Irreconcilable Differences

Weekend Update

When you take all of the elements of Article I, Section 8 of the Constitution (the part that establishes the powers of Congress), it all comes down to one thing: money. Writing tax legislation and then appropriating the collected funds to parts of the federal government is Congress’s most important job. It’s not glamorous and is complicated by jargon like entitlements, offsets, marginal tax rates, appropriations, outlays, and so forth. But it’s the most important thing Congress does, which is probably why the ongoing public screw-ups surrounding this process are so maddening.

I’m thinking about this today because of last week’s ruling by the Senate Parliamentarian (Elizabeth MacDonough) that Trump’s $1 billion request for White House security and East Wing modernization could not be included in the much larger $70-72 billion reconciliation primarily focused on immigration enforcement and homeland security.

I’ve written about this before because the recurring public nature of these screw-ups periodically grabs our attention. I’ll put the links to my previous scribblings about this process at the end of this article.

Here’s a quick summary of how this is supposed to work. The House and Senate determine how much money the government can spend by passing appropriations bills. The House passes these with a simple majority, but Senate rules require a 60% vote (60 Senators) to pass these bills. There is an exception to this – special budget reconciliation rules that allow the Senate to fast-track legislation in exigent circumstances.

The reconciliation process came into being because of President Nixon’s efforts to impound (refuse to spend) appropriated funds. At that time, Congress handled taxes and spending through scattered committees, and there was no unified congressional budget process. This led to a situation where presidents increasingly dominated the process of raising and spending revenue.

Congress viewed this as a major constitutional threat to the spending power given to Congress in Article I, and revamped the congressional budget process by establishing House and Senate Budget Committees and creating the Congressional Budget Process. This was all in the Congressional Budget and Impoundment Control Act of 1974.

This piece of legislation also established reconciliation as a technical cleanup mechanism. Congress would first pass a budget resolution, setting broad targets for spending, revenues, and deficits. Then, reconciliation bills would ‘reconcile’ existing laws with those budget targets. This was intended primarily as an administrative process, not the sweeping partisan policy vehicle it has become.

However, Senate rules ended up making it more powerful than anyone anticipated. Normally, Senate legislation needs 60 votes to pass, although that’s not what the Constitution mandates. The constitution does require a supermajority of votes (2/3 for treaties, impeachment convictions, constitutional amendments, and overriding vetoes), but ordinary legislation requires only a majority.

But the Constitution also did not set any limitations on debate, and the Senate did not pass rules to limit debate as the House had. During the 19^th century, Senators discovered they could “talk a bill to death” by prolonging debate until everyone decided to go home. That became what we know as the filibuster.

In 1917, frustration over obstruction of the war effort led the Senate to adopt Rule XXII, which created the concept of cloture – a means to end debate. This originally required a 2/3 vote. In 1975, the Senate lowered the cloture requirement to 3/5, or 60 Senators. So an ordinary bill could still be passed with a simple majority, but to get to the point of voting, the bill’s proponents had to secure 60 Senators to agree to end debate and vote on it.

But reconciliation bypasses the filibuster – because it was intended to be procedural rather than substantive, it could pass by a simple majority. The Budget Act, therefore, limits reconciliation debate to 20 hours, after which the Senate is required to vote.

But once senators realized reconciliation could bypass the filibuster, parties increasingly tried to cram broader policy goals into reconciliation bills. This alarmed many Senators, so in the 1980s Senator Robert Byrd (D-WVA) developed what came to be called the Byrd Rule to ensure that reconciliation remained primarily budgetary, not a vehicle for unrelated policy. Most importantly, the Senate Parliamentarian has the power to determine what qualifies under reconciliation rules and thus what can be passed with a simple majority.

Over time, major laws were passed (at least in part) through reconciliation:

• Reagan’s Tax Cuts

• Clinton’s Welfare Reform

• Bush Tax Cuts

• Parts of Obama’s Affordable Care Act

• Trump’s Tax Cut and Jobs Act in his first term

• Biden’s American Rescue Plan

Reconciliation gradually evolved into the primary mechanism for passing major partisan fiscal legislation when one party lacks a 60-vote majority in the Senate.

In last week’s ruling, Parliamentarian Elizabeth MacDonough agreed with the opponents of the ballroom funding, saying that the provision was outside the jurisdiction of the committee handling the bill (the Judiciary Committee) and that the provision was not sufficiently tied to the narrow budgetary purposes allowed under reconciliation.

You may remember previous instances when the Senate proceeded under reconciliation and embarked on what they call a ‘vote-a-rama.’ In practical terms, reconciliation bypasses the filibuster, but in exchange, the Senate allows unlimited amendment votes during final consideration. This is possible even given the 20-hour limit on debate, because under reconciliation, senators may continue offering amendments after the debate time has expired. Theoretically, a vote-a-rama can go on indefinitely, but apparently even United States Senators have some shame.

If the Republicans try to rewrite, narrow, or reinsert the ballroom funding into the reconciliation bill, Democrats could challenge it under the Byrd Rule, force procedural votes, and use a vote-a-rama to spotlight the issue politically. So the parliamentarian’s ruling most likely means the provision will be removed or rewritten. Only if Trump insists that his Congressional lackeys continue to push it will it become the subject of a prolonged and politically costly floor fight.

Because the notion of a rules-based order has never deterred Trump, we have to ask whether he’ll just tell the Senate Majority Leader, John Thune, to fire Elizabeth MacDonough. This is an appointed position controlled by the majority party in the Senate, so it is within their power to fire her if Trump tells them to. She has served in this position since 2012, through Democratic and Republican Senate majorities. She helped guide the Senate through the procedures of Trump’s two impeachment trials, and her staff secured the Electoral College certificates from rioters. In 2017, Washingtonian named her among Washington’s 100 most powerful women. She is generally respected for her measured and scrupulously neutral application of Senate rules.

So yeah, Trump will fire her and replace her with someone who will ignore Senate rules so he can get what he wants.

Elizabeth MacDonough

Here are my previous articles on the Budget Process if you really don’t have anything to do today: