Six tests are used to determine whether a portion of a bill is extraneous. If a provision is found to be extraneous, the provision is either struck from the bill or the entire bill is destroyed.
If the budgetary impact of a provision is found to be “merely incidental” to the provision’s policy change, the provision is struck from the bill. On the other hand, if a provision is determined to be outside the jurisdiction of the committees responsible for the bill, the entire bill is tossed.
Technically, the chair of the Senate’s Budget Committee or the senator chairing the Senate at the time determine whether a provision is extraneous. In reality, those determinations are made by the Senate’s parliamentarian.
When a reconciliation bill gets to the Senate floor, staff for the majority and minority leader meet with the parliamentarian in what’s known as a “Byrd bath to determine if there is any extraneous material.
The Senate’s presiding officer can override the parliamentarian’s decision; alternatively, any senator can appeal one of the parliamentarian’s rulings. If a majority of senators agree that the provision isn’t extraneous, the parliamentarian is overruled and the provision is part of the bill.
Provisions in a reconciliation bill that increase the deficit beyond the period covered by the budget resolution require a 60-vote threshold, unless the deficit increases are offset by savings in another provision.
If 60 senators agree, the Senate can waive the Byrd Rule for a particular piece of legislation.