Senate's parliamentarian could stop GOP bill with 'Byrd Rule' ruling

Senate floor June 28, 2017. Photo via C-SPAN

As Majority Leader Mitch McConnell (R-Ky.) tries to negotiate his way to a health bill that can win at least 50 Republican votes, there is one woman in the Senate who could stop the bill cold.

She isn't even a senator.

Elizabeth MacDonough is the Senate's parliamentarian, the first woman to hold that post, which involves advising senators on the chamber's byzantine rules and procedures. She alone can decide what pieces of the emerging Senate overhaul of the Affordable Care Act can be included under the budget reconciliation process senators are using. That process allows them to pass the measure with a simple majority vote rather than needing the usual 60.

In theory at least, she could reject the very deals McConnell is trying to cut.

By all accounts, MacDonough, who has spent almost her entire career working for the Senate and was appointed to her position in 2012, is scrupulously fair and trusted by both major parties.

"Elizabeth is great," said Rodney Whitlock, a former Republican staffer on the Senate Finance Committee who has argued tricky legislative points before her numerous times. Democrats agree. "She's a straight shooter and an honest broker," said Bill Dauster, a longtime Democratic staff director for the Budget Committee.

It's good that both sides like her, because if the Senate bill comes to the floor, MacDonough may have to make some tough decisions that will make one side or the other very unhappy.

MacDonough, along with her assistant parliamentarians, are charged with deciding which pieces of the bill violate the rules of budget reconciliation, in particular the "Byrd Rule," named for its author, the late Sen. Robert Byrd (D-W.Va.). That rule requires that everything in the bill pertain directly to the federal budget. The idea is to prevent senators from loading up the budget bill, which gets fast-track consideration, with unrelated items that belong in the regular, slower Senate process.

The judgments mostly involve parts of the bill that opponents argue don't add to or subtract from federal spending, or whose budget impact is "merely incidental" to the purpose of the policy. Outside observers say the parts of the Senate measure that are vulnerable under this rule include provisions that would defund Planned Parenthood and those affecting the rules for private insurance plans.

Generally, the "Byrd bath," as it's called on Capitol Hill, involves a string of meetings between Senate committee staff and the parliamentarian.

"The Democrats go in, the Republicans go in, then both of them go in together," said Dauster. Each side argues whether certain language should or should not be allowed in the bill.

The parliamentarian's office in the Capitol "is actually a small room," said Whitlock. "And when they are ready to have you in, you're standing around and all the assembled in the room have at it."

MacDonough does not make her rulings immediately after the arguments. "She has, of late, gotten back to people by email" with her decisions, said Dauster.

That has not always been the case. In the past, said Bill Hoagland, a longtime GOP staff director for the Senate Budget Committee, after making their arguments "we would wait until we went to the floor and [a senator] would raise a point of order" against some specific language, and senators and staff would learn the parliamentarian's decision only then.

MacDonough's ruling may prompt the bill's authors to delete language before the bill comes to the Senate floor. Or they may opt to let the drama may play out in front of the C-SPAN cameras. Any senator can raise a point of order against a specific provision claiming it violates the Byrd Rule. It takes 60 votes to overcome such a point of order.

But what if Senate leaders opt not to accept MacDonough's decision?

"That's what scares the heck out of me," said Hoagland. Under the Senate's rules, the senator who is acting as the presiding officer during the debate does not have to take the parliamentarian's advice. But if he or she rules against what the parliamentarian has advised, "I would argue that you have basically destroyed the Byrd Rule and you've destroyed the purpose of reconciliation at that point," he said.

That's because it would allow the majority party, which controls the Senate, to effectively include any provisions it wants in the fast-track budget bill with only a simple majority.

"It's another way to go nuclear," said Dauster, referring to efforts to end the Senate filibuster, which requires 60 votes to break.

Will that happen? It depends how MacDonough rules. And how badly the Republicans want their health bill to pass.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation.