House and Senate Democrats are prepping an audacious and fast-moving game plan to pass President Joe Biden’s $1.9 trillion COVID-19 rescue package without GOP support, potentially employing tools that would shatter conventional understandings of the budget reconciliation process.
Final decisions haven't been made, and publicly top Democratic officials say they still want to try to work with Republicans on a bipartisan plan first.
But the emerging strategy calls for House action as early as next week on a "shell" budget resolution for the current fiscal year that would include reconciliation instructions to several House and Senate committees for their pieces of the coronavirus aid package. Reconciliation bills can pass the Senate with a simple majority vote, rather than the typical 60-vote threshold.
The timetable could slip by a week or two, according to sources privy to the plans, but the current thinking is House Budget Chairman John Yarmuth, D-Ky., would start the process with a panel markup of the budget resolution. Once adopted by the House, the blueprint would bypass the Senate Budget Committee — which might be evenly split due to the chamber's 50-50 makeup — and go straight to the floor of that chamber.
The budget resolution would contain reconciliation instructions to the Senate Finance, Health, Education, Labor and Pensions, Banking and Agriculture committees; and the House Ways and Means, Energy and Commerce, Financial Services, Agriculture and possibly other committees in both chambers.
The goal would be for House and Senate authorizing committees to work jointly on the package and for reconciliation legislation to pass in both chambers before mid-March. That's when a federal $300 weekly unemployment insurance supplement enacted last month as well as extensions of regular benefits lapse.
Top Democrats are keeping their powder dry for now when it comes to the process for moving Biden's aid proposals.
"His clear preference is to move forward with a bipartisan bill. There's no question about it," Biden spokeswoman Jennifer Psaki said Wednesday. "But we are also not going to take any tools off the table for how the … House and Senate can get this urgent package done."
In the meantime, House and Senate leaders, authorizing committees and the Appropriations committees are coordinating closely and running scenarios by the Senate parliamentarian in preparation for writing the reconciliation instructions and bills.
The strategy involves overturning decades of precedent arguing against using reconciliation for discretionary spending, and potentially ignoring the rulings of the Senate parliamentarian on what constitutes allowable reconciliation language, according to sources who weren't authorized to speak publicly.
Biden's plan proposes hundreds of billions of dollars for programs that historically have been considered discretionary accounts under appropriators' jurisdiction, including for public health and education. Under Democrats’ thinking, authorizing committees would be allowed to put such funding into a reconciliation bill by designating it as mandatory spending.
Doing so would still trigger automatic year-end spending cuts if not offset. But lawmakers could always come back later in subsequent legislation and wipe the pay-as-you-go "scorecard" clean, as they've done numerous times before, including after Republicans enacted their $1.5 trillion tax-cut package in 2017.
The bigger fight may come over whether to brush aside the Senate parliamentarian's advice, which is typically accepted without question by the chamber's presiding officer. Republicans considered doing so for their 2017 effort to "repeal and replace" the 2010 health care law enacted under President Barack Obama, but ultimately backed off for fear of the precedent it would set.
But top Democrats are already telegraphing that these aren't ordinary times, and that the situation may call for extraordinary measures.
“Millions of people are giving up on their government because they’re hurting and we are not responding,” incoming Senate Budget Chairman Bernie Sanders, I-Vt., said Wednesday. “And in any and every way we have got to respond to the pain the people are feeling in terms of hunger, in terms of evictions, in terms of people not having health care, not having jobs.”
Sanders said he agrees with reaching out to Republicans for support but he added: “I hope many of them understand the crises that we’re facing. But if they don’t, we’ve got to go forward with reconciliation.”
After getting the coronavirus aid package done, Democrats plan to pivot quickly to a fiscal 2022 budget resolution with reconciliation instructions to enact the second part of Biden’s agenda — including infrastructure spending, health insurance expansion and efforts to address climate change. Corporate and individual tax increases are on the table for that package as well.
Byrd rules the Senate roost
The "Byrd rule" in the Senate, named for its author, former Sen. Robert C. Byrd, D-W.Va., who died in 2010, restricts what can be included in reconciliation. Provisions need to have a budgetary impact that isn't "merely incidental" to the broader underlying policy, among other things.
That could mean proposals like the minimum wage increase Biden wants, which has a tangential connection to federal spending and tax revenue but doesn't "score" as such, and any revenue impact could be called merely incidental.
If Senate Democrats won't invoke the "nuclear" option by eliminating the legislative filibuster, ignoring the parliamentarian may be the second-best option from the standpoint of progressive policymaking. That route has its roots in 1960s and 1970s efforts to make overcoming a filibuster easier, a push that grew out of the civil rights movement.
Precedents for ignoring parliamentary advice include 1967, 1969 and 1975 efforts to change the Senate's threshold to end debate from a two-thirds vote to three-fifths.
The unsuccessful 1967 attempt led by Sen. George McGovern, D-S.D., a liberal icon and eventual presidential nominee, involved Vice President Hubert H. Humphrey ignoring the parliamentarian's advice, according to 2010 testimony by Robert Dove, himself a former Senate parliamentarian. McGovern needed a majority vote to be successful; he only garnered 37 votes, according to the Congressional Research Service and other sources.
Two years later, with just days left in his vice presidency at the beginning of 1969 and after having lost the presidential race to Richard M. Nixon, Humphrey similarly ruled from the chair that a bipartisan group seeking to lower the filibuster threshold could invoke cloture on their proposal with a simple majority. The Senate voted 51-47 for cloture, only to reverse itself on an appeal of Humphrey's ruling later that day.
Finally in 1975, under GOP Vice President Nelson Rockefeller, proponents of lowering the filibuster threshold led by Sen. Walter Mondale, D-Minn., who subsequently became vice president himself, were successful. According to the Senate Historical Office, Rockefeller ignored the parliamentarian's advice and moved to table then-Majority Leader Mike Mansfield's point of order against the motion to change the cloture rule by simple majority.
The point of order from Mansfield, D-Mont., was tabled 51-42, and shortly afterward the new three-fifths cloture threshold was in place after a bit of procedural wrangling involving none other than Byrd, who was majority whip at the time.
The way it would work under the Byrd rule for reconciliation is a little different. But Vice President Kamala Harris, or whomever the presiding officer is, could decide not to abide by the parliamentarian's ruling if it went against the Democrats. Then, a senator who believes a provision runs afoul of the Byrd rule could raise a point of order, and the presiding officer at that point could decide the point of order is "not well taken," regardless of the parliamentarian's advice.
The senator could then appeal the ruling of the chair. But under a special provision of the 1974 law that established the modern budget process, it would require 60 votes to sustain the appeal. So if a Republican for example wanted to strip a minimum wage increase out of a reconciliation bill, he or she would have to keep the entire caucus united and then convince 10 Democrats to vote the same way.
Peter Cohn and Jennifer Shutt contributed to this report.