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Democrats flirt with destruction of yet another Senate guardrail

Senate Democrats who are contemplating the destruction of another Senate rule set may wish to heed the words of English lawyer and chancellor Sir Thomas More to his son-in-law centuries ago: And when the last law was in force and the devil has turned against you, where would you hide, Roper, the laws being all flat? Then-senator Harry Reid began this modern clarification of the rules in 2013. He used the nuclear option to lower the confirmation vote threshold to stack the DC Circuit Court of Appeals. Senator Mitch McConnell stepped up using the same standard to confirm Supreme Court candidates. While Majority Leader Chuck Schumer is also playing with the idea of ​​blowing up the legislative obstruction, he is potentially on the cusp of first unraveling another important, though lesser-known Senate rule in the lawsuit. a COVID relief bill encompassing the terms of the budget reconciliation. . There was talk of the Byrd Rule (named after the late Senator Robert Byrd), which limits the ability of the majority to incorporate unnecessary legislative advantages into budget proposals and pass them with a simple majority vote as part of this process. . Senator Byrd saw the danger of using reconciliation, which limits amendments and debate, to pursue broader non-budget legislation outside the normal order. As a defender of the right of all senators to debate and change the laws, he set these restrictions on the reconciliation process. This is for the greater good: The Byrd Rule protects Social Security from the reconciliation process, for example, while limiting committees to proposals within their purview and requiring that the budgetary relevance of any proposal considered under this process is more than just incidental. This means that major changes in legislative policy can only be made when all senators have the right to debate and fully amend laws and to filibuster. Reconciliation also streamlines this process at the expense of the minority. Today, fueled by rage and revenge, Senate leaders do not care about the reasons behind the rules; they just want to pass their legislation as quickly as possible. Most of the attention in recent weeks has gone to the $ 15 minimum wage contained in the COVID relief package. That hardly meets the standard of reconciliation on its own, but there will be other violations of the Byrd rule in the bill the House sends to the Senate. That’s why Senate Democrats might aim to break the glass on Senate rules. As parliamentary expert Martin Gold has described, there are two ways of doing this. First, there is the more targeted attack on Byrd’s rule. Suppose Deputy Speaker Harris is in the chair when a senator raises a point of order against, for example, increasing the minimum wage. The parliamentarian of the Senate informed him that this particular section of the reconciliation bill was inadmissible. Despite all the evidence and all the precedents that the article is inadmissible, the vice-president decides otherwise. Now the section only takes a simple majority to pass. However, if a senator who supports the Byrd rule challenges the president’s decision, it will take a majority of 60 votes to overturn Harris. It’s a high bar. So here the president’s judgment, which would likely be upheld, changes the precedent so that any other element of the bill that violates the Byrd rule can be deemed acceptable under the new standard just set by the vice president. Republicans would have loved this when they tried to get rid of the Affordable Care Act, but they stuck to Senate rules protecting minority rights. This limited surgical strike on Byrd’s Rule would still disrupt the precedent in perpetuity. Meanwhile, there is a larger attack that could be implemented. In this scenario, the majority leader addresses the president and says that waiving the Byrd rule only requires a simple majority vote. It is clear from the rules and precedents that this is wrong. If the president decides it takes 60 votes to override the Byrd rule, the majority leader then appeals the president’s decision, which requires a simple majority vote to override. Bingo, the protections of the Byrd rule are dead, and now it only takes a simple majority vote to put any legislative proposal the majority wants in the budget reconciliation bill, bypassing legitimate debate and amendment. . The result of this action would threaten any Senate rule. If at some point the majority wants to get rid of a rule, all it would have to do is appeal the president’s decision and assemble a simple majority silencing the opposition and imposing its will on the American people. . Once upon a time, the United States Senate was called the world’s greatest deliberative body. As Thomas Jefferson envisioned, certain rules protected the minority and allowed for in-depth debate. Unfortunately, it seems that the current Senate majority cares little about the precedents that have earned the US Senate this title. But some caution on their part might be in well-advised personal interest; we know that the tables are turning. Editor’s Note: This article has been updated with a corrected version of the quote attributed to Sir Thomas More.

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