By Josh Zeitlin, Editor
There's a lot of jargon in the current health reform debate. American Health Line has you covered with our new explainer on key terms, including reconciliation, the Byrd rule, points of order, substitute amendments, and "skinny repeal."
The Byrd Rule
The budget reconciliation process sets strict rules about the contours of any amendments and final bills being considered under the process.
For the Senate's health reform proposal, amendments must be "germane" to the House-approved American Health Care Act (AHCA). In addition, amendments and a final Senate bill will have to comply with the so-called "Byrd Rule" that prohibits "extraneous matter" from being included in reconciliation measures.
In practice in this reconciliation health care debate, the Byrd Rule will require 60 votes for any amendment or provisions that would:
- Have nonexistent or "merely incidental" effects on revenue and spending;
- Not fall under the jurisdiction of the Senate Health, Education, Labor, and Pensions (HELP) Committee or Finance Committee, which were the Senate committees specified in this year's reconciliation instructions; or
- Increase the deficit in 2028 and beyond, unless other savings in the bill offset the increase.
Points of order
So how is the Byrd Rule policed? Senators can raise "points of order" in an attempt to strike down provisions they believe violate the Byrd Rule (known as a "Byrd bath"), or to prevent the consideration of at least portions of amendments that they believe are non-complaint.
The Senate parliamentarian
The Senate parliamentarian, Elizabeth MacDonough, will weigh in on those points of order.
Technically, MacDonough doesn't make the final call: The presiding officer of the Senate does. "But historically, the presiding officer has deferred to the parliamentarian's judgment," and Senate GOP leaders have said they don't want to change that practice given the precedent it would set, Dylan Scott writes for Vox. GOP senators can also ask to waive the Byrd Rule, but doing so would require 60 votes that don't appear obtainable given Democratic opposition to ACA repeal.
Right now, the Senate is in the middle of 20 hours of debate prescribed under the reconciliation process, which began following the passage of the motion to proceed to the bill. The Senate can vote on amendments during this time without it counting toward those 20 hours.
Once that debate time is up, senators from both parties will be able to offer an unlimited number of amendments, a process known as the vote-a-rama. Each party will get one to two minutes to discuss each amendment, and any proposed provisions will be subject to the Byrd Rule and points of order. Amendments that don't violate the Byrd Rule will require 51 votes to pass, while those that violate the rule will essentially require 60 votes. The GOP has 52 of the Senate's 100 seats, and Vice President Pence can break any ties.
Julie Rovner reports for Kaiser Health News that vote-a-ramas have historically rarely lasted longer than 24 hours. McConnell reportedly wants to pass a Senate bill this week. However, "No one knows how long the process will take or how it's likely to end," David Nather and Sam Baker report for Axios.
One additional wrinkle is that under reconciliation rules:
- The final Senate bill must save at least $119 billion over 10 years, since that's how much the Congressional Budget Office said the House bill would save; and
- The sections of the bill that would be under the jurisdiction of the Senate Finance Committee and Senate Health, Education, Labor, and Pensions (HELP) Committee must independently reduce the deficit by at least $1 billion over 10 years.
The parliamentarian will advise the Senate on whether those conditions have been met, but compliance technically is decided based on estimates from the Senate Budget Committee chair, according to the Committee for a Responsible Federal Budget. Last week, Joe Williams reported for Roll Call that GOP leaders were considering asking Senate Budget Committee Chair Mike Enzi (R-Wyo.) to go against the parliamentarian's advice if she did not rule in their favor.
Some amendments will essentially just tweak the underlying bill, making additions or deletions or changes to its text. Other amendments are called "amendments in the nature of a substitute," or substitute amendments. Because such amendments completely overwrite the underlying bill, any amendments that are initially approved during the vote-a-rama might be replaced later on with a substitute amendment.
Nather and Baker report for Axios that "if and when everyone has worn themselves out, at the end of the process, they'd vote on whether to adopt [a] substitute amendment ... and then to pass the underlying bill."
If the Senate does pass a bill, the House would have two options: It could try to pass the Senate bill as written, or it could engage in negotiations with the Senate as part of a conference committee.
Conference committees are typically used to iron out differences between similar bills. However, if the Senate passes a narrower plan that would repeal the ACA's individual mandate, employer mandate, medical device tax, a conference "would function more like another opportunity to write another bill," Nather and Baker write, given how different the Senate legislation would be from the House-passed AHCA.
A measure agreed to in a conference committee would not be subject to amendments on the House and Senate floors, although it would still have to adhere to reconciliation rules, including the Byrd rule.