Senate Procedural Ground Cleared for More Reconciliation Bills, but Politics May Not Be There Yet

Earlier this week, the nonpartisan Senate Parliamentarian told Senate Majority Leader Charles Schumer (D-NY) that a loophole in the Budget Act would allow the Senate to pass at least one more fiscal 2021 budget resolution, triggering at least one more round of budget reconciliation legislation, before Congress has to move on to fiscal 2022.

Schumer’s spokesman announced on the evening of April 5 that “The Parliamentarian has advised that a revised budget resolution may contain budget reconciliation instructions.” (Per section 304 of the Budget Act, Congress can amend a budget resolution at any time before the end of the fiscal year, which would apply to the budget resolution (S. Con. Res. 5) just adopted on February 5 of this year and used to trigger the round of budget reconciliation that gave us the American Rescue Plan.

The decision was hailed by Democrats as giving Schumer and other leaders as many bites of the apple as necessary to pass all manner of fiscal legislation through the Senate with a bare minimum of 50 Senators (plus the Vice President) instead of 60. President Biden’s $2.3 trillion investment plan (the “American Jobs Plan”) was to be first up.

Their happiness lasted just over 48 hours, until the Washington Post website published an op-ed by Sen. Joe Manchin (D-WV) for the following day’s paper. In that piece, not only did Manchin say “There is no circumstance in which I will vote to eliminate or weaken the filibuster,” he also cast doubt on his willingness to use budget reconciliation as a filibuster work-around.

Manchin wrote:

We should all be alarmed at how the budget reconciliation process is being used by both parties to stifle debate around the major issues facing our country today. Legislating was never supposed to be easy. It is hard work to address the needs of both rural and urban communities in a single piece of legislation, but it is the work we were elected to do.

I simply do not believe budget reconciliation should replace regular order in the Senate. How is that good for the future of this nation? Senate Democrats must avoid the temptation to abandon our Republican colleagues on important national issues. Republicans, however, have a responsibility to stop saying no, and participate in finding real compromise with Democrats.

Working legislation through regular order in the Senate prevents drastic swings in federal policymaking. Voting rights reforms, instituting health-care protections and changes to the federal tax code and business regulations take time to implement on the state and local levels. If the filibuster is eliminated or budget reconciliation becomes the norm, a new and dangerous precedent will be set to pass sweeping, partisan legislation that changes the direction of our nation every time there is a change in political control. The consequences will be profound — our nation may never see stable governing again.

As usual, defining what exactly Manchin meant by all that (the reconciliation part – he was pretty clear on the filibuster) is a term of art. For decades, reconciliation has been the “regular order” for major changes in tax policy and some major changes in entitlement spending. Reconciliation’s original purpose, however, was to reconcile projected spending and tax levels with the numbers that Congress had chosen as their budget policy in the budget resolution. To the extent that the spending and tax numbers in the resolution are being rejiggered as necessary to accommodate the legislation, instead of the other way around, that is a more recent development.

But all this is just one more reminder that a 50-50 Senate in a politically polarized environment means that every single Senator can be a dealmaker, or a dealbreaker, at almost any time.

Speaker Pelosi indicated this week that she would like to see the House pass the initial version of the American Jobs Plan by July 4. Working backwards in the House schedule, that puts the bill on the floor the week of June 28, meaning that House committees would probably have to have their markups completed during the week of June 14, which means chairmen would need to start circulating draft bill text a week before that. But before any of that could happen, Congress would have to pass a budget resolution ordering House and Senate committees to write bills with $2.3 trillion in new spending. And that budget (if it can get 50 votes in the Senate) would need to pass both chambers by mid-May to start the process.

Would a third FY21 resolution/reconciliation go-round be allowed? The problem with the Parliamentarians’ ruling is that, once you agree that section 304 of the Act would allow a second resolution and second round of reconciliation for a given year, there is no limiting factor beyond the exhaustion of the Senate. They could, in theory, pass a dozen budget resolutions and start a dozen reconciliation processes each year, if they were so inclined. Unless the Parliamentarian has an unstated reason for keeping two per year as a magic number.

Would bringing up a new budget resolution spoil an ongoing reconciliation process? Say that Congress passes another FY 2021 budget resolution in April ordering committees to produce the spending and tax increases called for in the American Jobs Plan. Then, President Biden sends up his next big bill (the one with the social spending and the individual income tax increases on the wealthy). Will the act of Congress passing a new budget resolution starting a round of reconciliation for the social spending bill kill the American Jobs Plan reconciliation bill if that bill hasn’t made it through yet? There is a strong argument that Congress passing a new budget resolution would spoil the privileged (filibuster-proof) Senate status of a reconciliation bill produced pursuant to an earlier budget resolution, if that reconciliation bill is not done by that point. (There is only one precedent for this – the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) didn’t actually get enacted into law until March 1986, and the Senate Budget Committee had held off marking up its fiscal 1987 budget resolution until the day after the Senate cast its final vote on that reconciliation bill, which had been commissioned by the previous year’s budget resolution. Almost as if SBC was waiting so as not to monkey with the reconciliation bill.)

This is a problem because the rest of the legislation of Congress (all the fiscal 2022 appropriations bills, any major mandatory or tax bills through regular order) are supposed to wait until after a 2022 budget resolution has been finalized.


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