Have Democrats Found A Way to Bypass The Senate's Filibuster?

Most Everything Becomes a Budget Bill. Lots of Them. Cover Your Wallet

Clever minds have been at work amidst Democratic circles in the US Senate to find a way to circumvent the filibuster - that pesky Senate Rule 22 provision that requires a three-fifths supermajority to end debate and bring a matter to a final vote.

But the Democratic caucus isn’t unified, at least yet. Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) both oppose a straight-up elimination of the supermajority provision.

So, Senate Majority Leader Chuck Schumer and his team have been busy finding a way to work around the filibuster to implement major parts, if not all, of their agenda. And they appear to have found it under an obscure provision of the Congressional Budget and Impoundment Control Act of 1974.

That Watergate-era law was crafted largely in response to President Nixon’s rather flagrant impoundment of congressionally-approved appropriations. A heavily Democratic Congress wanted to find a way around that. They wound up creating Congress’s modern budget and reconciliation process. They established budget committees, created the Congressional Budget Office, and a timeline that starts with the President proposing a budget.

For the record, President Biden hasn’t proposed a budget, as prescribed by law. That’s usually done in February, around the State of the Union Address. We haven’t had the address, either. Both have been promised, eventually. But that’s not stopping the Senate.

They also crafted rules of procedure for the budget in the House and especially the Senate to limit debate and circumvent the filibuster. All amendments must be germane (focused on spending and taxes), debate is limited (In the Senate, 50 hours for budget resolutions, 20 hours for “reconciliation” bills - even less in the House), and except for a “point of order,” everything passes or fails by a simple majority vote. It takes a three-fifths majority (60 votes) for the Senate to overrule a point of order.

Importantly, the Act envisions one concurrent budget resolution and one “reconciliation” bill for every fiscal year.

Schumer and his staff have zeroed in on Section 304 of the budget act. It allows Congress to amend budget resolutions. Schumer envisions, apparently, being able to amend the budget they passed in March, which culminated in the $1.9 trillion “American Rescue Plan Act.” And that amendment will direct Congress to pass one or more reconciliation bills.

Schumer has asked the Senate’s Parliamentarian, Elizabeth McDonough, whether his interpretation is correct. The Parliamentarian is a staff member with the Secretary of the Senate’s office (disclosure: I am a former Secretary of the Senate) and serves something akin to an umpire on rules. The Parliamentarian advises the chair on how to rule on matters. Ultimately, of course, the members of the Senate decide their own rules and how to interpret them.

And if the Majority leader disagrees strongly enough with an interpretation, he can direct the Secretary of the Senate to fire the Parliamentarian and replace her with someone else more amenable to his way of thinking. It’s been done. Twice actually. Other than throwing a tantrum and making threats, there is nothing anyone can do to stop it. And some Democrats were demanding McDonough’s firing when she ruled against their efforts to include a $15 per hour minimum wage provision in the Senate’s budget bill.

I do not know and am reluctant to predict how McDonough, nonpartisan and scrupulously fair, will advise the Majority Leader. While a budget resolution can clearly be amended (with some limits on time and content), can that resolution (which doesn’t require the President’s signature, and actually has no force of law) order up multiple “reconciliation” bills (which do require a presidential signature and very much have the force of law)? That is a real question, and the answer may be “yes.”

Reconciliation bills are how budgets are implemented through spending and tax provisions. It’s how Obamacare became law. It’s how the $1.9 trillion pork fest adopted last month by Congress became law since Congress last year failed to adopt a budget for this fiscal year (a Democratic-led House and a then-Republican Senate were never going to agree to one). And it is likely how the Biden infrastructure and massive tax increases could evade the filibuster and become law with a unified Democratic caucus for the next fiscal year that begins October 1.

Schumer wants to break up the infrastructure and massive tax increases into two separate “reconciliation” bills. He knows that trying to ram both through both in a single bill is a heavy lift, even for his compliant caucus. That’s going to require cooperation from the Parliamentarian. Otherwise, Schumer’s scheme will require 60 votes to overcome a point of order (whoever is presiding over the Senate could conceivably brazenly ignore or overrule the Parliamentarian’s advice, but that has never happened to my knowledge). He has other options (using the nuclear option to overrule the chair), but that’s a bridge too far, even for Democrats. Not that some won’t propose or demand it.

Schumer’s real challenge may not be the Parliamentarian. It might be members of his own caucus and even some House Democrats who are beginning to raise concerns about the level of deficit spending. After all, the partisan margins in the House (presently 5 votes) and Senate (50-50) are the tightest in modern history. And at least 7 House Democrats represent marginal and competitive congressional districts who will likely face serious reelection challenges in 2022 when the party “out of power” is favored to gain seats. A lot of them.

“Maine Independent Sen. Angus King, a member of the Senate Budget Committee who caucuses with the Democrats, said that ‘we've got a problem’ as a country with the rising deficit and national debt, particularly around the interest on the debt.

"‘I'm concerned about it in terms of generational equity, the long-term implications for your generation, and the generation that comes after,’ King said during a discussion organized by the Millennial Debt Foundation. ‘And it bothers me from a, sort of, ethical point of view that where my generation is spending the money, spending your money.’"

Maybe some Democrats - at least one - don’t want Senator Manchin to have all the fun of being a “deciding vote” on matters in a 50-50 Senate. But we’ll see how courageous Sen. King is when his liberal colleagues buttonhole him - especially his socialist neighbor, fellow registered “independent” and Budget Committee Chair, Bernie Sanders - on an impending vote. King has been a reliable Democratic vote for most of his career.

It also doesn’t mean that Senate Democrats still won’t try to amend the rules or find ways to kill or weaken the filibuster. After all, not everything, like a $15 minimum wage and other “green new deal” aspects of their agenda, can pass muster under the budget rules (at least under the current Parliamentarian). Joe Manchin, who succeeded the late Robert C. Byrd, says he isn’t going to vote to get rid of the “Byrd Rule,” a unique Senate budget rule that prevents the Senate from considering non-budget-related “extraneous” items, increasing deficits beyond a specific point, or even tackling our growing Social Security trust fund issues. We may also find out, sooner than later, how well Senator Manchin stands behind his own words, both on the “Byrd Rule” and the filibuster.

But in the meantime, Senator Schumer may have found a way to ram through a massive tax and spending (which contains little real “infrastructure”) plan without any Republican support. An unelected Senate staff member holds the key. Time will tell. It’s no way to run a Republic, for sure, but here we are. Cover your wallets.