Pay close attention to the language of Senate Minority Leader Mitch McConnell, R-Ky., tonight.
He’s relenting on his demand that Democrats promise they won’t ditch the filibuster in a power-sharing agreement in a 50-50 Senate. McConnell’s willing to deal now – because he knows Democrats – and Republicans, for that matter – lack the votes to eliminate the filibuster.
So, McConnell is ready to deal.
We knew last week it was unlikely that there were ever the votes to get rid of the filibuster. But failing to eliminate the filibuster simply presents Senate Majority Leader Chuck Schumer (D-NY) with a problem. The left-wing of the Democrat Party will come for Schumer when the Senate fails to pass big-ticket items important to progressives, ranging from climate change to DC statehood. Schumer could only do that by extinguishing the filibuster. But he lacks the votes to do so.
In other words, Schumer has the responsibility, but none of the power.
The converse is true for McConnell: he has the power in a 50-50 Senate, but none of the responsibility. Without question, McConnell may emerge as the most powerful Minority Leader in Senate history.
Now, I’m going to give you a vocabulary term: "Budget Reconciliation." You’re going to hear a lot about that over the next couple of weeks. Schumer and liberals may not be able to advance much of their legislative agenda due to filibusters. But, they still have one annual option to advance certain legislation with fiscal impacts: It’s called "Budget Reconciliation." This is the same gambit Democrats used in 2010 to pass the final version of Obamacare when they lacked the votes to overcome a filibuster. Republicans also used the same tactic to repeal and replace Obamacare – but could never come up with enough votes.
And, it has been said in recent days that Democrats are increasingly looking to budget reconciliation to potentially pass the next COVID package.
Here's how it works:
Budget reconciliation essentially robs the Senate of its two major features: unlimited debate and an unlimited amendment process. In other words, no filibuster. But, budget reconciliation can only be used on fiscal measures, such as tax policy. Obamacare qualified because it dealt with all sorts of taxation issues. Guns? Doubtful. Immigration? That’s pushing it, although there could be tax and budget issues for new citizens. Statehood for DC? Maybe an outside chance because you are dealing with taxation and representation issues for 700,000 Americans. But that could be a stretch.
It depends on how creative they can get.
This is more art than science.
And, you can pass something with only 51 votes in the Senate.
In order to have a budget reconciliation "vehicle" to use for legislation, the House and Senate must first adopt a budget. In fact, they could do this as a shell. This process probably takes a few weeks, even if you are moving at an accelerated pace.
You only get one budget reconciliation package a year – providing you can adopt a budget.
Now, as we said, there is an issue of policy needing to be fiscal in nature to qualify for budget reconciliation. In other words, you can’t put a bill which deals with federal lands policy in budget reconciliation. And, it must be "budget neutral." The measure cannot add to the deficit.
Budget reconciliation has more consequences for the Senate than the House. Debate time is capped at 20 hours and restricts amendments. Such strictures for debate and amendments aren’t rare in the House. But budget reconciliation curbs Senate filibusters. It takes 60 votes to hurdle a filibuster – often twice – on garden variety bills. Senators can block an effort to summon a piece of legislation to the floor and again to halt debate. But the elite nature of a budget reconciliation package prohibits senators from gumming up the works at either stage. It takes a mere simple majority to approve amendments and adopt the final product. In fact, senators may only make points of order (suggesting that the Senate isn’t operating properly) to certain amendments or other provisions in the package and then vote to "waive the Budget Act." But waiving the Budget act requires a supermajority of 60 votes.
It’s one thing to roll out reconciliation for standard-issue budgets. But it’s a high parliamentary art form to use reconciliation for other controversial policy goals. That’s where lawmakers take advantage of reconciliation’s special rules – and sidestep a filibuster which otherwise would have torched a stubborn piece of legislation.
But caveat emptor. There is an inherent landmine which comes with reconciliation. It’s called the "Byrd Rule," the namesake of the legendary, late Senate Majority Leader Robert Byrd (D-WV). The practical impact of the Byrd rule is that "extraneous" legislative priorities can’t fall under reconciliation. Some examples include whether a provision cuts or raises taxes or revenues, adds to the deficit or isn’t related to budgetary matters. Senators may make a point of order to flag a non-compliant provision. As mentioned earlier, it takes 60 votes to waive the Budget Act and to overcome the Byrd Rule.
That’s why using reconciliation can be a parliamentary hornet’s nest.
So this may be the next tactic to approve a COVID bill. But first, the House and Senate must adopt budgets. And that will take some time.