Republicans in the Senate remain optimistic about their chances, but they first need to wait for the final word on what’s allowed in the bill before voting. Elizabeth MacDonough, the Senate Parliamentarian, has been reviewing the hundreds of pages in the proposed bill and has already flagged several problematic provisions that would be prohibited under the Byrd Rule.
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Some of those getting thumbs down were expected, but others—including efforts to transfer the Space Shuttle from the Smithsonian Air & Space Museum to a nonprofit in Houston, Texas—were a surprise. The sheer number of “extras” found to be unrelated to the budget in the Senate bill (shared by the House) gives you a good idea of the scope of the bill and how very likely it is that members of Congress have not completely read it, as confirmed by several members of Congress, including Marjorie Taylor Green (R-Ga.) in the House.
The majority of provisions in the early stages that have been found to be in violation come from Sen. Tim Scott’s (R-S.C.) Committee on Banking, Housing, and Urban Affairs.
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Those included attempts to eliminate funding for the Consumer Financial Protection Bureau.
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At least three provisions from Sen. Shelley Moore Capito’s (R-W.V.) Committee on Environment and Public Works are in line to be stricken. Those include efforts to repeal authorizations for Inflation Reduction Act (IRA) programs (this is separate from the clawback of unobligated IRA funds, which would not be prohibited), the repeal of Environmental Protection Agency (EPA) vehicle tailpipe emissions rules for new cars put into service after 2027, and an attempt to amend the National Environmental Policy Act to prevent judicial reviews of environmental assessments or environmental impact statements when a one-time fast-track fee is paid (the fee provision may stand, but barring judicial review may not).
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An effort to limit the power of the courts was also deemed out of order. The controversial language, which Rep. Mike Flood (R-Neb.) famously acknowledged he didn’t know was in the bill when he voted for it, limits the ability of federal judges to hold government officials in contempt for flouting court rulings.
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A provision limiting grant funding for “sanctuary cities,” and cities where the Attorney General disagrees with states’ and localities’ immigration enforcement was found to be out of scope, as was language that gives state and local officials the authority to arrest any noncitizen suspected of being in the U.S. unlawfully.
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The Parliamentarian ruled that a requirement for states to cover part of the Supplemental Nutrition Assistance Program (SNAP) benefits, with a growing contribution as error rates increase, violated the Byrd Rule.
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An extension of the suspension of permanent price support authority, which has traditionally been addressed in the Farm Bill, was found to be out of scope. The permanent price support authority dictates how the government supports the prices of certain agricultural commodities like corn, cotton, rice, and wheat, through loans, purchases, or other operations.
A proposed 10-year ban on state-level artificial intelligence (AI) regulations was found not to be subject to the Byrd Rule.
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Since agreeing on a final budget can be slow, to speed things up, the Senate often jumps straight to a process called reconciliation. Reconciliation is especially beneficial when one party has the majority (more than 50 votes) but not a filibuster-proof majority (60 votes). The process can be complicated, but generally, under reconciliation, the goal is to combine spending and revenue provisions into a single bill.
Reconciliation bills are subject to special rules in the Senate. First, debate is limited to 20 hours, which can help a reconciliation bill get to a vote quickly. More importantly, the bill cannot be filibustered—the 60 votes necessary to stop a filibuster are not required.
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[U]nder the Byrd Rule, you can't tack on policy changes that are unrelated to the budget or have only “incidental” effects on the budget. (Congress often tacks on extras to push potentially unpopular measures through on the coattails of government funding, but that's not allowed with reconciliation.)
Also notable, any bill under reconciliation cannot increase the deficit beyond the fiscal years covered—that’s usually limited to 10 years (and why tax cuts rarely last forever). To avoid violating the Byrd rule, key provisions of reconciliation bills—typically tax cuts—are written to expire.
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The Byrd rule would also apply if a reconciliation bill recommended a change in Social Security.
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If the Parliamentarian determines a provision in a bill violates the Byrd Rule, the provision must be removed from the bill unless the Senators vote to waive the rule—that requires 60 votes.
The presiding officer of the Senate (currently J.D. Vance, since the Vice President serves as the presiding Officer of the Senate) can overrule the Parliamentarian, though this is extremely rare.
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(Some of these provisions, if removed, could still return as stand-alone votes and be subject to the 60-vote filibuster.)
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It’s important to note that these provisions aren’t “illegal”—they’re violations of Senate rules. If the Senate opted out of reconciliation, the Byrd rule wouldn’t apply, and the Senate would vote as it would on any other bill. It sounds like a simple solution, but there’s one big problem: Republicans don’t have enough votes to make that happen.
Forbes
Imagine that.
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