The bill to fund the Department of Homeland Security has been filibustered by Senate Democrats because it defunds President’s executive order to grant amnesty for illegal immigrants. 

The stubborn impasse on Homeland Security funding has sapped the chamber’s ability to do much else for the past two weeks, aside from some small-bore legislation. And as lawmakers skip town for a 10-day recess, some Republicans worry that the fight could drag on far past the Feb. 27 shutdown deadline — particularly if Congress ends up passing a short-term funding Band-Aid that merely sets up another cliff.

The Democrats are not going to stop filibustering the bill and protect their President,  which leads to the question why Mitch McConnell doesn’t use reconciliation to pass the bill?

Designed for situations just like this. Reconciliation passed by congress as part of the 1974 Budget Act. reconciliation is a legislative procedure for passing changes to the budget — taxes and spending — that only requires a majority in the Senate.

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In a reconciliation bill the Senate would include “reconciliation instructions” in a budget legislation. The reconciliation instructions would include a limit to debate, bypassing the Senate’s filibuster rules.

Now reconciliation can be stopped by the “Byrd Rule,” named after the former Grand Wizard of the KKK who became a Democratic Party Senator.

According to the House Rules Committee:

Under the Byrd rule, the Senate is prohibited from considering extraneous matter as part of a reconciliation bill or resolution or conference report thereon. The definition of what constitutes “extraneous matter” is set forth in the Budget Act; however, the term remains subject to considerable interpretation by the presiding officer (who relies on the Senate Parliamentarian). The Byrd rule is enforced when a Senator raises a point of order during consideration of a reconciliation bill or conference report. If the point of order is sustained, the offending title, provision or amendment is deemed stricken unless its proponent can muster a 3/5 (60) Senate majority vote to waive the rule.

Subject matter – The Byrd rule may be invoked only against reconciliation bills, amendments thereto, and reconciliation conference reports.

Byrd rule tests – Section 313(b)(1) of the Congressional Budget Act sets forth six tests for matters to be considered extraneous under the Byrd rule. The criteria apply to provisions that: 

  • do not produce a change in outlays or revenues;
  • produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision;
  • are outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
  • increase outlays or decrease revenue if the provision’s title, as a whole, fails to achieve the Senate reporting committee’s reconciliation instructions;
  • increase net outlays or decrease revenue during a fiscal year after the years covered by the reconciliation bill unless the provision’s title, as a whole, remains budget neutral;
  • contain recommendations regarding the OASDI (social security) trust funds.

If reconciliation sounds familiar its because the Democratic Party-controlled Congress used reconciliation to pass Obamacare but in an illegitimate way

The solution to the dilemma settled on by the Democratic leadership was for the House to pass the Senate version of health care reform legislation, H.R. 3590, while simultaneously passing a reconciliation measure (referred to colloquially as a “sidecar”) that would amend H.R. 3590 in a manner acceptable to majorities in both chambers. In this manner, comprehensive health care reform legislation could be enacted without concern about challenges under the Byrd rule that could strip away many of its provisions, while the revisions to the measure necessary to accommodate the political agreement could be achieved through an expedited reconciliation process that relied upon a simple majority vote in the Senate rather than a 60-vote supermajority. Education reform provisions also would be included in the reconciliation measure. Compared with the comprehensive health care reform measure, the reconciliation bill was much more narrow in scope and focused on budgetary matter.

Actually two minor provisions (involving Pell grants) were thrown out of the bill because of the Byrd Rule, nine other objections using the rule were struck down.

The Democrats used reconciliation in an illegitimate manner to pass Obamacare, it would make sense to use it in a legitimate manner to pass the DHS budget.