Politics

The Budget Reconciliation Battle Is a Procedural Power Grab

By effectively casting aside the filibuster while technically leaving it in place, Democrats can maintain the pretense that they played by the rules.

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Few fights in Congress are more bitter than fights over Senate procedure. That's because those disputes are rarely just about the rules. Instead, they are fights about the legitimacy of political power and who gets to wield it.

The latest round of procedural warfare began after Democrats took control of both chambers of Congress and the White House following the 2020 election. Pundits speculated that they might eliminate the legislative filibuster, but they appear to have found another procedural maneuver: reconciliation.

Although Democrats have 50 seats in the Senate and Vice President Kamala Harris' tiebreaking vote, the filibuster effectively requires a 60-vote supermajority to pass legislation. Obtaining 60 Senate votes means negotiating with Republicans. Yet many on the left see Senate Republicans as obstructionists, thanks largely to the not entirely incorrect perception that Senate Minority Leader Mitch McConnell (R–Ky.) has ruthlessly exploited procedural advantages for partisan gain. According to this view, the filibuster is a major barrier to the Democratic agenda because Senate Republicans either cannot or will not negotiate in good faith.

Progressives mounted a campaign to eliminate the filibuster, arguing that it was a legacy of Jim Crow and that Republicans, by dramatically increasing its use, had cynically transformed what was intended to be a rare procedural tactic into a de facto 60-vote requirement for any and all legislation. The filibuster already had been whittled away: Senate Democrats eliminated it for executive branch and judicial nominees in 2013, and four years later Republicans extended those exceptions to include Supreme Court nominations. Why not get rid of the requirement for legislation too?

One reason: Some Senate Democrats, including crucial moderates like Sen. Joe Manchin (D–W. Va.), opposed its elimination. Although Senate Democrats could have done it with a simple majority vote, that would require keeping the entire caucus united, and it quickly became clear that would not be easy.

But there was an alternative: Instead of ditching the filibuster, Democrats could make it irrelevant—or at least much less important than it had been. The key to doing that was a separate budget maneuver known as reconciliation.

Created as part of the 1974 Congressional Budget and Impoundment Control Act, which also gave us the Congressional Budget Office (CBO) and the modern budget process, reconciliation was designed as a fast-track tool for pushing fiscal legislation through Congress. The procedure has been used 21 times since 1974, helping to pass budget bills under Presidents Jimmy Carter and Ronald Reagan. It has also been used to pass, among other things, changes to Medicare, Republican-backed tax cut legislation, an early round of changes to the Affordable Care Act, and the American Recovery Act, the $1.9 trillion coronavirus relief bill (much of which was unrelated to the coronavirus) backed by Biden and congressional Democrats.

The details of the reconciliation process are rather complicated and in some cases subject to significant dispute. But in effect, reconciliation gives the Senate a limited opportunity to pass a bill with a simple majority, provided the legislation meets two criteria. It cannot increase the federal deficit beyond the 10-year budget window that the CBO uses to score legislation, and all of its provisions must have a direct fiscal impact.

These quirks have led to statutes with odd and sometimes deceptive structures. To avoid raising the deficit beyond the 10-year window, for instance, the Tax Cuts and Jobs Act (TCJA) that the GOP passed via reconciliation in 2017 included tax cut sunset provisions that no one expected would actually take effect.

The TCJA also eliminated Obamacare's tax penalty for failing to carry health insurance, leaving a "mandate" in place with no enforcement mechanism. Eliminating the command—a regulation—would not have been germane to the budget, but eliminating the tax penalty had a direct fiscal impact and therefore was allowed.

The American Recovery Act originally would have raised the federal minimum hourly wage to $15. But that provision was struck after the Senate parliamentarian, a nonpartisan lawyer who adjudicates procedural disputes, ruled it out of bounds under reconciliation.

One big point of contention is how often this procedure can be employed. Typically, reconciliation has been used just once per fiscal year, although the text of the statute allows multiple vehicles, covering both taxes and spending.

In early 2021, Senate Democrats asked the parliamentarian about reopening last year's reconciliation bill to pass what would, for procedural purposes, be categorized as a revision or addendum. In April, the parliamentarian reportedly blessed that plan. Combined with the current fiscal year's reconciliation vehicles, that would theoretically allow Senate Democrats to pass three different bills through reconciliation in a single calendar year.

If Senate Democrats did that, it would represent an unprecedented procedural end run. The party would effectively defeat the filibuster—or at least substantially weaken it—without removing it from the books.

That Senate Democrats are openly contemplating such a maneuver is a sign of the times, and it illustrates how procedural squabbles serve as a cover for other disputes. To some extent, this maneuver is about policy: Democrats have an expansive, expensive economic agenda that they want to pass with or without Republican help. But even more than that, the fights over the filibuster and reconciliation are about legitimacy.

By effectively casting aside the filibuster while technically leaving it in place, Democrats can maintain the pretense that they played by the rules, and that any changes they made were proportional responses to Republican abuses. It is an effort to claim governing legitimacy without compromise or consensus.

NEXT: Brickbat: Who Watches the Watchmen?

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  1. "Democrats have an expansive, expensive economic agenda"

    Correct. And that agenda can be summed up as "make our billionaire base even richer." Which is why we Koch / Reason libertarians overwhelmingly supported Biden.

    #InDefenseOfBillionaires

  2. they are fights about the legitimacy of political power and who gets to wield it

    Well obviously since the Republicans came within a hairsbreadth of overthrowing the government on January 6th, fairness would dictate that the Democrats should get one free shot at overthrowing the government as well.

    1. Without F15s and nukes!? Poppycock!

    2. Doesn't seem to many folks in D.C. fight over the legitimacy of political power, just who gets to wield it. It's all up for grabs. Winner take all.

    3. "hairsbreadth" I hope you are joking. A couple hundred rednecks in a 6 hour protest did not come close to overthrowing anything. Insane hyperbole to make such a reckless comment. Especially since no one has been charged with insurrection, treason, or sedition. I am waiting for the 10,000 hours of video to be released. Then we will be able to make better judgements.

  3. "To some extent, this maneuver is about policy: Democrats have an expansive, expensive economic agenda that they want to pass with or without Republican help."

    ----Peter Suderman

    We need to consider the fact that the only reason the Democrats are seeking any Republican support for spending at all is because Biden and the Democratic party's leadership want to hide behind the fig leaf of "bipartisanship" for all this spending come the midterms of November of 2022.

    The biggest battle in Congress right now isn't between the Republicans in the Senate and the White House. The biggest battle is between the White House and the progressive Democrats in the House.

    The reason Biden threatened not to sign the $1.2 trillion infrastructure deal unless the House passed the Senate's $3 trillion reconciliation bill was to put pressure on progressive Democrats in the House, who are balking at the Democrat leadership passing a mere $3 trillion reconciliation bill in the Senate when they could have $6 trillion without a single vote from the Republicans.

    The House Democrats only have a nine vote margin, so if ten House Democrats refuse to vote for the $1.2 trillion infrastructure bill or the $3 trillion reconciliation bill, then it won't pass.

    This is much like the time Trump couldn't get a handful of Republicans to vote to get rid of 90% of ObamaCare--because that's less than 100%. If ten or more House Democrats say they would rather not have a reconciliation bill of $3 trillion if it means they can't have $6 trillion, then Biden and the leadership will be forced to give them $6 trillion.

    Because of budget reconciliation, the only reason Republican votes matter is to give this spending the veneer of bipartisanship. The White House and the Democratic leadership are afraid of what the voters will do to them in November of 2022 if the Democrats are forced to face the voters without any Republican support for all this outrageous spending.

    1. Progressives like AOC from deep blue districts don't care about bipartisanship. She's not about to lose her seat due to a lack of perceived bipartisanship. And the Democrat leadership failing is a necessary step in her rise to a leadership role anyway. She's not about to take the Speaker's chair while Nancy is still in power.

      "WASHINGTON – Rep. Alexandria Ocasio-Cortez, D-N.Y., said the Democratic Party needs new leadership during an interview that aired Wednesday . . . .

      She also said Democrats have failed to create a succession plan for when older leaders like Pelosi and Schumer do step aside.

      https://www.usatoday.com/story/news/politics/2020/12/16/aoc-calls-pelosi-and-schumer-replaced/3932396001/

      I bet AOC could come up with a succession plan in a New York minute! She probably has someone in mind for Speaker already. I bet she's had an idea of who might make an excellent Speaker since she was a little girl.

      Anyway, the Democrats took all the blame for ObamaCare in the midterms of 2010, and it cost them nine seats in the Senate and more than 60 (sixty) seats in the House. Biden and the Democrat leadership don't want to face a Republican House and Republican Senate in 2022. In fact, given Biden's age and mental deterioration, it wouldn't surprise me if Biden didn't retire shortly after the Republicans took both the House and the Senate--if that's what happens.

      And if the Republicans withhold their support for the $1.2 trillion infrastructure bill, and the Democrats follow through with their over the top spending of $3 trillion or $6 trillion on Green New Deal programs and social programs--without any Republican support for any of it--then the Republicans are likely to take both the House and the Senate in 2022.

      1. What you say makes a lot of sense.

  4. Can someone please just get to printing Dollar 2: Electric Boogaloo already?

  5. Whatever the Democrats end up using the reconciliation process to pass will be fiscally responsible and libertarian-friendly. Otherwise, President Biden would veto it since he was the pragmatic libertarian choice for President. I read a few articles from Reason, a predominant libertarian publication, scolding Trump for his bad deficit spending and citing it as a reason he shouldn’t be re-elected in favor of deficit-hawk Joe Biden.

    1. I think electing someone who preached unity over someone wanting people to overthrow a legitimately elected government is probably proving them right.

      1. Definitely! Actually, that’s a side benefit to this whole reconciliation process. Not only will it result in modest, fiscally responsible, deficit-reducing, libertarian-approved government spending, but it will be profoundly unifying as well.

      2. To put another way, while some may argue whether actions speak louder than words, it doesn’t matter in President Biden’s case because, as awesome as he is with words, his actions are even better!

        1. His words are so powerful that they have to be whispered, lest they cause a tear in the space-time continuum.

      3. Biden has preached unity, but he doesn't practice unity. That's not an improvement.

        1. He does that a lot, which is why he can't receive Communion anymore.

      4. Failed at unity. Nobody advocated for an overthrow. You are delusional leftie shit.

      5. Who wanted to overthrow the government? Pelosi with HR1?

    2. At any rate, regardless of how outrageous and irresponsible this spending is, we can anticipate the Biden administration tweeting about it in a serious and responsible way--and isn't that what's really important?

      1. While I disagree with you that President Biden would ever allow a spending plan any reasonable person could describe as “outrageous” or “irresponsible”, I agree in the supreme importance of preaching vaguely positive messages. Unlike Trump, Biden has the courage to clearly express inspiring messages despite a hostile media.

  6. Filibuster has to go. Let the ruling party rule. As it stands we just lurch from one thing to the next. There's no sense- give the people what they voted for.

    1. ^this guy will be the first to cry about no filibuster when Republicans are "ruling."

    2. Remind me agian of the time one party rule benefited anybody other than the ruling party.

      1. I see what you’re saying but this case is definitely an exception. What benefits the “ruling party” in this case, benefits everyone, especially libertarians. They have amazing positions on immigration, tariffs, and especially the budget! I arrived at conclusion from reading Reason during the run-up to the 2020 election.

      2. Democracy is about telling the 49% to fuck off. Democracy does not care about the minority.

      3. There is no democracy in the world that is one party rule. Most are made up of many parties that have to negotiate to have power.

        One party rule is for communists and socialist.

    3. It's going nowhere leftie shit. You lost again.

    4. Yes, because tyranny by a slim majority is a desirable way to govern.

      Fuck off.

  7. As it stands now the Republicans have an advantage. The filibuster is removed for court appointments and this served them well over the last four years. Reconciliation allows them to focus on key priorities. The Republicans appear to have little interest in area of legislation out side of court appointments and budget. Democrats on the other hand want broader legislation and will continue to find the filibuster a roadblock. Thus more incentive for the Democrats to change the process.

  8. It's SUPPOSE to be hard to pass legislation!
    And it's SUPPOSE to be impossible to pass Commie-Legislation...

    Talk about a Power-Mad left.
    The Power to STEAL =/= Wealth. A theory only criminals have and a theory practically every single Democrat believes in.

  9. "It is an effort to claim governing legitimacy without compromise or consensus."

    Um, so what? The filibuster is not part of the Constitution. It is not easy, these days, for a party to win control of the House, the Senate, and the presidency at the same time. The majority of U.S. population, and U.S. wealth, is concentrated in the coastal blue states, who are systematically unrepresented in both the Senate and the Electoral College. In 1790, the largest state, Virginia, had a total population of 740,000, compared to 60,000 for the smallest, Delaware, about 12 times as many. Today, California's population is 70 times larger than Wyoming's. James Madison--you know, the James Madison--thought equal representation of the states in the Senate was a bad idea. You know what? He was right.

    The filibuster allows "moderates" in both parties to hide behind the skirts of the other party, so that they can avoid dealing with "the crazies". Why is that a good thing?

    Reasonettes oppose tampering with the filibuster not for any serious reason, but simply because they don't want the Democrats to pass the kind of legislation the Democrats want to pass. When the Constitution doesn't require a super majority, there is no reason to add this requirement. We don't require the Supreme Court to make its decisions via "consensus". Both liberals and conservatives feel no compunction about making sweeping decisions by a 5-4 margin. "Curious" that Reason is all hot for a super majority, but only when it discommodes the liberals.

    1. Vanneman must not be aware that Reason demonized and lied about Trump and the GOP for 4 years, and went ALL IN for corrupt and demented Joe Biden and left winger Harris.

    2. It's so hard to do the democrats had to illegally change voting laws in several swing states and then cram through massive amounts of fraudulent ballots with no chain of custody documentation.

  10. Several days after January's special election in GA (that gave the Dems 50 Senators), I predicted (in comments on this website) that Democrats would abuse the budget reconciliation process to try enacting legislation they couldn't obtain 60 votes to achieve (and that Joe Manchin was/is the most powerful Senator in DC because he publicly opposed/es eliminating the filibuster).

    Looks like Suderman has finally figured this out.

  11. They'll cram through some bullshit on reconciliation. That's how fraudulent treasonous democrats work. Best bet is to remove lefties and progtards from power permanently. Break the back of big tech and force amoral billionaires out of power. Arrest rioters and looters with long prison sentences. End fraudulent mail in balloting. Remove incentives to not work. Pass balanced budget and term limit amendments. The rest who won't comply should be reeducated.

  12. My dream alternative to a true libertarian government:
    1. A greatly diminished executive branch.
    2. A 2/3 requirement in the House and Senate for all legislation.
    3. No representation without taxation, i.e. no franchise for those who don't pay net taxes.

    1. I'd add on what Texas does in that their legislature is not a full-time body, they meet for a few months and then fuck off for a while.

      If you pay them appropriately this means they have to have a real job for most of the year which is good for a lot of reasons. It also means they don't feel like they have to constantly be legislating to justify why their job exists, if you've got something really important to do surely a couple months is sufficient.

  13. We need a constitutional amendment requiring a two thirds majority to pass any new legislation - and only a simple majority to repeal legislation.

  14. Unsavoury tactics against an opponent that runs out the clock on a SCOTUS nominee for 11 months and then pushes another one through in under 1?

    Yeah. I'll file that one under "who gives a rat's ass?".

  15. How do you reopen a bill after it's been passed and enacted into law? Is the law revoked?

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  17. Filibuster itself is a power grab!

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