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Senate Democrats are zeroing in on provisions in the GOP’s tax-and-spending package they believe violate Senate rules.
They’ll soon get a chance to convince the chamber’s parliamentarian that parts of the bill are ineligible for reconciliation, the process that Republicans want to use to bypass the filibuster. Otherwise, the legislation will need 60 votes.
Sen. Chris Van Hollen, D-Md., told Semafor Tuesday that Democrats are weighing a challenge to a proposed tax on remittance payments. And Sen. Ed Markey, D-Mass., said he plans to push back on language that would block states from enforcing artificial intelligence laws.
In an interview, Sen. Elizabeth Warren, D-Mass, said the AI provision would “let RealPage use AI to continue to raise rents on people across the country” and that it would stop states who are moving to stop it.
“This AI provision doesn’t have a budget impact. It’s a policy bill,” Warren said.
Democrats may also challenge restrictions on federal judges’ ability to enforce contempt orders, attempts to curtail abortion provider funding, and language scrapping a fee on gun silencers. They’ll also target Republicans’ argument that extensions of expiring tax cuts don’t need to be paid for.
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The so-called Byrd rule prohibits senators from using reconciliation to pass any provisions that are “extraneous” to the budget, among other things. That usually rules out new policy prescriptions, though lawmakers in both parties try to find clever ways to squeeze them in; the 2017 tax bill effectively killed Obamacare’s individual mandate by zeroing out its tax penalty.
Lobbyists argue that the remittance tax, for instance, could be struck down because its effects on the budget are “incidental” — in other words, not the authors’ primary goal. Some are slated to meet with Senate Democratic staff this week to make that point.
“It is pretty clear that the revenue raised is incidental to the people paying the tax — it is in a part of the bill targeting ‘illegal immigrants’ accessing taxpayer benefits,” said one lobbyist, who was granted anonymity to speak candidly.
Eventually, these challenges go to a bipartisan meeting with the parliamentarian dubbed the “Byrd Bath.” Members of both parties present their cases as to why the language in question does or does not meet the requirements.
“It’s a question of the caucus having a discussion about priorities, in terms of what’s most important, and what’s most vulnerable,” Sen. Sheldon Whitehouse, D-R.I., told Semafor. “There will be some early indications out of the privileged scrub that’s undergoing, essentially, now.”
Republicans are already bracing for losses, including on artificial intelligence.
“I’m not confident [it stays], but I hope it does. But I’m not confident that it will,” Sen. Mike Rounds, R-S.D., said. “Because it has to be focused on budget and not on policy. And we will support the Byrd rule in this particular case.”
Warren said Democrats will also certainly challenge the “magic math” of using a so-called current policy baseline, which essentially argues that extending the expiring tax cuts doesn’t increase the deficit. She said there’s “no way that accounting trick survives the Byrd Bath.”
Sen. John Hoeven, R-N.D., thinks some of the bill’s agricultural language is in trouble, too.
The House “put a lot of policy in there, and I don’t know if we’re gonna keep all that. We’ll see how much we can keep,” Hoeven said.