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Senators Have Options During Reconciliation Debate

by James Wallner
Aug 8, 2022
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issues: Governance, Restoring the First Branch
originally published in Legislative Procedure

The Senate prepares to vote on whether to open formal debate on the House-passed Build Back Better Act reconciliation bill (HR 5376). If a simple majority of senators votes to begin debate, senators will have 20 hours to debate the bill – and any amendments – under the special reconciliation rules specified in the Congressional Budget Act of 1974 (Public Law 93-344). That law limits debate on all first-degree amendments (i.e., an amendment to HR 5376 or the complete substitute amendment) to no more than 2 hours. It limits debate time on all second-degree amendments (i.e., an amendment to a pending first-degree amendment to either HR 5376 or Schumer’s complete substitute). And it limits debate time on appeals, and certain motions to (re)commit HR 5376 with instructions to 1 hour.

Senators may continue to offer amendments after the 20-hour debate clock has expired. During this period – the so-called vote-a-rama – the Senate votes whenever a senator offers an amendment (or makes a motion or appeals the chair’s ruling). That means that the majority leader can no longer prevent senators from offering amendments to either the House or Senate version of the reconciliation bill by filling the amendment tree (which requires several amendments to be pending simultaneously to work).

LIMITS ON AMENDMENTS

The Budget Act places two general limits on amendments offered to reconciliation bills. Amendments must be germane. And the Byrd Rule bars amendments that include provisions that are extraneous to a reconciliation bill’s reconciliation instructions.

GERMANENESS

The Budget Act requires prohibits nongermane amendments to reconciliation bills. But the statute doesn’t define germaneness. Instead, the Senate’s precedents provide the standard against which the presiding officer weighs provisions to determine if they are germane. That is, both the presiding officer’s rulings and any subsequent appeals in past reconciliation debates flesh out what germaneness means in the reconciliation process. It is the cumulative outcome of these adjudicated questions of order that provides, in part, the definition of germaneness used in the Senate today.

THE BYRD RULE

The Byrd Rule stipulates that provisions extraneous to the reconciliation instructions contained in the applicable budget resolution are not eligible for inclusion in the reconciliation bill developed according to those instructions.

The Byrd Rule stipulates that a provision is extraneous if it meets one or more of the following six tests:

  1. The provision does not produce a change in outlays or revenues;

  2. The net effect of the provisions reported by the committee writing the title containing the provision is that the committee fails to achieve its reconciliation instructions;

  3. It is not in the jurisdiction of the committee with jurisdiction over said title or provision;

  4. It produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision;

  5. It increases net outlays or decreases revenues during a fiscal year after the fiscal years covered by such reconciliation bill…and such increases or decreases are greater than outlay reductions or revenue increases resulting from other provisions in such title in such year;

  6. It recommends changes to the Social Security program (old age and disability).

Like all Senate rules, the Byrd Rule is not self-enforcing. Senators must take the initiative to enforce it. They do so by raising points of order against provisions in reconciliation bills because they are extraneous according to one or more of the Byrd Rule’s six tests. Section 313(e) of the Budget Act gives the Senate’s presiding officer the authority to decide whether points of order are valid. If the presiding officer sustains senators’ points of order, the provisions targeted by them are stricken from the bill.

Section 313(e) stipulates that senators may move to waive points of order before the presiding officer rules on them. As with many other budget process points of order, those raised under the Byrd Rule may be waived by an affirmative vote of three-fifths of the senators duly chosen and sworn (typically 60 if all 100 seats are filled).

MOTIONS TO COMMIT

Senators can also move to commit HR 5376 with instructions that the committee report the bill back to the Senate with the provision(s) specified in the instructions attached to the motion included in the bill. Motions to commit reconciliation bills are not limited by the same germaneness requirements as amendments. Specifically, they do not have to be germane to the underlying reconciliation bill. Instead, such motions are limited by the jurisdiction of the committees specified in the budget resolution’s reconciliation instructions. The Byrd Rule also limits them.

Senators, therefore, have a greater range of options on what they can offer to HR 5376 if they draft their amendments as motions to commit instead of as amendments. For example, what senators can include in an amendment is limited by the four corners of the underlying bill it seeks to amend and the Byrd Rule. In contrast, what senators can include in a motion to commit is limited by the jurisdiction of the twelve Senate committees that received reconciliation instructions in the fiscal year 2022 budget resolution (S. Con. Res. 14) and the Byrd Rule.

The Senate voted 7 times on (or in relation to) 7 motions to commit the underlying bill to a committee with instructions that it report back immediately during the 2010 reconciliation debate, 10 times on such motions during the 2017 reconciliation debate, and 8 times on such motions during the 2021 reconciliation debate.

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