Politics

Did the Senate Parliamentarian Just Foil Chuck Schumer’s Plan to Beat the Filibuster?

Rather than laying down a rule, she calls for “good judgment and restraint.”

Schumer gestures while speaking at a podium
Senate Majority Leader Chuck Schumer talks to reporters at the U.S. Capitol on Friday. Chip Somodevilla/Getty Images

A couple of months ago, Senate Majority Leader Chuck Schumer’s office announced that it had figured out a way to move more of President Joe Biden’s agenda around the 60-vote threshold needed to break a Senate filibuster.

Under the budget reconciliation process—which Democrats used to pass their $1.9 trillion COVID relief plan in January—budget-related legislation that meets certain conditions isn’t subject to a filibuster, and thus can pass with 50 votes. The first step of the process is to pass an annual budget resolution that includes reconciliation instructions. The conventional wisdom, then, held that senators were limited to one reconciliation bill per fiscal year.

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What Schumer envisioned, though, was Congress unlocking additional reconciliation bills by passing budget revisions. That could, theoretically, give the majority as many reconciliation bills as it wanted, so long as it was willing to rerun the tedious budget process.

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In April, Schumer’s office said that it had gotten the green light from the Senate parliamentarian, Elizabeth MacDonough, who had “advised that a revised budget resolution may contain budget reconciliation instructions.” Where Democrats had thought they might only have one more crack at using reconciliation to pass Biden’s jobs and/or families plans this year and early next year, they now had more options.

Few outside of Schumer’s office had seen exactly what the parliamentarian’s memo said, however. Republicans, as well as some Democrats, were skeptical that Schumer had truly presented the parliamentarian’s beliefs in all of its nuances. Even Schumer’s own statement acknowledged the existence of follow-up questions, writing that “some parameters still need to be worked out.”

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Indeed they did. And on May 28, MacDonough issued a follow-up that touched on some of those parameters. According to Punchbowl News, which first reported on the latest guidance, it was more of a mixed bag.

While Democrats could use budget revisions to unlock additional reconciliation bills per fiscal year, Punchbowl wrote, “there are limits to what Democrats can do.”

“The majority party—in this case, the Democrats—cannot use reconciliation simply to avoid the regular legislative process, and there have to be reasons beyond political expediency for triggering the majority threshold, such as an economic downturn,” Punchbowl wrote. “In other words, the parliamentarian said Dems can’t use this as a shortcut.”

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Is that what MacDonough said, though?

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The parliamentarian’s guidance, of which Slate obtained a copy, does not lay down hard rules about how reconciliation can’t be used to “avoid the regular legislative process”—that ship sailed a long time ago. There’s no rule spelled out that economic conditions need to change by a certain amount to unlock another reconciliation bill. Instead of such a rule, there’s only MacDonough’s opinion that doing this—revising budgets just to unlock reconciliation bills that the majority would use to bypass the pitfalls of regular order—would be an abuse of the provision’s original purpose.

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In a lengthy opening section, MacDonough goes through the record of the original intent of the budget revision process. According to the chairman of the Budget Committee in 1977, revisions were to be used “to meet changed conditions” arising after Congress passed the original budget resolution, and, as the ranking member said, “to permit adjustment when economic or emergency conditions warrant.”

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“The drafters and early users of [budget revisions] uniformly believed that it was to be used in extraordinary circumstances and not for things that should have been or could have been foreseen and handled in a [budget] resolution,” MacDonough writes. “The potential for abuse was clear in 1974 and is all the more obvious now.”

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“Abuse of [budget revisions]—overuse and over-reliance on a hyper-fast track procedure in the ordinarily deliberative Senate—will change the culture of the institution to the detriment of the committee and amendment processes and the rights of all Senators,” she continues. “Limits on the breadth and frequency of deployment of [budget revisions], however, will depend on adherence to the original purpose of the section and the good judgment and restraint of all involved.”

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Clearly, she would frown upon Chuck Schumer using a dusty revision clause to give himself as many filibuster-free legislative vehicles as he wants. But what is she saying she would do about it? When I sought guidance about the parliamentarian’s guidance (the life of a Senate reporter), opinions fell into a gray area.

“I think the parliamentarian was just trying to give herself wiggle room to be able to say that a future use of the process was not appropriate,” one Senate aide said of the parliamentarian’s memo. “In such cases, it comes down to the parliamentarian’s gut.”

Molly Reynolds, a senior fellow in governance studies at the Brookings Institution, cautioned that she couldn’t “read anyone’s mind here.” But she said MacDonough’s sentence about the limits “reads to me like her saying, ‘You can go ahead and try revisions to the budget resolution with reconciliation instructions, but know that this is how I read the original purpose of the section and we might end up arguing out whether a given revision qualifies as a privileged matter every time you try.’ ”

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“But that’s just my reading,” Reynolds added.

One important element of MacDonough’s guidance that was pretty definitive, though, was about the committee process. A revision couldn’t be “auto-discharged” out of committee and to the Senate floor, as a budget resolution could. In other words, it would have to pass out of committee. Current Senate rules in the 50-50 Congress, where committee seats are allocated equally, do provide a mechanism to get bills to the floor when there’s a tie vote in committee: The entire Senate holds a vote, for which a simple majority is needed, to discharge them from committee. But Senate Republicans could boycott a committee vote on a budget revision to deny Democrats a quorum. And if it’s a high-stakes, partisan Democratic bill on the line, they just might.

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As fun as it is to stare further down this rabbit hole, we should come up for air. The parliamentarian’s trap-laden advisory, Reynolds argues, might mean that the dream of additional filibuster-free reconciliation bills, while theoretically doable, might not get off the ground. Democrats may just stick with the once-per-fiscal-year arrangement that we all know and love.

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“I think this guidance creates enough uncertainty around the parameters of revisions,” Reynolds said, “that it will bolster the case of folks in the Democratic caucus who want one bill. Importantly, it is entirely possible that that was going to end up being the strategy anyway. But I think this guidance makes it more likely.”

We’d give another reason at that. It’s been a slog for Democrats to get centrists in their caucus, like West Virginia Sen. Joe Manchin, to agree to jump onto a second reconciliation process, let alone a third or fourth. This is a big reason the White House and Senate leadership are going through a multimonth song and dance with Republicans about seeing if there’s a way to do infrastructure on a bipartisan basis. By the time the next reconciliation bill is done—if it is—it will be nearer to the election, and those vulnerable and centrist Democrats will be even more petrified of trying for a third megabill that gives them partisan exposure. Considering infinite reconciliation bills is a fun intellectual exercise, but it’s one that exhausts a bare-bones, 50-seat majority.

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