The Byrd Rule and Social Security
Ryan Lizza's New Republic Online article about Democrats and Social Security is excellent as an analysis of the parallels Democrats are drawing between the Social Security fight and the Republican effort to derail the Clinton presidency by defeating his health care proposal.
Before going on, I want to note how interesting it is that those early Clinton years -- which happen to have been my own formative experiences -- are now taken as the main template for all the lessons -- good and bad -- of presidential leadership. It was an intense period -- the budget bill, the health care proposal, the crime bill, etc. -- but this period seems to have completely supplanted other historical analogies, such as Reagan's early legislative victories or LBJ's, or the pathetic failures of the Carter presidency and Bush I, all of which have their lessons as well.
Anyway, in keeping with one of this blog's obsessions, which is the congressional reconciliation procedure, I need to comment on one of Lizza's points. He writes:
Parliamentary procedure is destiny. "History will show that what undid the Clinton health care plan is the Byrd Rule," says a senior Senate Democratic aide. The original legislative strategy for health care was to bundle the legislation with the new budget. The Democrats had a 56 to 44 majority in the Senate, similar to the GOP's current 55 to 45 majority, but the magic number for most legislation is a filibuster-breaking 60 votes. A key legislative exception is what is known as the reconciliation bill, the last stage of the annual budget process, which, under Senate rules, requires only a simple majority for passage. In 1981, Reagan used reconciliation to make major tax and spending changes. Clinton's entire strategy rested on the assumption that his plan could be passed quickly, and the reconciliation bill was the best chance to make that happen. But West Virginian Senator Robert Byrd famously killed that idea. The Byrd Rule was adopted by the Senate in 1985 to combat budget deficits. Anything not germane to the budget and, significantly for Bush's plan, anything that adds to the deficit, cannot be included in reconciliation under the Byrd Rule. Byrd warned the White House in 1993 that health care would not pass muster as part of reconciliation, and Clinton abandoned the strategy. Senate Republicans, however, have not been so timid about abusing the reconciliation process. In 2001, they used it to push through Bush's tax cuts (after replacing the Senate parliamentarian because they suspected he would rule for Democrats who argued that Bush's tax cuts violated the Byrd Rule). A huge amount of war-gaming among Senate Democrats right now concerns how to respond if Republicans try to use reconciliation to pass Bush's Social Security plan.
Here, though, is the summary of the Byrd Rule from the Congressional Research Service:
The Byrd rule defines matter to be extraneous 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; and (6) if it recommends changes in Social Security. (Italics added.)
You would have to fire a lot of parliamentarians before you found one who could rule with a straight face that Social Security reform could be done within budget reconciliation without violating the Byrd Rule, under both conditions 5 and 6. Without Democrats, there is no Social Security reform.
UPDATE: Welcome to all those readers referred here by Josh Marshall. Take a look around; I don't always write about obscure aspects of congressional procedure!
Just to clarify for a number of commentors: Yes, the Byrd Rule categories are defined by law in the Budget Act, the Byrd rule itself sets the terms of enforcement, and the use of points of order to knock out offending provisions, in a separate section of the law. So this is not a Senate rule that can be suspended, although the process of raising points of order under the Byrd Rule is subject to the Senate parliamentarian. In addition, the Senate can vote to waive the point of order, but usually that requires 60 votes.
There is some gray area under the Byrd Rule, notably regarding matters that have budget effects that are "merely incidental to the non-budgetary components." That was the question over which the Republicans fired a previous parliamentarian. The other limits are less ambiguous. There's interesting speculation in the comments about how the Senate might suspend its rules, or suspend its rules in order to force through a legislative change to the Byrd rule, and then proceed to reconciliation. I don't see how any of those schemes could work -- that's way beyond the "nuclear option" being contemplated on judicial filibusters and the Republican old-timers would balk. It is because of the Byrd rule that the Bush tax cuts had to be made temporary. It is not easy to get around.
If there is a way around the Byrd Rule here, it would involve somehow redefining the private accounts as not being changes to Social Security at all. Perhaps you could do the "free lunch" approach, without touching benefits, and somehow treat the diversion of the payroll tax as not being a change to Social Security itself. You would need a cooperative parliamentarian. And then, perhaps you could get around the rule against increasing the deficit in the fiscal years beyond those covered by the reconciliation by making some sort of very long-term budget resolution. Others in the comments have suggested that they might do the whole thing "off the books," but if so, they could not have the protection of budget reconciliation, which is, after all, the process of reconciling "the books."
I'm trying to ask myself, "what's the most insane thing they could do?" and I'm not coming up with anything that would work.
Posted by Mark Schmitt on January 13, 2005 | Permalink
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They're going to fire a lot of parliamentarians, then.
Posted by: David | Jan 13, 2005 4:39:04 PM
What's the history behind the Byrd Rule not being applicable to Social Security? It seems a bit out of place, since the other five exceptions do not pertain to particular topics.
Posted by: julie | Jan 14, 2005 12:10:23 AM
Given the spending concerns that motivate the rule, I would think a lot of concern probably was that increases in COLA's would be put in at the last minute. However, the language itself is clear, "any changes," and is not restricted to that.
This is the best summary of the rule I have found:
Posted by: Paleo | Jan 14, 2005 11:29:26 AM
From "Vast borrowing seen in altering Social Security," The New York Times, Nov. 28, 2004:
Some Republicans in Congress are concerned that too much borrowing would carry large economic and political costs. Senator Judd Gregg, the New Hampshire Republican who will be chairman of the Senate Budget Committee next year, said he would support borrowing money for Social Security if it was part of a plan that also included modest benefit cuts and tax increases.
But he said the additional debt might have to be accounted for on the government's books in a way that would not technically show an increase in the budget deficit in coming years.
"You've got to look at this as a very significant long-term fiscal policy decision where you're going to have a loss in the first 10 to 15 years and a significant move toward solvency in the last 20 to 30 years," Mr. Gregg said. "That mitigates against doing it in the context of a typical budget resolution."
Posted by: Patience | Jan 14, 2005 12:14:20 PM
Here is a link to an article from _The American Prospect_ about how Britain's social security system, which was partly privatized by Margaret Thatcher, is a case study in why this is a bad idea.
A Bloody Mess
From our February 2005 issue: How has Britain’s privatization scheme worked out? Well, today, they’re looking enviably upon Social Security.
By Norma Cohen
Web Exclusive: 01.11.05
A conservative government sweeps to power for a second term. It views its victory as a mandate to slash the role of the state. In its first term, this policy objective was met by cutting taxes for the wealthy. Its top priority for its second term is tackling what it views as an enduring vestige of socialism: its system of social insurance for the elderly. Declaring the current program unaffordable in 50 years’ time, the administration proposes the privatization of a portion of old-age beneﬁts. In exchange for giving up some future beneﬁts, workers would get a tax rebate to put into an investment account to save for their own retirement.
George W. Bush’s America in 2005? Think again. The year was 1984, the nation was Britain, the government was that of Margaret Thatcher -- and the results have been a disaster that America is about to emulate.
For all the fanfare that surrounds the Bush administration’s efforts to present a bold new idea on pension reform, the truth is that it is not new at all. In fact, the proposal looks suspiciously like the plan set in train during Thatcher’s ﬁrst term in 1979 and which has since led Britain to the brink of a crisis. Since then, the nation’s basic pension, which is paid for out of tax receipts, has shrunk dramatically. The United Kingdom has the stingiest state pension program of any G8 nation, and there is growing consensus -- even among British conservatives -- that reform is needed. And ironically enough, considering that America is on the verge of copying Britain’s mistake, most experts seek reform in the direction of a more generous, and simpler, basic state pension -- one similar in design, in other words, to America’s Social Security program...................................
This is the link:
Here's a snipped version of the URL: http://snipurl.com/bxns
Posted by: Jeannie | Jan 16, 2005 5:36:20 PM
I suggest that we all stop referring to Bush's attempt to dismantle Social Security as "reform." This locution makes Bush's plan sound harmless at worst, and perhaps even good. But it is not "reform." Rather, its purpose is to do away with Social Security. So, from now let's refer to it as what it is: a "phase out" (pace Josh Marshall).
Posted by: Raul | Jan 18, 2005 1:53:47 AM
Sometimes one thanks God for obscure parliamentary procedures. Like right now.
Posted by: Marc | Jan 18, 2005 2:03:01 AM
Thank you, Raul. Exactly what I was thinking. I think Lakoff would be proud of you. ;-)
Posted by: Maggie | Jan 18, 2005 2:05:28 AM
So, what's to stop the Republicans from repealing the Byrd rule?
Posted by: chris | Jan 18, 2005 2:07:37 AM
Come on, it's not even a "phase out." It's total destruction of Social Security as we know it.
Posted by: James | Jan 18, 2005 2:20:16 AM
The Byrd Rule is not just a Senate Rule. It is now the law of the land, 2 U.S.C. 644, see http://budget.senate.gov/democratic/crsbackground/byrdrule.html and http://assembler.law.cornell.edu/uscode/html/uscode02/usc_sec_02_00000644----000-.html.
It works like this. Because the Senate has the filibuster, that it takes 60 votes to break, the only thing that can get through the Senate over the opposition of the minority with a simple majority vote is a reconciliation bill. The Byrd Rule, enshrined in law, specifically prohibits including changes to Social Security in a reconciliation bill, unless a waiver is approved by at least ... 60 Senators.
The only way to get rid of the Byrd Rule is by both the House and Senate passing legislation to amend or repeal it -- and that would take ... 60 votes in the Senate.
United opposition by the Senate Democrats will kill any attempt by the Republicans to kill Social Security.
Game, set, match.
Posted by: David Finley | Jan 18, 2005 4:56:10 AM
Great news! I guess this explains why the Repubs wanted to do this "off the books." (Patience)
Posted by: Steven Jandreau | Jan 18, 2005 6:09:21 AM
Have we any reason to believe that this crowd will treat the filibuster as sacrosanct? Experience seems to teach that they will do anything necessary to get their way. I fully expect Social Security to be dismantled - and, as bad as that will be, it probably won't be the worst thing that happens in the next four years.
Posted by: Jerry | Jan 18, 2005 11:21:06 AM
"So, what's to stop the Republicans from repealing the Byrd rule?"
If the Democrats fillibuster, they would need 60 votes to do that.
I agree with David Finley's point regarding the clear language of the Byrd rule when it comes to changes in social security. My one concern is the role of the parliamentarian. As I understand, the way it works is that if they try to force SS privatization in a reconciliation bill, a point of order is raised objecting to its inclusion. The parliamentarian rules on this. What if the Republicans succeed in finding a dishonest parliamentarian? What recourse would the Democrats have short of shutting down the Senate with some procedural move?
Posted by: Paleo | Jan 18, 2005 11:41:27 AM
If the Democrats fillibuster, they would need 60 votes to do that.
Except, to vote repeal the Byrd rule, they could just vote -- by a majority -- to suspend the rules. They can't do that on the reconciliation itself since the Byrd rule is law, but since the filibuster rule itself isn't, IIRC, law, they could use a majority rules-suspension vote to get to a vote to repeal or modify the Byrd rule, get the House to vote the same (easy) and the President to sign it (easy), the Byrd rule then is no longer a legal obstacle, and they can stick whatever they want in the reconciliation.
Posted by: cmdicely | Jan 18, 2005 12:50:43 PM
At the end of the day, 50 + 1 of the Senate can do whatever they like by changing the rules.
Politically, getting soft Republicans like the Chafees and Snowes of the world to go along with such an unprecedented nuclear option would be difficult, but the math isn't impossible.
Posted by: Petey | Jan 18, 2005 1:08:57 PM
Reform? Phase out? If we consider who will benefit, I think "looting" is more accurate.
Posted by: Dave | Jan 18, 2005 1:23:55 PM
Despite it being both a law and a rule I think the precedent of suspending the rules for tax cuts which was also prohibited will be used by Frist.
Since it is a law Dems could take any override to the GOP Washington judges which seems fruitless unless they plan to appeal to see how partisan the Supreme Court wants to be seen again.
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Posted by: Easter Lemming Liberal News | Jan 18, 2005 2:18:27 PM
I'm agreeing with the flow here, namely, that the GOP Senators would not hesitate to just roll over any parliamentary objections and the rules themselves, daring the Dems to fight. However, it may not come to that if Bush isn't able to obtain a lot more unwavering support from his own House and Senate party members. Polls (which he says he ignores, natch!) say the populace is highly skeptical of his plan, even if in principle they support some experimentation with private accounts. Nervous congress critters have to either assume that the public's attention span will be nil on this matter or that the cost to their party in the mid-term elections will be slight. I'm giving the GOP a slight edge here, politically, but we'll see how things play out. We'll also see just how craven the party really is at this point in its sorry, sorry modern history. Pretty craven, I'd wager!
Posted by: Ron Legro | Jan 18, 2005 4:13:57 PM
As a general parliamentary FYI, it takes a two-thirds vote of the Senators present to suspend any rule.
Posted by: Hugh Brady | Jan 18, 2005 5:35:32 PM
"If there is a way around the Byrd Rule here, it would involve somehow redefining the private accounts as not being changes to Social Security at all."
If that happens, then we're beyond Orwell, into Alice in Wonderland.
Posted by: Paleo | Jan 18, 2005 8:25:47 PM