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Parliamentarian guidance deals blow to reconciliation strategy

Senate rules referee says use of special procedure to pass multiple filibuster-proof bills should be reserved for ‘extraordinary circumstances’

Using a revised budget resolution to take an extra crack at reconciliation to advance Democratic priorities through the Senate appears unlikely during this Congress, given a new opinion from the Senate parliamentarian.

The new guidance, issued to Senate staff on Friday, suggests that Democrats will get just one more try this year to pass a filibuster-proof legislative package to enact additional priorities ranging from infrastructure to immigration policy proposed by President Joe Biden and party leaders on Capitol Hill. If they want to use reconciliation yet again, they’d need to adopt a fiscal 2023 budget resolution next year, but would likely get only one shot then as well.

Senate Parliamentarian Elizabeth MacDonough’s four-page opinion makes clear her view that the framers of the 1974 law establishing the modern budget process didn’t intend for lawmakers to be able to use the budget reconciliation process as many times as they could jam into a given year.

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In addition, she wrote that a revised budget resolution with additional reconciliation instructions can’t be automatically discharged to the floor in the absence of a Senate Budget panel markup. That’s in contrast to a regular budget resolution, which can be brought up anytime on the floor after April 1 if the committee hasn’t acted.

An “auto-discharge” of a revised budget resolution is “not appropriate,” MacDonough wrote.

The practical effect of that stipulation is that the use of a revised budget resolution to push through multiple reconciliation bills is unlikely until the next Congress at the earliest, given the 50-50 Senate split and evenly divided Senate Budget panel.

That’s because even if Democratic leaders had 51 votes to discharge a revised budget resolution to the floor if a markup results in a tie vote, Republicans could deny Democrats a quorum to vote on the blueprint in committee. Committee rules require a majority of Budget panel members to be present for a quorum, and proxies don’t count toward a quorum. 

‘Potential for abuse’

MacDonough wrote that lawmakers intended the provision to be used only “in extraordinary circumstances and not for things that should have been or could have been foreseen and handled” in a regular budget resolution.

“The potential for abuse was clear in 1974 and is all the more obvious now,” she wrote. MacDonough added that “overuse and over-reliance on a hyper-fast track procedure in the ordinarily deliberative Senate … will change the culture of the institution to the detriment of the committee and amendment processes and the rights of all Senators.”

In a final warning to lawmakers contemplating the use of multiple budget resolutions and reconciliation bills, the parliamentarian wrote that the ability to use the procedure “will depend on adherence to the original purpose of the section and the good judgment and restraint of all involved.”

MacDonough pointed to the language of the conference report on the 1974 law that stipulated that use of section 304 to revise a previously adopted budget resolution should be reserved for situations involving “sharp revisions in the revenue or spending estimates or major developments in the economy.”

[More questions than answers in parliamentarian’s budget opinion]

She also noted the legislative history and public comments from then-leaders of the Senate Budget Committee — Edmund S. Muskie, D-Maine, and Henry L. Bellmon, R-Okla. — in 1977 when Congress was considering a revised budget resolution to accommodate President Jimmy Carter’s economic aid package.

Muskie wrote that revised budgets should be “the exception and not the rule,” and that the purpose should be “to meet changed conditions, not to take account of matters which might have been considered in connection with the Budget Resolution most recently adopted by the Congress.”

Bellmon wrote that the law is “flexible enough to permit adjustment when economic or emergency conditions warrant but the process should not be viewed as being so flexible as to allow for changes whenever an economic statistic moves in an adverse direction.” He and his GOP colleagues also wrote that their view was the 1977 measure was intended to be “a unique budgetary event” that won’t need to be repeated in the future.

MacDonough’s opinion answered other questions about a revised budget resolution that could inform the deliberations in future years.

She said a section 304 budget revision would not be restricted in scope or in terms of the reconciliation instructions it could contain. Some budget experts suspected that if an initial budget resolution contained reconciliation instructions to make changes in spending and taxes, for example, then a revised resolution could not include those instructions but could include instructions to change the debt limit. The opinion said another full set of instructions would be allowed.

Another question was whether just one revised budget resolution would be permitted in a given fiscal year, or if multiple resolutions would be allowed.

MacDonough said there is “no reason to believe that 304 cannot be used, perhaps serially, as it previously has been, to revise the most recently adopted concurrent resolution.”

Earlier this year, Senate Majority Leader Charles E. Schumer began considering use of a revised budget resolution to give Democrats a second bite at reconciliation within the same fiscal year. Under the expedited procedure, the Senate can pass budget-related legislation with a simple majority rather than the usual 60 votes.

MacDonough’s latest guidance came after a May 20 meeting with Democratic and Republican staff to further discuss the issue following earlier arguments from staff.

MacDonough told Senate staff in early April that a Section 304 budget resolution “may” contain reconciliation instructions but her bare-bones advisory left key questions unanswered, including the scope of reconciliation that would be allowed.

Democrats pushed through President Joe Biden’s $1.9 trillion COVID-19 relief package in March through reconciliation, allowing them to pass the bill in the 50-50 Senate.

Democratic leadership initially mulled following that up with a revised fiscal 2021 budget resolution, which they could move through the Congress before taking up a fiscal 2022 budget resolution.

The 1974 budget law allows a revised budget resolution to be adopted until the end of the fiscal year. For fiscal 2021, that is this coming Sept. 30. But Democrats also had considered using the Section 304 option to move a revised fiscal 2022 budget resolution later in the year or even next year.

The fiscal 2021 budget resolution provided reconciliation instructions to increase spending and taxes but it did not touch on the third option for reconciliation, which is changing the debt limit.

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