After top Democratic aides privately strategized on a novel plan for weeks, the parliamentarian suggested on Monday that the Senate could potentially take an unprecedented step to use a process known as budget reconciliation twice every fiscal year, possibly giving Democrats a chance to move a total of six pieces of legislation with just 51 votes before the end of this Congress, according to officials in both parties and experts of Senate rules. Doing so would effectively circumvent Republicans and a filibuster, which requires 60 votes to overcome, but any package must have a budgetary impact in order to comply with the Senate rules.
It’s still uncertain if Democrats will be able go to that far given that the parliamentarian, Elizabeth MacDonough, has not issued a final ruling on the matter. Senate Democrats, who will begin discussions next week about their strategy, will have to also decide if they have the appetite to ignore the outcries of the GOP and stay completely unified to advance the agenda of a President who campaigned on a promise to work with Republicans. And already, Democrats including Sen. Joe Manchin are balking at the go-it-alone demands of many in his party.
But the early decision has the potential to reshape how future majorities wield their power in the slow-moving body, potentially giving them a backdoor way to enact large pieces of legislation that would not be subject to a filibuster and underscoring how party leaders have increasingly looked to muscle legislation through on a partisan basis amid the polarized environment in Washington.
“It’s as if the Senate has discovered water,” said Alan Frumin, a former Senate parliamentarian and expert in the arcane workings of the body. “We have known about it for years. It’s anybody’s guess why it hasn’t been utilized for years.”
Already, Democrats have approved the $1.9 trillion Covid-19 relief law through the budget reconciliation process, pushing through the bill in the 50-50 Senate and narrowly divided House without a single Republican vote.
And now there are potentially five more attempts to use this process before the end of 2022, including for the $2 trillion-plus infrastructure-and-tax plan — as well as other measures — but only if the parliamentarian gives the greenlight and Democrats decide they want to go that route.
The provisions in the package must adhere to the Senate’s strict budget rules that forbid extraneous measures, which are enforced by MacDonough, who rejected Democratic efforts to include a $15 an hour federal minimum wage hike in the Covid relief plan.
While MacDonough has signaled that two budget measures could be allowed per year, the scope and parameters of what would be allowed on each one are unknown. Still, it could allow Democrats to use the process to enact other matters with just 51 votes — ranging from reining in prescription drug costs, changes to Medicare to reforms to immigration policy — as long as she rules them in compliance with the budget rules.
Top aides pitched plan after closed strategy session
Under the rules, Congress must first adopt a nonbinding budget resolution that directs House and Senate committees to draft binding legislation that would conform to the parameters of the budget blueprint. That binding legislation — referred to as reconciliation legislation — is a potent tool since the rules say it cannot be filibustered in the Senate, meaning it can pass by just 51 votes, rather than the 60 votes that would ordinarily be needed to advance a bill over an objection.
Senior Democratic aides to Senate Majority Leader Chuck Schumer, along with top counsels on the Senate’s Budget, Finance and Health panels, strategized for weeks and made a novel pitch to MacDonough, a career official appointed to serve as the referee of the chamber’s cumbersome procedures.
They argued that each budget resolution should give Congress the ability to pass two reconciliation bills per fiscal year — rather than just one. They pointed to section 304 of the Congressional Budget Act, which says that both chambers can adopt a second budget resolution, “which revises or reaffirms” the previous blueprint.
In her ruling, MacDonough agreed that — theoretically — Congress can pass a second reconciliation bill in a single fiscal year.
“We believe the appropriate answer is yes,” she wrote to Senate aides, according to a source who saw her ruling.
But the parliamentarian did not make a final determination about what could be included in a second bill this year, and whether Democrats can do the same for the other legislative vehicles that are available to them.
In 2017 when Republicans controlled all of Congress and the White House, Republicans used the reconciliation process twice, but the situation was different then. They used two separate fiscal year budgets in a failed attempt to repeal Obamacare and then successful effort to pass the major GOP tax overhaul. Republicans never tried to push a third time by revising a previous budget, but GOP sources said Tuesday the issue was discussed at the time but little reason to press ahead on the untested strategy.
A new tactic amid a breakdown in regular order
The potential that Democrats may try to use this procedure again, Senate sources say, is a reflection of the breakdown in regular order where the committees would develop legislation and advance it to the floor and try to achieve bipartisan consensus.
Other than the massive relief measures that were enacted during the height of the pandemic last year, and came as the product of talks between a small group of congressional leaders and the Trump White House, there’s been scant bipartisan consensus in recent years, forcing leaders to look at new ways to advance legislation on the support of their own party.
While Schumer hasn’t slammed the door on bipartisan negotiations on infrastructure, most in the Capitol believe there’s little real promise for a bipartisan deal.
And while Biden has announced a bipartisan group of lawmakers will be invited to the White House to discuss infrastructure in the weeks ahead, there is no indication that those talks will yield any real negotiations. At the beginning of the year, Biden held a similar meeting with Senate Republicans in the Oval Office about Covid relief only to eventually turn to Democrats to pass the legislation on their own through the reconciliation process.
At the same time, Democrats are exploring moving head on their own: Democrats could use the budget reconciliation process five additional times if the parliamentarian agrees. Since the previous Congress failed to adopt a budget resolution, the current Congress approved the one that was supposed to have been cleared last year. Now, this current Congress can adopt a budget resolution that was designated for this year and next year, potentially unlocking the reconciliation process multiple times for each budget — depending on what MacDonough decides.
“While no decisions have been made on a legislative path forward using Section 304 and some parameters still need to be worked out, the parliamentarian’s opinion is an important step forward that this key pathway is available to Democrats if needed,” a Schumer spokesman said Monday evening.
But with the good news for Democrats, comes many complicated questions.
For each budget resolution and for each reconciliation bill, Senate rules allow for an open amendment process known in the Capitol as a vote-a-rama, meaning any senator can offer as many amendments as he or she wants through a grueling and marathon series of votes. That means Republicans can force Democrats to cast politically toxic votes that could be used against them in their reelection bids.
Moreover, aides familiar with the discussions say that before any more rulings can be made by the parliamentarian, Democrats in the Senate will need to be wedded to this process and the potential implications it could bring.
Already, Manchin and a handful of moderate Democrats, have suggested they want to try and push an infrastructure bill with Republican votes before turning to the partisan budget process. Manchin in particular has resisted calls to move ahead on reconciliation without a serious effort to cut a bipartisan deal on infrastructure. And if anyone Democrat breaks ranks, the package would collapse.
“If I don’t vote to get on it, it’s not going anywhere,” Manchin said this week on West Virginia radio, balking at the corporate tax hike proposed in the Biden infrastructure plan. “So we’re going to have some leverage here.”
The discussion comes at a time when the Senate Democrats are already embroiled in an intra-party debate about whether to gut the filibuster, with Manchin and other moderate Democrats defending the practice that requires 60 senators vote to advance legislation.
Reconciliation has largely been seen as a way around the 60-vote threshold, but it can only be used on a narrow subset of legislation that has an impact on the federal budget.
The White House on Tuesday was mum about MacDonough’s ultimate ruling.
“We will leave the mechanisms — and the determinations of the mechanisms — to the leaders of Congress,” White House press secretary Jen Psaki said.