Senate Republicans are working to get the bulk of President Donald Trump’s agenda into a single bill, which means retooling their House counterparts’ megabill into something that can pass through the upper chamber of Congress. To do so, they’ll need to rely on a set of rules that will allow it to dodge a potential filibuster from Democrats.
A crafty move from Senate Majority Leader John Thune, R-S.D., last week may ensure even more of the pet policy projects stuffed inside the House’s “big, beautiful bill” make it to President Trump’s desk than would have previously been possible.
Thune understands that, for the most part, the Senate’s rules are whatever a majority of the Senate says that they are.
GOP senators had been dead set on trying to use a law called the Congressional Review Act to overturn an electric vehicle mandate in California. The problem is that the CRA only deals with final rules from federal agencies, not state regulations. The Senate parliamentarian, who acts as a referee or umpire on the body’s rules and procedures, had already said as much. But over the course of 10 votes last week, Thune managed to maneuver around the parliamentarian to block California’s EV standards anyway.
The baseline for most bills getting through the Senate requires overcoming the filibuster through a motion for “cloture,” a fancy term meaning “we’re done debating this issue and ready to vote.” Cloture requires 60 senators to vote yes, otherwise the assumption is that there’s more debate to be had on the matter before a vote can occur. Once that hurdle is cleared, a simple majority will suffice to approve whatever was on the agenda, be it bringing a bill to the floor, amending it or simply passing it.
Of course, there are always exceptions to the rule. Most relevant to the One Big Beautiful Bill Act is the budget reconciliation process, which allows certain spending legislation to be fast-tracked. It’s how the Senate first passed Trump’s tax cuts package back in 2017. With 53 votes in the Senate, Republicans can entirely freeze Democrats out of the process — but there are still some checks on what exactly can be carried along the fast lane to passage.
Enter the “Byrd rule.”
Named after the late Sen. Robert C. Byrd, D-W.V., the rule, at its simplest, says that anything in a reconciliation bill must deal with federal spending. That can be in the form of increased revenue intake or reduced spending, or vice versa, but nothing unrelated can be crammed inside.
Before budget legislation hits the floor, it must go through the Senate parliamentarian in a ritual known as the “Byrd bath” to flush out any stray nongermane provisions. It was during the Byrd bath that Democrats were told in 2021 that they couldn’t include a federal minimum wage increase in the American Rescue Act.
The Congressional Review Act is one of the other exceptions that allows a majority to move on a substantive piece of legislation without hitting the filibuster, which brings us back to Thune’s recent trickery.
California’s electric vehicle mandate is possible thanks to a set of waivers from the Environmental Protection Agency to let the state craft its own emissions standards. As E&E News reported last month, Senate Parliamentarian Elizabeth MacDonough had already “ruled that Biden administration waivers for three vehicle pollution standards are not rules and that federal lawmakers can’t nullify them under the Congressional Review Act.”
It’s worth noting that in many cases, if not most, MacDonough’s rulings are nonbinding. Still, some Senate Republicans have been wary about going directly against the parliamentarian, since doing so would open a whole can of worms about whether anything could just be passed with a simple majority. Rather than directly challenging MacDonough on the electric vehicle mandate, though, Thune instead asked the Senate to rule on how to handle a similar resolution.
Rather than give you the play-by-play, here’s the results up top: Thune got a majority of the Senate to agree that declarations alerting the chair that a rule is being violated, called a “point of order,” are allowed under the CRA process (the law says they are not). In doing so, he opened the door to a point of order that says that the California mandate does count as a rule and should be able to be fast-tracked. Senate Minority Leader Chuck Schumer, D-N.Y., threw every parliamentary delay tactic possible at Thune, but the final vote remained the same.
All he needs to do is present the Senate with the chance to essentially vote on whether two plus two equals five.
I’ve seen criticism of Schumer’s handling of the process, but Thune was ultimately in the right to pull this stunt. He understands that, for the most part, the Senate’s rules are whatever a majority of the Senate says that they are. There are some notable exceptions written into the Standing Rules of the Senate, particularly surrounding how cloture functions. But the precedents that the parliamentarian follows are based on how senators have either cleverly applied or found exceptions to those rules in the past — precedent only matters until you get a majority to set a new precedent.
Senate Democrats are also right that the GOP is acting in bad faith on their promises to uphold the filibuster and follow the parliamentarian’s advice. I haven’t had any change of heart since Trump took office and still think the filibuster is an outdated, unconstitutional relic that needs to go. But I do think that if Thune wanted to repeal it outright, that would be preferable to trying to sneak his way around it and violating the spirit of the law in the process.
Because if Republicans are willing to ignore MacDonough’s guidance now, what’s to stop them from doing so when trying to pass the rest of Trump’s agenda? There are already several items in the House bill that should be stripped out as Byrd rule violations, including a ban on states’ regulating artificial intelligence and a provision blocking courts from enforcing contempt citations for ignoring injunctions. Moreover, Republicans’ fully illogical method for scoring how much the bill’s tax cuts cost will likely clash with MacDonough’s interpretation of budget laws.
There’s still a lot of work to be done before the Senate is ready to submit their work to MacDonough for her approval. But if she doesn’t give Republicans an answer they want to hear, Thune has proved that he’s got the skills needed to work around her.
All he needs to do is present the Senate with the chance to essentially vote on whether two plus two equals five. If enough of his fellow Republicans agree, then there’s nothing stopping the GOP from cramming whatever they fancy into the bill without worry, the rules be damned.
