Senate Parliamentarian Rules Against Democrats' Plan to Include Immigration Reform in Reconciliation Spending Bill

What’s the story?

• Senate Parliamentarian Elizabeth MacDonough on Sunday ruled against Democrats’ plan to use the budget reconciliation process to pass immigration reforms, including a pathway to legal permanent resident (LPR) status and eventually citizenship for millions of unauthorized immigrants. 
• MacDonough ruled that Democrats’ plan to include the immigration overhaul in the reconciliation bill violated the “Byrd rule” requirement that provisions be germane to fiscal policy and not include items with a budgetary impact that is merely incidental to the impact of the policy change being legislated. Democrats had argued that the increased spending on social spending stemming from the expanded eligibility for such programs was sufficient to meet that threshold.
• She explained in her opinion that Democrats’ plan “is a policy change that substantially outweighs the budgetary impact” and that:

“LPR status would give these persons freedom to work, freedom to travel, freedom to live openly in our society in any state in the nation, and to reunite with their families and it would make them eligible, in time, to apply for citizenship ― things for which there is no federal fiscal equivalent. Changing the law to clear the way to LPR status is a tremendous and enduring policy change that dwarfs its budgetary impact.”

• The Senate parliamentarian’s office has put forward several notable rulings during the current Congress, including a ruling against a Democratic effort to enact a national $15 minimum wage requirement by using reconciliation. It also found that a budget resolution can be revised and updated to allow its reuse under the reconciliation process, but that Congress go back through the committee process, hold an amendment vote-a-rama in the Senate, and hold a full floor debate to consider it.
• The Senate’s Democratic majority could in theory vote to overrule the parliamentarian’s ruling if all 50 senators agreed along with Vice President Kamala Harris, but they lack the votes to do so. 
• Moderate Democratic including Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) view a vote to overrule the parliamentarian and create a new precedent as being akin to eliminating the legislative filibuster which requires 60 votes to limit debate on non-reconciliation bills. 
• They argue that eliminating the legislative filibuster through a new precedent would result in each party taking turns using the process to broaden the reconciliation carve out for non-budgetary items to be enacted along party-lines with simple majorities in the Senate, causing the pendulum of public policy to swing more widely.
• Senate Majority Leader Chuck Schumer (D-NY) said the ruling “was extremely disappointing. It saddened me. It frustrated me. It angered me.” He added that Democratic senators have prepared alternate proposals and may bring them to the parliamentarian in search of another way to do immigration reform in reconciliation.

What is the “Byrd rule”?

• Named after the late Sen. Robert Byrd (D-WV), who led the adoption of the rule in 1985 in response to Congress using reconciliation for non-fiscal policy items, the Byrd rule prohibits the inclusion of extraneous, non-germane policies in reconciliation bills.
• Under the Byrd rule, a provision is deemed extraneous if:

1. The provision doesn’t change spending or tax revenues;
2. Increases in spending and decreases in revenues aren’t in compliance with committee instructions;
3. A provision is outside the committee’s jurisdiction;
4. Spending or revenue changes are incidental to non-budgetary parts of a provision;
5. The deficit would increase beyond the “budget window” covered by the bill (the budget window includes the current fiscal year and has to cover at least the four following years, but may cover 11 or more total fiscal years); and
6. It makes changes to Social Security.

• Violations of the Byrd rule are determined by the Senate parliamentarian and Senate Budget Committee staff in a review process known as the “Byrd bath” ― while senators can raise a point of order against provisions they believe to be non-compliant. Lawmakers can remove provisions that violate the rule (known as “Byrd droppings”) from the final bill, or they can vote to waive the rule which requires 60 votes in the Senate. 

RELATED READING

• What is Budget Reconciliation? (8/13/21)
• Should Democrats’ Reconciliation Bill for Infrastructure Include Immigration Reforms? (7/10/21)
• Senate Parliamentarian Issues Ruling Allowing Democrats to Reuse Reconciliation - What Does it Mean? (4/7/21)
• Senate Parliamentarian Rules Against Democrats’ $15 Minimum Wage Policy in COVID-19 Relief Bill (2/25/21)

— Eric Revell

(Photo Credit: ray_explores via Flickr / Creative Commons)