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Pepperdine University School of Law

Tuesday, February 6, 2018

Aprill & Hemel: The Tax Legislative Process — A Byrd's Eye View

Ellen Aprill (Loyola-L.A.) & Daniel Hemel (Chicago), The Tax Legislative Process: A Byrd's Eye View, 81 Law & Contemp. Probs. ___ (2018):

The Byrd rule, a once-obscure Senate procedural provision, captured the spotlight in December 2017 when it briefly derailed an effort by congressional Republicans to enact the most sweeping tax overhaul in a generation. And while the Byrd rule did not prevent the ultimate passage of the new tax law, it profoundly influenced both the substance and the form of the final legislation. The immediate aftermath of the 2017 tax overhaul thus provides an opportune moment to take stock of the Byrd rule’s role in the making of federal tax law. This essay—part of a symposium issue of Law and Contemporary Problems on “The Past, Present, and Future of the Tax Legislative Process”—considers the myriad ways in which the Byrd rule has influenced federal tax law and policy in the three dozen years since the rule’s emergence.

Our overall assessment of the Byrd rule’s impact is mixed. The Byrd rule arguably imposes a measure of fiscal discipline on the Senate by requiring reconciliation bills to stay within specified budgetary parameters. Moreover, the Byrd rule—at least in its more recent applications—has led the Senate to remove what might be described as “special interest” provisions from legislation passed through the reconciliation process. But the Byrd rule also has—perversely—prevented the Senate from passing provisions that would impose greater fiscal discipline on the upper chamber. And the Byrd rule also has had the surprising effect of freezing in place certain elements of the tax code that confer outsized benefits on narrow interest groups. All the while, the Byrd rule has added to the complexity of the tax code and the opacity of the tax legislative process. We conclude by suggesting steps that Senators, staff members, and—in particular—the Senate Parliamentarian could take to increase transparency and avoid some of the Byrd rule’s unintended consequences.

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