Chuck Schumer has vowed to pass an infrastructure bill through the Senate by the end of July — whether Republicans like it or not.
But the Senate parliamentarian just threw a wrench into that plan.
Thanks to various deformities in the American polity, the upper chamber of the U.S. Congress now operates according to a byzantine collection of arbitrary rules. Specifically, Senate majorities can only pass legislation with less than 60 votes by invoking a mechanism known as “budget reconciliation.” To qualify as a budget reconciliation bill, a piece of legislation must, among other things, (1) emerge from a budget resolution passed through the House and Senate budget panels, (2) survive a “vote-a-rama”, and (3) be composed entirely of provisions that have a non-incidental impact on the federal budget.
Historically, there has been one more critical limitation to budget reconciliation: It could only be used once in a fiscal year. And Democrats had already burned through 2021’s with Joe Biden’s COVID relief bill.
But in April, Senate parliamentarian Elizabeth MacDonough — the supreme authority on budget reconciliation rules (so long as there aren’t 50 Democratic senators willing to overrule or fire her) — declared that this wasn’t necessarily true. Senate Majority Leader Chuck Schumer had asked MacDonough whether Congress could pass two reconciliation bills in a single year by revising its first reconciliation bill to authorize the drafting of a second (or some similarly eye-glazing nonsense). And MacDonough said yes, although certain terms and conditions would likely apply. Democrats celebrated the first half of the parliamentarian’s answer, while largely ignoring the latter bit: The party proceeded from the presumption that it could use reconciliation to pass a partisan infrastructure bill this summer, if bipartisan negotiations broke down.
But on the Friday before Memorial Day, the parliamentarian revealed the fine print beneath her ruling. According to Punchbowl News, MacDonough found that Democrats could only pass a second reconciliation bill if the party revises its previous budget resolution for a “legitimate reason” (e.g., because an unforeseen economic downturn changed the nation’s budgetary needs), rather than merely “to avoid the regular legislative process” for the sake of “political expediency.” It’s worth noting that these quotes do not derive from a publicly available ruling, but rather, from Punchbowl’s paraphrase of Senate staffers’ paraphrase of MacDonough’s ruling. As reported though, it’s difficult to understand how this matter could be adjudicated objectively. How will the parliamentarian go about determining whether Democrats are expediting a jobs bill to address a slower-than-anticipated recovery, or merely doing so for the sake of political expediency?
MacDonough also stipulated that a second reconciliation bill would be subject to the same arduous legislative process as the first, even if it did derive from a previously enacted budget resolution. Which is to say, Democrats can’t jump right to voting on a partisan infrastructure bill, but would need to pass it through congressional committees and an open amendment process.
Taken together, these conditions likely foreclose the passage of a partisan infrastructure bill before the fall. Schumer’s capacity to get a bill passed by July was already in doubt before the parliamentarian’s ruling. The White House’s negotiations with Senate Republicans have dragged on longer than anticipated. And even if Democrats broke off those negotiations tomorrow, they would still have a lot of internal bargaining to do before producing a bill agreeable to Senate moderates and House progressives alike.
Now, MacDonough has given Democrats an excuse to procrastinate: The new fiscal year begins in October, at which point Schumer & Co. won’t have to worry about proving their budget reconciliation bill isn’t motivated by political expediency (that requirement only pertains to the second reconciliation bill of a given fiscal year, for some stupid reason).
Even if MacDonough’s ruling does ultimately prevent Democrats from advancing multiple reconciliation bills in a single fiscal year, they will still technically have the power to pass two such bills before next year’s midterm elections (as fiscal year 2023 begins before November 2022). Nevertheless, given Congress’s aversion to passing major legislation during election season, MacDonough’s ruling increases the likelihood of Democrats combining the bulk of Joe Biden’s “jobs” and “families” plans into a single reconciliation bill. Which might not be a bad thing, from a progressive perspective. Liberal Democrats have long been skeptical of Biden’s decision to split his Build Back Better agenda into two bills, fearing that once the infrastructure half passes, moderates will feel comfortable obstructing Biden’s plans for expanding social welfare. If Democrats are forced to put everything into a single bill, then moderates will either need to acquiesce to progressive priorities or risk sabotaging their own.
All this said, the outcome of bipartisan negotiations over infrastructure will have a greater impact on the legislative landscape than MacDonough’s ruling. And whether it’s worth taking a half loaf from Senate Republicans for bipartisanship’s sake is one question that Democrats can’t outsource to the parliamentarian.