Mike Pence could pass tax reform without single concession to Democrats

By Robert Donachie

There is a perfectly legal way for Vice President Mike Pence to help Republicans sidestep Democrats in the Senate and pass a major tax reform bill.

As president of the Senate, Pence has the power to sidestep a procedural practice that stands to threaten tax reform, just as it threatened every Republican Obamacare repeal and replace attempt in 2017.

Republican leaders are trying to shepherd tax reform through the Senate using the chamber’s budget reconciliation rules, as they tried and failed to do with health care. Reconciliation allows Republicans to pass a tax reform bill with a simple majority vote, rather than the 60 typically needed to avoid a filibuster from Democrats.

Under regular order, there is virtually unlimited debate time and senators can offer up seemingly endless amendments, adding even more time to the legislative process. Reconciliation limits debate to 20 hours, and any amendments have to be relevant to the bill in question. Senators would not be able to throw in extraneous amendments unrelated to tax reform.

Republicans currently hold a slim 52-48 majority in the Senate, although the entire GOP caucus has yet to vote unanimously behind a major piece of legislation related to President Donald Trump’s agenda. The most votes Senate Majority Leader Mitch McConnell could whip behind a bill to repeal Obamacare was 49. If health care was any kind of litmus test, Republicans may need a few more sweeteners in the tax reform bill to get to 50.

How Pence Could Step In

The reconciliation process was created in the Congressional Budget Act of 1974. It was meant to expedite the process of bringing the federal government back to budget neutrality, if it found itself running a higher than anticipated deficit.

Congress adopted the “Byrd Rule” in 1985, which bars any “extraneous measures” that do not directly change revenues or expenditures from getting included in a reconciliation bill. Typically, the Senate parliamentarian makes a judgment on each provision of a bill to see if it has a direct impact on the federal budget.

Customarily, before leadership moves forward with a bill under reconciliation rules, the Senate’s parliamentarian analyzes any objections that senators raise to provisions in the bill they feel do not meet reconciliation requirements. All provisions have to be germane to the bill and have a direct impact on the budget. The Senate parliamentarian typically makes a ruling on whether or not each provision meets those requirements and advises the presiding officer (Pence or another senator in his absence) on which provisions should stay.

Pence has the ability to work around the parliamentarian. It is the president of the Senate, not the parliamentarian, who makes the ruling on what is permissible under reconciliation and what is not, a historian at the U.S. Senate Historical Office told The Daily Caller News Foundation. The parliamentarian has a purely advisory role.

Should Pence decide to preside over the Senate during the tax reform proceedings, he could put forth a bill that offers key concessions to his Republican Senate colleagues that would ensure the bill would get to 50 votes. The Senate parliamentarian would not have to analyze the bill, since Pence, acting as the presiding officer, would be the one making the ruling as to what is permissible under reconciliation rules.

Sen. Ted Cruz of Texas already said Pence should take this approach in March prior to the initial GOP push to repeal Obamacare in 2017.

The senator argued that Pence, when presiding over the chamber as president of the Senate, can ultimately decide what is eligible under reconciliation rules.

“Under the Budget Act of 1974, which is what governs reconciliation, it is the presiding officer, the vice president of the United States, who rules on what’s permissible on reconciliation and what is not,” Cruz told reporters.

“Under the statute, it is the vice president who rules. It is the presiding officer who makes the decision. The parliamentarian advises on that question,” Cruz said.

Has It Been Done Before?

Only one vice president has ever completely gone against the advice of the Senate parliamentarian: Nelson Rockefeller.

The parliamentarian can rule any portion of a bill “extraneous,” or “merely incidental,” if they deem it as trying to implement new policy and not change the budget. As Rockefeller did in 1976, Pence does not have to agree with the advice and can move forward with what he deems fits under reconciliation rules.

Rockefeller ignored the advice of former Senate Parliamentarian Floyd Riddick about the proper way to handle a vote to change Senate filibuster rules. While Pence’s situation is a bit different, a presiding officer ignoring the advice of the parliamentarian is not without precedent.

What Could Pence Stand To Gain?

House Republicans notably left out a few features from their bill to repeal and replace Obamacare in May — the American Health Care Act — that would cater to conservatives for fear the Senate parliamentarian would shoot them down.

If Pence chooses to bypass the parliamentarian’s advice, he could propose a bill that would offer key concessions to conservative and moderate Republicans to get to at least 50 yes votes needed to pass the bill (he would cast a tie-breaking vote).

House members voted to adopt the budget in a 216-212 vote, pushing the Republican tax reform plan past a key hurdle. The $4 trillion budget includes Senate budget reconciliation rules and allow Senate Republicans’ tax reform bill to add to the federal deficit over the next decade, as long as it does not exceed $1.5 trillion.

Given that the 50-vote threshold proved an insurmountable roadblock for Republicans during health care reform and Democrats remain united in opposition to Trump and GOP leadership’s agenda, Pence has a unique opportunity to help the president score the first major legislative victory of his first term in office.

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