Parliamentarian: Democrats only get one more chance to sidestep GOP this year

Senate Parliamentarian Elizabeth MacDonough has effectively ruled that only one more automatic budget reconciliation is permissible this year, dealing a blow to Democrats who previously thought they would have two more chances to sidestep Republicans in advancing President Biden’s agenda.

MacDonough ruled that a revision to the 2021 budget resolution cannot be automatically discharged from the Senate Budget Committee, meaning Democrats would need at least one Republican on the 11-11 panel to vote with them.

The bombshell ruling effectively means Senate Majority Leader Charles Schumer (D-N.Y.) will be able to use only one more reconciliation vehicle to pass Biden’s key legislative priorities this year. He will not be able to divide up the $2.3 trillion American Jobs Plan and the $1.8 trillion American Families Plan, as well as Biden’s calls to expand Medicare and lower the price of prescription drugs, into multiple reconciliation packages, as was envisioned only a few weeks ago.

Anything that Schumer wants to pass through the Senate with a simple-majority vote in 2021 will have to go into one budget reconciliation package. 

Schumer would likely not be able to vote on a discharge motion on the Senate floor to force a revision to the budget resolution out of the Budget Committee because such a motion would first require the secretary of the Senate to be notified of a tie vote in committee.

Republicans could keep a revision to the budget resolution bottled up in committee by boycotting any vote to send it to the floor.

That would deny the Budget Committee a quorum and Senate rules prevent legislation from being reported out of committee without a quorum or majority of the panel physically present.  

Prior to the parliamentarian’s latest ruling, quietly issued on Friday, Schumer thought he might be able to pass two or even three more reconciliation bills in 2021, and thereby bypass GOP filibusters and enact Biden’s agenda through several packages.

MacDonough advised Schumer’s staff in April that multiple revisions would be allowed to a budget resolution, which Schumer’s spokesman at the time hailed as “an important step forward.”

“The Parliamentarian has advised that a revised budget resolution may contain budget reconciliation instructions. This confirms the Leader’s interpretation of the Budget Act and allows Democrats additional tools to improve the lives of Americans if Republican obstruction continues,” the spokesman said at the time.

But the advice was only provided in a broad brush, and important details of what exactly would be allowed had not yet been fleshed out.

The Schumer spokesman acknowledged in April “some parameters still need to be worked out.”

Now, the only way Democrats could create multiple reconciliation vehicles based on the 2021 budget resolution or a yet-to-be-enacted 2022 budget resolution would be if Schumer convinced a Republican on the evenly divided Budget Committee to vote to discharge a Section 304 revision to the budget.

The net result is Democrats are where they thought they were in March. That’s when they expected to pass only one more reconciliation package this year after they used the process to pass the $1.9 trillion American Rescue Plan on a party-line vote. 

Any hope of squeezing in two more reconciliation packages — such as one implementing the American Jobs Plan and another implementing the American Families Plan —  is fading fast. 

A spokesman for Schumer declined to comment on the parliamentarian’s latest ruling. 

Democrats were able to move the 2021 budget resolution out of the Budget Committee earlier this year because Section 300 of the Congressional Budget Act of 1974 sets an April 1 deadline for the Budget Committee to report a concurrent resolution on the budget for the next fiscal year.

That enabled Senate Budget Committee Chairman Bernie Sanders (I-Vt.) to automatically discharge the 2021 budget resolution to the floor earlier this year because he did so well after the deadline of April 1, 2020.

But MacDonough has ruled that no such forcing mechanism exists for a revision to the 2021 budget under Section 304.

“Unlike the 301 resolution, a section 304 resolution is an optional procedure untethered to the Section 300 structure,” the parliamentarian wrote in her guidance to senators. “There is no deadline for its reporting from committee or its completion in the Senate.”

The parliamentarian warned that allowing for automatic discharge of revisions to the budget resolution out of the Budget Committee and onto the floor would risk “eroding the budget process,” characterizing it as a scenario in which the budget panel would be churning out “meaningless, stop-gap measures or shells for future consideration.”

“That kind of chaos was not at all what was intended with auto-discharge. Rather, the purpose of auto-discharge is to provide an incentive for committee compliance with the law and to provide a remedy when compliance with and through the mandatory processes of the [Congressional Budget Act] have not been met,” she wrote.

“Auto-discharge is not appropriate for a 304 resolution,” MacDonough wrote in conclusion.

As a result, Democrats will need a majority of Senate Budget Committee members to support passing a revision to the 2021 budget resolution or create multiple budget reconciliation vehicles based on a single budget resolution.

Schumer’s inability to discharge a revision to a budget resolution out of the Budget Committee is a problem posed uniquely by the Senate’s 50-50 split. If Democrats controlled one more seat, it would give them an advantage of at least one seat on all committees. That would then allow them to pass multiple reconciliation vehicles in a single year.

The problem of discharging a revision to the 2021 budget resolution out of committee was overlooked in April.

Any of Biden’s legislative priorities that do not make it into the next reconciliation package — which will come out of the concurrent budget resolution for 2022, which the Senate has yet to pass — would have to wait until next year, when the budget resolution for fiscal 2023 is automatically discharged out of the Budget Committee.

MacDonough in her memo to senators warned that the drafters of the 1974 Congressional Budget Act were leery of potential abuse of the power to revise budget resolutions and made clear in their drafting of Section 304 of that law that they intended it only to respond to changing economic conditions.

“The drafters and early users of 304 uniformly believed that it was to be used in extraordinary circumstances and not for things that should have been or could have been foreseen and handled in a 301 resolution,” MacDonough wrote. “The potential for abuse was clear in 1974 and is all the more obvious now.” 

—Updated at 4:32 p.m.