Threats to Tax Legislation that (if Applicable) Can’t Be Waived by 51 Votes in the Senate
By Stuart E. Leblang and Amy S. Elliott
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Outside Budget Window |
Byrd Rule 2 U.S.C. §644 Sec. 313 of CBA ‘74 |
Strikes any provision that would increase the deficit relative to current law “during a fiscal year” outside of the budget window. |
The Budget Chair can interpret deficit levels as not in violation of the rule.[1] |
2 U.S.C. §643 provides that “the levels of new budget authority, outlays, direct spending . . . and revenues . . . shall be determined on the basis of estimates made by the Committee on the Budget.” |
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Long-Term Deficit Point of Order Sec. 3101 S. Con. Res. 11 (114th) |
Strikes any provision that would increase the deficit relative to current law by more than $5 billion in any one of the 4 decades after a 10-year window. |
In the governing budget resolution, make the point of order inapplicable to the relevant bill. |
If Congress plans to enact tax reform/tax cut legislation in an FY 2018 reconciliation bill, then it can—by a simple majority when Congress adopts the FY 2018 budget resolution—exempt the FY 2018 reconciliation bill from the long-term deficit point of order.[2] |
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Inside Budget Window |
Statutory PAYGO 2 U.S.C. §933 |
Triggers sequestration cuts if, at the end of the session (1/3/19), law changes have increased the deficit relative to current law at year 5 and year 10 (scorecards). |
Add a provision to the reconciliation bill stating that its effects won’t count for PAYGO purposes. |
The legislation could exempt itself from PAYGO, as was done in 2015 with the “doc fix.”[3] Alternatively, Congress could pass later legislation that offsets the deficit impact within the same session or explicitly zeroes out the PAYGO scorecards. |
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Senate PAYGO Point of Order Sec. 201(a) S. Con. Res. 11 (114th) |
Strikes any provision that would increase the deficit relative to current law at year 5 and year 10 (beyond the current fiscal year). |
In the governing budget resolution, make the point of order inapplicable. |
If Congress plans to enact tax reform/tax cut legislation in an FY 2018 reconciliation bill, then it can—by a simple majority when Congress adopts the FY 2018 budget resolution—exempt the FY 2018 reconciliation bill from the Senate PAYGO rules. |
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Revenues Below Target 2 U.S.C. §642 Sec. 311(a) of CBA ‘74 |
The amount of revenue collected by the law over the budget window cannot fall below the target in the budget resolution. |
In the governing budget resolution, set a large negative revenue target. |
Congress hasn’t yet decided whether to pass what amounts to a front-loaded tax cut (but manages not to run afoul of the Byrd rule), or pass a package that is revenue neutral at and beyond the end of the window. |
[1] A lot of people will not be willing to look the other way if the Budget chairman chooses to disregard the Congressional Budget Office (CBO) score. Plus, since the parliamentarian simply acts in an advisory capacity, the Senate’s presiding officer can come to his own conclusion as to whether a Byrd rule point of order should be sustained or overruled. While either of these efforts to sidestep the Byrd rule will be viewed by many as creating dangerous precedent, technically both maneuvers have been done before (see page 11 for CBO overrule and see page 10 for parliamentarian overrule). Extending the budget window (see page 9) may be a simpler way to avoid Byrd rule problems.
[2] A similar exemption was provided for in the FY 2017 budget resolution (see https://rules.house.gov/sites/republicans.rules.house.gov/files/115/PDF/115-SCR3-SxS.pdf).
[3] Medicare Access and CHIP Reauthorization Act of 2015 (P.L. 114–10) (see https://www.gpo.gov/fdsys/pkg/PLAW-114publ10/html/PLAW-114publ10.htm).
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