as a whole, remains budget neutral;
6. Contains recommendations regarding the Social Security trust funds

The key word that appears most often in these six is “provision” and it typically is the critical factor in determining whether something fits a Byrd Rule description.  The problem is that the word isn’t defined so it’s up to the parliamentarian to decide what is and isn’t a separate “provision.”

The question isn’t at all clear cut.  Is a provision a line in a bill, a phrase in a line, a whole section of legislation, etc.?  Even if a section of a bill doesn’t affect outlays or revenues and, therefore, seems to qualify under #1 to be excluded, is it integral to other parts of the legislation that do change outlays or revenues and, therefore, should be allowed to stay.

As I said, this is complicated and will be extremely controversial.  There are budget experts on both sides of the aisle and this is more of a judgment call thanthe application of a hard and fast rule.

So to Kevin Drum…if you think you have questions now, just wait.

(My thanks to Bruce Bartlett for sending me the Mother Jones piece and in effect asking “WTF?”.)