Can Reconciliation Save the SAVE America Act?

The SAVE America Act is stuck in the Senate because Republicans lack the votes to end debate by invoking cloture and have so far declined to force Democrats to mount a talking filibuster. The impasse has prompted some supporters to call for circumventing the Democrats’ threatened filibuster by including it in a reconciliation bill instead. While senators can’t filibuster reconciliation bills, procedural constraints on what they can include make it even harder to advance the election overhaul bill that way

The Reconciliation Process

Reconciliation is a special process that protects budget-related legislation from Senate filibusters. Congress created the reconciliation process in 1974 to make it easier for the House and Senate – especially the Senate – to align (or reconcile) the revenue, spending, and deficit levels derived from existing law with the levels Congress sets in its annual budget resolution. Unlike regular legislation, senators can’t filibuster reconciliation bills or the motion to proceed to them because budget rules limit floor debate on such measures to twenty hours.

Passing the SAVE America Act through reconciliation requires at least two steps. First, the House and Senate must adopt a budget resolution setting overall spending, revenue, and deficit levels for the years it covers (at least five, usually ten). To make a reconciliation bill possible, the budget resolution must also include reconciliation instructions directing one or more committees to report legislation that changes spending, revenue, or deficit levels by specified amounts in specified years. Because the Rules and Administration Committee has jurisdiction over the Senate election overhaul bill, it must receive instructions in the budget resolution.

Second, the House and Senate consider the reconciliation bill, with each committee’s title, under the process's expedited procedures. Those expedited procedures matter more in the Senate than in the House, where the majority can simply pass a special rule establishing whatever process it wants. In the Senate, the majority has no equivalent power. Once the Senate begins debate on a reconciliation bill, senators have up to twenty hours to debate it. When that time expires, further debate is cut off — but senators retain the right to offer amendments. That post-debate amendment period is known as vote-a-rama.

Reconciliation’s Limits: The Byrd Rule

The SAVE America Act must also comply with the Byrd Rule to survive on the Senate floor. Section 313 of the Congressional Budget Act (i.e., the Byrd Rule) bars senators from including provisions in reconciliation bills that are extraneous to the reconciliation instructions in the budget resolution. The Senate adopted the Byrd Rule in the mid-1980s to prevent lawmakers from using the reconciliation process to bypass the filibuster and enact non-budgetary policy.

A provision is extraneous under the Byrd Rule if it fails one of at least six tests:

1. The provision does not produce a change in outlays or revenues;

2. The net effect of the provisions reported by the committee writing the title containing the provision is that the committee fails to achieve its reconciliation instructions;

3. It is not in the jurisdiction of the committee with jurisdiction over said title or provision;

4. It produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision;

5. It increases net outlays or decreases revenues during a fiscal year after the fiscal years covered by such reconciliation bill…and such increases or decreases are greater than outlay reductions or revenue increases resulting from other provisions in such title in such year;

6. It recommends changes to the Social Security program (old age and disability).

The Byrd Rule is not self-enforcing. Senators must raise points of order against provisions they believe are extraneous, and the presiding officer rules on whether those points of order are valid. A sustained point of order strikes the targeted provision from the bill. Senators may move to waive a Byrd Rule point of order before the presiding officer rules, but doing so requires sixty votes — the same threshold that makes cloture so difficult in the first place.

Making the SAVE America Act Byrd-Compliant

The Byrd Rule's prohibition on provisions with no budgetary effect — or whose budgetary effect is merely incidental to their policy purpose — appears to be the biggest hurdle to advancing the SAVE America Act via the reconciliation process. While there is no way to draft a provision that fails the first test to comply with the Byrd Rule, a provision can pass the “merely incidental” test if its policy provisions are a necessary term and condition for collecting the revenue or spending the funds to which it is attached. This is because provisions defining the terms and conditions under which revenues are collected, or funds are spent, are not considered extraneous, even if they contain significant non-budgetary policy content. For this to work, however, the terms and conditions must fall within the jurisdiction of a committee that has received reconciliation instructions. Senate precedents bar committees from including terms and conditions under another committee's jurisdiction in their reconciliation title. Senate Rule XXV gives the Committee on Rules and Administration jurisdiction over federal elections. That jurisdictional hook matters: if the Rules Committee receives reconciliation instructions, it could create a new federal spending program—or attach conditions to an existing one—and require states receiving those funds to comply with the SAVE America Act's election provisions.

The Takeaway

Reconciliation offers Republicans a way to pass the SAVE America Act over Democrats’ objections, but it is a more complicated path than the one they already have. Forcing Democrats to hold the floor and speak would be procedurally simpler — and put the bill's opponents on the defensive. Reconciliation, by contrast, requires a budget resolution, reconciliation instructions, committee action, and a gauntlet of Byrd Rule challenges that could strip out significant portions of the bill before it ever reaches a final vote. Republicans may end up with less than they started with, through a process that took considerably longer.