Progressives push controversial proposal on budget reconciliation

Progressive Democrats are pushing a plan to ignore the Senate parliamentarian if she rules policies such as raising the minimum wage can’t be included in a budget reconciliation package.

Budget reconciliation allows legislation to move through the Senate on a majority vote, and it cannot be filibustered.

As a result, Democrats have been eyeing the budget process to get key items like a $15 per hour minimum wage to President Biden’s desk. Using the process would prevent Republicans from blocking a bill by ensuring one could pass with 50 Senate Democratic votes, and Vice President Harris breaking the tie.

ADVERTISEMENT

The problem is another Senate requirement known as the Byrd Rule that requires policies like a minimum wage hike to meet certain requirements to qualify under budget reconciliation. 

A number of budget experts believe a minimum wage hike might not meet Byrd Rule requirements, and that the Senate parliamentarian could rule that it could not be included in a reconciliation package.

It’s not clear that’s the case.

Bill Dauster, who served as deputy chief of staff to former Senate Majority Leader Harry ReidHarry Mason ReidWhite House seeks to shield Biden from GOP attacks on crime issue Lobbying world Warner backing 'small carve-out' on filibuster for voting rights MORE (D-Nev.), published a Roll Call op-ed this week arguing that the $15 minimum wage bill Biden included in his $1.9 trillion COVID-19 relief plan had a chance to get the parliamentarian’s stamp of approval. 

But if the ruling goes against Democrats, he said the party should push it through anyway.

“In the end, this is a call the Constitution gives the vice president or, in her absence, the Senate’s president pro tempore to make,” he wrote, noting that the decisions would fall on Harris or Sen. Patrick LeahyPatrick Joseph LeahyThe Hill's Morning Report - Presented by Facebook - Biden sets new vaccine mandate as COVID-19 cases surge House clears .1 billion Capitol security bill, sending to Biden Senate passes .1 billion Capitol security bill MORE (D-Vt.), the Senate president pro tempore.

ADVERTISEMENT

“If the Senate parliamentarian does not advise them that Congress can include the minimum wage in budget reconciliation, Harris or Leahy should exercise their constitutional authority to say that it can,” he wrote.

The suggestions gained steam on the left after centrist Democrats such as Sens. Joe ManchinJoe ManchinThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions Graham's COVID-19 'breakthrough' case jolts Senate Graham says he has COVID-19 'breakthrough' infection MORE (W.Va.) and Kirsten Sinema (Ariz.) reiterated their opposition to killing the filibuster, which essentially requires major legislation to win 60 votes to get approval in the Senate.

“I think that the key here is that we're going to keep every tool in the toolbox available,” Congressional Progressive Caucus Chairwoman Pramila JayapalPramila JayapalSenators introduce bipartisan infrastructure bill in rare Sunday session Angst grips America's most liberal city Congress must lower the Medicare Age to save the lives of older Americans MORE (D-Wash.) said when asked about the approach, adding she had been in touch with Senate colleagues about the possibility.

Rep. Ro KhannaRohit (Ro) KhannaCalifornia Democrats warn of low turnout in recall election Overnight Energy: Democrats request interview with Exxon lobbyist after undercover tapes | Biden EPA to reconsider Trump rollback on power plant pollution in 2022 | How climate change and human beings influence wildfires Democrats request interview with Exxon lobbyist after undercover tapes MORE (D-Calif.), a close ally of incoming Senate Budget Committee Chairman Bernie SandersBernie SandersThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions The Memo: Left pins hopes on Nina Turner in Ohio after recent defeats Five things to watch in two Ohio special election primaries MORE (I-Vt.), said Democrats should think big in terms of what can be in reconciliation.

“I personally think we ought to be getting rid of the filibuster, but at the very least we ought to be expanding reconciliation to apply to many more prospects,” he told The Wall Street Journal. 

Sanders, who will oversee the reconciliation process and has voiced skepticism over eliminating the full filibuster, has not offered an opinion on sidestepping a parliamentarian ruling. He argues raising the minimum wage would not run afoul of the Byrd Rule.

Democrats used a budget reconciliation package in 2010 to advance the Affordable Care Act, while Republicans used it in 2003 and 2017 to cut taxes.

In each case, the Byrd Rule dramatically affected the final legislation.

For example, elements of both the Bush and Trump tax cuts had a 10-year expiration in order to comply with Byrd Rule deficit requirements. Republican attempts to overturn Obamacare, which ultimately failed, were limited by what provisions were Byrd Rule compliant.
 
Ignoring Byrd would create a fight with Republicans in the Senate as Biden talks of working with the minority party to move legislation.

GOP senators warn it could set a negative tone for Biden, particularly with a divisive fight over Trump’s second impeachment trial set for February.

“I think you’ve got to be careful that you don’t start off in a very highly partisan way, because between impeachment and a reconciliation bill, particularly one where you ignore the rules of reconciliation, which people are talking about, I think you set a really bad tone, at least for months and maybe for the first term, the first two years at least,” Sen. Rob PortmanRobert (Rob) Jones PortmanThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions Graham's COVID-19 'breakthrough' case jolts Senate Key Senate Republican praises infrastructure deal MORE (Ohio), a retiring Republican who is engaged in negotiations over the COVID-19 bill, said in an NPR interview.

Democrats say they are merely keeping their options open.

ADVERTISEMENT

“We have to be ready,” Speaker Nancy PelosiNancy PelosiThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions Overnight Health Care: Average daily COVID infections topped last summer's peak, CDC says | US reaches 70 percent vaccination goal a month after Biden's target | White House says CDC can't renew eviction ban Biden, Pelosi struggle with end of eviction ban MORE (D-Calif.) said Thursday of teeing up the budget reconciliation bill. 

The White House has made it clear it is very open to using budget reconciliation to prevent the filibuster from blocking COVID-19 relief.

“Our priority is on getting it through and not what the parliamentary process is,” White House press secretary Jen PsakiJen PsakiThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions Overnight Health Care: Average daily COVID infections topped last summer's peak, CDC says | US reaches 70 percent vaccination goal a month after Biden's target | White House says CDC can't renew eviction ban White House says CDC can't renew eviction ban MORE said Friday when asked about the possibility of sidestepping the usual reconciliation rules.

Many Democrats are open to using reconciliation, but ignoring the parliamentarian on the Byrd Rule would be more controversial.

“I hope it doesn’t come to that,” said Sen. Dick DurbinDick DurbinCongress should butt out of Supreme Court's business Inmates grapple with uncertainty over Biden prison plan Democrats warn shrinking Biden's spending plan could backfire MORE (Ill.), the No. 2 Democrat in the Senate. Democrats, he said, should ensure that any policy in a reconciliation bill could survive a Byrd Rule challenge, but hinted at some flexibility in the approach. 

“In the past the Republicans have changed some of the rules relative to reconciliation to accommodate their legislative efforts,” he said.

ADVERTISEMENT

House Budget Committee Chairman John YarmuthJohn Allen YarmuthDemocrats look to flip script on GOP 'defund the police' attacks Democrats hit crunch time in Biden spending fight Republican immigration proposal falls flat MORE (D-Ky.) said the move could open a can of worms Democrats would live to regret. 

“I’m not sure it’s the smartest thing to do,” Yarmuth told Politico. 

If Democrats push through a minimum wage hike, or decide to use the same procedure to pass voting rights legislation, health care reform, or environmental policy, Republicans could take the same approach when they’re in power.

“You do have to worry about precedent,” Yarmuth said.

Jordain Carney contributed.