Byrd Rules on the Byrd Rule

Published Sep 12, 2009. By Kerry Young. In Congressional Quarterly Weekly.


Without meaning to, Robert C. Byrd, the most jealous guardian of senatorial privileges and prerogatives, long ago set the stage for giving an unelected official what could be great power in the Senate's attempt to overhaul the nation's health care system.

What the venerable West Virginia Democrat was trying to do in the mid 1980s was protect the rights of the minority party -- at that time his own -- from one of the most potent weapons the Senate majority possesses, the option to limit debate and move bills through a process called reconciliation, which requires only 51 votes.

Reconciliation, enacted in 1974 to reduce the budget deficit through better legislative discipline, is designed to align, or reconcile, existing spending laws with the annual budget resolution adopted by the House and Senate. Unlike most other measures, reconciliation bills are immune to a filibuster (which requires 60 votes to overcome). In years past, both parties have used the procedure to advance policy changes that have had little or nothing to do with deficit reduction.

Adopted, revised and finally codified in law in 1990, what became known as the Byrd rule lets any senator raise a point of order to strike out parts of a reconciliation measure that are found not to be budget issues. To a large degree, it is the Senate parliamentarian -- an appointee of the majority leader -- who makes the call on what does and does not qualify for a spot in a reconciliation bill. Overruling the parliamentarian when he sticks up for a point of order requires 60 votes, probably dooming provisions that have been challenged this way.

So Parliamentarian Alan S. Frumin could play a pivotal role if Democratic leaders opt to use reconciliation to advance a health care overhaul, an option they're considering seriously if President Obama is unable to negotiate a deal in coming weeks that's sure to get 60 Senate votes.

Nothing against Frumin, but Byrd has been urging fellow Democrats for months not to use reconciliation in this way. The current reconciliation process "serves as a reminder of how well-intentioned changes to the Senate rules can threaten the institution in unforeseen ways," he said at a February hearing of the Budget Committee, where he spoke for almost 20 minutes as a witness, sitting in a wheelchair and aided by notes. This was a somewhat rare appearance by the 91-year-old senator, who has been sidelined for much of the past couple of years by a series of hospitalizations.

In March, Byrd wrote an opinion piece for The Washington Post arguing that "putting health care reform and climate change legislation on a freight train through Congress" would be "an outrage that must be resisted."

Reconciliation, he wrote colleagues in April, "was intended to adjust revenue and spending levels in order to reduce deficits." The process, he said, "was not designed to create a new climate and energy regime, and certainly not to restructure the entire health care system."

This isn't the first time Byrd has been a naysayer on using reconciliation for health care legislation: In 1993 he helped dash President Bill Clinton's hopes of using the procedure to push his own overhaul past a hostile GOP.

Frumin, the parliamentarian from 1987 to 1994, and again since 2001, has a reputation for even-handedness -- "the consummate professional -- studiously nonpartisan," says Charles S. Konigsberg, chief budget counsel at the anti-deficit advocacy group the Concord Coalition, who worked with Frumin in the 1990s as a Senate Finance Committee staff member.

Frumin likes to stay in the background and didn't respond to a request for an interview. But, in a talk with CQ Weekly 22 years ago, he said that "the Senate needs professional people who in essence provide an institutional memory and don't have an ax to grind politically. . . . I know I've done my job when everyone thinks I'm somehow favoring the other side."