So much for the Joe Biden/Chuck Schumer back door. The Senate’s reconciliation process can only be invoked once per fiscal session, the Senate’s parliamentarian ruled last Friday in a decision only revealed this morning. In extraordinary circumstances, the Senate could use it twice — but at a heavy cost:
to use reconciliation twice, there would have to be reasons beyond political expediency – like an economic downturn.
— Jake Sherman (@JakeSherman) June 2, 2021
If the Senate wanted a second bite at the reconciliation apple in a single fiscal year, it would have to start the budget process from scratch first, which would turn into a logistical nightmare:
the ruling ALSO said Congress would have to start over. Repass budget in committees and bring them to the floor. in the senate, that would trigger another vote-a-rama. This would be exceedingly time consuming, and potentially politically risky.
— Jake Sherman (@JakeSherman) June 2, 2021
That doesn’t mean that the process is off the options list. However, Schumer would now have to tie it to next year’s budget process for FY2023, and that means a delay in going forward with any infrastructure package that doesn’t have ten or more Republican votes:
In practicality, this could affect next year’s plans, and would force Dems to argue that there was economic need to do reconcilaiton twice, a process that would not be subject to a filibuster and 60-vote threshold. They could still do it once next fiscal year
— Manu Raju (@mkraju) June 2, 2021
Bloomberg Law points out the new hurdles Senate Democrats face, and not just on infrastructure:
Parliamentarian Elizabeth MacDonough said that to revise a budget resolution, such as the fiscal 2021 resolution used to pass the Covid 19 relief bill in March, the measure must go through committee and have floor amendment votes. That would make the process of revising a budget as time consuming as doing a fresh budget. MacDonough also ruled that there must be a legitimate reason — such as a new economic downturn — for revising a budget, the person said.
Limiting the ability to revise a budget makes it more likely Democrats will attempt a fresh fiscal 2022 budget to bypass Republicans if bipartisan infrastructure talks fail. It also likely restricts their ability to revisit that same budget later to pass additional fiscal initiatives. Democrats have talked of using a fiscal 2023 budget to expand Obamacare or cut drug prices.
With this ruling, Joe Manchin can claim some vindication. He had argued that reconciliation could not be used to obviate the filibuster, and MacDonough has now made that an official position. Schumer can try to overrule MacDonough, but with Manchin and Kyrsten Sinema almost certain to oppose it, it would be a waste of time.
This also puts more pressure on Biden to cut a deal with Republicans on infrastructure. He has a meeting today with top Senate GOP negotiator Shelley Moore Capito that takes on new significance in light of this development:
President Biden will meet Wednesday afternoon with Republican Senator Shelley Moore Capito, the leader of a group of Republican senators aiming to craft a deal with the president on legislation focused on revamping the nation’s physical infrastructure. The meeting comes after Capito and her colleagues introduced a counteroffer on infrastructure last week amounting to nearly $1 trillion, which is still significantly less than Mr. Biden’s $1.7 trillion proposal.
“The president is looking forward to hosting Senator Capito on Wednesday afternoon at the White House, where they will continue their bipartisan negotiations about investing in our middle class and economic growth through infrastructure,” a White House official told CBS News.
The one-on-one meeting on Wednesday indicates the president’s willingness to engage with Republicans on key priorities, although it’s unclear how long negotiations will continue. Senate Democrats are already laying the groundwork to pass the larger infrastructure package through Congress using budget reconciliation, a process which would allow the measure to pass without any Republican votes.
Not any more, they’re not. Reconciliation is now out for this budget cycle, and Senate Democrats have to pick one and only one reconciliation item for next year’s budget. Why waste it on infrastructure, where Republicans are willing to bend, rather than on expanding ObamaCare where the GOP will be foursquare in opposition? Better to take the trillion-dollar GOP proposal and come back next year with reconciliation still in hand for other agenda items where bipartisanship will evaporate.