In this commentary, Richard A. Arenberg from Brown University says if the Republicans win back control of the U.S. Senate in Tuesday’s elections, a new battle over filibusters is likely to break out, and a controversial tactic using reconciliation bills could come into play.
If Republicans become the majority in the 114th Congress (as Election Lab’s latest forecast says is a 93% probability), Democrats are likely to rediscover the usefulness to the minority of the Senate’s filibuster rules. The GOP majority, anxious to put a laundry list of legislation on the president’s desk, is likely to turn to a feature of the Budget Act called “reconciliation” in an effort to circumvent Democratic filibusters.
The 1974 Budget Act, passed in the wake of presidential excesses in the Watergate era, was, at the time, considered a “good government,” bipartisan tool for Congress to get a reasonable hold on the federal budget. As a part of the law, reconciliation was included as an optional process.
Such a reconciliation bill could be created by “reconciliation instructions” that might be included in the budget resolution Congress was required to adopt each year. Both budget resolutions and reconciliation bills were to be fast-track measures (meaning limited debate and amendment). The reconciliation bill was intended as a way for Congress, at the end of the year, to tweak spending and/or revenue legislation that had been passed earlier that year to take account of economic developments and bring the effects into alignment with the budget guidelines which Congress had adopted. The fast-track feature of the process meant that the Senate’s normal safeguards for the minority would not apply. Since debate would be limited, supermajorities to end debate would be unnecessary. Senators agreed to this approach because the scope of reconciliation was expected to be so narrowly limited.
Reconciliation bills were not intended to include comprehensive, programmatic legislation. Abuse led to the adoption of the Senate’s “Byrd rule” by which non-budgetary items can be stripped from reconciliation bills.
In its early years the budget process in the Senate, under the leadership of Budget Committee Chairman Ed Muskie (D-ME) and Ranking Member Henry Bellmon (R-OK), was bipartisan. The reconciliation process proved generally unnecessary until 1981 when it was used to pass the Reagan budget. As extreme partisan polarization has increased virtually year by year since the 1980’s, the budget process with its fast-track features has become more partisan. In fact, the budget process has become the “poster-child” for partisanship in the Senate. Since the fast-track sets time limits on debate, filibusters are impossible and both reconciliation bills and the budget resolution itself can be passed by simple majorities. Frequently, these measures are adopted by party-line voting.
The resultant exception in the Senate’s normal rules has proven large enough to allow major legislation like welfare reform and the massive Bush tax cuts.
To understand where the next session is likely headed, we need to descend into the parliamentary weeds a bit.
In 1996, the budget resolution brought to the Senate floor by the Republican majority provided for three reconciliation bills, dealing with welfare, Medicare, and tax cuts. Controversy at the time centered on the tax cuts. Democrats questioned whether there was any precedent for using reconciliation in a way which instead of reducing the deficit, would worsen it. Democratic Leader Tom Daschle raised a point of order challenging the procedure. The Chair (on the advice of then-Parliamentarian Robert Dove) ruled that the resolution was appropriate and that the point of order was not sustained. On appeal, the Senate on a straight party-line 53-47 let the ruling stand.
Senator Daschle then raised a parliamentary inquiry, “Is it the opinion of the Chair that it is in order for a budget resolution to call for the creation of 10 different reconciliation bills in one fiscal year?”
The presiding officer (again on the advice of the parliamentarian) replied, “There is no number limiting the number of reconciliation bills.”
Daschle vigorously objected, “This is, in my view, a ludicrous abuse of power. If this ruling is upheld we will be giving more and more power to the Budget Committee, power cloaked in the fast-track protection of the budget process itself. We will be granting immense power to the majority. If this precedent is pushed to its logical conclusion, I suspect there will come a day when all legislation will be done through reconciliation.”
Parliamentarian Dove’s advice was a reversal of the position taken by his predecessor, Alan Frumin (who twice succeeded Dove as parliamentarian) that had limited the use of reconciliation. On Frumin’s advice in 1993-94, Democrats had backed away from an effort to use the reconciliation process to pass the Clinton health reform bill.
By 2001, Dove had changed his mind. There was talk of a budget resolution instructing committees to produce as many as five reconciliation bills, including three separate tax cuts. Dove told Republican leaders and other inquiring senators that that the budget act referred to a reconciliation bill in the singular and therefore any budget resolution could only provide for reconciliation bills for each of the three purposes mentioned in the statute. That is, a budget resolution could only provide for bills to reconcile (1) revenues and/or (2) outlays and/or (3) public debt, but only any of the three once each. This ruling frustrated and enraged the GOP leadership and at least in part led to the parliamentarian being fired by then-Majority Leader Trent Lott.
Over the nearly 14 years since Dove’s change of heart, the Senate has used reconciliation five times. The position taken by the parliamentarian’s office over this period has been that a maximum of three reconciliation bills may be created by a budget resolution. That is, no more than one on revenues, one on outlays, and one on the national debt are permitted. The Senate would be limited to one or two such bills if two or more of the categories were combined in a reconciliation bill.
This brings us back to the next Congress with its likely Republican majority. A stack of legislative ideas has built up over the Republican’s eight year exile. Republican leader Mitch McConnell has already signaled their intention to make vigorous use of the reconciliation process to get things passed. Republicans have complained bitterly about President Obama’s use of executive orders and executive branch regulations. Their agenda is likely to include efforts to roll back both, including making approval of pipelines easier and opening more public lands to oil drilling. There will no doubt be an effort to curtail if not repeal Obamacare. Republicans will seek to balance the federal budget and have long seen federal entitlements like Medicare as targets. The GOP leadership, in an effort to circumvent Democratic filibusters will no doubt point to the 1996 precedent and demand the right to include multiple reconciliation instructions in the budget resolution, all subject to only a simple majority.
The reconciliation process with its potential for abuse threatens the Senate’s unique balance of majority rights and minority protections. Critical decisions about what can and cannot be included in reconciliation will fall into the lap of Parliamentarian Elizabeth MacDonough. This is a prospect that no Senate parliamentarian relishes. While these decisions may seem obscure, they could well have huge public policy impacts. As the retiring Dean of the House of Representatives, John Dingell once put it, ““I’ll let you write the substance…you let me write the procedure, and I’ll screw you every time.”
Richard A. Arenberg ([email protected]), who worked for Senators Paul Tsongas, Carl Levin and Majority Leader George Mitchell for 34 years, is co-author of “Defending the Filibuster: The Soul of the Senate.” A new version discussing the use “nuclear option” with a foreword by Olympia Snowe will be published in December . He is an adjunct professor of public policy and political science at Brown University.
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