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OP-ED: The Senate’s ‘Byrd Rule’ Undermines Democracy

December 25, 2017
In The News

You may be wondering why the House had to approve the tax-reform bill twice last week—before and after the Senate vote—even though a committee had resolved all differences between the bodies. Your confusion is justified.

Originally each chamber passed a different tax plan. A committee of representatives and senators overcame the differences and produced a compromise bill. The House voted for the compromise and sent it to the Senate. But before the Senate could vote on the agreement, an unelected official required that some agreed-upon provisions be removed.

Yes, Senate reconciliation rules require that elected senators submit their work to an unelected bureaucrat, the Senate parliamentarian, before they can vote on the legislation. The “Byrd rule,” as it is called, causes strange contortions as Congress attempts to make law. As one former representative said, “It forces us to try to fit 10 pounds of flour into a 1-pound sack.” He’s right. If the House is always constrained by the Byrd rule, we will never be able to straighten out the mess in Washington and keep the promises we made to the American people.


The Byrd rule is an enigmatic statute that governs the contents of any legislation produced to reconcile a budget bill. The House and Senate leadership decided we would use the reconciliation process for tax reform because it requires only 51 votes to pass in the Senate. Any other way requires 60 votes.

But is the Senate parliamentarian the final arbiter on all legislation in the reconciliation process? Not really. There is no language in the statute granting such power to the Senate parliamentarian. The law doesn’t mention the parliamentarian at all. The parliamentarian is supposed to be an expert on all Senate rules. The current parliamentarian was recommended by former Democratic Leader Harry Reid. She is, as a fellow representative told me, “the great Oz on all things ‘Byrd rule.’ ”


Although the Constitution allows the Senate to make its own rules, those rules have to be consistent with the Constitution. Allowing an unelected official to regulate the flow and content of legislation deprives Americans of their fundamental right to representation, undermining America’s republican government.

The first part of the law requires that the content of a reconciliation bill meet byzantine parameters, but the ultimate authority on whether the reconciliation bill meets the Byrd test is not the Senate parliamentarian. As with all self-regulating legislative bodies, the Senate itself is the final judge. It can limit itself by amending rules, suspending rules, changing or deleting rules. In this case, it could make a statutory change.

A constitutionally sound process would bypass the parliamentarian altogether, and give each U.S. senator’s vote its full value. Under the Byrd rule, the process might look something like this:

After we pass the bill out of the House, it would proceed through the Senate. Once it reaches the floor, the Democrats would make a motion that the bill was not an appropriate reconciliation vehicle because it does not comply with the Byrd rule. The Senate parliamentarian might opine that she does not believe that the bill complies with Byrd. The presiding officer of the Senate would simply deny the Democrats’ motion.

The Democrats would then appeal the ruling of the presiding officer to the full Senate. To overturn the ruling requires a majority of those present and voting. The Democrats would be unable to cobble together the votes among themselves, so their invocation of the Byrd rule would be defeated.

Some claim treating the Byrd rule in the manner I’ve described would harm the institution of the U.S. Senate. I believe it is time to shake up the old order and start to deconstruct institutions and rules that are destructive to the constitutional order of individual freedom, which is what made America great.