Could This Ruling Be The Saving of America?

“An advisory opinion from an obscure official may complicate the Biden administration’s efforts to push trillions of dollars in new taxes and spending.”

This Ruling Might Ultimately Torpedo Democrats’ Dangerous Legislative Agenda

Democrats will either have to jettison elements of the Biden agenda, or cram their entire legislative package into one bill.

By Christopher Jacobs, The Federalist, June 21, 2021

Multiple news stories confirmed the opinion from the Senate parliamentarian, Elizabeth MacDonough, which was not released publicly. In sum, it presents Democrats a potentially difficult decision later this year: they will either have to jettison elements of the Biden agenda, or cram their entire legislative package into one bill—turning it into a “Christmas tree” that could collapse under its own weight.

What Did the Ruling Advise?

MacDonough’s opinion detailed the circumstances under which the Senate can revise budget reconciliation instructions. Senate Majority Leader Chuck Schumer, D.-N.Y., bragged in April that an earlier opinion from MacDonough paved the way for the Senate to pass multiple reconciliation bills in one year. But details of that April guidance remained scarce — and the recent guidance suggests Schumer overstated its effects.

MacDonough’s recent ruling confirmed Section 304 of the Congressional Budget Act does allow lawmakers to revise the budget, and therefore budget reconciliation instructions. But the guidance comes with two critical caveats.

First, any changes to a budget, or budget reconciliation, would have to go through the entire legislative process, making the changes time-consuming and cumbersome. Second, MacDonough indicated lawmakers could only revise a budget in extraordinary economic circumstances, not simply because they want more opportunities to use budget reconciliation. She cited legislative history to conclude the creators of budget reconciliation understood “the potential for abuse” of its expedited process, making revisions to a budget the exception rather than the rule.

In plain English, a national or economic calamity — say, 9/11, the financial crash of 2008, or the economic panic when COVID-19 first hit last spring — would constitute justifiable grounds for Congress to revise its budget. Democrat leaders looking for another opportunity to pass a reconciliation bill on a party-line vote does not.

Why Does Budget Reconciliation Matter?

Established by the Congressional Budget Act of 1974, the budget reconciliation process allows the Senate to consider bills under expedited procedures, with limits on both amendments and the time for debate. The process effectively allows reconciliation bills to pass with 51 Senate votes, rather than the 60 votes usually needed to end a filibuster in the upper chamber.

For the last two decades, both parties have used the reconciliation process to advance their priorities on largely party-line votes. Examples include the Bush tax cuts of 2001, 2003, and 2005; amendments to Obamacare in 2010; the Trump tax cuts of 2017; and the “stimulus” bill earlier this year.

However, the budget reconciliation process comes with procedural constraints designed to protect the principles of extended debate that otherwise govern Senate proceedings. The “Byrd rule,” named for the late Sen. Robert Byrd, represents one such procedural constraint, as do the provisions outlined in MacDonough’s guidance.

What Does the Parliamentarian’s Ruling Mean?

It likely means Democrats have only one more opportunity left to pass a reconciliation bill this calendar year.

The 2020 elections initially left Democrats with three theoretical opportunities to pass a budget, and with it a budget reconciliation bill. The first opportunity was for fiscal year 2021, the current fiscal year. Because lawmakers passed neither a budget nor a budget reconciliation bill for this fiscal year during the last Congress, Democrats had the chance to pass such measures once the 117th Congress convened in January. The “COVID relief” bill signed into law in March represented the budget reconciliation measure for this fiscal year.

Moving forward, unless Democrats win an argument that extraordinary circumstances apply, they only have one opportunity left to use budget reconciliation before the calendar year ends. This would mean passing a reconciliation bill for fiscal year 2022, which begins this October 1. Next year, they will also have the option to pass a budget reconciliation bill for fiscal year 2023, which begins on October 1, 2022.

How Does the Ruling Threaten Biden’s Agenda?

It forces Democrats into some difficult choices. Leaders will either have to postpone some of their agenda items until next year — months before tough midterm elections, in which the party could lose control of both the House and Senate — or risk turning this year’s reconciliation bill into a massive, unwieldy piece of legislation.

Consider just some of the major fiscal proposals the White House and congressional Democrats have discussed enacting:

1. Corporate tax increases/restructuring;
2. Individual tax rate increases for “high-income” earners;
3. A repeal of the cap on state and local income tax (SALT) deduction imposed in the 2017 Trump tax law;
4. “Free” community college;
5. “Free” universal preschool;
6. Making permanent the Obamacare subsidies temporarily expanded earlier this year;
7. Making permanent the child tax credit temporarily expanded earlier this year;
8. Expanded funding for home and community-based services for seniors and individuals with disabilities;
9. Prescription drug price “negotiation;”
10. Expansions of Medicare — both a Medicare buy-in for those under age 65 and dental and vision coverage for seniors;
11. “Green” energy incentives; and
12. Traditional infrastructure (e.g., roads, bridges, etc.).

Some Democrats might have concerns with, or objections to, each of those proposals. Yet to enact a reconciliation bill on a straight party-line vote, Democrats could not afford a single defection in the Senate, and no more than four defections (out of their 220-member caucus) in the House.

A bill including all of the “Dirty Dozen” priorities listed above (plus other smaller proposals) would likely be thousands of pages and cost trillions of dollars. Leaders like Schumer and House Speaker Nancy Pelosi, D.-Calif., can compile such a massive bill and dare moderate Democrats to oppose it, gambling on party loyalty and the fear of what might happen if the bill collapsed. Or they can pare back the bill’s components, and risk the wrath of progressives, who would consider a smaller bill insufficient.

Is the Parliamentarian’s Ruling Binding?

No. As an unelected official, the parliamentarian issues guidance. Only the Senate’s presiding officer can issue rulings that become binding precedent.

However, for the majority to unilaterally overrule the parliamentarian would violate Senate norms, earning such a move the name “nuclear option.” Particularly for expanding the scope of budget reconciliation, members in both parties would view overruling the parliamentarian as tantamount to weakening, if not abolishing, the Senate filibuster.

For this reason, filibuster supporter Sen. Joe Manchin, D.-W.V., said earlier this year he would oppose attempts to do an end-run around the procedural constraints that accompany budget reconciliation. Without Manchin’s support for overriding the parliamentarian’s guidance, Democrats may be forced to choose between gambling on an all-encompassing bill, or leaving out aspects of their agenda this year.