The Parliamentarian’s Curious Definition of “Merely Incidental”

David Super

     Now that Sens. Schumer and Manchin have reached agreement on the Inflation Reduction Act (IRA), the Senate Parliamentarian’s role again comes to the fore.  She will have two crucial functions. 

     First, she will rule on which provisions on the agreed legislation meet the Congressional Budget Act’s requirements for inclusion in a “reconciliation” bill (the so-called “Byrd Rule”).  This is crucial because, with united Republican opposition, the IRA can only pass through the narrow exemption from filibusters that the Act provides to budget reconciliation bills. 

     And second, the Parliamentarian must decide which amendments to that legislation may be offered on the Senate floor.  Although the Act caps the amount of time that may be spent on floor debate, it does not limit the number of amendments put to a vote so long as those amendments comply with the Act’s rules for germaneness and its restrictions on the contents of reconciliation bills.  Senate Republicans have expressed no interest in improving the legislation, but they do seek to force Democrats to cast politically damaging votes to defeat their amendments.  And because the Democrats’ majority is so narrow, every single Democrat must vote against every single “poison pill” amendment for the legislation to survive. 

     Several of the Congressional Budget Act’s restrictions on reconciliation legislation enforce the congressional budget resolution that authorized the bill.  Because the budget resolution under which Democrats are moving this bill passed over a year ago, when hopes were much higher, the IRA will easily fall within all budgetary constraints.  Republican amendments could theoretically be ruled out of order for breaching budgetary ceilings, but Democrats likely would be only too happy to vote down “budget-buster” amendments that would shrink the $300 billion in deficit reduction the IRA contains. 

     As a result, the provisions of the Congressional Budget Act most likely to affect the IRA debate are those designed to keep non-budgetary matters from hijacking the reconciliation vehicle when they lack the support to move as regular legislation.  In particular, she will have to apply section 313(b)(1)(D), which declares that “a provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”. 

     Neither the Parliamentarian nor the Senate as a whole have articulated a clear definition of what it means for a budgetary effect to be “merely incidental” to non-budgetary components.  Obviously one could not rewrite the Endangered Species Act or the Civil Rights Act of 1964 and slip it into a reconciliation bill by adding some trivial fee somewhere.  But how should less extreme cases be decided? 

     No minimum dollar threshold can do the job:  small revenue increases or spending cuts can add up to have a significant impact on the deficit.  And surely a small fiscal effect could be merely incidental to an overhaul of the nation’s telecommunications statutes yet not merely incidental to the treatment of import duties on day-minders. 

     Several years ago, the Parliamentarian rejected Republican efforts to exclude Planned Parenthood from Medicaid on reconciliation legislation.  She acknowledged that doing so might save some money but believed that restricting abortion, rather than lowering Medicaid’s costs, was the primary motive of the provision’s authors. 

     On the other hand, she allowed Republicans to gut protections for the Arctic National Wildlife Refuge on the 2017 reconciliation act.  A strong argument could be made that aiding oil and gas companies, and weakening environmental protection generally, were far more central to the proponents’ multi-year campaign to drill in the refuge than the relatively meager federal revenues anticipated.  The Parliamentarian concluded, however, that the revenues were enough to defeat a “merely incidental” point of order. 

     Throughout much of 2021, the Parliamentarian batted down several proposals to liberalize immigration laws as part of the Build Back Better reconciliation bill under consideration at that time.  Legalizing undocumented immigrants outside of reconciliation is very difficult because the Congressional Budget Office scores many such measures as having a large cost because it believes the immigrants’ family members (many of whom are U.S. citizens) would then feel more at ease accessing human services programs. 

     This would seem a classic case of the nation deciding on its fiscal priorities, the very purpose of the reconciliation vehicle.  The Parliamentarian ruled, however, that because many people passionately support helping immigrants and are largely indifferent to the fiscal impact of doing so, those fiscal effects were “merely incidental” to the non-budgetary effects on immigrants.  I disagreed with that ruling at the time – and uncertainties about its basis contributed to Democrats’ disastrous decision to delay moving the Build Back Better reconciliation bill – but it is now established precedent. 

     Republicans seem unlikely to try to provoke votes on abortion next week, but the other two precedents could be important. 

     The deal between Sens. Schumer and Manchin contains so provisions for oil and gas leasing on federal lands.  Many environmentalists could do without expanding fossil fuel consumption, but leading groups recognize that these provisions are essential to holding the whole package together, with its transformational initiatives supporting renewable energy development.  Based on her ruling on the Arctic Refuge, the Parliamentarian ought to allow this provision. 

     Republicans surely would like to force Democrats to vote on various anti-immigrant measures.  For example, they may try to force the Administration to restrict persecution victims’ ability to claim asylum in this country, as international law requires.  The fiscal effects of these provisions are likely to be quite trivial.  Moreover, much of their fiscal impact is likely to be on programs funded with discretionary appropriations, which does not count for reconciliation purposes because those programs budgets are fixed in appropriations bills. 

     These would seem to be straightforward examples of proposed changes in law with a large real-world impact and a “merely incidental” fiscal side.  These also would fit the Parliamentarian’s rationale for rejecting immigration proposals a year ago:  their motivation is hostility to immigrants – or, more precisely, seeking to mobilize voters who are hostile to immigrants – rather than any impact on the public fisc.

     More broadly, if the Parliamentarian were to allow any anti-immigrant amendments to come to a vote after blocking all pro-immigrant legislative proposals a year ago, she would create a procedural regime with a deeply unbalanced substantive effect:  immigrants’ opponents may pursue their passions through reconciliation while immigrants’ supporters may not.  For a Parliamentarian who cares more than some judges about avoiding the appearance of favoritism, deviating from her strict exclusion of immigration law changes from reconciliation could raise serious concerns. 

     Once the current legislation has been completed, the Parliamentarian could do a great service to the Senate – and to those (including the House of Representatives, the White House, the Congressional Budget Office, and the Joint Committee on Taxation) who depend on the Senate – if she would publish a clear, systematic statement of how she interprets “merely incidental”.  Whatever the merits of a case-by-case method of statutory interpretation may be in the courts, her failure to issue opinions explaining her rulings is causing considerable confusion and wasted effort while damaging confidence in her office.

     @DavidASuper1