A Closer Look at the 28-Hour Waiting Period for CBO Estimates

by Sam Wice — Tuesday, Oct. 10, 2017

The Congressional Budget Office (CBO) has played a prominent role in the recent debate regarding Obamacare repeal and replace proposals. Many Republicans likely hoped that they could have voted on the proposals without first having CBO’s estimates bolster opposition to the proposals. After this failure to repeal and replace Obamacare, Senate Republicans plan to include in their tax reform reconciliation instructions a repeal of a Senate rule that requires a 28-hour waiting period after CBO has completed its estimate:

[I]t shall not be in order to vote on passage of [a] matter that requires an estimate under section 402 of the Congressional Budget Act of 1974, unless such estimate was made publicly available on the website of the Congressional Budget Office not later than 28 hours before the time the vote commences.

However, repealing this waiting period would not be a major change from Senate practice because (1) the waiting period does not impact major legislation that Republicans have tried to pass through reconciliation, such as repealing and replacing Obamacare, (2) existing law already has a similar requirement, and (3) the waiting period is only two-years old.

First, in practice the 28-hour waiting period does not impact major legislation that would be considered through reconciliation because (1) it does not apply to how the Senate has recently considered legislation under reconciliation and (2) the Senate Parliamentarian’s review requirements impose a longer waiting period. Although CBO will often score any bill on which Congress will vote, section 402 of the Congressional Budget Act of 1974 (CBA) only requires CBO, “to the extent practicable,” to estimate the costs to the federal government of legislation that is approved by a non-appropriations committee. Because the waiting period only applies to estimates required under section 402 of the CBA, the waiting period would not have applied to the Obamacare repeal and replace proposals — they went directly to the Senate floor. Even if Senate Republicans had used the committee process, the waiting period would still not have applied to repeal and replace proposals because they each included provisions from what would have been two separate committee markups.

Additionally, the Senate Parliamentarian’s review requirements impose a de facto waiting period before a vote on reconciliation legislation. The Byrd Rule requires that any reconciliation legislation only involve revenue or spending issues. Any provision that has a merely incidental budgetary impact cannot be included. To determine compliance with these requirements, the Senate Parliamentarian has to use CBO’s estimate of the cost of each provision. This review requires more than 28 hours. For instance, when reviewing the main Republican healthcare proposal in July, the Senate Parliamentarian took eight days to complete her review of compliance with the Byrd Rule.

Second, repealing the 28-hour waiting period is not a major change in practice because law already requires a CBO estimate of any bill approved by a non-appropriations committee. Although there is no enforcement mechanism requiring CBO to estimate costs to the federal government under the CBA, the Unfunded Mandates Reform Act of 1995 (UMRA) effectively requires a CBO estimate. UMRA requires CBO to estimate the unfunded mandate costs to state and local governments, and the unfunded mandate costs to the private sector of any legislation approved by a non-appropriations committee. Unlike the CBA, if a bill is approved by a non-appropriations committee and does not include a mandates estimate, UMRA creates an enforcement mechanism through a point of order in the Senate and House of Representatives. Because mandates estimates are a portion of the CBO estimate, the UMRA point of order effectively creates a point of order if the Senate votes on a bill when CBO has not completed its estimate. The only difference with the existing Senate rule is that the Senate rule requires at least 28 hours notice.

Third, repealing the 28-hour waiting period would not be a major departure from Senate practice because it is a recent requirement. The waiting period only started when Senate Republicans instituted the requirement after they came into power in 2015. Thus, the waiting period does not have a long-standing history and Senate Republicans are only planning to overturn two years of their own precedent.

By not directly mentioning the repeal in the Senate Budget Committee’s summary of the tax reform reconciliation instructions, Republicans acted like repealing the 28-hour waiting period on CBO estimates would be a big departure from precedent. Similarly, Democrats have attacked Senate Republicans for planning to repeal the waiting period. However, the only practical effect of repealing this two-year old waiting period would be to allow slightly sooner votes on non-major legislation.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

Cite As: Author Name, Title, Yale J. on Reg.: Notice & Comment (date), URL.

One thought on “A Closer Look at the 28-Hour Waiting Period for CBO Estimates

  1. Satya Thallam

    N.B.: Sen. Harris has filed an amendment to the proposed FY18 budget resolution which would establish a point of order “requir[ing] that the score of legislation prepared by the Congressional Budget Office be available online 28 hours before there is a vote” (Harris Amdt. #6)

    Reply

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