How the ghost of Robert Byrd may save Planned Parenthood

The debate over funding Planned Parenthood is at the center of the current budget showdown between Congress and the president, but one new idea for getting out of the crisis is to split the issue off from a deal to keep the government open past October 1.  Instead, Congress would consider restrictions on money for the organization through the budget reconciliation process, which, as anyone who paid attention to the passage of the Affordable Care Act in 2010 recalls, prevents legislation from being filibustered in the Senate.

A Planned Parenthood reconciliation bill has little chance of becoming law.  President Obama has issued a veto threat against standalone legislation limiting Planned Parenthood’s funding, and a veto override in Congress is unlikely; House Minority Leader Nancy Pelosi (D-CA) has announced she has enough votes to sustain a veto, and a similar measure only garnered 53 votes in the Senate in August.  At the same time, forcing President Obama to veto an anti-Planned Parenthood measure has become a major talking point for Republicans, making reconciliation’s filibuster protections ever more attractive.

But could a Planned Parenthood reconciliation measure even make it Obama’s desk?  Even some congressional Republicans have begun to raise this question.  Putting aside whether conservative Republicans would accept the promise of future action in exchange for cooperation now and looking ahead, the Senate’s Byrd Rule will almost certainly come into play.  In place since 1985, the Byrd Rule seeks to ensure that reconciliation bills are about what the Congressional Budget Act of 1974 originally intended when it created the procedures: deficit reduction.  The rule prohibits “extraneous matter” in reconciliation bills, with six definitions of “extraneous.”  These include a requirement that each part of the bill “produce a change in outlays or revenues” and, importantly, that those changes to spending and revenues are not “merely incidental” to the non-budgetary aspects of a given provision.   If a senator believes that something in a reconciliation bill runs afoul of the Byrd Rule, he or she can raise an objection, or point of order, on the floor of the Senate.  From there, it’s up to the Senate Parliamentarian to rule on whether the provision stays or goes.  The Byrd Rule can be waived, but that motion requires a supermajority to pass, bringing us right back to the Senate’s increasingly-regular, sixty-vote world.

What does all this mean for a hypothetical Planned Parenthood provision?  Actual objections raised on the floor alleging “merely incidental” budget effects are relatively rare (see Table 4 here), but that obscures any deterrent effects of the rule; after all, legislators may simply avoid including problematic provisions, knowing the Parliamentarian may strike them down.  By way of example, the most recent exercise of the “merely incidental” objection on the floor came in 2010, when Senator Pat Roberts (R-KS) attempted to offer an amendment during consideration of the reconciliation portion of the Affordable Care Act to protect certain small rural “critical access” hospitals from future Medicare payment cuts recommended by the new Independent Payment Advisory Board.

An initial score from the Congressional Budget Office estimates that standalone legislation defunding Planned Parenthood for one year would save $235 million, primarily from reductions in Medicaid spending.  There’s no accepted definition or magic number for something passing the “merely incidental” test, however, making it hard to know on which side of the line this would fall.  At the end of the day, as former Parliamentarian Robert Dove explained in a 2010 NPR interview, it’s “the duty of the parliamentarian to go into the motives of why the provision is there…[it’s] is a tough rule: to go into the motives of people who have either amendments, or have put provisions into bills.”

Even if eliminating Planned Parenthood’s Medicaid funding clears the “merely incidental” bar, the Byrd Rule could also present at least one more obstacle.  Other federal funds received by Planned Parenthood are discretionary, meaning they are controlled through annual appropriations acts and thus not eligible to be changed in a reconciliation bill.  As Senator Bob Graham (D-FL) explained during the debate over whether to prohibit immigrants from receiving certain means-tested benefits in the 1996 welfare reform law, “since the reconciliation process is confined to mandatory spending, expanding the scope of provisions to include benefits provided by discretionary spending [is] a violation of the Byrd Rule” (Congressional Record, 8/1/96).  This feature of the Byrd Rule would likely limit a reconciliation bill’s ability to cut off Planned Parenthood’s discretionary funds, the largest source of which is approximately $60 million from the Family Planning Program under Title X of the Public Health Service Act.

Again, it’s difficult to predict exactly where the current Parliamentarian, Elizabeth MacDonough, might come down on these questions.  As congressional Republicans continue to plan their budget strategy, however, they’d be wise to recall the words of parliamentarians past and consider how their motives might be read.