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Schumer's Gambit, and Infrastructure Week


Senate Majority Leader Chuck Schumer (D-NY), seen here at a 2016 St. Patrick's Day Parade, is plotting a third reconciliation bill to pass a massive infrastructure and tax package through the Senate.

President Joe Biden is outlining a $4 trillion infrastructure plan in Pittsburgh today. The plan is massive, and will include items like universal pre-kindergarten that are not normally considered “infrastructure.” It also contains significant investments in addressing climate change as well as tax increases to pay for this spending. In other words: items, that along with the overall size of the package, will raise the hackles of Republicans in Congress.


As a result, Democrats are considering splitting the package into two parts. One $2 trillion component that could attract bipartisan support and one that likely would have to be passed on a party-line margin, maybe even with the vice president’s vote as the tie-breaking vote.


To even get to that outcome, however, Democrats need to decide how they are going to get past the Senate filibuster, as it seems unlikely that 10 GOP senators will join all 50 Democrats in the Senate to provide the 60 votes needed to pass a bill in the chamber under regular order.


Senate Majority Leader Chuck Schumer (D-N.Y.) has an idea. Before we describe that notion, a reminder of what these rules are, and where the debate about them is.


Why Can’t the Senate Get Anything Done?

The late senator from West Virginia, Robert Byrd (D), said the U.S. Senate is “the last bastion of minority rights, where a minority can be heard, where a minority can stand on its feet” and where “one individual, if necessary,” could “speak until he falls into the dust.” This sentiment echoed one supposedly expressed by George Washington generations earlier, who reportedly told Thomas Jefferson that the framers had created the Senate to "cool" House legislation just as a saucer was used to cool hot tea.


But, practically, what these rules mean is that legislating can be awfully slow in the upper chamber of Congress. Another former senator, Bob Dole of Kansas, described the result of the Senate’s complex rules more colorfully. He said, “If you’re hanging around with nothing to do and the zoo is closed, come over to the Senate. You’ll get the same kind of feeling and you won’t have to pay.”


If you have ever waited for the famed pandas to make an appearance at Washington, D.C.’s National Zoo, you know exactly what Sen. Dole was talking about. And while Sen. Byrd liked it this way, today members of his party today are not so amused.


We have previously discussed the history and uses of both the filibuster and budget reconciliation. Both tools have historically considered how to best preserve the minority party’s rights, even if keeping those rules in place slows the work of the Senate. As a reminder, as currently written, filibuster rules require a vote of 60 senators to end debate on a piece of legislation and move toward a final vote. Budget reconciliation rules allow a very narrow set of matters to move forward with only a simple majority in the Senate. Budget reconciliation essentially exempts certain legislation from the filibuster — but, again, only in very narrow circumstances. And, as Vox explained, “the Senate can’t pass an unlimited number of reconciliation bills.”


In other words: the budget reconciliation is meant to be an exception, not a rule.


Or is it?


How Many Budget Reconciliations Can the Senate Have?

Under pressure from his caucus to push forward multiple pieces of legislation on matters ranging from climate change to civil rights and labor and employment policy, Senate Majority Leader Schumer is now trying to widen the use of budget reconciliation.


Indeed, as Vox reported, “According to a Schumer aide, his team is now trying to make the case that Democrats would be able to pass up to three budget reconciliation bills this year. In arguments to the Senate parliamentarian … aides are pushing for a third bill by citing an arcane rule that hasn’t been used before.”


The “arcane rule” at the center of this debate?


Section 304 of the Congressional Budget Act of 1974, which, according to Vox, says budget resolutions can be revised if they’re updated before the end of the fiscal year they cover. Specifically, Section 304 reads, “At any time after the concurrent resolution on the budget for a fiscal year has been agreed to pursuant to section 301, and before the end of such 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.”


Clear as mud, but why is the interpretation of this phrasing important? Well, if the Senate parliamentarian agrees with Sen. Schumer, Democrats, “could go back and amend the resolution for the 2021 fiscal year, and include instructions for another reconciliation bill.”


The Wall Street Journal editorial board, which opposes Sen. Schumer’s gambit, noted that the majority leader’s interpretation is unusual. In fact, the writers say they are “not aware of any previous Senate majority making this claim.”


Whose side is the parliamentarian likely to take?


Reading parliamentarian tea leaves is almost impossible. In a frustratingly partisan town, this office, and its current occupant Elizabeth MacDonough, is an oasis of non-partisanship. It’s almost quaint, and it’s certainly wonky, even if it’s sometimes exasperating.


What Does the Senate Parliamentarian Do?

As the National Constitution Center explains, the parliamentarian’s job is to “study the history of each chamber, including volumes of information about precedents and rules.”


According to NPR, MacDonough is a career civil servant who previously served as a reference assistant in the Senate Library. She studied at George Washington University, where she earned a degree in English literature, and graduated from Vermont Law School. She briefly served as an assistant district counsel for the U.S. Department of Justice before taking a position as senior assistant parliamentarian in 1999.


Few resumes on Capitol Hill are less partisan.


As the National Constitution Center explains, the Office of the Parliamentarian has its roots in Article I, Section 5, of the U.S. Constitution, which says that “each House may determine the rules of its proceedings.” The post was only created in 1965, however, and MacDonough is just the sixth person to occupy the station.


MacDonough was appointed by former Senate Majority Leader Harry Reid, a Democrat from Nevada. Generally speaking, the ruling party in the Senate decides who serves in the role, and, as the National Constitution Center recently explained, Leader Schumer “would have the ability to dismiss” the parliamentarian “if he felt” that MacDonough had incorrectly interpreted a Senate rule.


There would be precedent for that request. In 2001, Senate Majority Leader Trent Lott (R-Miss.) dismissed the parliamentarian at the time, a Republican appointee, after he ruled that the GOP could not use budget reconciliation rules to pass certain tax and spending legislation.


Senate parliamentarians clearly are not afraid to defy even the party that put them in power — as MacDonough herself has made clear.


Remember that, earlier this year, MacDonough handed Democrats a defeat when she ruled that an increase of the minimum wage to $15 an hour was not protected by budget reconciliation rules. Some Democrats called for MacDonough to be replaced after that ruling, but, as NPR noted, the White House issued a statement saying the president was “disappointed,” but “respects the parliamentarian's decision.”


We think the White House would be as deferential if MacDonough rules against Democrats again. Senate Majority Leader Schumer? That might be another story considering the considerable pressure he is getting from his caucus to move legislation. Democrats certainly will raise the volume of calls to remove MacDonough if she again rules against the party again.


What If the Senate Parliamentarian Approves Another Budget Reconciliation?

If MacDonough agrees with Sen. Schumer’s interpretation of the Budget Act of 1974, how is his party likely to use their newfound power?


That is also clear as mud.


As Politico noted, since Congress did not pass a budget resolution in 2020, Democrats used reconciliation left over from fiscal year 2021 to get the recently-passed $1.9 trillion American Rescue Plan past the filibuster. The party will likely use the fiscal year 2022 reconciliation bill as a vehicle for portions of President Biden’s infrastructure package that the president will introduce in Pittsburgh today.


Other than that, it’s unclear what legislation would be eligible for reconciliation — and that might be precisely why Majority Leader Schumer does not actually try to execute the gambit.


According to Politico, while using Section 304 “does increase the number of bills that can sidestep a filibuster,” priorities like voting rights legislation “couldn’t pass muster with so-called Byrd Rule restrictions that limit what can be included in reconciliation legislation.” As we have explained, the Byrd Rule requires that reconciliation deal with spending matters exclusively. This rule is what sunk the $15 minimum wage. The same restrictions obviously would apply to legislation addressing gun violence or union organizing.


The only immediate matter the reconciliation clearly could help goes back to today’s infrastructure announcement. If Congress splits President Biden’s infrastructure and tax bills into two parts — one bill containing spending for traditional infrastructure such as roads and bridges and the other outlining spending for climate change and other “human infrastructure” matters like child care and schools – the “human infrastructure” bill becomes fodder for the third use of reconciliation in the Senate this year.


Senate Minority Leader McConnell has warned that Republicans will turn the tables when they are back in power if Democrats try to eliminate the filibuster or bend the Senate rules. Is that threat enough to check his Democratic counterpart?


Washington will know soon enough.

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