Democrats Are Avoiding Open Debate With Their Budget Reconciliation Scheme

(Editor’s Note: This piece first appears in the Daily Caller on April 15, 2021.)

The Democratic Party won control of Congress and the presidency in last year’s elections. And its supporters expect President Joe Biden and House and Senate Democrats to take advantage of unified Democratic control of government to advance long-standing policy priorities like tackling climate change and investing in the nation’s deteriorating infrastructure. But the Democratic agenda has stalled on Capitol Hill.

Democrats blame Senate Republicans for blocking their agenda. This is because senators can delay up-or-down votes on legislation by filibustering it. Democrats control the evenly divided Senate thanks to Vice President Kamala Harris’s tie-breaking vote. That means that they are well short of the three-fifths majority needed to invoke cloture (i.e., end a filibuster) under the Senate’s rules. The Democrats’ effort to pass a second reconciliation bill this year also suggests that they do not have the votes needed to eliminate the filibuster. 

Democrats are therefore looking once again to the budget reconciliation process to overcome Republican opposition to their agenda in the Senate. Reconciliation is a unique fast-track process that protects budget-related legislation from filibusters. Congress created it in 1974 to make it easier to pass budgetary legislation. It is a mechanism to reconcile the fiscal effects of permanent law with the annual budget resolution.

Congress adopted special rules to facilitate the reconciliation process. Those rules do so by prohibiting senators from offering unrelated amendments to reconciliation bills and limiting total debate time on them to no more than twenty hours. Democrats and Republicans alike have taken advantage of those rules in the past to circumvent filibusters and advance their agendas without first invoking cloture.

What makes the Democrats’ present gambit notable is that Congress has already passed a reconciliation bill this year. Congress can consider one reconciliation bill for each of the budget resolution’s aggregate categories (i.e., spending, revenue, debt). The House and Senate may consider all three reconciliation bills separately or together as one omnibus bill. Congress passed the American Rescue Plan Act of 2021 (Public Law 117-2) according to instructions in the fiscal year 2021 budget resolution (S. Con. Res. 5), authorizing the use of reconciliation.

Democrats must either pass a new budget (for the fiscal year 2022) or revise the budget Congress already approved (for the fiscal year 2021) before they can use the reconciliation process again this year to advance their agenda. Schumer and other leading Democrats have coalesced behind revising the fiscal year 2021 budget even though the Senate has never before done so to authorize a new reconciliation process. Their approach, if successful, preserves the fiscal year 2022 budget resolution (and its accompanying reconciliation bill) for Democrats to address any issues that may arise before next year’s mid-term elections.

It is not unprecedented for Congress to consider more than one budget in a single fiscal year. The 1974 law that created the reconciliation process initially required Congress to consider two budgets each year instead of one. The first budget — due by May 15 each year — was advisory in nature. It set budgetary targets for revenue, spending, and debt that the House and Senate would hit in their subsequent legislative activity. Unlike the first budget, the second budget — due by Sept. 15 each year — was not advisory in nature. The end-of-the-fiscal-year deadline allowed the House and Senate to compare the first budget’s aggregate targets with the actual levels calculated for each category at the end of the fiscal year and authorize a unique expedited process to reconcile the levels whenever they were not aligned. The law required Congress to complete its consideration of reconciliation bills by Sept. 25, just ten days after the second budget’s deadline.

Congress consistently complied with the budget law’s two-budget requirement until the early 1980s. From the fiscal year 1983 to 1986, Congress included language in the first budget each year that stipulated that it also served as the second budget. And Congress eliminated the two-budget requirement altogether in 1985 when it passed the Balanced Budget and Emergency Deficit Control Act (Public Law 99-177). In that law, Congress eliminated the second budget requirement and transferred the reconciliation process to the first budget. Congress also moved the deadline for action on reconciliation bills from Sept. 25 to June 15.

Democrats can’t authorize a new reconciliation bill by passing a second budget for the fiscal year 2021. But they can achieve the same outcome by passing a resolution that revises the fiscal year 2021 budget. Specifically, section 304 of the 1974 budget law stipulates, “[at] any time after the first concurrent resolution on the budget for a fiscal year has been agreed to…and before the end of such fiscal year, the two Houses may adopt a concurrent resolution on the budget which revises the concurrent resolution on the budget for such fiscal year most recently agreed to.” Congress added the power to revise the budget to the 1974 law to empower majorities in the House and Senate to change that budget after they adopted it but before the end of the fiscal year in response to unexpected crises or new information that changed their views the budget.

Using section 304 power to authorize a second reconciliation process by changing a budget that Congress has already passed would be unprecedented. Congress has only used its section 304 power on one prior occasion. Specifically, it passed a budget revision (S. Con. Res. 10) in 1977 to accommodate the economic stimulus package that President Jimmy Carter proposed that year.

While it would be unprecedented, Democrats can still use the budget revision power to get around a Republican filibuster and advance their agenda on Capitol Hill. This is because the expedited procedures that regulate Senate debates on budget resolutions also regulate budget revisions. By extension, procedures that regulate the reconciliation process (and its authorization) should also apply.

Congress has never before used its budget revision power to authorize a second reconciliation bill. But it has frequently pushed the envelope in the reconciliation process to advance its agenda in the Senate. Senate majorities abusing the reconciliation process (and firing parliamentarians who stand in their way) is a bipartisan tradition on Capitol Hill. 

Democrats are fully entitled to use reconciliation again this year to advance their agenda on Capitol Hill in the face of Republican opposition. But they must first revise the budget resolution to authorize their effort. They must then comply with the strict rules regulating what kind of provisions reconciliation bills can include.

That Democrats are willing to run this procedural gauntlet instead of allowing an open debate on legislation like an infrastructure bill highlights the Senate dysfunction’s underlying cause. Senators are no longer interested in discussion and deliberation. And they are going to ever-greater lengths to avoid it.