It’s not as simple as open season for the Senate to finally act according to majority rule. But it greatly brightens the prospects that Congress will actually do what it’s supposed to.
As you may remember, the American Rescue Plan was passed via reconciliation, which is only supposed to happen once per fiscal year. In this case it was technically the 2021 reconciliation bill, allowing for another reconciliation bill — likely for infrastructure — to be passed this year, since that would cover fiscal 2022.
That would have been the only opportunity for Democrats to pass anything this year with 51 votes, overcoming Republicans’ determination to filibuster everything on President Biden’s agenda. But on Monday evening, Senate Majority Leader Charles E. Schumer (D-N.Y.) announced that the parliamentarian, who referees the chamber’s processes and procedures, has approved what was essentially a hidden tool in the law, permitting Democrats to use reconciliation rules to pass new bills, including infrastructure, as revisions to the previous reconciliation bill.
That means that though an infrastructure bill would be almost entirely new, calling it a “revision” to the prior reconciliation bill would allow it to pass with a simple majority, without using up the once-yearly shot at reconciliation.
In theory, Democrats can now do that as many times as they want, passing revision after revision to the last reconciliation. In practice, however, the revisions would be restricted to budgetary matters and would have to go through lengthy and cumbersome floor procedures nobody really likes. So in practice it will probably be deployed only a few times at most.
Nevertheless, this could have a huge impact on the prospects for Biden’s agenda — and on the future ability of Republicans to wield their minority veto, a.k.a. the filibuster, on anything the majority wants to do.
Let’s put this in the context of the infrastructure bill, where negotiations are now underway. The administration has presented its hugely ambitious proposal, and now we’re in the stage of the process where various people say what they think is wrong with it.
Sen. Joe Manchin III (D-W.V.), whom all legislation must satisfy, announced that the White House’s proposal to increase the corporate tax rate to 28 percent from 21 percent — which would still be far less than the 35 percent it was before the 2017 Republican tax cut — is wicked in his sight. The rate should go up to no more than 25 percent, Manchin says.
Why he feels so strongly about this is unclear, since the people of West Virginia probably aren’t staying up nights worried that the corporate tax rate might be a few points higher. But he may get that provision changed, or he may not.
Meanwhile, Republicans are saying that if Democrats presented something far smaller — on the order of $600 billion and confined to what the GOP absurdly considers “real” infrastructure — then they might vote for it, and reconciliation would not be necessary since it could get 10 Republican votes and overcome their own filibuster.
Of course, this is a ruse. Republicans will never vote even for a smaller infrastructure bill, since it would still help the economy and give Biden another big victory. They’ll string Democrats along for as long as possible, always finding some new objection, until, oops, the midterm elections are almost here so we clearly can’t pass a bill right now, and then, whaddya know, they’ve taken control of Congress.
Fortunately, Democrats have gotten burned by that GOP strategy too many times, and they seem to finally understand how it works. Armed with the parliamentarian’s ruling, they now have more power to get Republicans to negotiate and produce something resembling a bipartisan bill.
That’s because Democrats can say, “Look, we’re going to do this with or without you. You can just whine from the sidelines, and we’ll pass it with 51 votes as a revision to the last reconciliation bill. Or you can join us for some good-faith negotiations, and maybe you’ll get some of what you want.”
Everyone knows Republicans’ default preference is that Democrats accomplish nothing, Washington seems broken, Biden looks ineffectual, and the result allows Republicans to take back Congress. Only if the possibilities for legislation are broadened will Republicans have any incentive at all to participate rather than to obstruct.
The other benefit to the parliamentarian’s ruling is that it weakens the filibuster just a little, perhaps making reform — say, the creation of more reconciliation-like exclusions that allow other kinds of bills to pass with a simple majority — look even more sensible.
One lesson from this period is that it’s absurd to force congressional majorities to execute complicated procedural somersaults like this one just to pass a bill — especially a widely popular bill. But this is still good news: Congress is supposed to pass bills and make laws, and until we get genuine reform, anything that makes it easier for it to do so ought to be celebrated.