'Byrd rule' poses challenge for voter ID bill in reconciliation

WASHINGTON — Republicans have started talking seriously about using the filibuster-proof budget reconciliation process to get the GOP voter ID bill — a top priority of President Donald Trump — through the narrowly divided Senate.

But budget experts say the effort faces long odds due to the complexities of the Senate’s “Byrd rule.”

The House-passed bill is fundamentally a policy measure that would require, among other things, that individuals provide proof of citizenship when registering to vote in federal elections and present photo identification when casting a ballot in a federal election.

The challenge for including the so-called Safeguard American Voter Eligibility Act, or SAVE America Act, in reconciliation legislation is that under Senate rules, reconciliation provisions Measure would need to have a budgetary impact that cannot be ‘merely incidental’ to the larger purpose of the measure.

The Byrd rule, adopted in the mid-1980s and later codified in statute, bars provisions from reconciliation legislation that are “extraneous” to bringing spending and taxes in line with the congressional budget resolution.

Any section of a reconciliation bill deemed out of compliance with the Byrd rule is left exposed to a 60-vote point of order, effectively stripping that provision of its protection from filibuster.

Provisions struck on a Byrd rule point of order fall out of a reconciliation bill — which can greatly affect its chance of passage, depending on the political importance of the offending language.

‘If you just put your mind to it’

Such hurdles have not prevented GOP lawmakers from exploring the possibility.

Sen. John Hoeven, R-N.D., said Tuesday that because Congress provides funding for elections, voter ID provisions could be written in a way that shows a budgetary effect.

“So if you just put your mind to it, there’s plenty of ways, I think, that we can go to work and include SAVE America provisions through the budgetary process, in terms of the federal government and providing funding to states,” he said.

Senate Republicans also have been reviewing proposed voting initiatives that the House Administration Committee, which has jurisdiction over election legislation, believes might be allowed in reconciliation.

These include SAVE Act-like provisions that would appropriate funds to states to require proof of citizenship in order to register to vote, and to the U.S. Election Assistance Commission to amend the federal voter registration form to require documentary proof of citizenship.

Another proposal from the committee would deny grants from a 2002 elections law to states that allowed the use of “noncompliant” identification required to vote. The House committee proposals would also award grants to states to work with federal agencies to verify voter registration and conduct post-election audits.

Douglas Holtz-Eakin, president of the center-right American Action Forum and a former Congressional Budget Office director, is skeptical that major provisions of the bill would pass muster with the Senate parliamentarian.

“A straightforward reading of it is, it is not budgetary in nature,” he said. “Changing mail-in voting rules,” a provision that is not in the SAVE bill that Trump wants passed as well, “is not a federal budget item.”

“Nothing in the current versions I’ve seen of SAVE would pass the Byrd rule,” a former Senate GOP aide said. “They could probably provide money to states for voter fraud enforcement or creating/enhancing voter ID requirements, but the number of strings put on the money would have to be pretty minimal to pass muster.”

Not all GOP senators think the idea will pass muster, including some of the election bill’s most vocal backers.

“I don’t see any way that any part of the SAVE America Act, of any teeth, gets included in a reconciliation package,” Sen. Rick Scott, R-Fla., said Tuesday. Scott is also pessimistic about the chances of Republicans uniting to pass another reconciliation bill.

‘Not doable’

Democrats are already lining up their talking points for an eventual “Byrd bath,” or the process whereby each party presents its arguments to the parliamentarian for why a provision should qualify under reconciliation.

“The meat of what they want is not doable under the rules of reconciliation,” said Bobby Kogan, senior director of federal budget policy at the left-leaning Center for American Progress. Reconciliation, he added, “is about getting federal dollars in or out the door, and telling a state how it must conduct its voting has nothing to do with federal dollars going in or out.”

Kogan, a former Senate Democratic budget aide, said every provision in a reconciliation bill “needs to be directly budgetary or a term and condition necessary to carry out the budgetary effect. Saying a state has to change how it is administering voting is quintessentially non-budgetary.”

Even when provisions in a reconciliation bill have a budgetary impact, the Senate parliamentarian, Elizabeth MacDonough, may find that the budgetary effects are “merely incidental,” a violation of the Byrd rule.

For example, when Democrats sought to pass an immigration overhaul as part of the 2021 pandemic relief reconciliation law, the parliamentarian rejected the move, saying the budgetary impact of the measure was incidental to the change it would make in policy.

Changing the law to clear the way for immigrants to become permanent residents would be a “tremendous and enduring policy change that dwarfs its budgetary impact,” she wrote.

One Senate Democratic aide said if Republicans try to pass the voter ID legislation through reconciliation, Democrats “will argue that the same is true, if not more so, of the right to vote.”

Budget experts also point to the parliamentarian’s rejection of raising the federal minimum wage to $15 an hour through reconciliation in 2021. While that provision would have affected the federal budget significantly, MacDonough deemed the impact “merely incidental” to the underlying policy intent of the wage boost.

If MacDonough rejects the GOP plan, supporters will still have a last-resort opportunity: ignoring the parliamentarian’s advice that a Byrd rule point of order is “well taken.” A successful appeal of the chair’s ruling would require 60 votes, a steep hill to climb for Democrats in the GOP-controlled Senate.

But many Republicans, from Senate Majority Leader John Thune of South Dakota on down through the rank and file, have said they won’t take that radical step, which is akin to the “nuclear option.” Sen. James Lankford, R-Okla., a SAVE Act supporter, said Tuesday he would not support such a move.

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—Nina Heller, Savannah Behrmann and Valerie Yurk contributed to this report.