Senate Parliamentarian Doesn't Make the Rules

The Senate voted 51 to 50 to begin debate on the House-passed Build Back Better Act reconciliation bill (HR 5376), with Vice President Kamala Harris casting the tie-breaking vote. After the vote, Majority Leader Chuck Schumer, D-N.Y., offered the Senate version of the reconciliation bill – a modified Inflation Reduction Act – to HR 5376 in the form of a complete substitute amendment. Senators now have 20 hours to debate both versions according to the rules that regulate the reconciliation process.

Reports suggest that Democrats waited to start the Senate’s 20-hour reconciliation clock until after the chamber’s parliamentarian gave them the green light to proceed. And according to a press release issued by Schumer’s leadership office, Democrats were relieved by the “extremely good news” out of the parliamentarian’s office that most of the provisions in the Inflation Reduction Act passed muster and that the reconciliation process could proceed.

But the parliamentarian is not required to sign off on the Inflation Reduction Act before Democrats can debate it on the Senate floor. And the parliamentarian cannot weaken, change, or require senators to change, legislation. The Constitution (Article I, section 5, clause 2 gives senators – and only senators – the power to determine the rules that regulate the Senate’s proceedings. And the Senate’s rules and practices only authorize the full Senate – acting on the Senate floor – to make changes to legislation. That is why the Senate must approve committee-proposed amendments before they are official. 

The Parliamentarian’s Role

The Senate parliamentarian plays a helpful role in the reconciliation process. This is because the standard against which the Byrd Rule’s “merely incidental” is given meaning and assessed by the presiding officer (and senators) is precedential in nature (i.e., it is not defined in the rule/statute). And the parliamentarian’s job is to help the presiding officer (and senators) interpret the Senate’s rules and its precedents in specific situations. According to the Senate's website, the “parliamentarian is the Senate's advisor on the interpretation of its rules and procedures. Staff from the parliamentarian's office sit on the Senate dais and advise the presiding officer on the conduct of Senate business. The office also refers bills to the appropriate committees on behalf of the Senate's presiding officer.”

While the parliamentarian's role is essential throughout the reconciliation process, it is especially important during the so-called Byrd Bath process immediately preceding floor debate on a reconciliation bill. During the Byrd Bath, the parliamentarian meets with the majority and minority staff to identify extraneous provisions in a reconciliation bill before its consideration on the Senate floor.

During the Byrd Bath, the parliamentarian appears to play a role in the reconciliation process similar to the role played by an umpire in a baseball game. But the parliamentarian’s role is very different from an umpire. The parliamentarian does not have the power to enforce the Senate's rules or to remove a provision from a reconciliation bill. But, again, the Constitution stipulates that only senators can determine the Senate’s rules or make changes to legislation.

The parliamentarian’s role is to instead advise the presiding officer (and senators) on what the Senate’s rules and practices say, as well as on how best to use lessons learned from its past (i.e., precedents) to adjudicate Byrd Rule points of order on the Senate floor in the present. Senate precedents state explicitly, “The chair [presiding officer] rules on points of order, not the parliamentarian; the parliamentarian merely advises the chair.”  

Senators have to make a decision for themselves on whether a provision in the reconciliation bill violates the Byrd Rule. And if they believe that a provision violates the Byrd Rule, senators have to remove it on the Senate floor. While there are many ways to remove a provision in such circumstances (e.g., raise a point of order, move to strike it, offer a substitute amendment that includes everything in the underlying bill but the offensive provision, etc.), all of them require senators to act, not the parliamentarian.

The Byrd Bath Process

The so-called Byrd Bath process - in which senators for and against a provision petition the parliamentarian for a favorable ruling on whether it violates the Byrd Rule –distorts the parliamentarian’s actual role in the reconciliation process. This is because the parliamentarian is limited by the same shortage of precedents when determining Byrd Rule violations that complicate senators’ ability to discern the meaning of “merely incidental” for themselves by referring to past practice.

There are very few actual precedents to give senators a better understanding of how to apply the Byrd Rule’s “merely incidental” test in the context of a point of order against a targeted provision in the Inflation Reduction Act. According to the Congressional Research Service, the Senate adjudicated 141 points of order, or motions to waive them, under the Byrd Rule. However, not all those points of order – or waiver motions - concerned the rule’s “merely incidental” test. Instead, senators' most common basis for raising a Byrd Rule point of order was that the targeted provision failed the rule’s first test (i.e., it did not produce a change in outlays or revenues). The second most common basis was that the provision in question failed the Byrd Rule’s third test (i.e., it was outside of the reporting committee's jurisdiction).

In contrast, the Senate adjudicated “merely incidental” points of order 14 times. While the parliamentarian may also rely on informal conversations in the so-called Byrd Bath process to inform her understanding of how to apply the test to a particular provision, any consensus reached in such discussions on what is and is not compatible with the Byrd Rule lack precedential authority to the extent that they did not involve a majority of senators and were not adjudicated on the Senate floor. Consequently, it is incorrect to consider Byrd Bath discussions precedents that are binding on senators.

The Takeaway

The Senate voted to begin its reconciliation debate when Democrats finally secured the votes, not when the parliamentarian told them to. The parliamentarian cannot determine the Senate’s rules. And the parliamentarian cannot remove provisions from bills.