Flip the Byrd Rule

The world's greatest deliberative body has become the world's greatest constipated body, chained to a rule that no longer makes any sense: the Byrd Rule, which requires 60 Senate votes to end a filibuster on budgetary legislation when that legislation would significantly increase the deficit beyond a ten-year horizon.  (Otherwise, the reconciliation process allows for a mere majority for passage.)

The so-called "Schumer shutdown" and an endless series of continuing resolutions cry out for ending the legislative filibuster in general on budget matters, where the risk of government shutdown is now ever present.  The Democrats claim that the Republicans are to blame because they control the White House, the House of Representatives, and the Senate, but in this case, they don't control the Senate.  You need 60 votes to do that.

These are no longer the days when Bill Clinton could work things out with Newt Gingrich and Ronald Reagan could work things out with Tip O'Neill.  These are the days when losers hold the winners hostage and where the majority no longer rules.

House Republicans think it's time to nuke the filibuster:

House Republicans say Senate Democrats are holding government funding "hostage" to their demands on immigration.  And they've got an idea for ending the crisis: [t]hrow away the filibuster.

The legislative tool of the minority is one of the few remaining things that distinguish the Senate from the House.  The Senate GOP is coming under pressure from House Republicans and President Donald Trump to pursue the so-called nuclear option – change chamber rules and end the legislative filibuster, at least on spending bills.

"If a majority is good enough in the House and a majority would have kept government from shutting down, I think that's a whole case the American public would say, 'That's a responsible way to govern,'" House [m]ajority [l]eader Kevin McCarthy told Roll Call on Saturday[.] ...

Senate Democrats would certainly oppose such a change.

"That would be the end of the Senate as it was originally devised and created, going back to our Founding Fathers," Senate [m]inority [w]hip Richard J. Durbin said on ABC's [This Week] on Sunday.  "We have to acknowledge our respect for the minority, and that is what the Senate tries to do in its composition and in its procedure."

What we have, Sen. Durbin, is not respect for the minority, but tyranny of the minority.

President Trump, in a tweet, agrees that the filibuster has allowed losers of elections to hold winners hostage, thwarting the will and the government of the people:

President Donald Trump on Sunday suggested that Senate Republicans invoke what's known as the "nuclear option" to lower the threshold needed to approve funding for the government.

The government entered into a partial shutdown on midnight Saturday, after the Senate voted against a key procedural step to pass a short-term funding bill on Friday night. 

As the shutdown entered its second day, Trump tweeted on Sunday, "Great to see how hard Republicans are fighting for our Military and Safety at the Border. The Dems just want illegal immigrants to pour into our nation unchecked. If stalemate continues, Republicans should go to 51% (Nuclear Option) and vote on real, long term budget, no [continuing resolutions]!"

Reconciliation is the process by which the Senate's filibuster process can be avoided and a simple majority of 51 votes used to appropriate money.  The Byrd Rule limits its application, giving someone (nowadays the Senate parliamentarian) the power to nix legislation's eligibility for reconciliation based on certain criteria.

One might get the impression that the Byrd rule has been around since the dawn of the republic.  It is in fact a post-Watergate relic that needs to go.  Removing it would not make the minority in the Senate irrelevant.  It would merely restore the Senate to majority rule when it comes to passing a budget.  The republic survived for almost two centuries without the Byrd rule, during which the U.S. rose to superpower status, becoming the world's oldest democracy.

Defenders ignore the legislative history of the rule, which shows that it was put forth initially as a one-time limited measure.  According to James Wallner of the Heritage Foundation

Congress created the reconciliation process in 1974 to make it easier to change current law to reconcile, or align, existing revenue and spending levels with those specified in the congressional budget resolution, but the new process was also used frequently in the period immediately after its creation to pass policies unrelated to the federal budget.  In response, the Senate adopted the so-called Byrd Rule in the mid-1980s to stop reconciliation from being used to circumvent the filibuster.  Under the rule, provisions that are deemed extraneous (essentially those that are unrelated to the federal budget) to the reconciliation instructions contained in the applicable budget resolution are not eligible for inclusion in a reconciliation bill.

Flipping the Byrd Rule would be a step toward ridding the Senate of the filibuster on other important matters – such as, most importantly, judicial appointments.  We can thank the Democrats for ending the filibuster for judicial appointments below the Supreme Court, resulting in President Trump's historic blizzard of new federal judges committed to the Constitution as written.

In No. 76 of The Federalist Papers, a collection often cited by the Supreme Court as a reliable roadmap to the Constitution, Alexander Hamilton says plainly that the "advice and consent" responsibility is to be exercised by an "entire branch of the legislature" and not by a single committee or 41 senators denying cloture.

To express consent, or to deny it, requires an up-or-down vote.  A filibuster prevents advice and consent, hence it should be unconstitutional.  When it comes to judicial appointments, the Appointments Clause requires a simple majority of 51 senators for confirmation.  Elsewhere in the Constitution, when the Framers intended more than simple majorities, they explicitly said so, as they did in requiring a two-thirds majority to convict in an impeachment trial, expel a member, override a presidential veto, approve a treaty, or propose a constitutional amendment.  

Senate majority leader Mitch McConnell dispensed with the filibuster to get Neil Gorsuch on the Supreme Court.  Why are some bitterly clinging to a rule that has accomplished nothing except repetitive gridlock?

We need to return to the days of majority rule, where winning elections meant something.  The Republicans don't control the Senate, and nobody will until this filibuster situation gets sorted out.  Repealing the Byrd Rule will get us on that path.

Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor's Business Daily, Human Events, Reason Magazine, and the Chicago Sun-Times among other publications.