In a surprise move, Senate Parliamentarian Elizabeth MacDonough ruled that a proposed moratorium on state and local AI laws satisfies the Byrd Rule, the requirement that reconciliation bills contain only budgetary provisions and omit “extraneous” policy language.  While MacDonough’s determination allows the Senate Commerce Committee’s version of the moratorium to remain in the bill, its path to becoming law remains far from certain.

The Senate provision MacDonough examined differs from the version that already passed the House.  While the House language prohibits states and localities from enforcing most AI laws and regulations for ten years, the Senate language, championed by Commerce Committee Chair Ted Cruz (R-TX), instead requires states to comply with the moratorium as a condition for receiving funding under the Broadband Equity, Access, and Deployment (BEAD) program, a $42.45 billion program that would receive an additional $500 million under this bill.  This modification anticipated that the House’s blanket preemption provision would likely have violated the Byrd Rule; tying restrictions on state AI regulations to federal spending smoothed the path to a favorable opinion from the parliamentarian.

As a result, the moratorium can be included in the reconciliation text that the Senate will consider on the floor soon.  Lawmakers from both chambers, however, still need to approve it before it becomes law. 

Senators from both parties have raised concerns with the moratorium, including Commerce Committee Ranking Member Maria Cantwell (D-WA) and Senator Marsha Blackburn (R-TN), who have both sponsored bills to regulate AI at the federal level but expressed concern about limiting state regulatory authority.  Senators Ed Markey (D-MA), Josh Hawley (R-MO), and Ron Johnson (R-WI) have publicly opposed the moratorium as well, and other lawmakers remain skeptical.

Senators are expected to vote on amendments to the reconciliation bill, including potential amendments to modify or remove the moratorium, in a marathon “vote-a-rama” in the coming days.  Most Democrats are expected to oppose the provision.  With a simple majority vote needed to strip it from the bill, Democrats could join with a few Republicans to defeat the provision.  Proponents may continue to modify the language to secure the votes needed to preserve it in the bill.

Bipartisan skepticism of the moratorium in the Senate is not the only hurdle the policy faces.  Proponents must also consider new opposition in the House:  Rep. Marjorie Taylor Greene (R-GA), who voted for the initial reconciliation draft on the House floor, has since sworn to oppose it.