Dems toy with sidestepping regular Senate rules to try to pass more legislation

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It’s all about how creatively you can bend the rules.

Take the late Cincinnati Bengals head coach Sam Wyche in the late 1980s. As innovative a head coach as there ever was.

Wyche unveiled the vaunted "no huddle offense." The Bengals would make a play, then race to the new line of scrimmage for the next down. The defense had no idea what was coming. They couldn’t sprint off the field in time for the next snap. The defense couldn’t sub personnel. It was a brilliant tactic by the Bengals and got them to the Super Bowl.

Legendary New York Yankees manager Billy Martin knew baseball’s "pine tar" rule – even if no one else did. Rule 3.02 states that a bat handle "for not more than 18 inches from its end, may be covered or treated with any material or substance to improve the grip. Any such material or substance extends past the 18-inch limitation shall cause the bat to be removed from the game."

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Martin didn’t go to the umpires about this rule until Hall of Famer George Brett of the Kansas City Royals cracked a home run in the ninth inning against the Yankees – his bat lathered in pine tar – in July, 1985. Umpires measured the pine tar on the bat – and promptly ruled Brett out.

Advantage Yankees - although it should be noted that the American League later reinstated Brett’s home run. American League President Bobby Brown decided amount of pine tar on Brett’s bat didn’t seem to help him hit the ball out of Yankee Stadium.

And just like in sports, it helps to know the rules in politics and parliamentary procedure. You can take advantage of the rules like Wyche if you understand how to get around them. You can deploy obscure rules to your favor – like Martin.

Senate Majority Leader Chuck Schumer, D-N.Y., praises his Democratic Caucus at a news conference just after the Senate narrowly approved a $1.9 trillion COVID-19 relief bill, at the Capitol in Washington, Saturday, March 6, 2021. Senate passage sets up final congressional approval by the House next week so lawmakers can send it to President Joe Biden for his signature. (AP Photo/J. Scott Applewhite)

This is why it’s so interesting to find Senate Democrats toying with the idea of sidestepping regular Senate rules again and using the special budget reconciliation process to potentially pass additional big agenda items.

Budget reconciliation is a process where the Senate can skirt a filibuster and pass a bill with a simple majority. To qualify for reconciliation, the bill must be fiscal in nature and can’t contribute to the deficit over a prolonged period. The Senate’s custom of "unlimited debate" doesn’t apply. You don’t need 60 votes to turn off a filibuster – potentially twice on any piece of legislation.

Democrats used the budget reconciliation process to approve the $1.9 trillion COVID package over the winter. They intend to use reconciliation for a $3 trillion infrastructure package later this spring. It’s unclear exactly how Democrats will design the infrastructure measure. But during an appearance on Fox News Sunday, White House spokeswoman Jen Psaki intimated that Democrats may attempt to creatively use Senate rules to pass their infrastructure plan.

"Two separate proposals," said Psaki when asked by Chris Wallace about the makeup of the infrastructure plan. "We’ll work with the Senate and the House to see how it should move forward."

Democrats don’t have the votes to forever alter the Senate filibuster. And they’ve already incinerated one budget reconciliation package for the COVID relief measure. It’s generally understood that lawmakers have the opportunity to use reconciliation twice in a given Congress. More on that in a moment. But now Democrats seem to be channeling their inner Sam Wyche and Billy Martin – perhaps leaning on reconciliation for a third time.

An aide to Senate Majority Leader Chuck Schumer, D-N.Y., says the New York Democrat is mulling the idea of using reconciliation for "additional opportunities" in this Congress.

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The Budget Act of 1974 governs the budget reconciliation process. A Schumer staffer notes there may be some wiggle room to use reconciliation multiple times – thus enabling the Senate to blow past any Republican desire to filibuster potential legislation.

Section 301 of the Budget Act says that a "concurrent resolution on the budget may…include reconciliation directives." Section 304 says that, before the end of a fiscal year "the two Houses may adopt a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to."

In other words, Democrats could revisit and amend either the budget reconciliation tool they used for COVID or the one they intend to craft for infrastructure.

Democrats appear stymied when it comes to killing the filibuster. There’s concern that Republicans could use the filibuster against Democrats if they win back the majority. So Democrats are in a pickle trying to enact major parts of their agenda – yet hampered by the filibuster.

Time to bring in the no-huddle offense.

Let’s take a step back and explore the dynamics of "budget reconciliation." It’s called "budget reconciliation" for a reason. It’s tied to the annual budget process. Ostensibly, Congress may use budget reconciliation, and avoid a filibuster on a budget reconciliation, once per fiscal year. That’s because Congress is supposed to prepare a budget for each fiscal year. Congress must first adopt a "budget" in order to have a budget reconciliation vehicle (a separate, parliamentary animal) available for legislation.

The budget reconciliation package rules are somewhat vague. But Fox has been told for years that using two budget reconciliation measures close together isn’t a problem – so long as they don’t crash into one another. Congress would never want to have two reconciliation measures which were "hot" at the same time. The other general framework is that lawmakers get two cracks at budget reconciliation in a given Congress. There are two fiscal years. That entails two budgets. And thus, two reconciliation packages.

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Using budget reconciliation measures consecutively for legislation is not new. Republicans tried a similar ploy in 2017. They used an early budget reconciliation measure in the late winter, spring and summer to try to repeal and replace Obamacare. That gambit ultimately failed. Republicans were onto tax reform that fall. The GOP deployed another budget reconciliation measure for that legislation. The government was in the middle of a new fiscal year (the government’s fiscal year begins October 1) once Republicans tackled tax reform. But, Republicans already burned the earlier budget reconciliation measure when their health care measure bit the dust. So, another budget reconciliation package was available to the GOP in calendar year 2017.

In present day, Democrats have already gotten one budget reconciliation package off the dock for COVID. So, another budget reconciliation package should be available (if the House and Senate first adopt a budget) for infrastructure. Plus, the House and Senate are already working behind the scenes on spending measures for Fiscal Year ’22. So, everything appears to meet the general standards necessary for budget reconciliation.

So one may ask, if Democrats are unable to permanently extinguish the filibuster on garden variety legislation, why not use budget reconciliation for everything? That way they never have to worry about the filibuster at all. If you are intent on enacting your agenda, why not pass several budgets for future fiscal years, and thus, have multiple budget reconciliation measures laying around to deploy as you please?

The first problem is the general "two reconciliation packages per Congress" parameter. Secondly, if Congress were to theoretically want another reconciliation measure, lawmakers would have to start setting spending figures, say for Fiscal Year ’23, ’24 and ’25. That’s not going to happen. One Congress cannot work that far ahead and bind future Congresses. Third, any policy initiative must adhere to strict fiscal guidelines to be used during budget reconciliation. It’s unlikely that "DC statehood" or "HR 1" for voting access meets the tough budget guardrails. You can’t really shoehorn those policy initiatives into reconciliation.

The person making the ultimate call on all of this is Senate Parliamentarian Elizabeth MacDonough. It’s one thing to use budget reconciliation for the current fiscal year. It’s plausible to use budget reconciliation for the pending fiscal year. But Fox is told MacDonough – or any Senate Parliamentarian – would probably take a dim view of trying to use a new budget reconciliation package for a fiscal year deep into the future.

But those are discussions about additional reconciliation packages. This Congress, the 117th, the can’t work so far into the future that it robs – the 118th and 119th Congresses of their budget reconciliation packages. But what about working backwards? Using existing reconciliation packages, multiple times, and amending them, according to Section 304 of the Budget Act?

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Better rush to the line of scrimmage before they snap the ball.

To be fair, this is just a trial balloon by Schumer. Some liberals are trying to dial up the temperature against Schumer and other Democrats to abolish the filibuster. Then they can pass anything they want. Of course, this has long-term ramifications. Republicans can pass anything they want under those ground rules, too, when Democrats are again relegated to the minority.

Schumer may be presenting the triple reconciliation option as a middle ground. An alternative for those who want to protect the filibuster – and yet get something done. And if some Democrats don’t want to go this route, Schumer can ask if they would rather neuter the filibuster.

Democrats may not be able to pass something on guns, DC statehood or the voting access bill via budget reconciliation. But they may be able to pass a lot of their agenda items, especially climate change provisions, using this approach.

This would be a lay up for Republicans. They can simply argue that Democrats are abusing the process. It’s a power grab.

But what voter really knows if it’s appropriate to use one, two or three budget reconciliation packages in the same fiscal year?

It was hard for American League President Bobby Brown to justify why the "pine tar" rule somehow enhanced George Brett’s ability to jack a home run out of the park. So, several weeks later, Brown let the home run stand.

In other words, knowing how much pine tar is allowed on the Senate’s bats may not matter if Democrats forge ahead. All they need is a green light from the Senate Parliamentarian to use reconciliation multiple times for their policy goals.