With Senate Democrats seemingly at an impasse about eliminating the legislative filibuster, Senate Majority Leader Chuck Schumer is now weighing other approaches to pass bills that have scant Republican support, including reinterpreting a decades old-rule to give Democrats new opportunities to advance legislation with a simple majority.
Currently, the filibuster means that the 50-person Democratic caucus, if they stick together, need at least 10 Republican votes to successfully advance most legislation. Getting this many votes has proved to be a challenge thus far, forcing Senate Democrats to pass the coronavirus relief package under budget reconciliation, for instance. Using budget reconciliation, lawmakers are able to approve legislation with just the 51 votes Democrats have (including Vice President Kamala Harris as a tiebreaker).
However, the Senate can’t pass an unlimited number of reconciliation bills; typically Congress passes one per year. Given a legislative backlog in 2020, Democrats were on track to do two reconciliation bills in the near term — one addressing the budget of the 2021 fiscal year, and one for the budget of the 2022 fiscal year.
According to a Schumer aide, his team is now trying to make the case that Democrats would be able to pass up to three budget reconciliation bills this year. In arguments to the Senate parliamentarian, an in-house procedural expert, aides are pushing for a third bill by citing an arcane rule that hasn’t been used before.
Per Section 304 of the Congressional Budget Act of 1974, budget resolutions can be revised if they’re updated before the end of the fiscal year that they cover: If Democrats’ argument stands, for instance, they could go back and amend the resolution for the 2021 fiscal year, and include instructions for another reconciliation bill. Any new legislation could theoretically focus on Democratic priorities that the original bill — which contained $1.9 trillion in coronavirus aid — didn’t include.
Whether Democrats are ultimately able to do this is heavily dependent on the parliamentarian, Elizabeth MacDonough, who will determine if such a move is within the confines of Section 304. The parliamentarian is a nonpartisan adviser in the Senate who weighs in on what lawmakers are able to do given the upper chamber’s rules: Previously, she determined that a $15 minimum wage could not be included in the coronavirus relief bill because it did not meet the guidelines for reconciliation, which can only be used to make policy affecting spending and revenue.
Her decision would, once again, be key in determining if Democrats are able to pursue this route — and how much of their agenda they might reasonably accomplish.
Democrats’ efforts to take this potential procedural step underscores the political context they are operating in.
Since Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have been so staunch in their opposition to eliminating the legislative filibuster, that rule seems unlikely to change in the near term, meaning most bills will need 60 votes to pass. To hit that threshold, Democrats will need to convince 10 Republicans to join them on most measures, an outcome that’s become increasingly unlikely for many of the party’s more ambitious bills. (On coronavirus relief, for example, Republicans’ opening bid was roughly a third of what President Joe Biden had proposed.)
By pushing for this procedural option, Democrats seem to be looking for other ways around the 60-vote requirement that don’t involve blowing up the filibuster.
The budget reconciliation request, briefly explained
Budget reconciliation was always going to be a key tool that Senate Democrats relied on in a 50-50 Senate: By using the 2021 fiscal year bill to pass landmark coronavirus relief, they’ve already been able to advance legislation that’s far more generous than what a compromise bill with Republicans would have looked like. When it comes to Democrats’ next priority — infrastructure — and the expansive plans they’ve laid out thus far, Democrats could well do the same.
If they were able to get a third attempt at budget reconciliation, that would mean that Democrats — if they remain united — could push through even more of their priorities with little need for concessions to the GOP, though many bills like voting rights and gun control probably can’t pass through the reconciliation process.
As Vox’s Dylan Scott has previously explained, each budget resolution is able to set up three bills, though lawmakers usually pass them as one large package, meaning they effectively get one shot at using this tool every fiscal year:
The budget resolution can, in theory, set up three separate reconciliation bills: one for taxes, one for spending, and one for the federal debt limit. However, in practice, most reconciliation bills have combined taxes and spending into a single piece of legislation. That’s the reason that, historically, the Senate has usually been limited to passing only one budget reconciliation bill in a given fiscal year.
By making their case, Democrats are hoping to eke out what would basically be two budget reconciliation bills for fiscal year 2021 instead of just one. At this point, they’ve yet to elaborate on what exactly this third reconciliation bill would cover.
Democrats are trying to navigate tight political limitations
Schumer’s decision to make this request is motivated by a desire to keep as many paths open to Democrats as possible, according to an aide. What it also appears to imply is that Democrats need another avenue to pass legislation, since changes to the filibuster appear unlikely.
If Democrats eliminated the legislative filibuster, all bills could then pass with 51 votes, instead of 60, removing the need to rely so heavily on budget reconciliation. But although an increasing number of Democrats appear open to at least modifying how the filibuster works, the caucus doesn’t have the votes it needs to completely eliminate the filibuster, meaning a rules change allowing Democrats to pass legislation with 51 votes doesn’t seem like it will be happening soon.
At this point, lawmakers like Manchin and Sinema have been resolute in their opposition to altering the 60-vote requirement because they argue filibusters allow for important input from the Senate minority. As more Democratic priorities such as gun control and voting rights get stymied in the Senate, it is possible they end up changing their stances once they see Republicans continuing to block such bills.
For now, though, the push for a reinterpretation of Section 304 suggests Democrats are intent on giving themselves other outlets if those in the caucus who are against eliminating the filibuster don’t budge.
How Democrats intend to use reconciliation for infrastructure
Democrats are exploring these possibilities ahead of Biden introducing the next major plank of his economic plan: a massive infrastructure package that could be around $3 trillion.
“I hope it will be the largest infrastructure package in American history,” Rep. Don Beyer (D-VA), the chair of Congress’s Joint Economic Committee, told Vox in a recent interview.
Biden and congressional Democrats see an infrastructure package as the best way to tackle climate change and get the country to net-zero electricity emissions by 2035 — an ambitious target Biden laid out on the campaign trail. Biden’s coming infrastructure plan will also double as a climate plan: calling for installing more electric vehicle charging stations on the nation’s roads, modernizing the electrical grid, and incentivizing more wind and solar projects.
Then, there’s another piece of Biden’s infrastructure plan that will be introduced separately, White House press secretary Jen Psaki confirmed this weekend. The second piece will deal with the care economy, including child care and paid family leave, universal pre-kindergarten, and free community college tuition.
The fact that the Biden White House appears to be breaking the two packages apart could be a signal they think the infrastructure and clean energy proposals have a greater chance of passing through a closely divided Congress and getting support from moderate Democrats than the care economy component. But another reconciliation bill — if the Senate parliamentarian approves it — could give them greater flexibility on passing the latter.
Congressional Democrats and the White House aren’t yet saying whether an infrastructure package could be passed with budget reconciliation, or even whether infrastructure will be put into the fiscal year 2022 package or an amended fiscal year 2021 package. Currently, there is talk on Capitol Hill about working with congressional Republicans to pass a bipartisan surface transportation reauthorization bill to put money toward roads and bridges, and then putting the more ambitious pieces of Biden’s infrastructure plan into a budget reconciliation bill.
Much of that will depend on whether Biden and congressional leadership can actually secure Republican votes on infrastructure, or what the demands are of swing vote Democrats like Manchin, who has said he wants both an “enormous” infrastructure bill financed by raising corporate taxes and a bipartisan bill.
No matter what, Schumer and the Biden White House will want to keep their options open going forward.