THE BYRD RULE POINT OF ORDER

Section 313 of the Congressional Budget Act of 1974

• The Byrd Rule requires reconciliation bills in the Senate remain focused on fiscal issues, subjecting nonbudgetary provisions to a point of order.
• The Byrd Rule only applies in the Senate. The House does not have a comparable rule.
• Under the Byrd Rule, any Senator may raise a point of order against (and if sustained, strike) extraneous matter that is included in a reconciliation bill (as reported or in a conference report), or to prevent the incorporation of extraneous matter through adoption of amendments or motions.
• Prior to consideration of a reconciliation bill or conference report, the Senate Budget Committee must provide a list of extraneous material to be printed in the Congressional Record. This list is advisory and does not bind the Presiding Officer in ruling on points of order.
• A point of order may be raised against a single amendment or provision, or multiple amendments or provisions (as designated by title or section number or by page and line number). A point of order under the Byrd Rule must specify both the offending provision and the Byrd Rule test it violates.
• The Senate Presiding Officer rules on points of order. The Presiding Officer receives advice from the Senate Parliamentarian. The Presiding Officer may sustain a point of order against all of the provisions (or amendments), or only some of them.
• Any material stricken as extraneous may not be subsequently offered as a floor amendment. Determination of budgetary levels for purposes of enforcing the Byrd Rule are made by the Senate Budget Committee Chairman, and are assessed against the baseline for the budget window and the CBO baseline for the period outside the window.

NOTES

• Points of order contained in the Congressional Budget Act (CBA) and in budget resolutions are not self-executing. A Senator must be recognized and raise the point of order.
• 60 votes are required to waive points of order under section 313 of the CBA (the Byrd Rule). 60 votes are also required to successfully appeal the ruling of the Chair on a point of order raised under that section (See sec. 904(d) of the CBA).

• The Senate Parliamentarian has advised that a Senator may raise a Byrd Rule point of order against a provision within an amendment, and not the entire amendment.

• The Senate Parliamentarian does not engage with Members of the House.

Byrd Rule Tests: Section 313(b)(1) of the Congressional Budget Act of 1974

A provision is considered to be extraneous if it meets at least one of the following six definitions:

(A) It does not produce a change in outlays or revenues unless it is a “term or condition” of a provision that does produce a change in outlays or revenues;

A cost estimate will provide the initial indication of whether a provision, upon enactment, will produce a change in outlays or revenues relative to current law. Some provisions might not produce direct budgetary effects, but might still be allowed in a reconciliation bill because the provision is a “term or condition” under which the outlays are made or revenues are required to be collected. Changes to only budget authority would not be sufficient; a provision must be scored as making a change in outlays. Provisions that have budgetary effects that cannot be estimated do not necessarily violate this test (See 139 Congressional Record, S10, 659-62, August 6, 1993). A provision for which the net budgetary effect is zero, but which generates offsetting changes in outlays and/or revenues, is not considered extraneous. Examples of extraneous matter under this test:

• Sense of Congress language;
• Reports to Congress and studies;
• Short titles and tables of contents.

(B) It produces an outlay increase or revenue decrease and the instructed committee is not in compliance with its instruction;

Deficit reduction targets in a reconciliation instruction are considered a “floor” – i.e., the instructed committee must achieve savings at least equal to the target to be considered in compliance with its instruction. Instructions to increase deficits are considered a “ceiling.” Sec. 310(c) of the CBA provides an exception for committees that receive both revenue and spending instructions. A reconciled committee is deemed to be in compliance if its recommended legislation does not cause either the changes in spending or revenue to exceed or fall below the directives by more than 20 percent of the sum of the two types of changes AND the total amount of changes is not less than the total amount of changes recommended. An example follows in which a committee receives a $10b deficit reduction instruction. Fungibility factor: 20% x $10 billion = $2 billion Under sec. 310(c), either of the following reconciliation measures would be considered compliant:

• Reconciliation bill #1: Reduce outlays by $1b (3-2) and increase revenue by $9b (7+2). Total deficit reduction = $1b + $9b = $10b;
• Reconciliation bill #2: Reduce outlays by $5b (3+2) and increased revenues by $5b (7-2). Total deficit reduction = $5b + $5b = $10b.

In either case, deficit reduction totals $10b, but the composition of savings is different.

(C) It is outside the jurisdiction of the committee that submitted the title or provision;

Determinations of jurisdiction are made by the Presiding Officer with guidance from the Senate Parliamentarian. If a subsection of a section is not in the jurisdiction of the reporting committee, the subsection is stricken, but the rest of the section remains (if what remains in the committee title is compliant with the  instruction). Exceptions to the jurisdiction rule are provided in sec. 313(b)(3) of the CBA.

(D) It produces a change in outlays or revenues that are “merely incidental” to the non-budgetary components of the provision;

The terms “merely incidental” and “non-budgetary components” are not defined in the Byrd Rule itself. Understanding of this test has evolved under the Senate’s precedents and remains a question of judgement. The Senate Parliamentarian has provided guidance that a key question is whether the provision “is a policy change that substantially outweighs the budgetary impact of that change.” There is no bright line test. Just because a provision has a budgetary impact does not insulate it from violating the merely incidental test. Proposals that would have significant fiscal impacts have been deemed to violate the merely incidental test, including large-scale legalization of immigrants.

• A 2021 point of order against a provision increasing the federal minimum wage was upheld. CBO's cost estimate indicated the policy would largely “indirectly affect the budget,” which may have been a factor.
• Provisions whose primary purpose is to modify behavior or overturn a court decision – regardless of budgetary effect – most likely will violate this section. Provisions that have budgetary effects that CBO cannot estimate do not necessarily violate this test (See 139 Congressional Record, S10, 659-62, August 6, 1993).

(E) It would increase the deficit for a fiscal year beyond those covered by the reconciliation measure, and that increase is greater than savings from other provisions in that title that year;

This subparagraph has necessitated the sunset of provisions in reconciliation bills that would increase the deficit in the outyears beyond the budget window (typically 10 years), such as tax cuts. The basis of extraneousness of a provision depends on the balance of the title in which the provision is located. Combining or rearranging the contents of titles to ensure that no title worsens the deficit in any outyear may obviate this violation. This point of order can be raised against an amendment that would cause the relevant title to worsen the deficit in the outyears.

(F) It violates sec. 310(g) of the CBA, which prohibits recommendations to a reconciliation bill regarding Social Security retirement (OASI) and disability insurance (DI).

A Senator may raise a point of order under this subparagraph and strike only the offending provision. However, if a Senator successfully raises a point of order against the bill pursuant to sec. 310(g) of the CBA, the entire bill will be sent back to committee and may not be offered again without substantial changes. Existing precedent is that Medicare and other non-OASDI programs established in title II of the Social Security Act are not covered by this rule.

Waiver of the Byrd Rules: Section 904(c) of the Congressional Budget Act of 1974

A Byrd Rule point of order may be waived only by an affirmative vote of three-fifths of the Senators, duly chosen and sworn. Waivers may: 

• Apply to the Byrd Rule as well as other provisions of the CBA (e., it is possible to combine a Byrd Rule point of order with other points of order in the CBA in a single, global motion to waive);
• Involve single as well as multiple provisions or amendments;
• Extend (for specified language) through consideration of the conference report as well as initial consideration of the measure or amendment; and
• Be made prior to raising a point of order, thus making the point of order moot.

Download the Byrd Rule Trifold

Open PDF in a new tab

Trifold Printing Instructions: 

1. Under page sizing & handling, select “Fit” to page, 11x8.5 inches
2. Choose “print on both sides of paper” and “flip on short edge”
3. Select “Orientation: Landscape”
4. Print
5. Trim to size
6. Fold