The Senate may be preparing to take up a single-issue, health care budget package under the jurisdiction of a single committee — Finance. But the nature of the budget reconciliation process means the bill will be open for amendment on virtually any topic the original legislation was intended to address, from climate change to taxes to child care.
The unusual circumstances under which the reconciliation bill came together mean that senators can offer amendments during the upcoming “vote-a-rama” that extend far beyond the drug pricing and health insurance affordability measures expected to form the core of the Democrats’ bill.
The original fiscal 2022 budget resolution provided “instructions” to the Senate Finance panel that its part of the bill must lower deficits by at least $1 billion over a decade.
A full CBO score wasn’t yet available for the not-yet-released Senate substitute text. But under the publicly unveiled parameters of a deal struck between Majority Leader Charles E. Schumer, D-N.Y., and Joe Manchin III, D-W.Va., it will contain drug pricing provisions that will reduce “on-budget” deficits — the part that counts toward meeting reconciliation directives — by $277 billion over a decade.
Adding two years of expanded health insurance premium subsidies would be expected to cost somewhere in the ballpark of $40 billion, reducing the net deficit reduction.
Still, that leaves plenty of room for senators to offer amendments, including on things like extending expiring Trump-era tax cuts, provided they don’t go below $1 billion in Finance Committee deficit reduction. GOP senators could offer other amendments, including on energy policy, to try and put Democrats in a tough spot ahead of midterm elections this November.
Alternatively, there’d be room for Democrats to try to expand spending within Finance’s jurisdiction. They could seek to add a paid leave program, expanded child tax credits, funding for home- and community-based care under Medicaid, or Medicare hearing benefits that were in earlier versions — as well as tax increases to pay for it all.
And that’s just the tip of the iceberg, as 11 other Senate panels received reconciliation instructions enabling them to add as much as $1.75 trillion to deficits over the decade ending fiscal 2031.
The Health, Education, Labor and Pensions panel has room to add as much as $726.4 billion; that panel’s Democrats released a version in December that would cost $474.6 billion, with four-fifths of that for a new child care and universal prekindergarten program.
Other panels received smaller instructions, such as $25 billion to the Small Business Committee. That panel’s chairman, Benjamin L. Cardin, D-Md., has been pushing for financial relief to the restaurant industry for months, and reconciliation could be an attractive vehicle.
Still, ultimate veto power on any amendments lies with Manchin, who could sink the entire package with a “thumbs-down” at the end of the vote-a-rama. So Schumer would have to either enforce strict party discipline on amendments or offer a manager’s amendment at the end of the process to strike any unwelcome additions that could jeopardize passage — a tactic that’s been employed before.
And any amendments would need to comply with the “Byrd rule,” the 1985 statute that limits reconciliation bills to provisions that affect spending or revenue.
Further, provisions must have budgetary changes as their primary purpose — budgetary effects can’t be “merely incidental” to a broader policy goal. So amendments to codify Roe v. Wade, for instance, would likely be ruled out of order. That is, unless the presiding officer decides to ignore the parliamentarian’s advice and rule that such an amendment complies with the Byrd test — a ruling that would take 60 votes to overturn.
There was strong pressure on Democrats to ignore parliamentary advice when it came to minimum wage provisions in the pandemic relief reconciliation package last year, but they ultimately backed down.
Similarly, the fiscal 2022 budget resolution allows for up to $107.5 billion in Senate Judiciary Committee provisions that could be used to liberalize immigration restrictions — but the parliamentarian’s office last year rejected several proposals to write a Byrd rule-compliant immigration title.
Another option for Republicans wouldn’t require them to meet budget targets or even outline specific policy changes. They could offer “motions to commit” the package back to the committees of jurisdiction, 11 out of 12 of which won’t have met their reconciliation instructions or reported out any legislation.
Sen. Bill Hagerty, R-Tenn., used such a tactic when the $1.9 trillion pandemic relief measure was on the floor in March 2021; the Senate simply took up the House-passed bill and opened that up for amendment, rather than going through the typical markup process. Hagerty offered motions to send the measure to the 11 committees that received instructions in the fiscal 2021 budget resolution.
“I am still new here, but what is the purpose of the Senate’s system of expert committees if — as we consider one of the largest spending packages ever before this body — we are just going to act as if those committees don’t exist,” Hagerty, a freshman, said at the time.
The 11 motions were rolled into one that was rejected on a party-line vote, 49-50.
Republicans are unlikely to offer such motions next week to get the committees of jurisdiction to increase spending. But they could offer motions with instructions for panels to report out alternatives, such as spending cuts, as the reconciliation instructions don’t place a limit on how much deficit reduction can occur.
A potential amendment free-for-all during next week’s marathon vote session could have been avoided had the various Senate committees acted as they were instructed under the fiscal 2022 budget resolution.
Under the standard process, which the House observed on both the COVID-19 relief bill and the current measure, formerly known as “Build Back Better," the Budget committees would staple the pieces together after the various markups ended and report out a combined package.
That could have narrowed the scope significantly. For instance, if a Senate Budget-reported bill was limited just to prescription drug pricing and health insurance exchange provisions, amendments on other topics could be considered nongermane.
But as with the 2021 relief package, the Senate Democratic majority is constrained in that partisan committee ratios are tied 50-50, like the broader Senate.
In theory a deadlocked committee vote would still allow Schumer to offer a motion to discharge the legislation from committee, requiring a simple majority on the floor. However, if Republicans denied Democrats a quorum in committee, a bill couldn’t even get to the point of a tie vote eligible for a motion to discharge. Thus Democrats skipped Senate markups for both reconciliation bills in the 117th Congress.
It's not the first time Senate panels have bypassed committee markups for multipronged reconciliation measures.
In 2010, the “sidecar” budget bill accompanying the main text of what became President Barack Obama’s health care law, as well as education provisions, went straight to the Senate floor after House passage. Similarly, Senate Republicans in 2015 and again in 2017 took their health care law repeal, and subsequently “repeal and replace,” bills straight to the floor with behind-the-scenes submissions from the Finance and HELP panels.
But it would be unprecedented going back to at least 1989, according to the Congressional Research Service, for the Senate to take up a reconciliation bill in which multiple Senate committees receiving instructions ended up with no material included in the underlying legislation. That's thanks to the deal with Manchin that substantially cut the scope of the bill.
Limited debate, unlimited votes
The process will begin with a motion to proceed to the House-passed budget bill. If adopted, Schumer would be recognized to make the Senate’s substitute amendment the pending business, which would narrow the scope of the bill from what the House passed. But senators could still offer amendments under the jurisdiction of any of the dozen Senate panels that received budget instructions.
After the motion to proceed is adopted, there would be 20 hours of debate, equally divided between the parties unless one or both yielded back time. Then the vote-a-rama would ensue — theoretically ending only when individual senators run out of steam to offer amendments or motions.
That’s typically in the wee hours of the morning or the following afternoon. For example, the 2010 health care and education reconciliation debate saw 29 roll call votes, wrapping up at 2:55 a.m., according to Senate records. The March 2021 rescue plan debate saw 37 roll call votes, finishing at 1:05 p.m. the following day after consideration was held up for hours by final negotiations with Manchin.
Peter Cohn contributed to this report.