But every now and again, this anonymous Senate staffer winds up in a position to decide the fate of high-stakes, hot-button legislation. And just like that, she is thrust onto the radar screens, and into the crosshairs, of ideological warriors, big-money interest groups, and other assorted obsessives. The brewing storm over Ryancare—or, if you prefer, Trumpcare-- promises to be one such moment, suggesting that MacDonough should brace for an acute onslaught of crazy.
Here’s the lay of the land: Republicans’ ability to repeal and replace Obamacare requires Senate Leader Mitch McConnell to ram through much of the overhaul via the filibuster-proof path of reconciliation. This means rejiggering whatever bill clears the House to suit at least 50 of his 52 members. It also means convincing MacDonough that the overall plan meets the requirements of the Byrd Rule.
Adopted in 1985, the Byrd Rule aims to keep budget reconciliation from getting bogged down in “extraneous matter” unrelated to deficit reduction. The rule sets six tests for determining extraneousness. Some are straightforward, such as a provision’s not being allowed to futz with Social Security. Others are highly subjective, most notably that a provision must impact federal “outlays or revenues” in a way that is not “merely incidental to the non-budgetary components of the provision.” Translation: Reconciliation cannot be used to achieve non-fiscal policy aims (for instance, curtailing access to guns or abortion) disguised as deficit reduction.
The “merely incidental” mandate, as you might imagine, leads to much argument, interpretation, and budget trickery. When that happens, who is charged with making the final call on the legislative intent underlying a bill and, by extension, its eligibility for reconciliation? You guessed it: the parliamentarian.
When a hot policy like Ryancare heads toward the Senate, the parliamentarian suddenly becomes the most popular person on the Hill. Emissaries from all sides of the debate descend on her office to lobby for or against provisions in a practice adorably known as “the Byrd bath.”
“If I’m in the minority, I’m going to say that all these provisions right here trigger Byrd Rule points of order,” said James Wallner, who spent many, many hours in the parliamentarian’s office during his 12 years as a Republican Senate aide. The bill’s supporters, meanwhile, work to tinker with—or if necessary trash—certain provisions to suit the parliamentarian.
There are nuances to this dance that members and staff quickly learn, said Wallner, now head of research for the conservative Heritage Foundation. Parliamentarians don’t deal with hypotheticals. (“You have to have text.”) They can get cranky if you pester them about their process. (“If you’re a staffer, the quickest way to frustrate the parliamentarian is to ask for the specific precedents on which they are basing their advice.”) And if the parliamentarian decides a bill has too many extraneous bits, she can deem the whole thing fatally flawed. “She would then say, ‘OK. This bill’s no longer a reconciliation bill,’” explained Wallner. That, needless to say, would be the end of Ryancare.