How an arcane budget provision could let Democrats advance their agenda

A novel interpretation of an arcane parliamentary procedure has presented congressional Democrats with an unexpected – and tantalizing – new opportunity to advance some of their most ambitious legislative goals despite their slim majorities and fierce Republican opposition.

This week, the Senate parliamentarian determined that Democrats can employ a fast-track process known as budget reconciliation more times than previously understood, potentially allowing them to pass multiple legislative packages without any Republican support before next year’s midterm elections – if they can keep their own members in line.

Democrats insist they have yet to make a decision about whether – or how – to use the newly expanded set of procedural keys, unlocking additional opportunities to circumvent Republicans and the Senate filibuster, which requires 60 votes to overcome.

Yet the decision marks a significant victory for Democrats and the new administration as they attempt to push an expansive agenda through an evenly divided Senate chamber.

In an interview on MSNBC this week, Bernie Sanders, chair of the powerful Senate budget committee, said the ruling significantly widens the path to passing Joe Biden’s sprawling infrastructure agenda, which includes a massive public-works plan that he announced last week as well as a forthcoming proposal focused on reducing economic inequality. It also gives Democrats “a little bit more opportunity” to achieve a wide range of other progressive ambitions.

Laying out a hypothetical strategy, he said the next reconciliation package could include the first piece of Biden’s infrastructure plan, while future attempts might expand health coverage, provide paid family leave and support tuition-free public college.

Now, Sanders said, “we don’t have to push everything into one bill”.

With Republicans vowing to obstruct much of Biden’s emerging infrastructure plan and a lack of support for eliminating the filibuster, the Senate majority leader, Chuck Schumer, asked the Senate parliamentarian, Elizabeth MacDonough, the non-partisan arbiter of the chamber’s rules, whether the reconciliation process could be used more than once in a fiscal year.

They argued that the 47-year-old budget provision allowed Democrats to revise the budget blueprint they used to pass Biden’s $1.9tn Covid relief bill with new instructions that would allow them to pass unrelated legislation, such as the president’s infrastructure plan.

According to Schumer’s office, she agreed.

In a statement, Justin Goodman, a spokesman for Schumer, called her opinion an “important step forward” though he cautioned that “some parameters” still needed to be worked out. “This key pathway is available to Democrats if needed,” he concluded, while stressing that no commitment had been made to use the new tool.

Democrats already had two more chances at reconciliation before the end of this congress in January 2023, by using budget blueprints for the next two fiscal years. But the decision by MacDonough allows them to use the tactic two more times this year, and perhaps as many times next year.

Democrats’ pursuit of this legislative gambit is a reflection of both their fragile majority and the “intensity of political polarization” in America, said Ross Baker, a professor of American politics at Rutgers University and author of Is Bipartisanship Dead?

“It is a situation very much like calling in the referee or line judge in a sports event and having her deliver the penalty kick or run the ball for a touchdown to break a tie,” he said in an email. The Senate parliamentarian is being called up to resolve “issues that elected officials cannot or will not solve”.

Reconciliation, established under the Congressional Budget and Impoundment Control Act of 1974, was initially designed to promote deficit reduction by requiring lawmakers to “reconcile” federal spending and revenue legislation with their budgetary goals.

But as a result of the filibuster protection, majorities have used reconciliation to muscle through major pieces of legislation, including to overhaul welfare programs under Bill Clinton, amend the Affordable Care Act (ACA) under Barack Obama and enact tax cuts under Donald Trump. Republicans also twice used reconciliation to repeal the ACA, but Obama vetoed the first attempt and the second endeavor failed to pass the Senate.

While the opinion offers Democrats new legislative avenues, it hardly resolves all of their challenges.

“It’s always great to have options, but nothing here guarantees success,” said Jim Manley, who served as an aide to Harry Reid, the former Democratic Senate majority leader.

Reconciliation is a cumbersome and complex process, fraught with potential obstacles. It is subject to strict rules requiring that all provisions relate directly to the federal budget, which means the party won’t be able to pass all of their policy objectives through this procedure. Democrats were reminded of these constraints earlier this year when a measure that would have raised the federal minimum wage to $15 an hour was stripped from the coronavirus relief bill after it was deemed inadmissible under Senate rules.

Another potential drawback is the so-called “vote-a-rama”, an hours-long voting session typically weaponized by the minority to force a series of politically difficult votes that can be used as grist for future campaign attacks. However, these showdowns have become less of a deterrent, as lawmakers increasingly view the exercise as a cost of enacting consequential legislation.

Perhaps the most daunting task will be holding their fractious 50-member caucus together. With no room for error, a single objection could derail the entire process.

​In a Washington Post op-ed this week, the West Virginia senator Joe Manchin, a conservative Democrat, warned that relying on the maneuver to ram through the majority’s agenda without bipartisan support would set a “new and dangerous precedent​”.

“Instead of fixating on eliminating the filibuster or shortcutting the legislative process through budget reconciliation, it is time we do our jobs,” he wrote.

As with the filibuster, either party can take advantage of a rule change when they wield power.

There is no precedent for using the budget reconciliation process in this way and doing so could have far-reaching consequences, Manley said.

If Democrats attempt this maneuver now, Republicans could utilize the process to ram through new tax cuts the next time they control Congress and the White House, he said. And it may embolden them to try to stretch the rules even further.

“There are no free shots in the Senate,” he said.