COMPASS: Senate Democrats test the Byrd Rule

CPI Staff — Monday, February 22, 2021

Good afternoon from soggy Capitol Hill.

The House and Senate are back in session this week. Both chambers are breaking land speed records as they pursue a budget process, the goal of which is a reconciliation package that can pass the Senate with a simple majority vote (as opposed to needing the usual 60 votes to invoke cloture and overcome a filibuster).

The House begins the reconciliation process this week, and are likely to produce a package which includes a $15 minimum wage increase. To survive in the Senate, however, the provision will need to comply with the Byrd Rule. The Senate’s parliamentarian will advise on this, and it is rumored she will make her decision on Tuesday.

The Byrd Rule is a statutory restriction on the Senate’s reconciliation process, designed to ensure that its provisions remain budgetary. As such, it rules out provisions which do the following:

  • Do not have a budgetary effect;

  • Has a budgetary effect, but the effect is not what the budget resolution called for;

  • It is outside the jurisdiction of the committee recommending it;

  • It does have a budget effect, but it is a “merely incidental” one;

  • It increases the deficit beyond the 10 year budget window; or

  • It’s about Social Security

Most provisions get hung up on whether or not their budget effect is “merely incidental.” This is a highly debatable point, and one which is constantly contested.

The Senate’s parliamentarian will hear arguments from Senate Democrats that the $15 minimum wage fits within the Byrd Rule’s restrictions. Senate Republicans (presumably) will argue the opposite. She will then render a “ruling,” which is effectively an advisory opinion to the Senate. The Senate will then decide whether or not they will comply. (The parliamentarian, as an unelected staffer, does not issue rulings which bind the Senate; the senators themselves decide how to proceed via points of order, votes, and appeals).

Senate Democrats, working with the parliamentarian, could stretch the Byrd Rule to fit around a minimum wage increase; or Senate Democrats could simply vote to overrule her. Pushing the limits of the Byrd Rule has increasingly become an exercise pursued by both parties, as a locked down Senate has effectively shut down any other avenue for passing important policy priorities.

Even if the Senate Democrats successfully incorporate the minimum wage increase, it remains to be seen if they have the votes to support the jump to $15. Sens Joe Manchin (D-WV) and Kyrsten Sinema (D-Ariz.) have signaled they do not support the $15 wage increase. Manchin has said he supports a more marginal increase to $11. Sens Tom Cotton (R-Ark.) and Mitt Romney (R-Utah) have signaled they support some kind of increase as well.

The House will also take up the Equality Act this week, which would codify and expand upon the Supreme Court’s decision in Bostock v Clayton County, which made “sexual orientation” and “gender identity” protected classes in the Civil Rights Act. This would be a sea change for employment law, discrimination law, and daily life in America. More here.

Finally, Joe Biden’s nominee to lead the Office of Management and Budget, Neera Tanden, is on the ropes. All of the light and heat surrounding Tanden, however, has removed some of the spotlight from Xavier Becerra, Biden’s pick to lead the Department of Health and Human Services (HHS).

Becerra is as extreme on life and religious liberty issues as anyone could be. His elevation to lead HHS would turn the department into a heat seeking missile against life, human dignity, and free religious exercise. More on his record here. Biden has also selected Dr. Rachel Levine, an openly transgender woman, to act as one of Becerra’s deputies. Dr. Levine’s confirmation hearing is Thursday.

The confirmation hearing for Merrick Garland, Biden’s pick for Attorney General, is ongoing today. Garland would likely play a key role in the  “9/11-style commission” being put together to investigate the events of January 6. In his hearing today, Garland has indicated his support for such a commission.

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One More Thing…

I joined Tucker Carlson on Friday to discuss Google’s role in America’s classrooms. And CPI’s Phil Reboli is out with his latest installment for Gun Owners of America’s Minute Man Moment.