WTH is the Byrd Rule? Martin Gold on the back door that could let Democrats circumvent the filibuster

Episode #88 | February 4, 2021 | Danielle Pletka, Marc Thiessen, and Martin Gold

Danielle Pletka: Hi, I'm Danielle Pletka.

Marc Thiessen: And I'm Marc Thiessen.

Danielle Pletka: Welcome to our podcast, What the Hell is Going On? Marc, what the hell is going on this week?

Marc Thiessen: Well, we're talking about what the hell is the Byrd Rule? Because most Americans have no idea what the Byrd Rule is, but I think it's not an exaggeration to say that the fate of our democracy hangs in the balance of whether the Democrats go ahead and get rid of the Byrd Rule or not.

Marc Thiessen: We did a great episode last fall, and if you haven't had a chance to look at it, I urge you all to go back and listen to the episode we did with Marty Gold, who is probably the person in Washington who understands the intricacies of Senate procedure better than anyone. So, we have asked Marty back on, and he's going to explain this all to you in a much better way than Dany and I could.

Marc Thiessen: But the short version is that the Democrats have threatened to get rid of the filibuster, which is the requirement that you need at least 60 votes to cut off debate and move forward on legislation. And this is what protects the rights of the minority to block legislation or to slow it down in order to change it. It's a fundamental part of our system. It's an institutional guardrail that prevents us from having a tyranny of the majority. So many Democrats want to get rid of it. Joe Manchin and Kyrsten Sinema have said, under no circumstances will they vote to get rid of the filibuster. So, everyone says problem solved. Well, no, because people who understand Senate procedure know there are back doors to all of these things, and one of the back doors is the Byrd Rule.

Marc Thiessen: There's a process called budget reconciliation, which Joe Biden wants to use to pass his COVID relief plan that only requires 50 votes, a simple majority of the Senate, to pass. There is something called the Byrd Rule, which prevents senators from using that exception to the filibuster as a vehicle to ram through all sorts of stuff that has nothing to do with the budget. There are moves afoot to get rid of the Byrd Rule, as a backdoor way of eliminating the filibuster.

Marc Thiessen: This is all a lot of inside baseball that may make people's eyes glaze over, but

2 literally, if they get rid of the Byrd Rule, then all the things that we're worried about if the filibuster is eliminated: DC statehood, packing the Supreme Court, passing legislation without any compromise or need to talk to the minority or moderate your policies on climate, on energy, on taxes, on spending. It's just a different legislative flood gate.

Danielle Pletka: So, Marc, that's exactly right. For a lot of people, the arcana of how the Senate works is not especially exciting. So, let me try and describe something in Washington that's very important. Right now, we have the Democrats in charge of the White House, the Senate, and the House of Representatives. Okay, that's a choice of the voters and that's fine. We have to live with that. The Republicans got punished, and many would say they were asking for it.

Danielle Pletka: But one of the things that Joe Biden and the Democratic leadership of the House and Senate have all said is, "Well, we're not going to upend the rules of the road about how stuff gets done, unless the Republicans are truly obstructionist." I think that's a great line for them because they're basically coming out of the box very moderate.

Danielle Pletka: Here's the problem. Ten senators, and a very substantial number of members of the House, have gone to the White House and said, "Hey, we want to work with you." So that means that more than 20% of the Republican caucus in the Senate has gone to the White House to say We want to work with you nd the White House has basically turned around and said, "We don't really like the way you want to work with us. We prefer to just ram things through, and we know how we're going to do it." What we're really facing up to in Washington is that there is a false narrative about the fact that Republicans want to obstruct everything the Democrats wanted to do. The way our government is supposed to work is negotiation and compromise, and those days are very close to being over.

Marc Thiessen: Well, what's wrong with that also is that what if the Republicans want to obstruct some things that the Democrats want to do? So what? That's their right? When Donald Trump was president and the Democrats were the minority in the Senate, they filibustered the border wall. They twice filibustered the CARES Act, forcing Republicans to make changes to the bill that they wanted. They filibustered on two separate occasions, follow-up coronavirus relief acts because they didn't want Republicans to pass those before the November election and get credit for it.

Marc Thiessen: They filibustered Tim Scott's police reform, and we had him on to talk about that. They blocked legislation to force sanctuary cities to cooperate with federal officials. They filibustered almost every effort that Republicans made to put even the smallest restrictions on abortion. Those are just the bills that they actually filibustered. More often than not, people don't even bring up the bill because they don't have 60 votes, and so it never comes up. So, all of a sudden, we can't let Republicans obstruct?

Danielle Pletka: First of all, I think it's important that people understand that that list that you just put out is a list of accomplishments for the Democrats based on the system that we have. So, they loved it, right? It worked great for them and for a lot of Americans who have more nuanced views and don't represent the extremes of

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3 their parties, that's a good thing. They liked the fact that the Democrats were able to stop the Republicans from doing certain things. I believe that a lot of Democrats would like to see the same thing happen now.

Marc Thiessen: But here's the point, Dany, take that list of things that Democrats want to block, and imagine that in a few , Republicans control the White House, the House, and the Senate again, and there's no filibuster, or there's no ability of the minority to block it. Guess what? All of those things are going to be enacted into law. They won't have the ability.

Marc Thiessen: People said Donald Trump was such a threat to the Republic. Well, no, because the Democratic minority was able to filibuster him and block him from doing some of the things that they thought were the worst excesses of Trumpism. Well, guess what? If you blow up those rules now that you're in power, guess what's going to happen? Do you really want to have no institutional guardrails?

Marc Thiessen: This is what drives me crazy about what's happening in Washington today. The absolute utter lack of respect for the institutions that have kept our countries centrist and stable. What drove me crazy about the Capitol assault, and you and I both worked in the United States Senate, we have a reverence for that institution, to see people rampaging through the Senate floor and going through those desks, it offended our sensibilities because we have a reverence for that.

Marc Thiessen: This is basically the equivalent being done to the institutional guardrails of our democracy. There are institutions that have been built up through the wisdom of collective generations to say, "No, we're not going to have a tyranny of the majority. The minority is going to have some rights in this country," and understanding that what comes around goes around. There are no permanent victories in politics, and someday it's going to come back to you. We're cutting at the legs of the stool of our democracy, and it's going to collapse at some point if we don't protect them. That's no matter what your political ideology is. We should all have reverence for these institutions because they are what keep Republicans from going too far, if you're a liberal. And they're what keep the liberals from going too far, if you're a conservative.

Danielle Pletka: The key here, I think, is that it's imperative that people understand what's going on. Because without that understanding, people aren't going to oppose it. People aren't going to reach out to the Joe Manchins and Kyrsten Sinemas of the world and say, "Don't let this happen," unless people understand what it is. And we are lucky enough to have someone who can, far better than Marc and me, lay out exactly what these rules are that are currently right next to the shredder. We'll survive, I suppose, only by the grace of the sense of a couple of members of Congress.

Danielle Pletka: Marc mentioned that we had had Marty Gold on to talk about the filibuster. We've got Marty Gold back, and he has the same exalted bio. He is a partner at Capitol Counsel, but he has over 40 years of legislative and private practice experience. not just an authority, he truly is the authority on matters of congressional rules and parliamentary procedure, and we are just super lucky that we were able to get him to join us today.

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4 Marc Thiessen: Marty, welcome back to the podcast.

Martin Gold: Very good to be here.

Marc Thiessen: Well, you are the man we go to when we laypeople have to understand these intricate rules of the Senate, and there is now a big debate. Everyone understands how the filibuster works, which is you need 60 votes to end debate, which gives the minority the right to block or amend legislation. But there's a path around that once a year called the budget reconciliation process, and there's a rule called the Byrd Rule that prevents people from abusing that. Can you tell us, first, what is the budget reconciliation process, and what is the Byrd Rule?

Martin Gold: The budget reconciliation process is a process that is rooted in the 1974 Congressional Budget and Impoundment Control Act. The basic idea of it is this: Congress passes a budget, and in that budget, it has ideas about revenue streams and spending patterns and so forth that may conflict with existing law. They have to find an expedited way of making the existing law match up with their new budget. So, they have a system called budget reconciliation. It's a fast- track process by which you can pass a piece of legislation that makes the necessary changes in the revenue code or in the spending patterns in order to make sure that you line up the law and the budget to reconcile the two. That's the meaning of budget reconciliation. You reconcile your congressional budget and the law and make them as one. So that was the idea Congress put in the Budget Act of 1974. They established the Congressional Budget Office, they established the congressional budget process, and they established a mechanism where they could easily make changes in law to make sure that their budget had real meaning. That was the purpose of it.

Martin Gold: But it became apparent in a few years' time to one of the authors of that law, Robert C. Byrd of West Virginia, longest serving senator in American history, that there was the potential for abuse. Senator Byrd always said that there were two great rights of senators, the right to debate and the right to amend. Because of the expedited nature of budget reconciliation, both the right to debate and the right to amend are restricted.

Martin Gold: He thought that was okay if you were just serving the budget purposes that I outlined a minute ago. But he also worried. He worried about people trying to abuse that by shoehorning in a number of other provisions, provisions that were extraneous, that had nothing to do with lining up budgets and revenue streams, provisions that were taking advantage of the filibuster-proof nature of that vehicle. And so, to avoid the possibility of abuse, several years after the Budget Act, he caused the act to be amended with something called the Byrd Rule, which restricts what could be put into a reconciliation bill. The purpose of those restrictions, which have been with us now for 35 years, has been to prevent abuse.

Danielle Pletka: So, Marty, let's nerd out a little bit more. We've got budget reconciliation, that fixes this year's budget with all previous law and smooths it out so that there are no conflicts in law which cause problems. Then we've got the Byrd Rule that basically says you can't use this as a Christmas tree and avoid the filibuster by

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5 sticking anything you feel like on there. Then there is the person, and I say this advisedly, who actually makes the call Are you violating the Byrd Rule? Dany Pletka wants to put on an amendment creating dog parks on every block in Fairfax County, where I live. Someone is going to say, "Hey, that violates the Byrd Rule." That's the parliamentarian. Tell us a little bit about the role of the parliamentarian.

Martin Gold: The parliamentarian is a neutral arbiter. The parliamentarian is a nonpartisan. This parliamentarian we have now, Elizabeth MacDonough, who's the first woman to be parliamentarian of the Senate. She has served under Republican leaders and Democratic leaders because she is a nonpartisan. Her predecessor, Alan Frumin was a nonpartisan. He served under Republicans as well as Democrats. It should not be a partisan job, must not be a partisan job, and is not a partisan job. So, it is her responsibility, she, with her team, to evaluate various proposals and to determine whether or not they meet the qualifications of what can go into a budget reconciliation bill.

Martin Gold: In other words, are they things that affect revenues primarily or exclusively? Are they things that affect mandatory spending like Medicare or Medicaid, primarily or exclusively? Or are they add-ons? Are they items that people would like to put in because they think it's convenient to avoid the filibuster, but they don't primarily affect fiscal matters? If, upon looking at this, she determines that those things are extraneous, that they don't belong in a reconciliation bill, she makes that call. Now, she's an employee of the Senate. That is true. She is not a senator. All she can do is give advice to the presiding officer. But I think that you could count on the fingers of one hand if you had five amputations, the number of times that the presiding officer has ignored the advice of the parliamentarian and just gone ahead and ruled on their own. It simply is not done even though it is theoretically possible.

Danielle Pletka: But, of course, the Senate can by a simple majority vote overrule the ruling of the parliamentarian, right?

Martin Gold: Not in this case. Overruling the ruling of the chair, because the parliamentarian advises the chair, so it's the chair's ruling or the presiding officer's ruling, not the parliamentarian's ruling, if you want to be technical about it. To overrule the chair, requires in this case 60 votes, not just a majority as a fundamental matter. So, if, for example, someone wants to offer an amendment, and the amendment violates the Byrd Rule because it's not primarily fiscal in its nature, the parliamentarian advises the chair to say that amendment is out of order, the chair says, "Well, that amendment is out of order." A person who still wants to put it in has got two possibilities. Before the chair makes a ruling, the person says, "I move to waive application of the rule. I mean to say that in this moment, we won't apply the rule."

Martin Gold: If that Senator can get 60 senators to go along with it, great, he can put in anything he wants. Or, the chair makes a ruling, and the Senator says, "I don't like that ruling. I appeal the ruling of the chair. I want a different outcome." And if he wants to win, he needs 60 votes. So, in either case, whether you're trying to just waive application to the rule, so you don't apply it, or you appeal the ruling of the chairs because you disagree with it, okay, in either case you need 60

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6 votes. So, the general possibility is not to make it easy for simple majorities to just run roughshod over this rule. When they put in those 60 vote points of order, it was intended to make sure that the rule had some teeth.

Marc Thiessen: So, Marty, what is the danger here? We're hearing that there are some Democrats who want to get rid of the filibuster. We did a whole episode with you on that, and I urge everybody to go back and listen to it to understand the filibuster. And Joe Manchin and Kyrsten Sinema have said under no circumstances will they vote to get rid of the filibuster, which means you need 60 votes still to get anything done in the Senate except through budget reconciliation. And there's a concern now that Democrats have found a back way to get rid of the filibuster by getting rid of the Byrd Rule and allowing themselves to pass all sorts of extraneous things through budget reconciliation. How can they do that, and what is the danger of that?

Martin Gold: You do it two ways. There's a minimalist way and a maximalist way. The minimalist way is this: I mentioned to you that the parliamentarian advises the presiding officer. I mentioned to you that the presiding officer takes the parliamentarian's advice. What if the presiding officer is the vice-president, and she decides I don't want to take the parliamentarian's advice. I'd like to take the opposite. So, the parliamentarian says such and such a provision on including, let's say for example, the minimum wage increase in the reconciliation bill. Now it does have a federal fiscal impact, but the primary impact of the provision is on the private market. So, it's clear that that is so, so it ought to be excluded in my opinion.

Martin Gold: Let's imagine the parliamentarian thinks that I'm right about that, so she tells the presiding officer, "Exclude it. Rule against it. Okay, if a point of order is made, uphold that point of order. Suppose that the presiding officer doesn't do that. Parliamentarian doesn't have a voice on the Senate floor. So, if the presiding officer says, "I'm not ruling it out," then they're ruling it in. And all of a sudden to appeal the ruling of the chair, go find 60 votes to say that the vice president is wrong. I don't think you're going to find them. So therefore, on a piecemeal basis, by not ruling out provisions that the parliamentarian would advise are subject to the Byrd Rule, subject to a point of order, by not ruling those things out, you allow them to be included. That's one mechanism.

Martin Gold: The second mechanism is more of a blunt instrument. I told you a moment ago that it takes 60 votes to waive application of the Byrd Rule. You don't want the Byrd Rule to apply to a situation where it would otherwise apply, the Byrd Rule is not a straitjacket. It's a barrier. If you have 60 votes, you work around that. Well, what happens if somebody stands up on the Senate floor and uses the nuclear option. They say, "Oh, Mr. President or Madam President, Madam Vice President, I make a point of order that waiving application of the rule only requires a simple majority vote."

Martin Gold: Now, the vice president would be required to say, "That's not true. The law says 60." "Well, then I appeal the ruling of the chair." And if they get a simple majority in that case, a simple majority, not 60, in that case, to overturn the chair, it lowers the threshold of waiver motions down to a simple majority. What effectively that means is any proposition, minimum wage, DC statehood, pack the courts,

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7 anything you want that can command the support of a simple majority of the Senate, can be stuffed into a vehicle that cannot be filibustered.

Marc Thiessen: So, this is the same mechanism that was used by Harry Reid to blow up the filibuster.

Martin Gold: On nominations, yeah.

Marc Thiessen: On nominations and later by Republicans to extend it to the Supreme Court. So, the nuclear option is basically voting on a lie, right? Because basically you're voting to say the rule doesn't say what it says.

Martin Gold: Well, that's correct because there is not a rule that you can write that can survive the initiative of a majority of the Senate to disregard it. The Senate is responsible for its own self-governance under the Constitution. The Senate governs itself. So, the Senate makes up rules to govern itself, whether the rules take the form of the standing rules or rules like this one that we're talking about, right? It's a body of parliamentary law. If the Senate chooses to ignore its own rules, it ignores its own rules.

Martin Gold: And I don't mean to say that in such a cavalier way. It sounds like, oh, if they ignore it, they ignore it. I don't mean to put it quite like that, but it's a stark reality. The Senate rules are only as good as the Senate being willing to abide by them. If the Senate chooses to ignore its own rules, there is no other recourse available. You can't go to court and say the Senate violated its own rules, because the court's going to say, "This power was committed to the legislative branch, and it's up to the legislative branch to decide how it uses it."

Danielle Pletka: Let me ask you another nerd question, if I may. Nominally, you are only supposed to have one reconciliation bill a year. Is that not right?

Martin Gold: That's not right, exactly. It's not right.

Danielle Pletka: Help us understand.

Martin Gold: Look, there are three broad topics that you can reconcile. You can reconcile revenues, and you can reconcile mandatory spending. Those are the entitlement programs, right, not discretionary appropriations, not the money you spend on the Department of Defense, for example. Right? That's a discretionary appropriation, so that's outside of it. It's those mandatory programs. It's the things that are on automatic pilot. That's why you need to use reconciliation for some of those things, right? The things that are on automatic pilot, and you want to make adjustments in those things. You don't need automatic pilot for the Department of Defense, but when you have programs that are on automatic pilot, those things, so revenues, mandatory spending, and one more topic, which is the level of public debt.

Martin Gold: If you want to, you can have from one budget resolution up to three reconciliation bills, one on each of those topics. Or you can combine several topics into one bill or two bills, any combination you want. Or you can decide

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8 you want to have a reconciliation bill on revenues but do nothing about spending. You can do that too if you want. So, the general point is if you have a budget resolution, you can have up to three reconciliation bills. If you want to do something more than that, you can pass revised budget resolutions later in the year and generate even more reconciliation bills.

Martin Gold: So, the real danger here is if you turn the reconciliation bill into a big filibuster workaround, then you will fundamentally have two major pieces of legislation that pass each year. One that deals with a massive appropriations bill, like a big omnibus bill like we've seen in recent years. Continuing resolutions are omnibus appropriations bills. Whether they take a dozen appropriations bills and meld them into one. That'll take care of discretionary spending. And then you have everything else, and everything else can be put into one massive reconciliation bill because you have now taken down the guard rails. What is the incentive to move a piece of legislation through a filibusterable process when, if you can get a simple majority, you can move it through a non-filibusterable process?

Martin Gold: I mean, it's a profound thing. So, we talked before about killing the filibuster and the dangers that that would pose for the Senate. And we have people who will say, "I am not for overriding the filibuster provisions in Senate Rule 22. That's the rule that says it takes 60 votes to end debate, right? I'm not for overriding those." And you may not be for overriding those, but you may as well be for overriding them if you circumvent them by allowing the abuse of the budget reconciliation process. Because in that case, you have a bill that cannot itself be filibustered, and you can stuff anything you want into that bill.

Danielle Pletka: The reason that I have always assumed that it can be used once or twice is because traditionally it is only used once or twice in a year. Now, one of the defenses that I'm seeing from a lot of people, because this has become a pretty hot potato in Washington now, is that, The Republicans did it. The Republicans tried to use reconciliation to repeal the Affordable Care Act. The Republicans actually succeeded in using it to lower taxes. So, is a lot of this sort of pot calling kettle black? Help us measure the level of precedent and politics that's going on here.

Martin Gold: It's an interesting question. Of course, the Republicans have used it, and of course the Democrats have used it over time. So, let me begin it this way. Reconciliation is a discretionary process. You don't have to use it. It's not automatic every year, and it doesn't happen every year. When it tends to happen is when you have at least one party in control of both Houses of Congress. Right? It's even better if you have that, and you have a president of the same party who will sign the bill.

Martin Gold: If you have everybody lined up like you did in 2017 when the Republicans did it to pass tax cuts, and President Trump signed that bill, there you go. That's the perfect use of budget reconciliation. It's efficient, and it gets signed into law. But look, it is perfectly clear that revenues are a proper subject for reconciliation. So, to say the Republicans did it to pass a tax bill, my response to that is, "So what?" It's clear that revenues have always been a proper subject of reconciliation.

Martin Gold: Let's take a different example. Democrats using reconciliation on Obamacare

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9 and Republicans trying to repeal it by a reconciliation, because that's a better example. The main Obamacare bill that passed in 2009 in the Senate and 2010 in the House, was not done by budget reconciliation. And there is a very good reason why it wasn't done because it contained a number of provisions that could not have been done by reconciliation. For example, a requirement that private insurance companies could not exclude people for pre-existing conditions. That may have had some federal fiscal impact, but the primary effect was not on the federal budget, which is what is required.

Martin Gold: The primary effect was on the private marketplace, right? How about keeping your kids on the insurance policy until they're 26 years old? Maybe there's some fiscal impact to that. But the primary effect is on the private marketplace. Now those are the two most popular provisions in Obamacare.

Martin Gold: If you will go back to the winter of 2009, Harry Reid for the month of December negotiated, and negotiated, and negotiated to make sure that the 60 Democrats he had in the Senate would all line up behind Obamacare. He negotiated with Mary Landrieu in Louisiana. He negotiated with Ben Nelson in Nebraska. He negotiated with Joe Lieberman in Connecticut. Joe Lieberman, a senator coming from an insurance company rich state refused to allow for a public option in Obamacare, and Harry Reid gave it up.

Martin Gold: Why did he do that? Why did he break his neck to get 60 votes to pass that bill if he could have just used budget reconciliation and passed it with 51? The reason he did it is because he wanted the bill to look like a piece of cheddar cheese, not like a piece of Swiss cheese. There were too many provisions in the bill that they wanted like the ones I was mentioning about pre-existing conditions and children on the insurance policy that could not have been put into that bill if you had to do it by reconciliation and to observe the rules as they have traditionally been interpreted. So, he couldn't do reconciliation for that.

Martin Gold: He passed the bill through the regular order with 60 votes. Later on, they passed a supplementary bill through reconciliation that addressed topics that could be addressed that way, that wound up amending Obamacare. So, if you say was reconciliation used? Was it used in the process of amending Obamacare? Yeah, it was, but not for the major part of that legislation. Now how about the repeal? Republicans didn't have 60 votes in the Senate to repeal the bill through the regular order, so they tried to use reconciliation to repeal as much of it as they could.

Martin Gold: Here's the key, that which you cannot build by reconciliation, you cannot dismantle by reconciliation. So, the result of that is, that the Republican attempts to repeal Obamacare were very targeted. They couldn't just say the Affordable Care Act is repealed. They had to go at pieces of the Affordable Care Act in an effort to make the act unworkable.

Martin Gold: But when they went after, for example, something called risk corridors, which were insurance adjustment mechanisms kind of, which they put into the original Affordable Care Act because they were trying to even out the risks for insurance companies on risk pools that the companies had, a point of order was made. You can't go after the risk corridors because they are primarily impactful on the

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10 private marketplace, not on the federal budget. Guess what? The point of order was sustained. The reconciliation bill couldn't go that far.

Martin Gold: So, when you hear, idn't the Republicans do reconciliation? For revenues, you bet they did, and you bet they could. Didn't they do it for Obamacare? You bet they tried, for limited purposes only because only limited purposes could be addressed that way.

Martin Gold: If you observe the same rules and precedents now, people would not be so aggravated about the possibility of budget reconciliation, because then everybody would agree: Republicans did it at this time and the Democrats did it that time. We're not talking about that. We're talking about the potential of the process being manipulated in very untraditional ways. That's the problem.

Marc Thiessen: Marty, I remember when the Trump administration was working with Paul Ryan and Mitch McConnell to do the Trump tax cuts, having a meeting in Paul's office and we were asking him all sorts of questions like, why make the tax cuts permanent? Why don't you do this? Why don't you do that? He would say, "Elizabeth says we can't." And he was referring to the parliamentarian who he didn't know, but he was like, "Apparently that's the way the system works. Elizabeth says we can't do it."

Martin Gold: He might as well have said Queen Elizabeth.

Marc Thiessen: Exactly.

Martin Gold: One of the provisions in the Byrd Rule says that you cannot enact fiscal legislation by this mechanism, through a filibuster-proof mechanism, that makes the fiscal position of the federal government worse in the distant future. They always worry about fiscal time bombs, right? Things look okay in the short term, but all of a sudden, wow, it just explodes on you in the out years, that kind of idea. Same exact thing was true with the Bush tax cuts in 2001. They had to be sunset after 10 years, why? They passed a ten-year budget resolution, ten-year budget resolution made room for these tax cuts, but what happens in year 11?

Martin Gold: So, they go to the joint committee on taxation and they say, "Joint committee, tell us, what will the government's fiscal position be like in year 11, if we do these tax cuts, or if we don't do these tax cuts?" And the joint committee says, "It will be worse if you do the tax cuts because you won't have the revenue stream." And they say, "Aha, Byrd Rule." Because Byrd Rule says you can't make the fiscal position worse as the years go out. And so, the Republicans have a choice, get 60 votes to waive the rule that they don't have, they don't have 60 votes, or sunset the tax cuts. That's why they did it in 2001, and that's why they did it in 2017. They observed the rule.

Marc Thiessen: So, Marty you've given examples of Democrats abiding by the Byrd Rule and not allowing themselves to do certain things that they wanted to do. A number of examples of Republicans, George W. Bush, Donald Trump, Paul Ryan doing the same thing. Give us the list of horribles of what could happen if this process is blown up, this back channel way of defeating the filibuster? What would happen to the Senate? What kind of things could get passed? I mean, could they pack

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11 the Supreme Court this way? Could they make DC a state? Could they change all the things that we talked about that could happen with the filibuster, are all those things on the table now if they attack the Byrd Rule?

Martin Gold: Well, at the risk of making it sound like an alarmist parade of horribles, right?

Marc Thiessen: Please.

Martin Gold: I am plenty alarmed. Okay. I am plenty alarmed. You have guardrails now. Guardrails that have been in effect for 35 years. Guardrails that have been observed by both parties, right? Nobody has seriously questioned these. I want to make one small point here and then answer this question. Not only do you have a number of cases, more than 70 cases, where the Byrd Rule has been hashed out on the Senate floor, because somebody actually tried to offer an amendment and it was ruled out of order and they tried to get away from all that kind of... Whatever it was, 70 cases where the thing was hashed out on the floor.

Martin Gold: And many, many times that number of cases that were hashed out in the parliamentarian's office, Elizabeth says, we can't do it, so we don't attempt it." It never gets to the Senate floor because you know ahead of time that you can't put in those permanent tax cuts, so you don't attempt to put in the permanent tax cuts. If you attempted to do it, then it would be hashed out on the floor, but you don't attempt to do it, because you know it's not going to work, right?

Martin Gold: So, when you look at the impact of this rule, it's not just the cases that came to the floor. That's the tip of a very big iceberg, and below the waterline is a lot of ice. It's all those circumstances where they hash things out, committee provisions, house provisions, floor amendments, whatever it may be, and one way or another, they're either in or they are out.

Martin Gold: So, what happens if there are no more protections? Then I think the sky is the limit. I think that whatever can command a simple majority of senators can be put in. It is no more offensive to the Byrd Rule to put in DC statehood than it is to pack the Supreme Court, or any number of other provisions that don't belong in there in the first place.

Martin Gold: If it only takes a simple majority to waive application of the rule, and you can get a majority, feel free. So effectively what you have done is you've opened up a filibuster-proof vehicle to a range of provisions that have no business being there and you've gutted the filibuster. So, it is a backdoor way of gutting the filibuster. I don't care what your horrible may be. Is it in the Green New Deal? Is somebody worried about that? Some foreign policy thing, somebody's worried about that. Some judicial area, somebody's worried about it. You just pick your poison because it can go in there if the guardrails come down.

Danielle Pletka: Here's my exit question for you just to sort of close out all of this discussion, because you've explained so, so well, not only in theory, but also in application. I can see a push coming back on a question like $15 minimum wage being, in fact, a revenue measure. What's the argument?

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12 Martin Gold: Listen, one of the Byrd Rule provisions says that something is extraneous if it doesn't have an impact on the federal budget. There's another Byrd Rule provision that says if it has a fiscal impact on the federal government, but the fiscal impact is merely incidental to the broad policy effects of the provision, that's also a violation. You cannot have a fiscal tail wag a non-fiscal dog. That's the basic idea of this. Okay. The tail can't wag the dog.

Martin Gold: Let me give you a simple example of it. Years ago, House Republicans were concerned about the fact that they wanted to do tort reform for medical malpractice lawsuits, capital recoveries, right? However, they understood that they never could pass that legislation in the Senate because the Democrats would filibuster it, there would never be enough votes to overcome the filibuster, that simple. Oh, but why don't we put it into reconciliation? So, they went ahead, and they went to the Congressional Budget Office. Can we find the fiscal impact if we limit malpractice recoveries? Imagine that because somehow the government was giving some money to physicians to reimburse for practice expenses, and so if you lowered the tort recoveries, the practice expenses would be lowered as well, and, as a result, the government would save some money.

Martin Gold: So, aha, here's the hook, except that the parliamentarian looked at that and said, "No way." Why no way? Yes, there's a fiscal impact, but it is obvious that the primary purpose of the provision is tort reform, it's not the effect on the federal budget, right? The effect on the budget is merely incidental to the tort reform policy effect, right? Therefore, it can't be done.

Martin Gold: The fiscal effect on the government was the tail, tort reform was the dog, tail can't wag the dog. That's the principle of it. So, in any of those cases like that, the parliamentarian really has to look at a balance, right? What's the relative importance of the fiscal part of it, versus the relative importance of the non-fiscal part of it? And determine which is the tail, which is the dog, right? And it'll change from case to case.

Martin Gold: But I think it is very difficult to say that even though there's a fiscal effect from minimum wage, that primarily it is impactful on private business and all those businesses that are going to be paying out the minimum wage and all the rest of it, right? Overriding state laws, all that kind of business, right? So, the policy effect, I believe, will loom larger than the fiscal effect and I think will have the tail and dog situation just as I described it.

Martin Gold: If it is evaluated differently, then there's no foul. But if it's evaluated the way I've suggested here, then there's a big foul. Then you're in the posture of either having or potentially having the presiding officer ignore the foul, right? Or saying that you can waive the foul, but just with a majority. There's the problem, either of those situations creates the problem. The minute that you begin to interpret this rule in non-traditional ways, or you just let the Senate eviscerate the rule whenever a majority feels like doing it. Either of those things is a backdoor way of killing the filibuster.

Marc Thiessen: Exit question for me, Marty. You, I think it's safe to say, know Senate procedure better than anyone in Washington D.C., and that knowledge is because you studied the Senate, and you have a deep love for the institution of the United

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13 States Senate. Take off your parliamentary procedure hat and put on your philosopher's hat for a second. As someone who loves this institution, why is it that so many people are willing to blow it up in order to get things done? There are so many people that have so little respect for this institution that they're willing to just trample the guardrails in order to get their policy priorities through when previous generations weren't willing to do that, even though there were hugely contested policy issues and huge disagreements between Republicans and Democrats, within Democratic and Republican circles. Nobody has tried to do this before. Why is this happening?

Martin Gold: It's a sad, sad moment, let me begin with that. If I were a cynic, I would say that people care about minority rights in some cases only when they're in the minority. I would note this, or they hate the filibuster depending, or love it depending on who's doing the filibustering, right? So, I would make this note: Neil Gorsuch was confirmed in April of 2017. The nuclear option, as you noted, Marc, was used to make sure that the filibuster could not happen on the Gorsuch nomination or any other Supreme Court nomination squaring up that with what Harry Reid did, which said that all nominations, but the Supreme Court could also have majority cloture. So majority cloture now applies to everything. It was a very significant moment. And in the immediate aftermath of that moment, 61 senators signed a letter to leaders McConnell and Schumer saying the legislative filibuster must never be touched, must never be touched. 61 senators, 31 Republicans and 30 Democrats, many of whom are still serving in the Senate, both parties.

Martin Gold: How many Democrats now have said they just will not consider overturning Rule 22 like that? Two. How old is that letter? Less than four years. It's 2017, it's not 1917 or 1977, right? It's four years, less than four years. What has changed so much in that time? How many of the people who are advocating for a change in the Senate rules would be advocating for it if the Georgia elections had turned out differently? Are we talking here about the principle of a functioning Senate, or are we talking about the principle of getting what you want under the short term on the idea that we have a small narrow window of opportunity and we have to take advantage of it as quickly as we can? So, it is pragmatism writ extreme here.

Martin Gold: I'll point out one more thing. Here we have a coronavirus relief package that may go through budget reconciliation because we just have to put it through budget reconciliation, don't we? The big CARES Act coronavirus relief package that passed in the spring of 2020 was done through the regular order, not through a budget reconciliation, right? It went through the regular order. What happened on that bill? Democrats twice filibustered motions to proceed to the consideration of that legislation. They blocked it twice.

Martin Gold: Wouldn't even let the Senate get on the bill. And why so? Because they didn't want coronavirus relief? No. Because they wanted to use the filibuster in order to leverage inclusion of their own priorities in the bill. They didn't want to just have a Republican bill, but when they use those minority procedural rights to the fullest, they got to put their own stuff in and then the bill passed unanimously. Imagine that. So, the people who now say, We can't be negotiating, we've just got to use a majoritarian process, we got to push this thing through as fast as we

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14 possibly can, are the same exact people who used minority rights to forestall the first coronavirus relief package until they could make sure that their own priorities were included in that package.

Martin Gold: So, I don't think that we are talking here about any major philosophical differences that somehow made people who've thought one way think another way. I think we're talking about election differences that make people who thought one way now think another way. It is nothing in my view but pragmatism in the worst sense of the term.

Marc Thiessen: Thank you so much, Marty, for joining us. It's sad, but it's important for people to understand what's happening because these arcane rules are going to affect the lives of millions of Americans. So, we really are grateful to you for coming on and explaining it to us.

Martin Gold: You're very welcome.

Danielle Pletka: Thanks for taking the time so much, really. We're really grateful.

Marc Thiessen: We talked at the beginning and we talked now with Marty about why are people so willing to throw these rules out and why in particular are Democrats right now, so willing to throw these rules out when they were exercising them 30 seconds ago, right? All of these protections. I have a theory about it, Dany.

Danielle Pletka: What is your theory, Marc? Tell me your theory.

Marc Thiessen: My theory, which is mine. This is my theory and now "My theory by Marc, for anyone who doesn't know what we're talking about, that is a Monty Python skit. My theory is, the difference between Democrats and Republicans is that Democrats, when they get hold of power, their goal is to expand government, and government is a one-way ratchet. Republicans, when they get power, their goal is to limit government and, more often than not, our changes are reversible, their changes are not, right? Look at Obamacare and all the fight we had over Obamacare, it's still there, right? Name me a government program that was created, an entitlement program that was created that was later taken away? it doesn't happen.

Marc Thiessen: They look at this and say, "Yeah, we'll break the rules and maybe Republicans will use this against us in ways we don't like, but you know what? We'll pass single payer healthcare and they'll never take it away. We'll pass the Green New Deal and they'll never take it away. We'll do all of these expansions of government and yeah, we'll lose people." I mean, they did this with Obamacare. They knew people were walking into the political shredder and they didn't care because they were willing to sacrifice themselves and their careers in order to get these things through. And then Republicans come back in and we can't use those same rules to repeal everything they did because once people start getting government benefits, they don't like it when politicians take them away.

Marc Thiessen: So, from their perspective, yeah, you're going to have the rules in a few years, but then we'll come back and we'll do even more and we keep growing

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15 government, and keep the inexorable march towards socialism. the only way I can explain why Democrats are so willing to blow up rules that have benefited them and would benefit them in the future in order to get short-term gains. It s the only way I can figure it out. What do you think?

Danielle Pletka: I don't know. I mean, of course, I can't disagree with you, that Democrats are for big government. It is an axiom in economics that once you give an entitlement to somebody, it is almost impossible to take it away, no matter what it is. I just see this more in the context of our sort of changing absolutist politics. What I've called before the Banana Republicization of America. In which we have presidents who basically shred everything that their predecessor did, sometimes with no more reason than that they can, and without a view to the impression that it makes on the outside.

Danielle Pletka: These sort of extraordinary swings of the pendulum between presidents of different parties is so dangerous, is so bad for us. Forget about all of the hot button issues, the third rail political issues. Let's just talk about if you're like a small businessman. If you can't make plans, you won't know. You don't know whether you're going to have to pay him $15 an hour next week, but then you're going to have a tax for that the following week, but then that tax is going to be repealed two weeks later. What kind of a freaking way is that to run a country?

Danielle Pletka: And the fact that there is nobody of good sense out there, no adult supervision, seems to me to be absolutely stunning. In order to read up for this podcast, I read so much garbage and without having talked to Marty, I would have thought it was all true. Hey, Republicans did that too. Hey, they did that with Obamacare. No, they didn't. This is in the Washington Post and the New York Times. This is not out of some partisan yellow paper. This is out of the newspapers of record, and they're wrong. Now, if we don't know, how is anybody going to understand this? If people don't get proper information, how are they meant to make judgements? If everything comes through this partisan filter, no one is ever going to have the information necessary to make judgements.

Marc Thiessen: Then here's the other consequence of this that should terrify both Republicans and Democrats, liberals and conservatives. If you take away these institutional guardrails that keep us moderate and the pendulum swings as you describe it Dany, then every election is a life and death battle, right? So, you and I both look at Joe Biden, and we know Joe Biden not a lunatic, and he's fairly moderate, and he doesn't hate Republicans, and we look and say, "Okay, there's a lot of things he's going to do as president that I don't like, but as long as we've got the Republican Senate, okay, we don't have that... As long as we've got the filibuster and there's some check on his power where he has to compromise, then you know what? We can survive four years of Joe Biden. We could even survive eight years of Joe Biden. The Republic will stand."

Marc Thiessen: But when you take these guardrails off, he said in his inaugural address, Not every political battle has to be total warfare. This is the way to make every political battle total warfare. This is the way to make every election total warfare. Because literally if you lose in four years, the other guy can inflict so much unilateral damage that you don't believe your country will still exist as you know it

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16 in four . And so, then we have to turn around the election. We have to stop it in the courts, we have to have an insurrection. This will make our politics more radical and we'll see more of what we saw in the Capitol on January 6th, we'll see more of this vitriol in politics, and it becomes life and death for both sides. So, we just have to, in the words of William F. Buckley, "Stand athwart history yelling stop." Stop tearing down the guardrails that protect our democracy for short-term gain because you're destroying our country for crying out loud.

Danielle Pletka: And on those fine words and that excellent exhortation, I agree. Stand athwart history and scream stop.

Marc Thiessen: Add it to the list.

Danielle Pletka: Absolutely add it to the list. Hey folks, thanks for listening. And remember complaints to Marc, compliments to Dany, tech stuff to Alexa. Thanks everybody.

Marc Thiessen: See you soon.

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