Initial consideration in the Senate.
Development of Legislative Recommendations by the Instructed Committees
The reconciliation directives contained in the budget resolution, as finally agreed to by the House and Senate, inform each instructed Senate committee as to the type and scope of the legislative recommendations it must develop in order to comply with the directives. In addition, the reconciliation directives include a deadline for the submission of legislative recommendations to the Budget Committee or the reporting of legislation directly to the Senate.
Whether a committee has been instructed to submit legislative recommendations to the Senate Budget Committee for inclusion in an omnibus reconciliation measure, or has been instructed to report a reconciliation measure directly to the Senate, it develops its recommendations in generally the same manner as it develops other legislation. (50) In doing so, the committee must adhere to the pertinent requirements in the Standing Rules of the Senate, as well as it own committee rules, including rules regarding the reporting of a measure or matter. (51)
Relationship With the Budget Committee. Prior to the commencement of work by the instructed committees on their reconciliation recommendations, the Senate Budget Committee usually sends a set of "guidelines" to the chairman and ranking member of each committee. The guidelines summarize the applicable procedural requirements stemming from the budget resolution containing the reconciliation directives and pertinent provisions of the Congressional Budget Act of 1974, and provide additional information on related matters, such as scoring conventions that will be used to evaluate the reconciliation recommendations. The Budget Committee also may advise each instructed committee on drafting considerations (e.g., the number of the title or titles in the measure for the committee's recommendations) to avoid confusion when compiling the committee recommendations into a single measure.
In most instances, the instructed committees maintain an ongoing relationship with the Budget Committee during the process of developing their legislative recommendations, at least informally at the staff level. Consultations occur between the committees to foster a clear understanding of procedural requirements, to assess potential compliance issues with the aim of avoiding them, and for other reasons. In addition, the instructed committees regularly consult with CBO and, if appropriate, the Joint Committee on Taxation (JCT) on the budgetary implications of policy options and other budget-related assessments, and seek appropriate guidance and support from the Parliamentarian, Legislative Counsel, and other offices.
Hearings, Markup, and Reporting or Submission of Recommendations. While committees typically are afforded a certain amount of flexibility in conducting their legislative activities, Senate Rule XXVI, entitled "Committee Procedure," lays out basic requirements with regard to such matters as the scheduling of meetings and hearings, quorums, openness, and voting and reporting requirements.
As in the case of other legislation, instructed committees often hold hearings prior to marking up their legislative recommendations. The Senate Finance Committee, for example, held multiple hearings at the full committee and subcommittee level before marking up a revenue reconciliation measure on June 19, 1997. Over a period spanning from February 4 through June 5 of that year, the committee held 10 full committee and two subcommittee hearings on topics related to the reconciliation recommendations, covering such matters as the status of the Airport and Airway Trust Fund, Individual Retirement Account proposals, capital gains and losses, the Administration's FY1998 budget, and tax proposals related to education, health care, and small business. (52)
Committees may proceed by marking up a bill that already has been introduced. The most common approach, however, is for the committee to originate legislation in the markup, such as by considering a "chairman's mark," which may be altered by the adoption of amendments in committee.
Before an instructed committee can submit reconciliation legislation to the Budget Committee or report it directly to the Senate, it must meet to consider and approve the legislation, including relevant amendments and motions that may be offered, and then order the legislation reported by a majority vote. A majority of the committee must be physically present in order to vote to report the legislation; otherwise, a point of order may be raised on the Senate floor to prevent its consideration. (53)
Committee Report or Submission Requirements. In addition to complying with reporting requirements under Senate Rule XXVI, the committee must comply with reporting requirements in Section 308 (2 U.S.C. 637), Section 402 (2 U.S.C. 653), and Section 423 (2 U.S.C. 658b) of the 1974 act. These sections pertain to various analyses of budgetary legislation, including cost estimates and assessments of unfunded mandates prepared by CBO and, in the case of revenue legislation, the JCT. The CBO and JCT estimates must be included in committee reports only if they are available in a timely manner.
Further, with respect to revenue legislation, Section 4022(b) of the Internal Revenue Service Reform and Restructuring Act of 1998 (P.L. 105-206) requires the inclusion of a tax complexity analysis in the report accompanying any revenue measure reported by the House Ways and Means Committee, the Senate Finance Committee, or a conference committee, if the measure directly or indirectly amends the Internal Revenue Code and has widespread applicability to individuals or small businesses.
Committee submissions to the Budget Committee usually consist of four required elements. In addition to the legislative text, the submission includes the committee report language, the CBO or JCT estimates, and a transmittal letter signed by the chairman of the instructed committee. In many instances, the ranking member of the instructed committee signs the transmittal letter as well.
Like committee reports on other measures, the committee report language accompanying reconciliation legislation may include additional, supplemental, or dissenting views, which allow committee members individually, or as part of a group, to amplify their views, register their concerns, or express their dissent regarding part or all of the legislation. In the case of 1995 reconciliation legislation, for example, eight minority members of the Budget Committee signed a statement collectively expressing their views. (54)
On occasion, the CBO or JCT estimates may not be prepared in time for inclusion in the committee's submission and are omitted, but usually become available in time for inclusion in the Budget Committee's report on the omnibus reconciliation measure. On other occasions, the instructed committee may include CBO or JCT estimates that are preliminary and are revised later.
While a committee that is participating in the development of an omnibus reconciliation measure must submit its legislative recommendations to the Budget Committee, it may also publish them separately or report them as separate legislation altogether.
Senate committee actions that led to the enactment of two reconciliation acts in one year during the 105th Congress, the Balanced Budget Act of 1997 and the Taxpayer Relief Act of 1997, illustrate the potential complexity involved. The FY1998 budget resolution provided for a revenue reconciliation act and an omnibus spending reconciliation act.
The initial Senate version of the spending reconciliation measure, the Balanced Budget Act (S. 947), originated in the Budget Committee and was reported on June 20, 1997. In lieu of a written report on the bill, the Budget Committee issued a 241-page committee print containing the transmittal letters, report language, and cost estimates provided by the eight instructed Senate committees. (55) The print included (on pages 71-197) a 126-page submission from the Senate Finance Committee. As a supplement to the Budget Committee's print, the Finance Committee issued its own 474-page committee print, explaining its spending reconciliation recommendations in more detail. (56)
The initial Senate version of the revenue reconciliation measure, the Taxpayer Relief Act of 1997 (S. 949), was reported directly to the Senate by the Finance Committee (because it was the sole committee subject to revenue reconciliation directives) on June 20. The committee issued a written report to accompany the measure. (57)
Preparation of an Omnibus Measure by the Senate Budget Committee
In the course of preparing an omnibus reconciliation measure, the Budget Committee's task usually is described as a "ministerial function." Under Section 310(b)(2) of the 1974 act, after receiving the legislative recommendations of the instructed committees, the Budget Committee must report omnibus reconciliation legislation carrying out the recommendations "without any substantive revision."
Ensuring Accuracy and Completeness. Although this task may be described correctly as being ministerial, the Budget Committee still is faced with several issues at this point. First, the Budget Committee must endeavor to ensure that all responses from instructed committees are complete and accurate. As indicated previously, the Budget Committee secures any CBO or JCT estimates that were not prepared in time for inclusion with the committee submissions, or secures final estimates in place of preliminary ones.
In order to ensure accuracy, the Budget Committee from time to time has made technical corrections in the submissions at the request of the instructed committees. In the case of reconciliation legislation in 1996 dealing with welfare reform, for example, both of the instructed committees asked the Budget Committee to make corrections in their previous submissions. On July 9, 1996, Chairman Richard Lugar and Ranking Member Patrick Leahy of the Senate Agriculture, Nutrition, and Forestry Committee sent a letter to Budget Committee Chairman Pete Domenici, with technical corrections to four provisions in the June 28 submission attached. (58) Similarly, on July 15, Chairman William Roth of the Finance Committee sent a letter to Chairman Domenici notifying him that the July 11 submission "inadvertently included a change to the child care section of the bill which was not actually made by the Committee." (59) The Budget Committee indicated that it had made the changes requested by both committees. It was the instructed committees, and not the Budget Committee, that had the authority to make these changes.
Dealing With Tardy Responses. A second issue faced by the Budget Committee is what to do if one or more committees does not submit its recommendations by the deadline. The initial practice of the Senate was to extend the deadline when the Budget Committee felt that such action was warranted. This practice was motivated by the view that including tardy committee submissions could "taint" the reconciliation measure, thereby causing it to lose its privilege and the protection of expedited procedures. In 1985, for example, the Senate extended the September 27 deadline set in the FY1986 budget resolution to October 1 by unanimous consent in order to accommodate the Banking, Housing, and Urban Affairs Committee. (60) In some instances, the deadline was extended in a series of tightly constrained steps. In 1986, for example, the deadline of July 25 set in the FY1987 budget resolution was extended to 6:00 p.m. on July 29, to 12:00 noon on July 30, and then to 3:30 p.m. on that same day, July 30. (61) Finally, the deadline has been extended by larger margins; the July 28 deadline in the FY1988 budget resolution was extended to September 29 and then to October 19. (62)
Under more recent practice, the Budget Committee may be afforded some discretion in awaiting the responses of tardy committees in order to include them in the omnibus reconciliation measure. While the budget resolution provides a deadline for the submissions by the instructed committees, it does not impose a reporting deadline on the Budget Committee. Under Section 310(b)(2) of the 1974 act, the Budget Committee is obliged to report the omnibus reconciliation measure only "upon receiving all such recommendations." Consequently, the Budget Committee's obligation to report does not ripen until all recommendations have been received, even tardy ones. (63)
Nonetheless, the Budget Committee is expected to report the omnibus reconciliation measure in a reasonably prompt manner. Accordingly, when faced with lingering delay in the responses by one or more instructed committees, it may choose to report the omnibus reconciliation measure without the responses and seek a remedy for the omissions during floor consideration.
Evaluating Compliance. A third task facing the Budget Committee at this stage of the reconciliation process, and perhaps the most important one, is evaluating compliance by the responding committees. Compliance may be judged by several criteria. First and foremost, the Budget Committee assesses whether each instructed committee has met the goals laid out in the reconciliation directives. In the case of each committee, the estimated levels of spending changes (and, if appropriate, revenue changes and debt-limit changes) that would be achieved for each time period are measured against the instructed levels.
Although the Budget Committee and each instructed committee receives cost estimates from CBO and the JCT, it is the Budget Committee's responsibility and prerogative to assess committee compliance on the basis of spending or revenue levels. In measuring compliance, the Budget Committee sometimes will make adjustments to the estimates provided by CBO or the JCT. One such adjustment, which occurred in 1995, involved a change in the enactment date assumed by CBO, which shortened the time available in FY1996 for the sale of the Naval Petroleum Reserves. As a consequence of this change, CBO judged that the sale could not be completed in FY1996 and reduced the savings attributed to the Armed Services Committee accordingly. As explained by the Senate Budget Committee:
The FY1996 budget resolution assumed an October 1, 1995 enactment date and the reconciliation instructions to committees were based on this enactment date. Due to the delay of some of the committee's submissions and other factors, CBO is currently using a November 15, 1995 enactment date. As a result, some committees followed the assumptions in the budget resolution and still failed to meet their fiscal year 1996 reconciliation instruction because of this change in the assumption on the enactment date.... However, if a committee follows the assumptions in the budget resolution and fails to meet its instructions for fiscal year 1996 solely because of an assumption on the enactment date, the Senate Budget Committee will hold the committee harmless and will score the committee as achieving its instruction. Therefore, with this adjustment, the Armed Services Committee has complied with the budget resolution's reconciliation instructions for FY1996. (64)
A second criterion for determining compliance involves the "fungibility rule," which is set forth in Section 310(c) of the 1974 act. (65) The purpose of the rule is to allow some flexibility in the response of a committee instructed to change both spending and revenues. The fungibility rule may not apply if revenue and spending changes are reported in separate reconciliation measures pursuant to separate directives.
In sum, the fungibility rule: (1) applies to any Senate (or House) committee that is subject to reconciliation directives in a budget resolution requiring it to recommend reconciliation legislation changing both spending and revenues; (2) deems any such committee to be in compliance with its reconciliation directives if its recommended legislation does not cause either the spending changes or the revenue changes to exceed or fall below the directives by more than 20% of the sum of the two types of changes, and the total amount of changes recommended is not less than the total amount of changes that were directed; and (3) authorizes the chairman of the Senate Budget Committee to file appropriate adjustments in the levels in the budget resolution, and committee spending allocations thereunder, upon the exercise of the rule, and requires any committee receiving revised spending allocations to promptly report Section 302(b) suballocations.
The operation of this rule in the Senate was described in 1993 in a print of the Senate Budget Committee, as follows:
For an example of the rule in operation, take the case of a budget resolution that instructs a committee to achieve $3 million in outlay reductions and $7 million in revenue increases, for a total of $10 million in deficit reduction. By virtue of this section, that committee may permissibly achieve outlay reductions as low as $1 million ($3 million minus 20 percent of $10 million, or $2 million), as long as it achieves a total of at least $10 million in deficit reduction by also achieving at least $9 million in revenue increases. Alternatively, the committee may achieve revenue increases as low as $5 million ($7 million minus 20 percent of $10 million, or $2 million), as long as it achieves a total of at least $10 million in deficit reduction by also achieving outlay reductions of at least $5 million. (66)
In its current form, the fungibility rule authorizes the chairman of the Senate Budget Committee to file changes in budget resolution levels, and committee spending allocations thereunder, whenever the rule is exercised, and to require that any committee receiving revised spending allocations promptly report Section 302(b) suballocations. (67)
As Senate and House rules grant jurisdiction over revenue matters primarily to the Senate Finance Committee and House Ways and Means Committee, respectively, these are the two main committees to which the fungibility rule applies.
Finally, a third criterion for assessing committee compliance with the reconciliation directives is the Senate's "Byrd rule," which is discussed in detail below. Briefly, the rule bars the inclusion of matter in reconciliation legislation that is extraneous to the purposes of the reconciliation directives.
The Parliamentarian also plays a role in assessing compliance with reconciliation directives, determining whether provisions from the instructed committees are within their respective jurisdictions. Further, the Parliamentarian determines, as a threshold matter, whether the assembled submissions from the instructed committees constitute a reconciliation bill and, thus, whether the bill may be considered under the expedited procedures of the reconciliation process.
While the Budget Committee must report the legislative recommendations submitted to it, the committee need not necessarily issue a written report. Beginning in the late 1980s, the practice of the Senate Budget Committee has been to report omnibus reconciliation bills without a written report. The purpose of this practice is to avoid both a Budget Committee rule providing for time to submit additional and minority views, and the Senate rule requiring legislation accompanied by a written report to lay over for a period of time before floor consideration. The Budget Committee usually issues a committee print explaining the legislation in lieu of a report.
The Budget Committee, because it must report an omnibus reconciliation bill "without any substantive revision," may not resolve any substantive issues on noncompliance at this point. The Budget Committee may, however, in concert with the leadership, evaluate strategies for remedying the non-compliance on the Senate floor through one or more manager's amendments or by other means.
Floor Consideration: Debate and Amendment
The basic contours of Senate procedure for the consideration of reconciliation measures are shaped by Section 310 of the 1974 act. In particular, Section 310(e) provides that the provisions of Section 305 of the act, which establish procedures for the consideration of budget resolutions and conference reports thereon in the Senate, shall also apply to the consideration of reconciliation measures and conference reports thereon. In one important exception, a 20-hour limit on debate is set for reconciliation measures, instead of the 50-hour limit applicable to budget resolutions.
The timetable for the congressional budget process set out in Section 300 of the 1974 act indicates that Congress should complete action on any required reconciliation by June 15. While Section 310(f) of the act is intended to enforce this deadline in the House (by barring the consideration in July of an adjournment resolution providing for the traditional August recess if the House has not completed action), the act does not contain any comparable provision for the Senate.
Like other budgetary legislation, reconciliation measures generally must be in compliance with budget enforcement procedures in the 1974 act and included in annual budget resolutions. In particular, spending levels in the measure must not cause any committee's spending allocations under the budget resolution to be exceeded (Section 302), revenues levels in the measure must not drop below the revenue floor established in the budget resolution (Section 311), and no policy or procedural matters within the Budget Committee's jurisdiction can be included (Section 306), or the bill will be subject to points of order under these sections that require a three-fifths vote to waive.
Patterns in the Consideration of Senate and House Legislation. During the period from 1980-2004, covering budget resolutions for FY1981-FY2005, the Senate completed action on a total of 19 reconciliation acts stemming from reconciliation directives in budget resolutions for 17 different years (see Table 7). In all but three of these years, the Senate considered a single reconciliation measure in response to the reconciliation directives in the budget resolution. In the three remaining years, the Senate considered two different reconciliation measures each year, resulting in the enactment of five reconciliation acts--one act in 1980 (for FY1981) and two acts each in 1982 and 1997 (for FY1983 and FY1998).
As a general matter, the Senate initially considers a single, Senate-numbered reconciliation measure, either an omnibus reconciliation act reported by the Budget Committee or a reconciliation act reported by the Finance Committee. Following the completion of debate and amendment, the Senate positions itself for conference with the House by taking up the House-passed reconciliation measure, striking all after the enacting clause, and inserting the text of the Senate-passed measure.
This procedure is especially important with respect to reconciliation measures that affect revenues due to the requirement in the Constitution that revenue measures originate in the House. By passing a House-numbered bill in the final instance, the Senate abides by the constitutional requirement. (After the Senate considers the Senate-numbered bill, the 1974 act would allow an additional 20 hours to consider the House-numbered bill, but the Senate usually considered the House-numbered bill by unanimous consent.)
Different patterns of legislative action have occurred as well. In 1980, for example, the Senate Budget Committee reported two different original Senate bills carrying out revenue and spending reconciliation instructions, and the Senate considered each of them separately. Following their consideration, the Senate incorporated both of the measures into the House-passed reconciliation bill. (68)
On two occasions, in 1982 and 1997, the Senate considered separate revenue and spending reconciliation acts that each became law. (69) Three of the four measures were original Senate bills reported by the Budget Committee (two bills) or the Finance Committee (one bill), but in the remaining instance the Finance Committee reported a House-passed bill instead of an original Senate bill. (70)
In 2001 and 2003, the Finance Committee reported original Senate bills carrying out revenue reconciliation instructions, but the Senate did not consider them. Instead, the Senate considered House-passed reconciliation bills under an accelerated schedule. (71)
The Senate usually completes initial action on reconciliation measures over a period of two to four days. In 1980, the Senate devoted only one day each to the initial consideration of two reconciliation bills, but in 1985 it considered a reconciliation measure for eight days.
Initiating Consideration and Controlling Time. Although not explicitly stated in the 1974 act, reconciliation measures are privileged measures. Accordingly, the motion to proceed to the consideration of a reconciliation measure is not debatable. In practice, most reconciliation measures are laid before the Senate by unanimous consent.
A reconciliation measure does not need to lie over on the calendar for one legislative day, but if such legislation is accompanied by a written report, the report must be available for 48 hours before the measure can be considered. As stated previously, the usual practice of the Budget Committee since the late 1980s has been to report omnibus reconciliation bills without a written report, issuing a committee print in lieu of a report. The Finance Committee has been instructed to report legislation directly to the Senate on several occasions in recent years, sometimes issuing a written report and sometimes not doing so.
Reconciliation legislation is subject to a 20-hour debate limitation. Debate on first degree amendments is limited to two hours, and debate on second degree amendments and debatable motions or appeals is limited to one hour. In practice, debate time may vary from these limits, pursuant to unanimous consent agreements.
Control of time under the 20-hour limit is equally divided between, and controlled by, the majority leader and the minority leader or their designees. The chairman and ranking member of the Budget Committee usually are designated to serve as floor managers and to control the time. With respect to amendments (and debatable motions and appeals), time is divided equally and controlled by the Senator who proposed the amendment and the majority manager (or, if the majority manager favors the amendment, the minority manager).
Not all actions pertaining to a reconciliation measure are counted under the 20-hour time limit. Debate on the measure, all amendments thereto, debatable motions and appeals, and time used in quorum calls (except for those that precede a rollcall vote) is counted under the limit, but time used to read amendments, to vote, or to establish a quorum prior to a rollcall vote is not counted, absent a unanimous consent agreement to the contrary. Therefore, it is possible, especially with the consideration of a large number of amendments under a "vote-arama" situation (discussed below), for consideration to extend well beyond 20 hours. Conversely, because the time for debate may be reduced by yielding back time, by unanimous consent, or by a nondebatable motion, the consideration of a reconciliation measure may not consume the full 20 hours.
Restrictions on Amendments and Motions to Recommit. There are several restrictions on the consideration of amendments. First, as provided in Section 305(b)(2) of the 1974 act, amendments must be germane (the germaneness requirement also applies to amendments to budget resolutions). (72) While certain amendments are per se germane (e.g., an amendment to strike, or to change numbers or dates), the germaneness of an amendment typically is determined on a case-by-case basis if a point of order is raised.
Once matter has been stricken from the measure by amendment, the matter can no longer be used to justify germaneness. Conversely, matter added to the measure by amendment can be used as the basis for additional amendments to be deemed germane.
An important exception to the germaneness requirement is made in connection with a motion to recommit with instructions intended to bring a committee's recommendations into full compliance. Although the motion itself must be germane, the amendment reported back by the instructed committee is not subject to a germaneness requirement. This practice recognizes the fact that in order to make the changes in spending or revenues necessary to achieve full compliance, it may be necessary to address matter not included in the instructed committee's original recommendations.
Section 310(d) prohibits the consideration of any amendment that would cause the reconciliation measure to reduce outlays by less than the amount instructed, or would cause it to increase revenues by less than the amount instructed, unless the resulting deficit increase is offset. The prohibition does not interfere, however, with a motion to strike, regardless of that motion's effect on the deficit.
Section 310(g) bars the consideration of any reconciliation legislation, including any amendment thereto or conference report thereon, "that contains recommendations with respect to" Social Security. For purposes of these provision, Social Security is considered to include the Old-Age, Survivors, and Disability Insurance (OASDI) program established under Title II of the Social Security Act; it does not include Medicare or other programs established as part of that act.
Finally, Section 313, the Senate's "Byrd rule," prohibits the consideration of any reconciliation legislation, including amendments, that include extraneous matter (see discussion below). One provision of the Byrd rule buttresses the prohibition against considering recommendations affecting Social Security set forth in Section 310(g).
Each of the restrictions discussed above requires an affirmative vote of three-fifths of the membership (60 Senators, if no seats are vacant) to waive or to appeal the ruling of the chair.
An amendment fashioned to avoid one restriction still may run afoul of another. An amendment may be germane, for example, yet violate the Byrd rule because it has no budgetary effect and therefore is extraneous.
Motions to recommit, as previously indicated, afford a means of bringing committee recommendations into full compliance. Section 305(b)(5) of the 1974 act prohibits any motion to recommit, except for a motion to recommit with instructions to report back within no more than three days. In practice, such motions usually require the instructed committee to report back "forthwith." While the committee named in the instructions may not be amended, the legislative language included in the instructions is amendable in two degrees. If not necessary to bring a committee into compliance, the amendments proposed by a motion to recommit must be germane.
"Vote-arama". The number of amendments offered to reconciliation measures generally has increased over the history of the reconciliation process. Only a few amendments were offered to the earliest reconciliation bills, but dozens of amendments have been offered to reconciliation bills in recent years.
When the 20-hour debate limit has been reached, Senators may continue to consider amendments and motions to recommit with instructions (and to take other actions as well), but they may not debate them unless unanimous consent is granted. The circumstance under which debate time on a reconciliation measure (or budget resolution) has expired but amendments and motions continue to be considered has come to be known as "vote-arama." As a general matter, accelerated voting procedures sometimes are put into effect under a vote-arama scenario, allowing two minutes of debate per amendment for explanation and a 10-minute limit per vote.
During the consideration of the three most recent reconciliation measures, in 2000, 2001, and 2003, the Senate considered 162 amendments and motions to recommit (38 in 2000, 59 in 2001, and 65 in 2003). Many of the amendments and motions were considered and disposed of under a vote-arama, as discussed in more detail below.
* Marriage Tax Relief Reconciliation Act of 2000 (vetoed). The Senate considered H.R. 4810 (S. 2839) on July 14, 17, and 18, 2000. Under a series of unanimous consent agreements, 37 amendments and one motion to recommit were offered and debated on the first day of consideration, July 14, without any final action being taken on them. On the second day of consideration, July 17, the Senate took up these amendments for disposition at 6:15 p.m., with two minutes of debate time available for explanation of each amendment. This procedure was employed on the following day, July 18, as well, ending with final passage of the bill. Over the two days, 37 amendments and one motion to recommit were considered under this procedure; 10 amendments were adopted, three amendments (and one motion to recommit) were rejected, seven amendments fell on a point of order, and 17 amendments were withdrawn.
* Economic Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-16). The Senate considered H.R. 1836 on May 17, 21, 22, and 23, 2001. On the second day of consideration, May 21, after the 20-hour limit on debate apparently had expired, (73) the Senate took up and disposed of a series of amendments under a unanimous consent agreement, propounded by Senator Lott, under which the votes would be limited to 10 minutes each, with two minutes before each vote for an explanation. (74) This procedure was employed on the following two days of consideration, May 22 and May 23, as well, ending with final passage of the bill. Under this procedure, over the three-day period, the Senate considered 59 amendments and motions to recommit; eight were adopted, 20 were rejected, 26 fell on a point of order, and five were withdrawn. Thirty-five of these 59 amendments and motions to recommit had been offered, considered, and temporarily laid aside prior to the expiration of the 20-hour limit. Subsequently, these 35 amendments and motions to recommit were considered under the accelerated voting procedures; three were adopted, 14 amendments were rejected, 13 fell on a point of order, and five were withdrawn.
* Jobs and Growth Tax Relief Reconciliation Act of 2003 (P.L. 108-27). The Senate considered S. 1054 on May 14 and 15, 2003. On the first day of consideration, the Senate agreed by unanimous consent that the 20-hour limit on debate be expired and that the Senate proceed to vote on amendments at the beginning of the following day. (75) At the end of May 14, Senator Grassley announced that during consideration of the amendments on May 15, all votes after the first vote would be limited to 10 minutes each. (76) On May 15, the Senate considered 65 amendments; 30 amendments were adopted, nine amendments were rejected, 19 amendments fell on a point of order, and seven amendments were withdrawn. Of these 65 amendments, 26 amendments were offered, considered, and set aside prior to the expiration of the 20-hour limit. Subsequently, these 26 amendments were considered under the accelerated voting procedures; eight amendments were adopted, 14 amendments fell on a point of order, and four amendments were withdrawn.
The Senate's "Byrd Rule" Against Extraneous Matter
During the first several years' experience with reconciliation, the legislation contained many provisions that were extraneous to the purpose of implementing budget resolution policies. The reconciliation submissions of committees included such things as provisions that had no budgetary effect, that increased spending or reduced revenues when the reconciliation instructions called for reduced spending or increased revenues, or that violated another committee's jurisdiction.
Reconciliation procedures, and other expedited procedures that limit debate and restrict the offering of amendments, run counter to the long-standing practices of the Senate applicable to most legislation, in which Senators may engage in extended debate and freely offer amendments. Many Senators were willing to surrender customary freedoms with respect to debate and amendment in order to expedite reconciliation legislation, but they sought a means of confining the scope of such legislation to its budgetary purposes.
In 1985 and 1986, the Senate adopted the Byrd rule (named after its principal sponsor, Senator Robert C. Byrd) on a temporary basis as a means of curbing these practices. The Byrd rule has been extended and modified several times over the years. In 1990, the Byrd rule was incorporated into the 1974 Congressional Budget Act as Section 313 and made permanent. (77)
In general, a point of order authorized under the Byrd rule may be raised in order to strike extraneous matter already in the bill as reported or discharged (or in the conference report), or to prevent the incorporation of extraneous matter through the adoption of amendments or motions. A point of order may be raised against a single provision or two or more provisions in the bill (usually as designated by title or section number, or by page and line number), in amendments offered thereto, or in motions made thereon, or against an entire amendment or amendments. The chair may sustain a point of order as to all of the provisions (or amendments) or only some of them. The maker of the point of order defines the scope of the provision or provisions being challenged.
The Byrd rule is nearly unique in that points of order made thereunder bring down the offending matter, but not the entire measure. Once material has been stricken from reconciliation legislation under the Byrd rule, it may not be offered again as an amendment.
A motion to waive the Byrd rule, or to sustain an appeal of the ruling of the chair on a point of order raised under the Byrd rule, requires the affirmative vote of three-fifths of the membership (60 Senators if no seats are vacant). (78) A single waiver motion can: (1) apply to the Byrd rule as well as other provisions of the Congressional Budget Act; (2) involve multiple as well as single provisions or amendments; (3) extend (for specified language) through consideration of the conference report as well as initial consideration of the measure or amendment; and (4) be made prior to the raising of a point of order, thus making the point of order moot. While the point of order itself is not debatable, the motion to waive is debatable, subject to the time limits for debatable motions.
When a reconciliation measure, or a conference report thereon, is considered, the Senate Budget Committee must submit for the record a list of potentially extraneous matter included therein. (79) This list is advisory, however, and does not bind the chair in ruling on points of order.
Determinations of budgetary levels for purposes of enforcing the Byrd rule are made by the Senate Budget Committee.
Definitions of Extraneous Matter. Subsection (b)(1) of the Byrd rule provides definitions of what constitutes extraneous matter for purposes of the rule. Some aspects of the Byrd rule require considerable judgment regarding its application to complex legislation. As the Senate Budget Committee noted in its report on the budget resolution for fiscal year 1994, "'Extraneous' is a term of art." (80) In the most general terms, the rule bars the inclusion of matter that is not related to the purposes of the reconciliation process.
A provision is considered to be extraneous if it falls under one or more of the following six definitions:
(1) it does not produce a change in outlays or revenues;
(2) it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
(3) it is outside of the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
(4) it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
(5) it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure; and
(6) it recommends changes in Social Security.
The last definition complements the ban in Section 310(g) of the 1974 act against considering any reconciliation legislation that contains recommendations pertaining to Social Security. While a successful point of order under the last definition in the Byrd rule would excise the offending provision, a successful point of order under Section 310(g) would defeat the entire bill.
Exceptions to the Definition of Extraneous Matter. Subsection (b)(2) of the Byrd rule provides that a Senate-originated provision that does not produce a change in outlays or revenues shall not be considered extraneous if the chairman and ranking minority members of the Budget Committee and the committee reporting the provision certify that:
* the provision mitigates direct effects clearly attributable to a provision changing outlays or revenues and both provisions together produce a net reduction in the deficit; or
* the provision will (or is likely to) reduce outlays or increase revenues: (1) in one or more fiscal years beyond those covered by the reconciliation measure; (2) on the basis of new regulations, court rulings on pending legislation, or relationships between economic indices and stipulated statutory triggers pertaining to the provision; or (3) but reliable estimates cannot be made due to insufficient data.
Subsection (b)(3) of the Byrd rule provides an exception to the definition of extraneousness on the basis of committee jurisdiction for certain provisions reported by a committee, if they would be referred to that committee upon introduction as a separate measure.
Additionally, under subsection (b)(1)(A), a provision that does not change outlays or revenues in the net, but which includes outlay decreases or revenue increases that exactly offset outlay increases or revenue decreases, is not considered to be extraneous.
The Byrd rule has been applied to 19 reconciliation measures considered by the Senate from 1985 through 2004. In 42 of the 55 actions involving the Byrd rule, opponents were able to strike extraneous matter from legislation (18 cases) or bar the consideration of extraneous amendments (24 cases) by raising points of order. Nine of 41 motions to waive the Byrd rule, in order to retain or add extraneous matter, were successful. The Byrd rule has been used only four times during consideration of a conference report on a reconciliation measure (twice in 1993, once in 1995, and once in 1997).
(50) "Fact Sheets" and other reports of the Congressional Research Service on different aspects of Senate committee, floor, and conference procedure may be found on the CRS Web site at: [http://www.crs.gov/products/guides/senate/explanations/ SenateExplanations.shtml]
(51) For an example of committee rules, see the rules of the Senate Finance Committee for the 109th Congress inserted by Chairman Grassley in the Congressional Record (daily ed.), vol. 151, Jan. 25, 2005, at pp. S425-S426.
(52) Senate Finance Committee, Revenue Reconciliation Act of 1997 (to accompany S. 949), S.Rept. 105-33, June 20, 1997, p. 2.
(53) See CRS Report 98-246, Reporting a Measure from a Senate Committee, by Thomas P. Carr, which discusses the requirements under Senate Rule XXVI, Paragraph 7(a)(1) and (3).
(54) Senate Budget Committee, Balanced Budget Reconciliation Act of 1995, S.Prt. 104-36, October 1995, pp. 11-23.
(54) Senate Budget Committee, Balanced Budget Reconciliation Act of 1995, S.Prt. 104-36, October 1995, pp. 11-23.
(55) Senate Budget Committee, Balanced Budget Reconciliation Act of 1997, S.Prt. 105-30, June 1997.
(56) Senate Finance Committee, Budget Reconciliation Recommendations of the Committee on Finance (Spending Provisions), S.Prt. 105-29, June 1997.
(57) Senate Finance Committee, Revenue Reconciliation Act of 1997 (to accompany S. 949), S.Rept. 105-33, June 20, 1997.
(58) Senate Budget Committee, Personal Responsibility, Work Opportunity, and Medicaid Restructuring Act of 1996, S.Prt. 104-58, July 1996, pp. 12-13.
(59) Ibid., pp. 72-73.
(60) See the remarks of Senator Bob Dole in the Congressional Record (daily ed.), vol. 131, Oct. 1, 1985, p. S12344.
(61) See the Congressional Record (daily ed.), vol. 132, of July 28 (p. S9709), July 29 (p. S9773), and July 30, 1986 (p. S9840).
(62) See the Congressional Record (daily ed.) , vol. 133, of July 28 (p. S10800) and Sept. 29, 1987 (p. S13111).
(63) For one Budget Committee chairman's interpretation of the committee's discretion, see the remarks of Senator James Sasser in the Congressional Record (daily ed.), vol. 134, of Oct. 4, 1989, p. S12589.
(64) Senate Budget Committee, Balanced Budget Reconciliation Act of 1995, S.Prt. 104-36, October 1995, p. 3.
(65) The fungibility rule was established by the Balanced Budget and Emergency Deficit Control Act of 1985 (Title II of P.L. 99-177; December 12, 1985; 99 Stat. 1037-1101).
Section 201(b) of the 1985 act (beginning at 99 Stat. 1040) set forth a substitute for Title III of the Congressional Budget Act of 1974, including a new Section 310(c), "Compliance With Reconciliation Directions" (99 Stat. 1054). Originally, Section 310(c) set forth reporting requirements for when a single committee in each House and when multiple committees in each House are given reconciliation directions and defined the term "reconciliation resolution"; this subject matter was moved to Section 310(b) by the 1985 act. The new Section 310(c) originated in conference; although both the House and Senate initially passed versions of the act containing changes in the reconciliation process, this particular change was not included in the versions that passed each body.
(66) Senate Budget Committee, Budget Process Law Annotated, S.Prt. 103-49, October 1993, p. 168 (annotations by William G. Dauster, Chief Counsel).
(67) See Section 13207(c) of P.L. 101-508 (104 Stat. 1388-618 and 619).
(68) See Senate action on S. 2885 and S. 2939, and on H.R. 7765, in the second session of the 96th Congress.
(69) See the Tax Equity and Fiscal Responsibility Act of 1982 (P.L. 97-248) and the Omnibus Budget Reconciliation Act of 1982 (P.L. 97-253) in the first instance, and the Balanced Budget Act of 1997 (P.L. 105-33) and the Taxpayer Relief Act of 1997 (P.L. 105-34) in the second instance.
(70) See Senate action on S. 2774 in the second session of the 97th Congress, and on S. 947 and S. 949 in the first session of the 105th Congress. In the second session of the 97th Congress, the Finance Committee reported H.R. 4961 instead of a Senate bill.
(71) See Senate action on S. 896 and H.R. 1836 in the first session of the 107th Congress, and on S. 1054 and H.R. 2 in the first session of the 108th Congress.
(72) As stated before, Section 305(b)(2) of the 1974 act is made applicable to reconciliation legislation by Section 310(e) of the act.
(73) The Presiding Officer indicated that all time controlled by the majority had expired and Senator Reid indicated that he had yielded back all of his time; see the Congressional Record (daily ed.), vol. 147, May 21, 2001, at p. S5246.
(74) Ibid., p. S5248.
(75) Congressional Record (daily ed.), vol. 149, May 15, 2003, p. S6196. The Senate did not vote on any amendments on May 14.
(76) Ibid., p. S6226.
(77) For a detailed discussion of the Byrd rule, see CRS Report RL30862, The Budget Reconciliation Process: The Senate's "Byrd Rule," by Robert Keith.
(78) In the Senate, many points of order under the CBA of 1974 require a three-fifths vote of the membership to waive (or to sustain an appeal of the ruling of the chair). Most of these three-fifths waiver requirements are temporary, but in the case of the Byrd rule it is permanent. Section 503 of the FY2004 budget resolution (H.Con.Res. 95, 108th Congress), adopted on Apr. 11, 2003, extended the expiration date for the temporary requirements to Sept. 30, 2008.
(79) For an example of such a list, see the remarks of Senator Pete Domenici regarding the conference report on the Balanced Budget Act of 1997 in the Congressional Record (daily ed.), vol. 143, July 31, 1997, at pp. S8406-S8408.
(80) See the report of the Senate Budget Committee on the FY1994 budget resolution, Concurrent Resolution on the Budget, FY 1994 (to accompany S.Con.Res. 18), S.Rept. 103- 19, Mar. 12, 1993, p. 49.
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|Title Annotation:||The Budget Reconciliation Process: House and Senate Procedures|
|Author:||Keith, Robert; Heniff, Bill, Jr.|
|Publication:||Congressional Research Service (CRS) Reports and Issue Briefs|
|Date:||Aug 1, 2005|
|Previous Article:||Initial consideration in the House.|
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