Budget reconciliation? Ex-Senate parliamentarian explains process as Dems embrace tool to push through bill

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There’s been a lot of buzz on Capitol Hill lately around the term "budget reconciliation." It’s how the Senate passed another COVID-19 stimulus relief in March, this one worth $1.9 trillion. Now, it’s at the forefront again as Senate Majority Leader Chuck Schumer, D-N.Y., and his caucus mull new ways to pass a developing infrastructure package amid a gridlocked upper chamber. 

Conservatives seem reluctant to support the package, as the Senate Republican Conference labeled the proposed $2.7 trillion bill a "wish list of non-infrastructure spending on failed Obama policies" and a "dog’s breakfast of slush funds for Democrats’ pet projects." This almost certainly paves the way for Democrats to pursue budget reconciliation round two. 

BUDGET RECONCILIATION: WHAT TO KNOW ABOUT PROCESS USED IN COVID AID FIGHT

Most bills must garner 60 "yea" votes in order to be passed in the Senate, but in special cases such as the reconciliation process, only 51 are required. With Vice President Kamala Harris’ swing vote, this allows the majority to put a piece of legislation on the president’s desk without an ounce of minority consent. 

But, in order to work, the process must first be deemed appropriate by the Senate parliamentarian, Elizabeth MacDonough. Her initial interpretation of the rules has given Schumer’s staff hope to move forward on the infrastructure bill, but the details are still fuzzy. Even the second-ranking Democrat, Sen. Dick Durbin of Illinois, admitted that he has yet to get a firm grasp on the ruling.   

What exactly is this powerful tool Democrats are wielding in the new Congress, and how does the umpire of the Senate make her decision? Fox News asked former parliamentarian Alan Frumin, who called balls and strikes in the Senate from 2001-2012.

In laymen’s terms, what is reconciliation legislation?

Reconciliation legislation is legislation that directly affects the federal government's spending or taxing.

Then what exactly is budget reconciliation?

Budget reconciliation is a process authorized by the Congressional Budget Act of 1974. That act (1) requires the consideration of one budget resolution for a given fiscal year (in section 301), and (2) authorizes the consideration of a revised budget resolution for a fiscal year (in section 304). Each of these budget resolutions may contain reconciliation instructions, which result in the consideration of a reconciliation bill. All these budget resolutions and reconciliation bills are subject to a limitation of debate, meaning they cannot be filibustered.

What types of legislation can’t be passed through this process? Could the majority restrict personal firearm access?

The process is designed to make changes in the federal government's taxing and spending laws. It is not designed to change laws that are not primarily budgetary. It is not meant to address Senate rules or to regulate the private behavior of citizens, although it arguably could impose taxes on firearm possession and/or transactions.

Majority Leader Chuck Schumer, D-N.Y., has expressed confidence that Senate Democrats will be able to use this method to pass a more than $2 trillion infrastructure bill.  What did Elizabeth MacDonough signal last week that gave him such hope? 

Elizabeth MacDonough read the plain language of section 304 of the Congressional Budget Act, which clearly authorizes the consideration of a revised budget resolution after the adoption of the required budget resolution for a particular fiscal year. The Budget Act places no restriction on the inclusion of reconciliation instructions in any budget resolution.

The Senate already passed Biden’s $1.9 trillion COVID-19 relief package through the budget reconciliation process. How many more times can the majority use this to pass legislation? 

I don't know what the Senate parliamentarian will advise on this going forward, but I can see a very legitimate reading of the language of the Budget Act providing for five more times (after the COVID-19 act) between now and the end of 2022.

Is the procedural maneuver really as "unprecedented" as some are saying? 

I don't think this procedural maneuver is really as unprecedented as some are labeling it.  

Why was the $15 minimum wage proposal shot down in the last budget reconciliation deal? 

The $15 minimum wage proposal would directly affect the relationship between private employers and their employees; it would not directly affect the federal government's spending or taxing. It would affect tax revenues as a secondary effect, not a primary effect.

Can the minority party do anything to block or fight back against the process? 

Not that I can think of.

Can you recall a decision you made during your time in the Senate that resembled what is occurring? 

I decided that any particular budget resolution could only generate one round of reconciliation bills, and that the three categories of reconcilable matters – spending, revenues, the debt limit – could only be addressed in one reconciliation bill/round of reconciliation. As a result of imposing this limitation on the number of reconciliation bills permitted from any particular budget resolution, we had advised that an additional round of reconciliation could be generated by a revised budget resolution under section 304 of the Budget Act. Apparently, nobody remembered that advice.