The Perils of Making Reconciliation a Filibuster Workaround
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The word “reconciliation” has, until now, had heart-warming connotations. It evokes estranged friends rekindling their association, or warring nations laying down arms in a spirit of forgiveness and fellowship.
If Senate Democrats get their way, however, “reconciliation” may come to mean the opposite: “Republicans can complain all they want, but they better reconcile themselves to getting steamrolled by 51 Democratic votes.” That’s because budget reconciliation is rapidly evolving into the preferred tool for working around the Senate’s much-lamented supermajority requirement and enabling the majority party to have its way.
For those who don’t usually sweat the details of the federal budget process, a brief refresher on budget reconciliation is in order. Each year, the House and Senate Budget Committees work to pass a budget resolution. This document does not legally authorize spending (authorizations do that), and it does not cause expenditures (appropriations do that); it is an elaborate plan through which Congress charts a course for the nation’s fiscal future. It does, however, have some direct legal effects, including giving instructions for a budget-reconciliation bill, in which Congress will “reconcile” its tax and spending commitments to the plan laid out in the budget. Crucially, as a matter of law, budget-reconciliation bills have a required structure for floor debate and cannot be blocked by Senate filibusters.
In recent years, reconciliation has already featured prominently in the passage of important legislation that would otherwise have had no path forward in the tightly contested Senate. President Donald Trump’s signature tax-reform law was a reconciliation bill; so was President Joe Biden’s $2 trillion COVID-relief bill, which the Senate passed last month, 50–49, without any Republican support.
There has generally been an assumption that reconciliation can be used just once a year. Though for each budget there can technically be three reconciliation bills — one for spending, one for revenues, and one for the debt limit — in practice those three bills have tended to get rolled together into one large package. But this week, the Senate’s parliamentarian, Elizabeth McDonough, informed Majority Leader Chuck Schumer that a revised budget resolution can contain revised budget-reconciliation instructions. If McDonough finalizes her judgment as an official ruling, it will mean that Democrats can repeat the process they already used for COVID relief to pass another massive spending bill: the American Jobs Plan, which is sometimes called an “infrastructure bill” but actually contains a laundry list of non-infrastructure Democratic priorities. Indeed, under McDonough’s interpretation of the rules, they could in theory use reconciliation to bypass the filibuster as many times as they could revise their budget resolution, although in practice the revision process is quite labor-intensive.
All this is happening against the backdrop of an institution frustrated by its self-imposed supermajority requirements. Under the modern version of the filibuster, in place since the 1980s, very little ordinary legislation can pass the Senate without the support of 60 senators. That limitation has frequently caused the majority party consternation over the years, but with Democrats holding the narrowest of majorities in the upper chamber, progressive fury has reached a fever pitch. Repeated reconciliation now seems to offer at least a partial filibuster workaround, allowing a bare majority to assert its will to a larger degree.
All this is pretty far from the original vision of budget reconciliation, which its authors imagined as a tool for fiscal conservatives. When they were created by the Congressional Budget Act of 1974, the House and Senate Budget Committees were both firmly committed to fiscal restraint. On their initiative, reconciliation was successfully used for the first time in 1980 in a valiant (though unsuccessful) attempt to balance the budget by cutting $8 billion in spending.
During the Reagan administration, budget reconciliation was used somewhat more aggressively to package spending cuts along with changes more or less unrelated to taxing or spending. As a result, the Senate moved to exclude policy changes that would have no budgetary impact from budget-reconciliation bills, adopting the so-called Byrd Rule provisionally in 1985 and then through legislation in 1990.
That limitation does meaningfully restrict reconciliation, but it hardly means reconciliation is only relevant to budgetary matters. The historic welfare-reform bill of 1996 was passed using reconciliation, as were amendments to the Affordable Care Act in 2010 and an (obviously vetoed) repeal of the ACA in 2016. As mentioned, in 2017 Republicans used reconciliation to pass the Tax Cuts and Jobs Act, which is a massive rewrite of federal tax laws but which also included important and less-obviously tax-related provisions (e.g., the removal of the ACA’s health-insurance mandate and the opening of the Arctic National Wildlife Refuge to oil and gas drilling).
It remains to be seen how far Democrats will try to stretch the reconciliation process. McDonough’s Byrd Rule decisions are, strictly speaking, advisory; she is a career official serving at the pleasure of the Senate’s leadership. When, in February, she ruled that the Byrd Rule prohibited increasing the minimum wage to $15 through reconciliation, some Democrats immediately called for her firing. A parliamentarian was fired in 2001, another year that featured 50 Democrats and 50 Republicans trying to figure out how to make the Senate operate. Firing McDonough and installing some more-pliable replacement would no doubt be met with howls of Republican protest — but it’s not inconceivable to imagine Democrats thinking that they are bound to encounter outraged resistance whatever they do, and so they may as well do what gets them their way.
If Democrats don’t go that far — and they probably won’t — it will be because they have their own reasons, just as they do for not abolishing the filibuster entirely. A party that seizes the imperative of majority control must make use of it, and that is likely to come with some serious difficulties. As long as the Senate majority is struggling with its recalcitrant opposition, it can blame the other party for inaction. If the majority decides to legislate on every issue without the other side’s cooperation, it will expose internal fissures in its ranks as never before. Just how much gun control does Senator Manchin want to pass? Right now, the answer can remain pleasantly hazy. With the filibuster removed or with repeated reconciliation turned into a vessel for de facto majority rule on every issue, it would have to be clearly answered. (It is no accident that Manchin is signaling opposition to the precedent that would be set by blowing up the Byrd Rule.)
Using repeated reconciliation more sparingly while keeping the Byrd Rule basically intact is thus likely to hold great appeal for many Democrats as a compromise. They can do a lot with the tool — most of all, in the era of deficits-be-damned, they can spend a lot, which is unlikely to create too many internal divisions. In the long term, leaving the filibuster in place would allow them to avoid getting steamrolled by Republicans whenever the majority next changes hands. And in the short term, it would reduce the likelihood of the GOP’s adopting scorched-earth tactics that would paralyze the chamber. Of course, Republicans might well make use of repeated reconciliation themselves once they retake the chamber. But Democrats might hope that the new spending programs they pass now will be too politically popular for Republicans to roll back later.
On one level, all of this feels very logical, a natural evolution. As both parties have come to doubt the value of bipartisanship, ironclad supermajority requirements have become unsustainable. Something has to give, and now, something has, without a dramatic restructuring of the chamber. That was easy!
On another level, if we stop to ask if this trend is good for policy-making or rational deliberation or the general health of our constitutional system, we may start to feel a little queasy. If the budget process becomes a means to enact partisan wish lists, it will no longer function as a means of sorting through our national priorities or facing up to the mountain of debt we are accumulating. If we count on a few big reconciliation bills to do all of Congress’s work, members will be deprived of opportunities to seek out strange bedfellows to move other priorities. Those problems are present already, but this newest development won’t help.
And meanwhile, the reconciliation our country really needs, in which our two political parties find some way to break the cycle of mutual recrimination and enmity, is nowhere on the horizon.
