WASHINGTON, DC – OCTOBER 01: President Joe Biden and Speaker of the House Nancy Pelosi (D-CA) leave a House Democratic Caucus meeting in the U.S. Capitol on Friday, Oct. 1, 2021 in Washington, DC. The President called the meeting in order to push thr
And yet, reconciliation is so important.
The bottom line is that both parties use budget reconciliation when they find themselves stymied at passing a garden variety piece of legislation subject to a filibuster. Democrats used reconciliation to approve the final version of Obamacare in 2010. Republicans returned the favor in 2017, passing their big tax cut bill via reconciliation. Republicans tried to use reconciliation to approve a repeal and replace of Obamacare in 2017. But they lacked the votes.
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Legislation like Obamacare and the GOP tax cuts never would have cleared the filibuster hurdle. But since a reconciliation bill is exempt from a filibuster, you don’t need to worry about that. The measure only needs 51 votes to pass.
But, like most things in life, there’s a catch. Only certain types of policies qualify for a reconciliation bill. Reconciliation is reserved for taxes and entitlements. Medicare. Medicaid. Fiscal issues. This is why Obamacare was a natural fit for reconciliation. The same with the failed GOP effort to unwind it. And, it’s why the Republican tax cuts also aligned with the parameters for budget reconciliation.
Gun control? No way. That probably doesn’t work in reconciliation. Statehood for Washington, D.C.? There may be some tax components there. But doubtful. Immigration reform? Lawmakers have wedged some immigration policies into reconciliation before. But recent efforts to shoehorn immigration into a reconciliation bill have failed twice of late.
Let’s break this down a bit further.
Budget reconciliation is kind of like a sport.
"You need to pick your players, your committees that are going to write the policies to those instructions out of those committees," said Eric Ueland, a budget reconciliation expert who worked for years in the Senate and handled congressional affairs for the Trump Administration. "You need to determine how large the field is. In this case, they elected that the field should be 10 years in length so they can write their policies to last for as long as 10 years."
You can only play certain types of sports with particular sporting goods equipment.
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In baseball, you need a baseball. But how about a softball? Well, that might work on the diamond. On Capitol Hill, it’s not unprecedented for lawmakers to push the envelope and try to cram somewhat related legislative agenda items into budget reconciliation. Baseball and softball are similar enough that you could "play baseball" with a softball or vice versa. But a tennis ball? That’s iffy. A bowling ball? Nope. An exercise ball? That’s way off the mark.
You see, they’re all balls. But just because they’re balls doesn’t mean they'll all work for "baseball reconciliation."
Does that mean you can only decide between balls? No. If you’re playing baseball, a glove is a necessary piece of equipment. Or a base. Pine tar. A bat. All of those things deal with baseball.
"Everybody needs to think through as they pick their sports equipment out of the locker room. What will work for the referee, the Senate parliamentarian?" said Ueland.
Senate Parliamentarian Elizabeth MacDonough makes the call. She decides what sporting goods equipment is in or out and what qualifies for reconciliation.
"People have been very smart about how they drafted provisions in an effort to qualify [for reconciliation] so while it might look like a softball and seem like a softball, it actually plays like a baseball and therefore is eligible for the reconciliation bat to hit it," said Ueland. "On the other hand, many people oftentimes walk in with a bowling pin, expecting that they can argue the parliamentarian into agreeing that it's a baseball."
Senators must generally respect decrees of the parliamentarian.
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"Abiding by the ruling of the parliamentarian is essential to the function of the Senate," said Senate Minority Leader Mitch McConnell, R-Ky., when Democrats tried to squeeze immigration policy into reconciliation for their social spending package.
Budget reconciliation is called just that because of its origins: the Budget Act of 1974. The law created the current budget process on Capitol Hill. The Senate can overrule the parliamentarian by "voting to waive the Budget Act." In other words, the rules of reconciliation are moot if the Senate votes to set them aside. But that process requires 60 votes.
In short, if you are using reconciliation to pass something because you don’t have sixty votes, challenging the ruling of the parliamentarian won’t work because you need 60. That defeats the entire idea of trying to go around the filibuster in the first place.
Reconciliation emerged in the 1980s as a parliamentary crutch. Both parties leaned on reconciliation when they struggled to pass bills because of the filibuster.
Even the man partly responsible for writing the reconciliation process in the mid-1970s, late Senate Parliamentarian Bob Dove, regrets crafting this tool.
"I wish if there were anything I could undo in my life, it was ever helping create the reconciliation process in the Budget Act," said Dove before a forum at the American Enterprise Institute in March, 2010. "It is now a monster and it is showing its monstrous qualities repeatedly as it's used by both parties."
Senators of both parties rely on reconciliation to pass major, controversial bills which would crumble at the mention of a filibuster. That’s why there’s a push from some quarters to alter the filibuster. Some lawmakers have advocated changing filibuster provisions for certain types of bills. Or, just lowering the threshold to a simple majority. The Senate diminished the necessary votes to end a filibuster for executive branch nominees in 2013 and Supreme Court nominees in 2017.
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So, we don’t know yet if Democrats can pass their social spending plan. We just know that reconciliation is the game Democrats must play to advance their agenda. What’s left to figure out is what athletic equipment they need to make this work. Bats. Balls. Hockey pucks. A curling stone.
It all depends on the type of parliamentary sport Democrats finally elect to play.
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