Democratic norms aren’t safe just because Biden won
Much has been made of the potential elimination of the filibuster. After demanding for weeks that Senate Majority Leader Chuck Schumer (D-N.Y.) agree to preserve it, Minority Leader Mitch McConnell (R-Ky.) finally dropped his demand after Sens. Joe Manchin (D-W.V.) and Kyrsten Sinema (D-Ariz.) publicly committed to upholding the Senate’s best-known rule.
But no matter what happens to the filibuster, norms in the Senate are primed to change. Many Democrats have begun suggesting creative uses of budget reconciliation for advancing President Biden’s priorities in the body.
Reconciliation has long been a favorite gimmick for ramming legislation through Congress during times of united government. Republicans did it with George W. Bush’s tax cuts in 2003, Democrats returned the favor with ObamaCare in 2009, and Republicans utilized it one more time with the Tax Cuts and Jobs Act, or TCJA, at the start of the Trump administration.
In each of those past instances, Senate leadership abided by a series of historical norms that are supposed to govern the process, including following the instructions of the Senate parliamentarian about which priorities can be advanced via reconciliation, and which could not. That’s why, for example, only part of ObamaCare was enacted that way, and it’s why the passage of TCJA resulted in a mélange of temporary, partial and error-filled tax reforms.
This time, though, things are going further and abandoning even a tenuous connection to budget issues. Prominent Democrats have started calling for non-budgetary priorities, like a $15 federal minimum wage, to be enacted via such legislation, too. Such efforts wouldn’t be possible according to the norms that have governed the process since at least the mid-1980s. It’s the strongest sign yet that while President Trump may now be out of office, those in Washington determined to destroy our historical institutions are still very much in a position to do so.
After all, reconciliation was never supposed to be used to pass partisan priorities in the first place, but rather was a procedural tool for enforcing spending and revenue targets set in the budget. The so-called Byrd rule governs not only which topics can be addressed via reconciliation – items that impact revenues and direct spending only – but also restricts any measures that would increase deficits in future decades. That rule has always been followed, with the Senate parliamentarian serving as the nonpartisan umpire.
So, what’s a policymaker in 2021 to do? Ignore the parliamentarian altogether.
While the assessments of parliamentarians in years past have been treated as sacrosanct, their decisions are not actually binding. That’s up to the Senate’s presiding officer, who can choose to move forward regardless if the norms are violated — and increasing evidence shows that’s exactly what Democrats plan to do.
To be clear, Democratic leadership didn’t come up with this idea, but they’re the first to treat it as a serious path forward. In the early days of the Trump administration, some on the right called for allowing the presiding officer to overrule the parliamentarian, too, in a naked attempt to eliminate ObamaCare and replace it with a Republican alternative by any means necessary.
Now, no longer will there be attempts to bend over backward to make priorities compliant with the rules, and items like minimum wage increases – which impose a mandate on the private sector but don’t actually impact the federal budget – are now apparently fair game.
This is a mistake. The last four years have seen a flouting of rules and norms in Washington unlike any other period in my lifetime, and President Biden was elected to turn that trend around. Playing games in the Senate and ignoring the procedures that govern how Washington operates isn’t doing that at all. Instead, it’s just continuing down the path we’ve been on for a while now — doing whatever it takes when “our side” is in power and ignoring the inevitable reality that, someday, the tables will be turned.
Jonathan M. Bydlak is the interim director of the Governance Program at the R Street Institute, a center-right think tank.