Appendix M: Why the filibuster has to go

This appendix supports the section "How this passes" in the plan. The plan assumes the Senate filibuster is gone. This appendix explains why nothing else works.

Sixty votes, or 51

Most legislation in the Senate needs 60 votes, because 41 senators can block a final vote by refusing to end debate. That is the filibuster. There is one exception. Under the Congressional Budget Act of 1974, a bill that carries out the spending and revenue instructions in a budget resolution can pass by a simple majority, with debate limited to 20 hours. This is budget reconciliation, and it is how nearly every large partisan law of the last 30 years has passed: the 2001 and 2017 tax cuts, the 2010 amendments to the Affordable Care Act, the 2021 pandemic relief act, the 2022 Inflation Reduction Act, and the 2025 tax and spending law.

Reconciliation was designed for adjusting taxes and spending, not for writing policy, and by 1985 senators of both parties had begun stuffing unrelated policy into reconciliation bills to evade the 60-vote requirement. Senator Robert Byrd of West Virginia wrote the rule that stopped it, and it is the reason this plan cannot pass by reconciliation alone.

What the Byrd rule forbids

Under the Byrd rule, now codified at 2 U.S.C. § 644, any senator may raise a point of order against a provision in a reconciliation bill as extraneous, and if the Parliamentarian agrees, the provision is struck. Six tests define extraneous. The one that governs this plan is the second: a provision is extraneous if it "produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision." Waiving the rule takes 60 votes, which defeats the purpose of using reconciliation, and it almost never happens. Through August 2022, 60 of 69 waiver motions were rejected.

The other tests matter too. A provision that produces no change in outlays or revenues at all is extraneous. A provision that increases the deficit beyond the budget window, usually 10 years, is extraneous, which is why reconciliation tax cuts expire. And any change to Social Security's retirement and survivors' program is extraneous.

"Merely incidental" is a ratio, not a threshold

The most important thing to understand about the rule is that a large budget score does not save a provision. What matters is whether the budgetary effect is large relative to the policy change, not whether the dollar figure is large in absolute terms. A provision whose primary purpose is regulatory or structural is extraneous however much it costs.

• In 2021 the Parliamentarian struck the immigration provisions of the Build Back Better bill, which would have granted legal status to millions of people, despite a Congressional Budget Office score of $124 billion, because the scope of the policy change "dwarfs its budgetary impact."
• The $15 federal minimum wage was struck from the 2021 pandemic relief bill the same way, despite a $54 billion score.
• The precedent closest to this plan came in 2015, when Republicans sought to repeal the Affordable Care Act through reconciliation. The Parliamentarian advised that repealing the individual mandate, the requirement that most Americans carry insurance, was extraneous: "a massive, national policy change the primary purpose of which is not budgetary." But zeroing out the mandate's tax penalty was permissible, "because the penalties are inherently budgetary." That is what Congress did in 2017. The mandate is still on the books; the penalty is zero.

The line that distinction draws is the one that matters. Structural rules about insurance and providers, who must be covered, what plans must include, what a hospital may and may not do, cannot ride on reconciliation. The taxes, subsidies, and spending that fund them can.

The cleanest illustration: the two insulin caps

The 2022 Inflation Reduction Act drew the line twice on the same day. Medicare drug price negotiation survived the "Byrd bath," the Parliamentarian's review of every provision. So did a $35 monthly cap on insulin copays inside Medicare. The identical $35 cap for the commercial insurance market was struck, and the motion to waive the rule and keep it failed 57 to 43. Same bill, same day, same policy. It lived where federal dollars flow and died where private insurance is regulated. A price cap inside a federal program is itself a change in federal spending. A rule imposed on private insurers is a regulatory change whose budgetary effect is merely incidental.

What reconciliation could carry

Medicare and Medicaid have always been reconcilable. The Balanced Budget Act of 1997 was a reconciliation bill, and it created Medicare+Choice, the managed-care option that became Medicare Advantage; it imposed the residency funding cap this plan lifts (Appendix B); and it added the State Children's Health Insurance Program as an entirely new title of the Social Security Act. A brand-new federal health insurance program, built through reconciliation, under a fully operative Byrd rule.

So a large part of this plan could pass with 51 votes under the current rules: the benefit structure and enrollment, written inside the Medicare title; payment rates, global budgets, and the fee schedule, drafted as terms and conditions on federal outlays; the taxes and the employer contribution; ending Medicare Advantage overpayment; the capital program; residency slots and tuition; medical debt cancellation; long-term care; and the Health Workers Transition Guarantee. Each of those changes what the federal government spends or collects, and each would survive.

What reconciliation could not carry

Everything that makes the money work would be struck. The conditions of participation on providers, including the ban on distributing profits. The bar on private insurance that duplicates the public benefit. The rules against sale-leasebacks and debt-funded payouts. National staffing ratios. Federal licensure and the preemption of state scope-of-practice law. The abolition of the pharmacy benefit managers. The benefits-schedule body. The prior-authorization portal and the price and appointment mandates on every plan in America. The conforming amendments to ERISA. Every one of these is a regulatory change whose budgetary effect is incidental to the policy, and every one of them is what the 2015 and 2022 precedents say the Parliamentarian will strike.

A plan with the money and none of the rules is not this plan. It is a larger Medicare with no control over prices, no conditions on providers, an insurance industry still selling duplicate coverage, and pharmacy benefit managers still in the middle of every prescription. Some of its provisions would still be worth passing on their own. But the design only works as a whole.

The path that does not exist: 60 votes

The Affordable Care Act shows how a health bill's rules have passed the Senate in living memory, and why it will not happen again. The main bill passed the Senate 60 to 39 on 24 December 2009, carrying every insurance-market regulation: guaranteed issue, community rating, the essential health benefits, the exchanges. It passed because Democrats held exactly 60 seats, for the seven months between Al Franken's seating in July 2009 and Scott Brown's election in January 2010. When the sixtieth seat was lost, the amendments that finished the law went through reconciliation, and they could carry only the money.

No party has held 60 Senate seats since, and the structure of the Senate, which gives the same two seats to Wyoming and California, makes it unlikely any party will again. A plan that requires 60 votes for its rules is a plan that will not pass.

The conclusion

This plan therefore assumes the filibuster is gone, and says so in the body. With the filibuster gone, the Byrd rule is irrelevant, because there is no reason to use reconciliation at all: the whole plan, the money and the rules, is one bill, passed by a simple majority under the Senate's ordinary procedure. A majority that wants this plan must be willing to end the filibuster to get it. A majority unwilling to do that should not tell voters it can pass the plan another way, because the record above says it cannot.

Two smaller matters follow. The riders that have been attached to every appropriations act for decades, the one barring a national patient identifier since 1999 and the Hyde Amendment barring federal funds for most abortions, are repealed in the bill itself, since with the filibuster gone nothing prevents a permanent statute from overriding them. And the immigration provisions for foreign-trained physicians (Appendix B), which no Parliamentarian would ever have let ride on reconciliation, travel in the same bill as everything else.