Senate Budget Chairman Judd Gregg (R-N.H.) has vowed to be more aggressive than his predecessors in keeping his chamber firm on spending limits — and he’s underscored that point by including two little-noticed provisions in this year’s budget blueprint.
The budget resolution conference report, which was adopted by both chambers two weeks ago, includes a new 60-vote point of order in the Senate against unfunded federal mandates on states, as well as a 60-vote point of order against bringing to the floor any bill that would increase or decrease revenue before the annual budget resolution is passed.
The upshot of the two provisions would be to increase individual Senators’ power to hold up legislation and bolster the Budget panel’s ability to dictate what bills come to the Senate floor.
“I think you’re going to find the point of order become a fairly significant event in the daily activity of the Senate as we move forward on a lot of issues,” Gregg said.
Both budget-enforcement tools could have far-reaching implications for a range of bills slated for Senate action this year, because they provide Senators with an alternative to filibustering legislation, which also needs 60 votes to be overcome. Previously, both points of order could be overridden with just a simple majority of 51 votes.
“It’ll be available for use by any Member,” said Senate Budget ranking member Kent Conrad (D-N.D.). “So all these things change the way legislation can be considered here. And so all of them may have unintended consequences.”
There’s a big irony swirling around Gregg’s provisions. With Senate Majority Leader Bill Frist (R-Tenn.) reportedly on the cusp of using a controversial procedural maneuver to end Democratic filibusters of judicial nominees, Gregg has potentially handed the Democratic minority more tools with which to stymie legislation in the chamber.
“It’s an interesting conflict here between, on the one hand, saying there shouldn’t be a supermajority requirement [for judicial nominations], and on the other hand, just adopting a budget that does exactly that” for some legislation, Conrad said.
But Gregg sees it as part of his job to enforce the tight budget constraints that Congress adopts, but routinely flouts. Because, for example, the 1995 Unfunded Mandates Reform Act allowed a simple majority to override objections to sticking states with the costs of federal mandates, it was rarely, if ever, used.
“Back then it was a 51-vote point of order, so it was sort of pointless to raise it,” Gregg said. “I think 60 votes is going to mean it’ll have real teeth.”
Sen. Lamar Alexander (R-Tenn.), who sits on the Budget panel and said he is partially responsible for upping the ante on unfunded mandates, agreed that the old point of order was worthless.
“It was hailed [in 1995] and widely described as a penalty flag that could be thrown when we started coming up with ideas of sending the bill to governors and mayors,” Alexander said. “The problem is, for 10 years, it was never thrown. It wasn’t thrown one single time, because 50 votes wasn’t enough. I think a 60-vote point of order can be effective.”
Gregg said he is already considering using the unfunded mandate point of order against any energy bill that contains a provision granting the makers of the gasoline additive methyl tertiary butyl ether from product-liability lawsuits. Alexander wants to use it against a bill that prohibits states from taxing Internet access.
Gregg was one of a handful of Republicans who helped the majority of Democrats filibuster an energy bill in 2003 because it contained a MTBE liability waiver.
But recently, the Congressional Budget Office determined that the MTBE provision would constitute an unfunded mandate because it would terminate state and local lawsuits against MTBE manufacturers, therefore forcing local governments to pay for the environmental cleanup from MTBE contamination in drinking water.
Gregg said it was not his original intention to use the unfunded mandate point of order against any MTBE provision, but he said he believes he has the votes to prevail against any Senate version of the energy bill. He was less certain of his success if he were to bring the same point of order against a bicameral energy bill conference report.
Several bills that have already been enacted could have been ensnared by a 60-vote point of order had they been in force at the time, including the 2003 Medicare prescription drug bill, a 1996 increase in the minimum wage, last year’s prohibition on states taxing Internet access, and legislation last year forcing states to come up with new standards for drivers licenses and other identifying documents.
Alexander said he didn’t bring an unfunded mandate point of order against the Internet tax moratorium bill last year because it would have been easily overridden. But this year, if Sen. George Allen (R-Va.) brings up his bill to enact a permanent moratorium on Internet taxation by the states, Alexander said he thinks he can win with a 60-vote point of order. “At least, I would have a lot more negotiating power,” he said.
Questions still loom over the ramifications of the 60-vote point of order against legislation that comes to the floor before a budget resolution is passed.
Presumably, the point of order could be used at the beginning of each calendar year against legislation that would affect revenues in the next fiscal year, according to conversations with knowledgeable staffers. That means that if Democrats or any individual Senator wanted to use it to prevent legislation from coming to the floor — without the stigma of filibustering — they could simply raise a point of order that a budget has not been passed. It appears that the rule could also prevent the Senate Appropriations Committee from acting on the annual spending bills until a budget is passed.
Given that the Senate has only passed a budget resolution for two of the past four years, it could give both the minority party and individual Senators extraordinary control over the agenda.
In addition, “It gives a whole heck of a lot more power and influence to the Budget Committee,” said one former Senate Republican aide. “That’s a fairly significant change. If I were leadership staff, that would have given me great concern.”
Because legislation could be stymied well into the summer in the absence of an approved budget resolution, other Senate aides suggested that it could be used to force wavering Senators — particularly centrist Republican Senators who have either prevented or nearly prevented the adoption of a bicameral budget plan in recent years — to support budget plans they would otherwise oppose.
Already this year, Gregg informally objected to acting on a reauthorization of the 1996 Welfare to Work Act, saying it would violate budget caps. Gregg said this week he planned to bring a regular 60-vote point of order against the welfare bill when and if it comes to the floor this year.
Gregg already raised a regular budget point of order against a highway funding bill that the Senate is currently debating. Budget points of order that simply accuse a measure or provision of going beyond the bounds of the budget resolution always need 60 votes to overcome.
But because the highway bill is loaded with hundreds of Members’ pet projects, Gregg was easily rebuffed on Wednesday when he complained that the revised highway measure would exceed the budget by $11.5 billion. Senators voted to waive the budget point of order 76 to 22.
“The problem is, I don’t know if I’ve got any troops,” Gregg said. “I want to make a reasonable presentation, but I also think we need to be reminded when we’re being excessive, and I certainly intend to do that in a variety of ways. And a point of order may be one of them.”