Or more specifically, “How were McConnell and the Senate Republicans allowed to do what they did during their ACA repeal-and-maybe-replace budget reconciliation process?”
You may have noticed I phrased the question as “how was that allowed?” and not “was that allowed?”. All presumptions of regularity aside, nothing that I could find in the news or in my own research indicates that McConnell or any of the Republican senators broke the rules of the Senate or of the “budget reconciliation” process. It’s just trying to understand WHY none of it broke the rules that’s a bit confusing, so that’s what I’ve tried to do.
Two specific questions were raised:
- Since reconciliation has very strict rules about the relevant of amendments offered, how were they allowed to keep offering seemingly irrelevant amendments to the bill?
- How is it possibly allowable to release the final bill just two hours before expecting Senators to vote on it?
In order to parse through those questions, we need to back up a bit and take a look at the reconciliation process as a whole. So, you may ask, what is this “budget reconciliation” thing anyway?
Budget reconciliation is a process that was born out of the Congressional Budget Act of 1974, which, among other things, allowed Congress to enact certain provisions alluded to in to an omnibus budget resolution in an expedited manner that places all sorts of hyper-specific rules on the proceedings. If you, like me, are the kind of person who finds all that minutia interesting, keep reading as I try to sort through some of it here. If not (or if you’re the kind of person who knows this stuff already), skip the section between the pictures of Senate Parliamentarian Elizabeth MacDonough’s face and pick back up below.
Budget reconciliation starts, like much Congressional business, with the passing of a budget resolution. This is something that happens every year, and is brought up, debated, and passed with slightly different rules from normal, non-budgetary bills, including but not limited to a provision that says the Senate cannot filibuster budget proceedings.
(As a reminder, “filibuster” is the shorthand term used to describe the practice of denying the majority party 60 votes for cloture [needed to end debate on a legislative bill] which must happen before a vote can take place. After cloture is achieved, debate winds down and the Senate votes again to pass the actual bill – which is relevant because you only ever need a simple majority to pass a bill. The assumption is that if you have 60 people willing to vote to vote on a bill, you will have at least 51 willing to vote to pass that bill. Totally makes sense, right?)
Included in the budget resolution can be a “reconciliation directive,” which instructs both the House and the Senate to come up with new guidelines for how to spend the money allocated in the budget. Since the budget resolution isn’t an actual law, but rather a directive in and of itself to the government on how to spend money (“…more what you’d call ‘guidelines’ than actual rules…”), reconciliation is a way to send the guidelines to the president for a signature to turn them into laws. For example, it’s all well and good for Congress to SAY you have to fund healthcare for millions of people, as in the case of the ACA, but until the president actually signs a law saying so, nobody actually has to do it.
If Congress decides to include a reconciliation directive, they write a section into their bill instructing specific committees to come up with plans to rearrange or reduce spending on certain issues. If there’s only one committee tapped to participate, that committee owns the process. If there are multiple committees, they report back to the Budget Committee, who collates the plans into a nice and tidy package to be considered all together. In the case of the budget resolution for FY 2017, those directives were as follows in the Senate:
- “The Committee on Finance of the Senate shall report changes in laws within its jurisdiction to reduce the deficit by not less than $1,000,000,000 for the period of fiscal years 2017 through 2026…
- “The Committee on Health, Education, Labor, and Pensions of the Senate shall report changes in laws within its jurisdiction to reduce the deficit by not less than $1,000,000,000 for the period of fiscal years 2017 through 2026…
- “In the Senate, not later than January 27, 2017, the Committees named in subsections (a) and (b) shall submit their recommendations to the Committee on the Budget of the Senate. Upon receiving all such recommendations, the Committee on the Budget of the Senate shall report to the Senate a reconciliation bill carrying out all such recommendations without any substantive revision.”
And as follows in the House:
- “The Committee on Energy and Commerce of the House of Representatives shall submit changes in laws within its jurisdiction to reduce the deficit by not less than $1,000,000,000 for the period of fiscal years 2017 through 2026…
- “The Committee on Ways and Means of the House of Representatives shall submit changes in laws within its jurisdiction to reduce the deficit by not less than $1,000,000,000 for the period of fiscal years 2017 through 2026”
These directives are deliberately vague as a matter of course, but remember that $2 billion dollar deficit reduction goal the Republicans kept striving for in all sorts of nefarious ways? Here is where they picked that number. Similarly, once the specific committees to head up the reconciliation efforts are chosen, topics that appear in the reconciliation bills are limited to only things that are under the jurisdiction of those committees. So for example, you probably couldn’t include a measure about, say, judicial nominees, since that is absolutely outside the purview of any committees mentioned in the directive.
Before we move on to the actual reconciliation process, there is one last thing to throw out there about the idea in general: Congress only gets to attempt reconciliation once per budget resolution on each of the three categories laid out in the Congressional Budget Act – spending, revenues, and debt limit. By issuing the directives above, Republicans have used up their one reconciliation attempt for the first two categories on this iteration of the budget.
So now that we have our directive, what happens next is that the House, which is much less exciting than the Senate in term of reconciliation processes, does its thing and passes a bill (in this case, H.R. 1628 – the American Health Care Act of 2017, a.k.a. AHCA) in the hopes that the Senate will live up to their “cooling saucer” reputation and come up with something better. Then the bill goes to the Senate, and they can either vote to pass that same bill, which would send it to the president for a signature and become the law, or come up with something else and pass it as an amendment to the House resolution. If they come up with something else, it goes BACK to the House, where it can either be passed in the exact same form, in which case it goes to the president, etc., etc., etc., or both chambers go to “conference,” where they talk through their differences and don’t leave until they come up with something that everyone can agree on (a phrase which here means, pass with a simple majority in both chambers and send to the president to be signed into law).
Now, remember that 60-votes-for-cloture thing? On a normal law, the Senate can keep talking and talking and talking and talking and talking (and talking and talking and talking) and never vote until they have a three-fifths majority who want the other folks to shut up and get on with it. According to the Congressional Budget Act of 1974, debate on a reconciliation measure is limited to 20 hours no matter what (to be equally divided between the majority and the minority party), so there’s no need for a cloture vote, and once you pass the motion to proceed with those 20 hours by a simple majority, you’re in it to win it with a vote on the bill (and any amendments therein) at the end. To make sure that the Senate doesn’t use this delightful loophole to pass all sorts of laws that aren’t related to the budget, the Senate also adopted the so-called Byrd rule in the ‘80s, which basically tacks on the provision that amendments offered to the reconciliation bill cannot be “extraneous” to the matters at hand.
In this context, “extraneous” provisions are defined as provisions that:
- Don’t directly change the levels of spending or revenues.
- Increase spending or decrease revenues in such a way as to stop the committees in question from meeting their reconciliation targets.
- Fall outside the jurisdictions of the committees involved in reconciliation.
- Change spending or revenues in ways that are “merely incidental” to the non-budgetary parts of the bill (which are only allowed, in turn, if they are considered necessary to achieving the aforementioned budgetary goals).
- Raise the deficit in years following those covered by the reconciliation bill (so basically, you can’t borrow against the future).
- Make any changes to Social Security programs (yup, someone in the ‘80s thought to include this very specific exception to the rule).
The above points correspond to my paraphrasing of the points in the order they appear in Byrd rule. If we’re going for formal citations, that can be found in Senate Manual as 2 U.S. Code § 644(b)(1)(A-F). Yaaaaay government document citations!
So… think you got all that? I’m not sure I do, and I wrote it for the sole purpose of making sure I got it… but let’s return to the main event.
Question #1: Since reconciliation has very strict rules about the relevant of amendments offered, how were they allowed to keep offering seemingly irrelevant amendments to the bill?
So here’s the thing about Senate rules, particularly the ones surrounding things like the budget reconciliation process: they aren’t self-enforcing. What this means in practice is that amendments can be as extraneous as you please, just as long as nobody raises a point of order against it (a phrase which here means, calls you out on your breaking of the rules). The process for raising a point of order is also (predictably) complicated – a Senator needs to gain the floor from the presiding officer to raise their point of order (complete with a citation of the rules as to why it’s not allowed) and the presiding officer needs to sustain that point of order.
Most of the time, if a point of order is sustained, the amendment in question is rejected outright. In budget-related proceedings, which, as discussed above, have all sorts of special rules, a point of order can be used instead to remove a small section of an amendment rather than the whole thing. Similarly, a point of order on a budget resolution or bill can be waived with the affirmative vote of three-fifths of the senators present. It is also worth noting that it’s the duty of the presiding officer to decide whether or not to sustain a point of order, and the presiding officer is usually someone appointment by the leadership of the majority party. I don’t want to cast aspersions where none should be cast, and I don’t think this actually became an issue in the healthcare debates, but it is something I find interesting.
So how does this relate to the question at hand?
First, the rules aren’t actually concerned with the relevance (or permissibility, if the point of order is raised about a different rule) of the amendments in the abstract – they are instead concerned with whether or not (a) at least one senator thinks they are irrelevant or impermissible, and (b) at least three-fifths of senators present think that there is sufficient cause to simply ignore, for whatever reason, the fact that at least one senator thought they were irrelevant or impermissible. I searched back through the text of the Congressional Record (a transcript of what happens in Congress – because that’s what all the cool kids do, right? Read congressional transcripts?), and very few points of order were raised over the course of the health care debates. Of the ones I could find in the four days between the Senate’s motion to proceed vote and the middle-of-the-night vote on the bill itself, all that were raised and put to a vote were sustained (agreed to) due to the fact that fewer than three-fifths of the senators present voted to waive them.
Which brings me to the second point – that a point of order regarding the relevance of any provision of the bill can only be raised in response to a perceived violation of the Senate rules, and the Senate rules’ definition of relevance or extraneousness is a little different than what you or I would consider relevant or extraneous (see above, pp. 3-4). So for example, a provision that defunds Planned Parenthood by name might be considered extraneous because it’s about a specific organization and doesn’t really affect the deficit in a substantive way, but a provision that denies funding to all abortion providers that fall into a specific funding category (that really only includes Planned Parenthood and one other agency – thank you The Weeds for that example) might be okay.
So in answer to the original question – the reason they were allowed to keep offering extraneous and irrelevant amendments was that the amendments weren’t officially extraneous and irrelevant in the eyes of the Senate rules, and even if they were…. it technically doesn’t matter unless someone catches it in time and fewer than 3/5ths of senators present think it should be ignored.
Question #2: How is it possibly allowable to release the final bill just two hours before expecting senators to vote on it?
Well, it’s allowed because in the cold, uncaring eyes of the Senate rules, the so-called “Health Care Freedom Act” is technically just another amendment, like any of the other amendments offered and voted on. Sounds weird, I know, but I will explain.
To begin, here is a brief yet meaningful rundown of relevant Senate amending rules:
- You can offer an amendment to a bill (a first degree amendment) or an amendment to an amendment (a second degree amendment). You cannot offer an amendment to an amendment of an amendment (this would be a third degree amendment, if such a thing existed, which it doesn’t).
- Amendments can either strike text from a bill (or first degree amendment), insert new text into a bill (or first degree amendment), or replace text from a bill (or first degree amendment) by doing both at once. You can do this to as much or as little text as you want, as long as you’re not breaking any other rules in the process.
- When you’re not in the middle of reconciliation, the Senate can debate amendments as long as they want, until the Senate invokes cloture, agrees to table (aka, kill) the amendment, or unanimously consents to limit debate.
- When you are in the middle of reconciliation, you only get 20 hours of debate total, regardless of the number of amendments, so any amendments offered must either be debated as a part of that, or be added and voted on during the much-discussed “vote-a-rama,” which happens when debate time has run out but there are still amendments left to be considered. In the case of a vote-a-rama (yes, that is the technical term), you get a few minutes of time to read or explain your amendment, but then it gets voted on immediately with little or no additional debate time.
So basically, when McConnell introduced his Health Care Freedom Act during the (proverbial, not literal) eleventh hour of the reconciliation debate period, he was merely offering an amendment (the Health Care Freedom Act is technically S.Amdt. 667) to an amendment (S.Amdt. 267 – The “Obamacare Repeal Reconciliation Act of 2017,” a.k.a. “repeal and delay,” a.k.a. the bill that was technically under debate during the Senate’s 20 hours of debate) to H.R. 1628 (AHCA, a.k.a. the House ACA repeal bill).
The opening text of that amendment reads:
Strike all after the first word and insert the following:
This Act may be cited as the “Health Care Freedom Act of 2017”.
SEC. 101. INDIVIDUAL MANDATE.
(a) In General.–Section 5000A(c) of the Internal Revenue Code of 1986 is amended–
(1) in paragraph (2)(B)(iii), by striking “2.5 percent” and
inserting “Zero percent”…
As you can no doubt imagine, it goes on to get even more fun from there. Because McConnell was working within the confines of the reconciliation process, no additional debate time was added to consider this amendment (even though it changed the entire bill under consideration), although he did magnanimously motion to divide the time remaining (about two hours, if I remember correctly) equally between the two parties.
Thus, by the time debate ran out, only two motions were awaiting a vote – one on a motion from the Democrats to commit the bill back to the Committee on Health, Education, Labor, and Pensions for further consideration, and one on the bill itself. The motion to commit went down on a straight party line vote, the bill itself went down thanks to Collins, Murkowski, and McCain, and the rest is history. Under the rules of vote-a-rama, amendments could’ve been offered after the fact (and almost certainly would’ve by the Democrats, had the motion passed), but once it failed, there was really no point.
“The Amending Process in the Senate”:
“The Budget Reconciliation Process: Stages of Consideration”:
“The Budget Reconciliation Process: The Senate’s ‘Byrd Rule’”:
“Concurrent Resolution On The Budget For Fiscal Year 2017”:
“Congressional Budget And Impoundment Control Act Of 1974”:
“Introduction to Budget ‘Reconciliation’”:
“Points of Order in the Congressional Budget Process”:
The (current) Rules of the Senate:
The delightfully searchable version of the Senate Manual for the 113th Senate, which is the last time the complete Senate Manual was published in PDF form:
The Congressional Record for the Senate for July 24th, 2017:
The Congressional Record for the Senate for July 25th, 2017:
The Congressional Record for the Senate for July 26th, 2017:
The Congressional Record for the Senate for July 27th, 2017:
Vox’s The Weeds:
Pirates of the Caribbean: The Curse of the Black Pearl
A Phrase Which Here Means: