Senators Ted Cruz and Rand Paul want to go nuclear to steamroll the “Byrd Rule” which prevents the Senate from considering non-budget-related items during filibuster-proof reconciliation votes.
The firebrands want to overturn long-standing precedent for what can be done under reconciliation, the fast-track budget process the GOP is using to dismantle the Affordable Care Act. They argue Republicans are allowing stale Senate norms to tie their hands and are forfeiting a chance to completely abolish the law.
Cruz had previously voiced his opinion that Obamacare needs to be repealed all at once versus in multiple phases. And of course, Cruz’s legal interpretation, which Paul and Sen. Mike Lee also support, is technically correct.
The argument hinges on who gets to make the determination of what is considered permissible in the Senate. By longstanding tradition, parliamentary issues are decided by the Senate parliamentarian, a staff position currently held by Elizabeth MacDonough. But the Constitution gives the Senate complete control of its own activities and deliberations. Therefore, it technically falls to whoever it sitting in the presiding president pro-tempore chair, or to Vice President Mike Pence, who is constitutionally the President of the Senate.
Would overriding, or technically speaking, bypassing, the parliamentarian set off a nuclear arms race between Republicans and Democrats, which may well never end? It could, and that concerns many senators on both sides of the aisle.
“I just would be concerned about the path that puts you on in terms of the future,” said Sen. John Thune (R-S.D.). “But these are all things that we’re working through, and everybody’s got different opinions and views. And so hopefully we won’t wreck the place while we’re here.”
Sen. Roger Wicker called it “tempting,” adding “but it’s also the proverbial slippery slope.” Sen. John Cornyn, a candidate for the FBI Director job, believes that it’s not so simple to override reconciliation rules. “We’re not at liberty to do that,” he said. “We can’t just change a law that way.”
And of course, every Democrat in the Senate would oppose this. And they would, as a bloc, flip over to supporting it when they at some future time control the Senate, using the Cruz/Paul maneuver as their justification. The tit-for-tat, you-did-it-first one-upsmanship is the danger of their approach.
“You can overrule the parliamentarian with a vote. That’s what we did before. It’s something we can do. Whether it’s proper or not is the other thing,” Inhofe said. “Now, if Harry Reid had not taken the action that he took, then that would’ve been in my opinion improper to do that. But since he did, we’re doing what he did.”
But the Senate is free to write its own rules. Tradition is really the only thing binding them from pure chaos.
“There’s always loose talk about overruling the parliamentarian,” said Sen. Jeff Flake (R-Ariz.). “I can’t see supporting that. I’d be hard-pressed to do that. I like precedent, custom, tradition.”
Cruz, Paul and Lee may be correct, and Cruz is probably right about using this opportunity to fully repeal Obamacare. But that doesn’t mean sacrificing the traditions of the Senate for hardball politics is always the right answer. Just because the Democrats do it (and they do) isn’t always justification for doing what they do.
That being said, I think we will have to see where this leads and what can be negotiated. It’s good to have the nuclear option on the table, but it’s a long shot whether GOP hard liners can persuade the rest of their colleagues to go along.