Democrats are flirting with the demolition of yet another Senate guardrail
Senate Democrats contemplating destroying another set of Senate rules may want to heed the words of English attorney and chancellor Sir Thomas More to his son-in-law centuries ago: And when the last law was struck and the devil turned – where would you hide , Roper, the laws are all flat? The then Senator Harry Reid began this modern clarification of the rules back in 2013. He used the “nuclear option” to lower the voting threshold for confirmation and pile up the DC Circuit’s court of appeal. Senator Mitch McConnell escalated by using the same standard to validate candidates for the Supreme Court. Since Majority Leader Chuck Schumer is toying with the idea of blowing up the legislative filibuster as well, he may be ready to first decipher another important – albeit lesser-known – Senate rule in order to create a comprehensive COVID relief bill under the provisions of track “budget reconciliation.” We’re talking about the Byrd Rule (named after the late Senator Robert Byrd), which limits the majority’s ability to incorporate redundant legislative proposals into budget-related proposals and still pass them through the process by a simple majority. Senator Byrd saw the threat of a reconciliation that restricts changes and debates to pursue wider, non-budgetary legislation outside the regular order. As a defender of the right of all senators to discuss and amend laws, he has transferred these restrictions to the reconciliation process. This is for the common good: The Byrd Rule protects social security, for example, from the reconciliation process, but limits the committees to proposals in their area of responsibility and requires that the budgetary relevance of a proposal considered in this process is more than “just random”. This means that substantial changes in legislative policy can only be made if all senators have the right to fully debate and amend the legislation – and filibusters. Otherwise, reconciliation “rationalizes” this process at the expense of the minority. Today, fueled by anger and vengeance, Senate leaders do not care about the reasons behind the rules. They just want to get their laws passed as soon as possible. Most of the attention in recent weeks has been devoted to the USD 15 minimum wage included in the COVID relief package. This is hardly up to the standard of reconciliation on its own, but there will be other violations of the Byrd Rule in the bill that the House will send to the Senate. Therefore, Senate Democrats could try to break the glass of the Senate rules. As noted by MP Martin Gold, there are two ways of doing this. First, there is the more targeted attack on Byrd’s rule. For example, suppose Vice President Harris presides over a senator’s rules of procedure against raising the minimum wage. The Senate MP advises her that this particular section of the Reconciliation Act is not in order. Despite all the evidence and precedents that the section is incorrect, the TP decides otherwise. Now the section only needs a simple majority to pass. However, if a senator who supports the Byrd Rule challenges the chairman’s decision, a majority of 60 votes is required to override Harris. That’s a high bar. Here the chairman’s judgment, which would likely stand, changes the precedent so that any other point in the bill that violates the Byrd Rule can be considered acceptable under the new standard just set by the vice-president . Republicans would have loved this if they tried to get rid of the Affordable Care Act, but they respected the Senate’s rules on protecting minority rights. This limited surgical blow to Byrd’s Rule would still permanently upset the precedent. In the meantime, there is a broader attack that could be implemented. In this scenario, the majority leader addresses the presidency and says that the waiver of the Byrd rule is only possible with a simple majority. Under the rules and precedents, it is clear that this is wrong. If the chairman decides that 60 votes are required to waive the Byrd Rule, the majority leader will appeal the chairman’s decision, which would require a simple majority to overthrow. Bingo – the protection of the Byrd Rule is dead, and now all it takes is a simple majority to incorporate a majority-requested legislative proposal into the Budget Vote Act, circumventing legitimate debate and amendment. The result of this action would threaten any rule in the Senate. If at any point the majority wanted to get rid of a rule, all they had to do was appeal the chairman’s decision and muster a simple majority – silence the opposition and impose their will on the American people. Once upon a time, the US Senate was named the largest advisory body in the world. As envisaged by Thomas Jefferson, there were rules that protected the minority and allowed for thorough debate. Unfortunately, this current Senate majority doesn’t seem to care about the precedents that have set the U.S. Senate this title. But some caution on their part might be self-interest well advised; The tables are known to turn. Editor’s Note: This piece has been updated with a corrected version of the quote attributed to Sir Thomas More.