Vice President Harris Can Help Democrats Win Reconciliation Debate

Democrats blame the Senate parliamentarian for stopping their effort to grant lawful permanent resident (LPR) status to several categories of illegal aliens using the budget reconciliation process. They point to a recent advisory opinion from the parliamentarian which suggests that their effort violates the Byrd Rule's prohibition against senators' including policies unrelated to the federal budget in a reconciliation bill. In the parliamentarian's opinion, the budgetary impact of the LPR provision - the fiscal consequence of granting LPR status to the affected people - is "merely incidental" to its non-budgetary components.

However, whatever the merits of the parliamentarian's opinion, she cannot remove the LPR provision from a House-passed Build Back Better Act (HR 5376) reconciliation bill. The only way that the Senate can take it out is by senators raising a point of order against the provision or offering an amendment to strike it. Democrats can make it harder for senators to take either action successfully - without violating the Senate's rules. 

Points of Order

Like all Senate rules, the Byrd Rule is not self-enforcing. So, senators must instead take the initiative to enforce it on the Senate floor. And they do so, in part, by raising points of order against provisions in reconciliation bills that violate one or more of the rule's six tests. 

After a senator raises a point of order, the Senate's presiding officer decides whether it is valid (i.e., whether the targeted provision violates the Byrd Rule). Senate Rule XX stipulates that all points of order, "unless submitted to the Senate, shall be decided by the Presiding Officer." And sections 13214(e) and 13214(f) of the Omnibus Budget Reconciliation Act of 1990 (Public Law 101-508), which made the Byrd Rule permanent, stipulate explicitly that the Senate's presiding officer is responsible for making the initial ruling on Byrd Rule points of order.

Section 13214(f) of the Omnibus Budget Reconciliation Act of 1990 also stipulates that the full Senate may waive a Byrd Rule point of order before the presiding officer rules on it. 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). Waiver motions, therefore, require pro-waiver senators - pro-LPR-status adjustment senators - to get the same number of votes as cloture requires to keep the provision in the underlying bill.

Absent a motion to waive the Byrd Rule, the Senate's rules stipulate that any senator may appeal the presiding officer's subsequent ruling. Thus, for example, Rule XX acknowledges that the presiding officer's rulings are "subject to an appeal to the Senate." And Subsection 13214(f) stipulates, "after the presiding Officer rules on such a point of order, any Senator may appeal the ruling of the Presiding Officer on such a point of order as it applies to some or all of the provisions on which the Presiding Officer ruled."

Therefore, the Senate's presiding officer – Vice President Kamala Harris – can rule that a senator's point of order against the LPR provision is not valid. Ruling this way makes it harder for the provision's opponents to strike it from the underlying bill because it takes a three-fifths vote of the senators duly chosen and sworn (typically 60) to overturn the vice president's ruling in this case.

An Un-adjudicated Question

Harris (or anyone else presiding over the Senate) would not be breaking the rules by ruling a Byrd Rule "merely incidental" point of order against the LPR provision invalid. The presiding officer has considerable discretion in enforcing the "merely incidental" test in ambiguous parliamentary situations like this one. The senators define the standard against which they give the "merely incidental" test meaning and assess it using precedent (i.e., what senators did in the past in similar situations). However, there are very few past precedents with which the Senate can inform its understanding of how to apply the "merely incidental" test. And there are no precedents which suggest that Democrats cannot include the LPR provision in a reconciliation bill.