Functional and Formal Byrd Rule Compliance

Abstract

ABSTRACT|Budget reconciliation is a special procedure in Congress that exempts policy from the Senate’s sixty-vote threshold to overcome a filibuster. A central condition is the Byrd Rule’s exclusion of nonbudgetary provisions, or provisions which produce outlays or revenues that are “merely incidental” to their “non-budgetary” components. This paper makes two arguments about this exclusion. First, Congress should classify provisions as “budgetary” or “non-budgetary” based on substance rather than form, treating implicit transfers as budgetary. This is justified by underlying economic realities and administrative costs. Second, even under a formal definition of “non-budgetary,” an implicit transfer can be restructured to comply with the letter and the purposes of the Byrd Rule. This is done by explicitly subsidizing the implicitly-taxed population and substituting a more general explicit tax. This paper’s recurring example is a 2021 Byrd Rule decision by the Senate Parliamentarian ruling that Democrats could not include a grant of legal permanent resident status to Dreamers.