Democrats aren’t ready to nuke the filibuster. Not now. And possibly not ever, depending how serious you think Sens. Joe Manchin and Kyrsten Sinema were when they announced this week that they would oppose any effort to blow up their chamber’s antiquated, obviously destructive 60-vote threshold.
Practically speaking, this means that if Democrats want to enact most of their agenda, they will have to rely on the somewhat byzantine and widely misunderstood process known as budget reconciliation, which prevents filibusters on certain kinds of legislation. Party leaders have already signaled that they will use it to move President Joe Biden’s big coronavirus relief package if enough Republicans can’t be convinced to back it, as well as infrastructure and climate legislation. Democrats are also looking for creative ways to stretch reconciliation’s rules in order to pass priorities like a $15 minimum wage.
Given that the fate of the Biden presidency likely hangs on the ins and outs of this parliamentary procedure (which, to be clear, is objectively absurd), you probably have a few questions about how reconciliation works. Here, as briefly as possible, is what you need to know.
What exactly is this budget reconciliation thing I keep hearing about?
It’s a process that allows the Senate to pass tax and spending legislation with a bare majority vote. Reconciliation bills cannot be filibustered, so Democrats can use it to scoot around Senate Minority Leader Mitch McConnell’s tendency toward obstructionism.
So what you’re saying is that Democrats can definitely send me another coronavirus check, even if Sen. Gamera doesn’t want them to?
Yes. That’s what I’m saying.
Awesome. How many bills could Democrats pass this way?
The conventional wisdom is that they could pass at least three of them before the 2022 midterms. In order to write a reconciliation bill, Congress first has to enact an annual budget resolution. Since the Senate never got around to adopting a budget for this current year, Democrats could cue up resolutions for 2021, 2022, and 2023 before they face voters, giving them a trio of big honking packages they can use to deliver their agenda.
There is a theory floating around that Democrats might be able to pass more than three reconciliation bills, based on a rule that allows them to “revise” each budget resolution, but that maneuver has never been tried before, which makes it a bit speculative.
If the Senate loves the filibuster so much, why does this process even exist?
Not unlike the filibuster itself, reconciliation is basically an accident of history that has been largely divorced from its original purpose. As former Senate Parliamentarian Robert Dove once explained in a surprisingly delightful panel appearance, Congress created reconciliation in the 1970s as a minor tool to smooth out kinks in the annual budget process. But crafty senators soon realized they could use it speed their bills past the chamber’s many procedural hurdles, even though that had never been the intention behind it.
How often does Congress use reconciliation?
Let’s put it this way: Some of the most famous pieces of legislation of the past 40 years were brought to us, for better or worse, by reconciliation. The Senate relied on it to push through Ronald Reagan’s first-term economic agenda, enact welfare reform under Bill Clinton, and pass George W. Bush’s tax cuts. Democrats used reconciliation to put the finishing touches on Obamacare, while in 2017 Republicans relied on it to pass Donald Trump’s marquee tax bill.
It’s a powerful tool that can be utilized to end programs or create entirely new ones from scratch, rejigger tax brackets, increase safety net spending, and much more.
Sounds great. What’s the catch?
There are a bunch.
For starters, Democrats probably can’t use it to pass some of the most important items on their to-do list.
When it comes to reconciliation, the basic rule of thumb is that lawmakers can use it to tinker with the tax code or make changes to spending programs other than Social Security. But they cannot use it to enact purely regulatory reforms. The whole process is governed by a statute known as the Byrd Rule—named after the late West Virginia Sen. Robert Byrd—which sets out a six-part test for what can and can’t be included in a reconciliation bill. In order to be deemed kosher, a provision must change the government’s revenue or spending levels, and the effect cannot be “merely incidental“ to the nonbudget impact.
The upshot is that Democrats can almost certainly use reconciliation to throw money at coronavirus relief, health care reform, or a giant renewable energy push. They could remake vast swaths of the welfare state, or create a carbon tax if they so pleased. They can certainly mail checks until their hearts are content. But priorities like voting rights or gun-control legislation are probably off-limits, because everyone recognizes that they are not primarily about the budget.
Oh. That’s disappionting.
Yes. It is extremely frustrating that Democrats are currently planning to govern using a tool that will not allow them to make the fundamental reforms necessary to salvage our democracy, which we are only days out from a majority of Republicans in the House trying to torch. You can’t always get what you want—or what you need.
But who actually decides if a bill is eligible for reconciliation?
Traditionally, that would be the Senate parliamentarian, a role currently filled by one Elizabeth MacDonough. She exercises most of her power during an informal process known as the “Byrd Bath”—get the pun?—where she rules on whether different parts of a bill meet the requirements for reconciliation. If she gives something a thumbs down, lawmakers typically rewrite or strip it entirely from the legislation before bringing the bill up for a vote. Otherwise, a senator opposed to the section could try to strike it by raising a point of order from the floor.
I read somewhere, possibly in the intro to this article, that Democrats are trying to get creative about how they can use reconciliation.
They are. At the moment, there’s essentially an all-out push by different corners of the Democratic Party to figure out ways they could optimize parts of their agenda for reconciliation purposes, even if they don’t fit what we typically think of as taxes and spending. Sen. Bernie Sanders, who now leads the Budget Committee, is arguing that a $15 minimum wage should qualify for reconciliation because it would affect tax revenues and safety spending indirectly by raising workers’ pay. Others are looking at whether it’s possible to do immigration reform via reconciliation, since giving undocumented immigrants citizenship could generate substantial revenue from new taxes and application fees. Wonks are working overtime on ways to make a renewable-energy standard that would force electric utilities to drop fossil fuels reconciliation-ready.
Do you think any of these ideas will work?
I have no idea, and nor does anybody else, really. But I will say this: MacDonough was the parliamentarian back when Republicans tried, and failed, to repeal Obamacare using the reconciliation process, and she was fairly strict about her rulings. For instance, she decided that Republicans could not use reconciliation to repeal the entire individual mandate, the requirement that Americans buy health insurance or pay a fine, even though the Congressional Budget Office thought it had massive budget implications. That’s why the GOP resorted to a workaround that lowered the tax penalty to $0 while leaving the mandate nominally in place. I wouldn’t assume that she’s going to be any looser with the Democrats.
Could Democrats just ignore the parliamentarian?
In theory, yes, they could. The parliamentarian isn’t all-powerful. Technically, she can only offers advice. If a lawmaker tries to challenge a provision on the grounds that it violates the Byrd Rule, the final decision on whether its stays or goes actually lies the presiding officer of the Senate. On a big day when Democrats need every one of their votes, that would probably be Vice President Kamala Harris. And Harris could indeed choose to ignore the parliamentarian and wave through whatever bill she wants. In fact, Texas Sen. Ted Cruz argued that Republicans should do just that back in 2015 when he was pushing for Obamacare repeal. “At the end of the day, the Senate parliamentarian is an employee of the Senate. Virtually every Republican campaigned promising full repeal,” he said.
But I wouldn’t get overly attached to that plan. It’s not clear that moderates like Manchin and Sinema would support nuking the formal reconciliation process if they refuse to nuke the filibuster, and their votes would still be needed to pass a final piece of legislation.
So Democrats may have to just play by the rules?
That’s just my hunch. Personally, I don’t see any reason why they couldn’t just try to replace the parliamentarian now with someone a little more sympathetic to cutting-edge interpretations of the rulebook before she starts shooting down their ideas. But what do I know?
Can reconciliation bills increase the deficit?
Yes, actually. But like everything else about this process, Smokey, there are rules.
A reconciliation bill is allowed to increase the budget deficit over the years covered by the budget, which typically lasts a decade, but not in the period after it. That’s led to some weird-looking policy choices in the past; for instance, under both the George W. Bush and Trump administrations, Republicans gamed reconciliation’s deficit rules by having many of their tax cuts expire before the budget window expired, with the hope that Congress would simply extend them later on.
As far as Democrats are concerned, all of this means they can probably borrow to pay for temporary spending like coronavirus relief or economic stimulus, but they will need to finance permanent programs, such as a health care expansion or a child allowance, with higher taxes on the wealthy.
There’s another catch to consider, which is that if Democrats add to the near-term deficit through reconciliation, it will likely trigger automatic budget cuts under statutory pay-as-you-go rules that nobody ever thinks about. (And which, to make things a bit more confusing, are separate from the PAYGO rules that govern the House and Senate). But those may be avoidable, and the issue is basically fodder for a whole other explainer.
It seems like it would be simpler to just get rid of the filibuster.
Yes. But being able to govern through a frustrating, arcane, and limiting process is better at least than not being able to govern at all.