Byrd Bath: Senators Are Gearing Up for a Standoff With the House Over Reconciliation Rules

Senators aren’t the only obstacle the House-passed reconciliation bill is up against. The legislation also has to overcome the so-called Byrd rule — and senators know House Republicans have a very different interpretation of what’s acceptable in reconciliation than the Senate parliamentarian.

“The House has much more liberal views in terms of what they can get into it, but it’s still gotta get through our “Byrd bath” program,” Republican Sen. Mike Rounds told NOTUS. “And there’s gonna be some challenges in there. I don’t know what they are. We just assume that there will be items that may not make it through.”

“That’s the price you pay for getting a 51-vote approval,” Rounds added.

Reconciliation is, in many ways, a gift to Senate Republicans. The process requires only a simple majority for passage, rather than the 60-vote threshold that legislation in the Senate is usually subject to.

But reconciliation also comes with rules. It can only be used once per fiscal year, with just a handful of exceptions for federal emergencies. And per the Byrd rule — a creation of former Sen. Robert Byrd that only allows items with a significant budgetary impact to go through reconciliation in the Senate, unless the provision gets a separate 60-vote majority — there are a number of policies that may not survive the Senate parliamentarian’s “Byrd bath.”

Determining what provisions have a significant budgetary impact, and what provisions are subject to 60 votes, is a technical and time-consuming process. It’s also controversial.

While the parliamentarian, Elizabeth MacDonough, is in charge of determining what deserves 60 votes, the process involves Senate staffers from both parties carefully preparing and presenting arguments for or against the inclusion of certain policies in the bill. And the majority could always overrule her.

The parliamentarian has no legal authority over the reconciliation bill. Her rulings are merely suggestions, though Senate Majority Leader John Thune has said he doesn’t want to overrule her on reconciliation.

“If you have something that is potentially a Byrd rule violation, the rule is not self-enforcing,” said Molly Reynolds, a senior fellow at The Brookings Institution.

The parliamentarian can advise that a certain provision is “potentially a problem,” Reynolds told NOTUS, and the majority, traditionally, removes it. If they don’t, “someone from the minority would challenge it, and then the presiding officer, historically, has ruled in line with the parliamentarian,” she said.

But the presiding officer could rule the other way, prompting the minority to challenge the ruling and the majority to table that motion with a simple majority vote. In the Senate, that’s called the “nuclear option,” and Democrats have already accused Republicans of going nuclear multiple times this year — once when they used a different baseline to calculate the fiscal impact of tax cuts in the reconciliation bill, and more recently when the Senate used the Congressional Review Act, in spite of the parliamentarian’s advice, to overturn an electric vehicle mandate in California.

Most senators don’t expect any big disagreements over what’s subject to the Byrd rule, and sources familiar with MacDonough’s process suggested she would try to be fair to both parties while staying true to Senate rules.

“Elizabeth does not like to make big, kind of, partisan, political decisions,” said Alex Jacquez, former senior policy adviser to Sen. Bernie Sanders on the Senate Budget Committee and current chief of policy and advocacy at Groundwork Collaborative. He added that MacDonough likes to keep things as “tightly focused” to the budget as possible

“And there’s kind of a pattern, right? She likes to give one to the Republicans and then one to the Democrats,” he said.

But there will be plenty of opportunities for both parties to disagree with the parliamentarian. The reconciliation bill is jam-packed with conservative policy priorities on taxes, energy, border funding, Medicaid, food assistance programs and the courts. And there are already a number of provisions raising questions about the legislation’s ability to get through the Byrd bath unscathed.

For instance, there’s a provision in the House bill banning states from self-regulating artificial intelligence. That could be a tough sell for the parliamentarian. There’s also a provision that would bar judges from enforcing contempt citations on individuals who fail to abide by court orders. And there’s another proposal that would require federal agency rules to be approved by Congress before going into effect.

Perhaps most notably for House Republicans, there’s language in the bill on the “suppressor tax” — a tax on the purchase of firearm suppressors, also known as silencers. The reconciliation bill would remove that tax, which would seem to have a budgetary impact, but the legislation also nixes a federal requirement for suppressors to be registered as part of the National Firearms Act. That part of the bill might be tougher to retain.

Complicating the Byrd rule problems in the Senate is that House Republicans strongly believe many of these provisions with questionable budgetary impact are clear-cut.

“The taxation and registration of suppressors under the NFA are inextricably linked,” Rep. Andrew Clyde told NOTUS on Wednesday. “I’m confident both provisions will survive the Byrd rule, and I look forward to working with Senate Republicans to ensure we deliver this victory for the American people.”

Still, behind the scenes, other Republicans aren’t so sure. Two senior House GOP aides told NOTUS they don’t believe the suppressor language will survive the Byrd rule. And senators may need to hold off House colleagues who want to overrule the parliamentarian when she inevitably strips out provisions that Republicans fought to include in the House bill.

The anticipated disagreements over the Byrd rule also don’t help with the GOP’s timeline. Republicans hope to pass the reconciliation bill before Fourth of July recess. But any changes to the legislation means the bill must be kicked back to the House for another round of passage, something House GOP leaders know will be difficult.

The House isn’t subject to anything comparable to the Byrd rule, meaning members tend to be more optimistic about what can be included. Speaker Mike Johnson, who is working with a barely existent majority, has made it clear that substantive changes to the legislation could severely complicate passage.

Still, senators and President Donald Trump have acknowledged that the House will need to pass an updated bill at some point.

“We need to get a lot of support, and we have a lot of support,” Trump told reporters on Wednesday. “We had to get it through the House … We will be negotiating that bill, and I’m not happy about certain aspects of it. But I’m thrilled by other aspects of it. That’s the way that goes.”

Trump noted that the Senate is “negotiating with us, and they have to then go back to the House.”

“It’s got a way to go,” Trump said.

Of course, the Byrd bath isn’t the only potential catalyst for changes in the bill. Republican senators are already eyeing a number of adjustments. Senate conservatives are concerned about spending in the bill, as well as the inclusion of a debt-limit increase. Some other GOP senators are against the measure’s cuts to Medicaid and food assistance programs.

The bill can only afford to lose three Republican votes in the Senate before Vice President JD Vance would be tapped to break a tie. With no Democrats expected to vote for the bill, four GOP “no” votes would stop the legislation dead in its tracks. For now, however, senators are just focused on making adjustments to the legislation to get it through their chamber.

“There’ll be plenty of changes in the Senate,” Sen. Ted Cruz said.

When asked about the Byrd bath, Cruz was mostly unconcerned. “That is an inevitable part of the process,” he said.

Other Republicans seemed to agree this was just part of the process.

“When you get down to it, it’s got to be scrubbed,” Sen. Markwayne Mullin said. “It’s still got to go through the Byrd bath. And we don’t know what it’s going to look like when it comes out of that.”

“Once we get it,” Mullin added, “we’ll put our fingerprints on it.”

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Ursula Perano is a reporter at NOTUS. Reese Gorman, who is a reporter at NOTUS, and Torrence Banks, who is a NOTUS reporter and an Allbritton Journalism Institute fellow, contributed to this report.