Reconciliation (United States Congress)

Reconciliation is a legislative process of the United States Congress that allows expedited passage of certain budgetary legislation on spending, revenues, and the federal debt limit with a simple majority vote in both the House (218 votes) and Senate (51 votes). Senate rules prohibit filibustering and impose a 20 hour cap on the total time for debate, motions and amendments related to reconciliation bills. The procedure also exists in the House of Representatives, but the House regularly passes rules that constrain debate and amendments, so reconciliation has had a less significant impact on that body.^[1]

The process was created by the Congressional Budget Act of 1974 and was first used in 1980. Reconciliation rules allow budget related adjustments, but larger policy changes that are extraneous to the budget are limited by "Byrd Rule", an amendment named after Democratic Senator Robert Byrd that was passed in 1990.^[2][3]

Reconciliation bills can be passed on spending, revenues, and the federal debt limit^[4] once a year per topic unless Congress passes a revised budget resolution for that fiscal year (under section 304 of the Congressional Budget Act).^[5] As an example, if a budget resolution's reconciliation instructions affect both spending and revenues, no further reconciliation legislation can occur on these topics in the same fiscal year without a revised budget resolution.^[5]

Legislative history

The reconciliation process arose from the Congressional Budget Act of 1974. Over time, it has developed into a procedure for implementing some policy decisions and assumptions embraced in a budget resolution in a way that was unforeseen when the Budget Act was enacted. Under the original design of the Budget Act, reconciliation had a fairly narrow purpose: it was expected to be used together with the second budget resolution adopted in the fall, was to apply to a single fiscal year, and be directed primarily at spending and revenue legislation acted on between the adoption of the first and second budget resolutions.^[6]

Historical use

Although reconciliation was originally understood to be for the purpose of either reducing deficits or increasing surpluses, the language of the 1974 act refers only to "changes" in revenue and spending amounts, not specifically to increases or decreases. Per former Parliamentarian of the Senate Robert Dove:

[Reconciliation] was never used for that purpose. But in 1975, just a year after it had passed, a very canny Senate committee chairman, Russell Long of Louisiana, came into the Parliamentarian's Office, and he kept having trouble with his tax bills because of the Senate rules. People were offering amendments to them that he didn't like. They were debating them at length, and he didn't like that. And he saw in the Budget Act a way of getting around those pesky little problems. And he convinced the Parliamentarian at the time—I was the assistant—that the very first use of reconciliation should be to protect his tax cut bill.^[7]

Congress has used the procedure to enact omnibus budget bills, first in 1980.^[8] Between 1980 and 2009, 17 of 23 reconciliation bills have been signed into law by Republican presidents (a Republican was president for 20 of those 29 years). Since 1980, reconciliation has been used nine times when Republicans controlled both the House and the Senate, six times when Democrats controlled both the House and the Senate, one time when the Democrats controlled the Senate and the Republicans the House, and seven times when the Republicans controlled the Senate and the Democrats controlled the House. Reconciliation has been used at least once nominally for a non-budgetary purpose (for example, see the College Cost Reduction and Access Act of 2007, when a Republican was president and the Democrats controlled Congress). The 1986 Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) contained some health care provisions.

Senator Robert Byrd.

The Byrd Rule (as described below) was adopted in 1985 and amended in 1990. Its main effect has been to prohibit the use of reconciliation for provisions that would increase the deficit beyond 10 years after the reconciliation measure. The removal of such provisions has been described as a "Byrd Bath."^[9]

Congress used reconciliation to enact President Bill Clinton's 1993 (fiscal year 1994) budget. (See Pub.L. 103–66, 107 Stat. 312.) Clinton wanted to use reconciliation to pass his 1993 health care plan, but Senator Robert Byrd insisted that the health care plan was out of bounds for a process that is theoretically about budgets.

In 1997, Congress passed the Taxpayer Relief Act of 1997 which was a reconciliation bill that reduced taxes and hence increased the deficit, but was paired with the Balanced Budget Act of 1997 (H.R. 2014 and H.R. 2015 respectively), each signed by President Clinton. In 1999, the Congress for the first time used reconciliation to pass legislation that would increase deficits without a companion bill that reduced spending (thereby ignoring the bill from 1975): the Taxpayer Refund and Relief Act 1999. This act was passed when the Government was expected to run large surpluses. It was subsequently vetoed by President Bill Clinton. A similar situation happened in 2000, when the Senate again used reconciliation to pass the Marriage Tax Relief Reconciliation Act 2000, which was also vetoed by Clinton. At the time, the use of the reconciliation procedure to pass such bills was controversial.^[10]

Patient Protection and Affordable Care Act signed into law in 2010.

From 2000s to present

During the administration of President George W. Bush, Congress used reconciliation to enact three major tax cuts.^[11] These tax cuts were set to lapse after 10 years to fulfill the requirements of the Byrd Rule which prohibits legislation that increases the deficit after the time period covered by the budget resolution (section 313 of the Congressional Budget Act of 1974).

The Health Care and Education Reconciliation Act of 2010 (H.R. 4872) is a reconciliation bill passed by the 111th United States Congress to make changes to the Patient Protection and Affordable Care Act (PPACA). It was signed into law by President Barack Obama on March 30, 2010.^[12] The PPACA bill itself was not passed using reconciliation but in the years following the passage of the PPACA, several Republicans proposed using reconciliation to repeal major parts of the PPACA.^[13] In 2016, Republicans passed a bill via reconciliation to undo parts of PPACA, although the bill was vetoed by President Barack Obama.^[14][15]

The American Health Care Act of 2017 is a PPACA replacement bill that GOP leaders intended to pass using reconciliation. The bill was withdrawn before March 24, 2017, but later passed in a vote by the House by a vote of 217-213 on May 3, 2017.^[9] Since the Republican majority 115th Senate does not have a 60-member filibuster proof majority in the U.S. Senate (with only a 52-member simple majority), reconciliation would be one way to repeal the Affordable Care Act without being filibustered.^{[16][17][18][19]} Senate minority leader Chuck Schumer has stated that he believes that a AHCA reconciliation vote would violate the terms of the Byrd Rule which requires reconciliation bills to deal strictly with budget matters.^[3] Senator Roy Blunt, vice chairman of the Senate Republican Conference, has stated that overruling the Senate parliamentarian on a Byrd Rule ruling would "virtually guarantee that the GOP health-care law would be challenged in court" since the rule is incorporated into the Budget Act itself.^[20] After "scoring" by the Congressional Budget Office on May 24, 2017, the House bill was expected to reduce deficits by $119 billion over a 10 year period, which therefore qualifies it for a simple majority vote. Such rules would dictate that any bill that failed to provide substantial budget deficit reduction would not qualify under reconciliation and would be subject to filibuster.^[21]

On July 25, 2017, the Senate voted to proceed to debate the House-passed American Health Care Act bill in which they would use reconciliation to repeal the Patient Protection and Affordable Care Act with numerous amendments to AHCA^[22] One of the amendments—named the Better Care Reconciliation Act—was not eligible for reconciliation under the Byrd Rule because the Congressional Budget Office had not scored the legislation in time,^[23] and it was voted down 43 to 57—far short of the 60 votes needed.^[24] Two other amended versions of the bill were eligible for reconciliation because they included provisions previously scored by the CBO.^[25] Yet they both failed to pass with a bare majority vote, and the final attempt was dramatically defeated with a 49 to 51 vote on July 27.^[26] On July 29, President Donald Trump partly blamed this defeat on the Senate's reconciliation rules and saying on the social network website Twitter, "The very outdated filibuster rule must go. Budget reconciliation is killing R's in Senate. Mitch M, go to 51 Votes NOW and WIN. IT'S TIME!"^[27]

Process

To trigger the reconciliation process, Congress passes a concurrent resolution on the budget instructing one or more committees to report changes in law affecting the budget by a certain date. If the budget instructs more than one committee, then those committees send their recommendations to the Budget Committee of their House, and the Budget Committee packages the recommendations into a single omnibus bill. In the Senate, the reconciliation bill then gets only 20 hours of debate and amendments are limited. Only one reconciliation bill can be passed in any given year.^[4]

A reconciliation bill is a bill containing changes in law recommended pursuant to reconciliation instructions in a budget resolution. If the instructions pertain to only one committee in a chamber, that committee reports the reconciliation bill. If the instructions pertain to more than one committee, the House Budget Committee reports an omnibus reconciliation bill, but it may not make substantive changes in the recommendations of the other committees.^[28]

Former Senator Judd Gregg explained the complex sequence of steps involved in reconciliation. He emphasizes the complexity of the process, especially if there is a deep partisan divide:^[29]

• Congress passes a budget resolution, with a deadline of April 15. No presidential signature is needed; sometimes the resolution is delayed or never passed.
• The budget goes to both houses.
• It goes to the Senate with a special rule: it can pass with 51 votes and cannot be filibustered. Other legislation can be filibustered and requires 60 votes to end the filibuster.
• The budget cannot affect entitlements such as Medicare unless the budget includes "reconciliation instructions." In that case, the Byrd rule applies and the primary result must be to reduce entitlement spending. Gregg notes, "If the budget calls for more revenue to reduce the deficit, then reconciliation can be used to produce that revenue via fees or taxes." A reconciliation instruction is a provision in a budget resolution directing one or more committees to submit legislation changing existing law in order to bring spending, tax revenues, or the debt ceiling into conformity with the budget resolution. The instructions specify the committees to which they apply, indicate the appropriate dollar changes to be achieved, and usually provide a deadline by which the legislation is to be reported or submitted.^[30]
• After the changes are made, the Budget Committees consolidate them into one bill that is voted on by both houses; it needs 51 Senate votes.
• The final reconciliation covers government spending and goes to the president who can sign it or veto it; the veto can be overturned by a two-thirds majority in both houses.

Byrd Rule

The Byrd Rule defines any reconciliation changes to Social Security as "extraneous"—and therefore ineligible for reconciliation.

The Byrd Rule is a United States Senate rule that amends the Congressional Budget Act of 1974 to allow Senators during the Reconciliation Process to block legislation if it possibly would increase significantly the federal deficit beyond a ten-year term or is otherwise an "extraneous matter" as set forth in the Budget Act.^[31] It is named after West Virginia Senator Robert Byrd.

Reconciliation generally involves legislation that changes the budget deficit (or conceivably, the surplus). The "Byrd Rule" (2 U.S.C. § 644, named after Democratic Senator Robert Byrd) was adopted in 1985 and amended in 1990 to outline for which provisions reconciliation can and cannot be used. The Byrd Rule defines a provision to be "extraneous"—and therefore ineligible for reconciliation—in six cases:

1. If it does not produce a change in outlays or revenues;
2. If it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
3. If it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
4. If it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
5. If it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure; or
6. If it recommends changes in Social Security.

Any senator may raise a procedural objection to a provision believed to be extraneous, which will then be ruled on by the Presiding Officer, customarily on the advice of the Senate Parliamentarian. A vote of 60 senators is required to overturn the ruling. The Presiding Officer need not necessarily follow the advice of the Parliamentarian, and the Parliamentarian can be replaced by the Senate Majority Leader.^[32] The Vice President as President of the Senate can overrule the parliamentarian, but this has not been done since 1975.^[33] In 2001, Senate Majority Leader Trent Lott fired Parliamentarian Robert Dove after dissatisfaction with his rulings, replacing him with Alan Frumin.^[34]

Examples

Reconciliation bills have included:

• Omnibus Reconciliation Act of 1980, Pub.L. 96–499 (1980)
• Omnibus Budget Reconciliation Act of 1981, Pub.L. 97–35 (1981)
• Omnibus Budget Reconciliation Act of 1982, Pub.L. 97–253 (1982)
• Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub.L. 97–248 (1982)
• Omnibus Budget Reconciliation Act of 1983, Pub.L. 98–270 (1984)
• Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Pub.L. 99–272 (1986)
• Omnibus Budget Reconciliation Act of 1986, Pub.L. 99–509 (1986)
• Omnibus Budget Reconciliation Act of 1987, Pub.L. 100–203 (1987)
• Omnibus Budget Reconciliation Act of 1989, Pub.L. 101–239 (1989)
• Omnibus Budget Reconciliation Act of 1990, Pub.L. 101–508 (1990).
• Omnibus Budget Reconciliation Act of 1993, Pub.L. 103–66 (1993).
• Balanced Budget Act of 1995, H.R. 2491 (vetoed December 6, 1995)
• Personal Responsibility and Work Opportunity Act, Pub.L. 104–193 (1996)
• Balanced Budget Act of 1997, Pub.L. 105–33 (1997)
• Taxpayer Relief Act of 1997, Pub.L. 105–34 (1997)
• Taxpayer Refund and Relief Act of 1999, H.R. 2488 (vetoed September 23, 1999)
• Marriage Tax Relief Reconciliation Act of 2000, H.R. 4810 (vetoed August 5, 2000)
• Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), Pub.L. 107–16 (2001)
• Jobs and Growth Tax Relief Reconciliation Act of 2003, Pub.L. 108–27 (2003)
• Deficit Reduction Act of 2005, Pub.L. 109–171 (2006)
• Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA), Pub.L. 109–222 (2006)
• College Cost Reduction and Access Act of 2007, Pub.L. 110–84 (2007)
• Health Care and Education Reconciliation Act of 2010, Pub.L. 111–152 (2010)

See also

• Congressional Budget and Impoundment Control Act of 1974
• Filibuster in the United States
• Nuclear option

References

Further reading

• Blumenthal, Paul. "A Brief History of Senate Reconciliation Votes", Sunlight Foundation, March 3, 2010
• Dauster, Bill. "The Day the Senate Died: Budget Measure Weakens Minority." Roll Call, May 30, 1996, 5, reprinted in Congressional Record (June 12, 1996), vol. 142, S6135–36.
• Dauster, Bill. "The Monster That Ate the United States Senate." Public Budgeting and Finance, vol. 18, no. 2 (Summer 1998): 87–93.
• Frumin, Alan S. "Congressional Budget" in Riddick's Senate Procedure, 502–642. Washington, D.C.: Government Printing Office, 1992.
• Keith, Robert, and Bill Henniff Jr. The Budget Reconciliation Process: House and Senate Procedures. Washington, D.C.: Congressional Research Service, 2005.
• Keith, Robert. The Budget Reconciliation Process: The Senate’s “Byrd Rule” Washington, D.C.: Congressional Research Service, 2010.
• Lynch, Megan S. The Budget Reconciliation Process: Timing of Legislative Action Washington, D.C.: Congressional Research Service, 2013.
• Lynch, Megan S. The Budget Reconciliation Process: Timing of Committee Responses to Reconciliation Directives Washington, D.C.: Congressional Research Service, 2013.
• Mann, Thomas E.; Norman J. Ornstein; Raffaela Wakeman; and Fogelson-Lubliner. "Reconciling With the Past", with chart. The New York Times, March 6, 2010.
• Smith, Hedrick. The Power Game. New York: Ballantine Books, 1988. ISBN 0-394-55447-7