The Slatest

Democrats Have Discovered a New Route Around the Filibuster

A surprise ruling from the parliamentarian opens the door.

Close-up of Schumer grinning deviously
Senate Majority Leader Chuck Schumer at the U.S. Capitol on March 25. Pool/Getty Images

The conventional wisdom around budget reconciliation, the filibuster-free process through which the Senate can pass budget-related legislation with 50 votes, is that you only get one per fiscal year—for a maximum of two per calendar year. The Senate Democratic majority already spent its reconciliation bill for fiscal year 2021 on the $1.9 trillion American Rescue Plan, and the idea has been that they could use a second one, pegged to the arrival of fiscal 2022 this coming October, on some kind of jampacked infrastructure, care economy, health care, and who-knows-what-else all-purpose bill. Since they don’t have the votes to eliminate the filibuster altogether, these two bills would be their two big opportunities to enact their legislative agenda.

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Last week, however, Senate Majority Leader Chuck Schumer asked the Senate parliamentarian, Elizabeth MacDonough, who advises on the chamber’s arcane rules, to examine another section of the budget law that allows for the reconciliation process. Section 304 of the 1974 Budget Act allows the Senate to pass a resolution that “revises” the budget they’ve already passed. Schumer asked MacDonough—most recently seen crushing Democrats’ hopes of including a minimum wage increase in the relief bill—if they could use that revision process to create another reconciliation bill.

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Schumer’s office announced Monday night that MacDonough had agreed, and that “a revised budget resolution may contain budget reconciliation instructions.”

What this means in the short term is that instead of having one more bill to bypass the filibuster this year, Democrats will have at least two, should they choose to use them.

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Democrats haven’t committed to any legislative strategy yet for how they want to pass Biden’s infrastructure proposal, his forthcoming proposal to bolster the “care economy,” or whatever else is coming down the pike. For now, committees are starting to work on infrastructure proposals to see what could be done in a bipartisan way, something that some centrist and vulnerable Senate Democrats are insisting they give a shot. We shall see. But Schumer, according to an aide, wanted “to maximize his options to allow Senate Democrats multiple pathways to advance President Biden’s Build Back Better agenda if Senate Republicans try to obstruct or water down a bipartisan agreement.”

It could be that Democrats, after giving up on reaching an infrastructure deal with Republicans (or only reaching a modest one), decide to divvy up the next two reconciliation bills according to the way Biden is laying them out: one for traditional “hard” infrastructure, and another for an extension of the enhanced child tax credit, paid family and medical leave, and whatever else Biden may come up with.

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But infrastructure legislation is a complicated project that will take a while. House Speaker Nancy Pelosi has eyed July 4 as when she’d like to have the House complete its infrastructure bill, and the Senate process is, and will always be, a more arduous one than that of the House. Whatever Democrats would decide to use their current fiscal year reconciliation “revision” on would have to be done by Sept. 30, the end of the 2021 fiscal year. So they could try to use that vehicle for another priority—a lowered Medicare eligibility threshold, the DREAM Act, prescription drug costs—and reserve the fiscal 2022 reconciliation bill for infrastructure.

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Or maybe they could fit raising the debt limit somewhere in there.

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Or whatever.

This would be a new precedent in a body governed by them. The “revision” clause has never been used before to squeeze out an extra reconciliation bill—and there are still questions about how far it can be extended. How many new budget resolutions “revising” existing budget resolutions can be passed? Could there be infinity revised budget resolutions spawning infinity reconciliation bills within any given fiscal year? Schumer didn’t ask, and MacDonough didn’t answer. Someone will ask that question eventually.

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If this new precedent sounds like a ludicrous stretch, welcome to the broken United States Senate. So long as the Senate filibuster remains in place, majorities will continue to test the bounds of the reconciliation process, a precious legislative vehicle for which debate is limited by statute. This new precedent would bring the body closer to a reality in which the filibuster effectively doesn’t exist for items that have a direct budgetary impact—a term that senators have chosen to rely on a Senate staffer to adjudicate—but prevents most other legislation from even getting floor time. And who’s the wacko who designed this system? No one.

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