Under reconciliation, it'll be harder than you think to amend the Senate healthcare bill

(Editor's Note: This piece first appeared in the Washington Examiner on July 24, 2017.)

Changing a reconciliation bill in the Senate is harder than you think. And the reason why has nothing to do with healthcare policy.

While senators are correct to note they have a "virtually unlimited opportunity" to offer amendments to reconciliation bills, the special rules governing that process make it less likely that alternative proposals will receive serious consideration on the floor. Given this, senators should not be quick to assume that beginning debate on the healthcare bill this week will lead to a different outcome if their amendments are not allowed to be debated openly and do not receive up-or-down votes on the merits. Ensuring this requires senators to know exactly what it is that they are amending.

Congress created the reconciliation process in 1974 to make it easier to change current law to align the federal government's existing revenue and spending levels with those specified in the budget resolution. Reconciliation bills are easier to pass because they cannot be filibustered in the Senate. The total amount of debate time allowed on such measures is limited to just 20 hours.

In addition to precluding minority obstruction, the expedited process leaves little time to consider amendments. Arguments that senators can offer unlimited amendments rest on the fact that members can continue offering their proposals during a vote-a-rama once all debate time has expired.

While that is technically accurate, the implication that senators do not face any restrictions when offering amendments during the vote-a-rama is not. In reality, senators face significant hurdles to getting up-or-down votes on their amendments throughout the reconciliation process.

For starters, there is literally no time available to debate the amendments offered during vote-a-rama. Instead, a vote is triggered automatically as soon as an amendment is offered. While additional debate time has been allowed in the past, doing so required the unanimous consent of all senators. Even if such consent is granted, it is difficult to debate something as complex as healthcare policy with only a few extra minutes.

There are numerous other restrictions governing what amendments to reconciliation bills can include. In practice, these restrictions serve to protect the underlying bill by making it harder for senators to amend it on the floor. For example, amendments must be germane to the bill; that is, they cannot add provisions unrelated to it. The germaneness requirement effectively limits the universe of issues senators may raise during floor debate to those already included in the legislation under consideration.

Another stipulation is that amendments must be deficit-neutral as measured against the reconciliation instructions in the budget resolution. Yet another requirement prohibits amendments that would cause spending levels to exceed the amounts authorized in the budget resolution or for total revenues to drop below authorized levels. While the chairman of the Senate Budget Committee is authorized to adjust these aggregate levels to accommodate floor amendments that would otherwise exceed them, he is not required to do so.

More well-known are the restrictions associated with the Senate's so-called Byrd Rule, which in this context prohibits amendments that would add extraneous material to a reconciliation bill. A provision is deemed extraneous if it meets one of six tests. The tests that floor amendments have failed most frequently are the prohibition on provisions that do not produce a change in outlays or revenues, produce changes in outlays or revenues that are "merely incidental" to the nonbudgetary components of the provision, or cause deficits to increase in the out-years.

Amendments also are prohibited if they affect the Social Security Trust Fund in any way.

Any senator may raise a point of order against an amendment on the basis that it violates any of the above restrictions. If the Senate's presiding officer sustains the point of order, the amendment falls without a vote. Any senator may move to waive these points of order before the presiding officer rules, but a waiver motion requires a three-fifths supermajority to be successful. Put differently, only 41 senators are needed to prevent a reconciliation bill from being amended, whereas 60 are needed to adopt an amendment that violates any of the special rules governing the process.

Senators thus have every incentive to avoid triggering points of order when amending a reconciliation bill. Doing so successfully can be made easier by close collaboration with their leadership and Budget Committee staff to ensure their amendments are drafted properly and that the budgetary effects are known in advance.

But it is difficult, if not impossible, to fully understand the budgetary effects of an amendment if the underlying proposal it is amending is not known in advance. If senators lack this information, if such collaboration is not forthcoming, or if senators have not taken steps to educate their colleagues on what their amendment would do before the start of expedited floor debate, they should carefully consider whether they are ready to begin debate on the healthcare bill.