Stretching Processes and Avoiding Reform: Senate Reconciliation and Filibuster

Josh Huder | April 8, 2021

News dropped Monday the Senate Parliamentarian would allow Democrats to “revise” the budget resolution for fiscal year 2021. This is an important guidance because it would enable Democrats to pursue another round of reconciliation – a process outlined in the 1974 Budget and Impoundment Control Act allowing for Senate passage of budget-related legislation by a simple majority. This has major implications for both how much of the Democratic agenda can get passed, but also the functioning of the Senate going forward.  The only time Congress adopted a revised budget resolution was for fiscal year 1977, to pass a bipartisan stimulus bill proposed by the new Carter Administration. Democrats now want to revise the current FY21 budget resolution to trigger another round of reconciliation and sidestep expected Republican opposition to President Biden’s $2 trillion infrastructure plan.

How has reconciliation changed over time?

While by no means assured, successful execution of this plan would significantly expand the existing reconciliation process. In the face of increasingly frequent filibusters, reconciliation has become unified majorities’ preferred strategy and has been stretched well beyond its original purpose as majorities redefined it to accommodate their political and policy goals. Reconciliation has been used over twenty times to achieve a variety of policy wins, and its continued reinterpretation has only made bigger policy wins possible.  It was notably intended as a deficit-reduction process, but was reinterpreted by the parliamentarian in 2001 to allow for the Bush tax cuts.  The Democrats briefly brought back the “Conrad rule” to prohibit reconciliation from adding to the debt in 2007, but clearly have no interest in such fiscal restraint now.  In 2017 and now in 2021 the budget process has been so delayed that multiple budget resolutions (and thus reconciliation attempts) can be used withing a calendar year, opening the door for bigger legislative wins.  The latest Democratic attempt is merely another step in a long line of partisan reinterpretations.

The big question: what does this mean for the filibuster?

The larger question some have asked relates to its effects on the Senate more broadly. Are efforts to stretch provisions to circumvent the filibuster evidence of eroding support for 60-vote cloture? The answer is somewhere between yes-ish and no.

Inventive adaptations of budget rules clearly demonstrate frustration with the filibuster. Reinterpreting and expanding existing processes has its roots in minority obstruction. For example, the House Rules Committee’s function and powers expanded dramatically in the 1880s in response to House filibusters. More recently, frustrated senators created dual tracking –parallel legislative tracks that allowed the Senate to consider other legislation even as a filibuster on a separate bill continued – in the early 1970s to avoid allowing filibusters to grind business to a halt. Periods of frustration have absolutely spawned procedural evolutions.

However, expanding reconciliation is not filibuster reform, nor is necessarily indicative of such reform in this Congress. Democrats lack the votes to amend the rules or create legislative exceptions to circumvent 60-vote cloture requirements. So instead, they will expand a clunky and heavily regulated process to pursue major priorities. This dooms a significant portion of Democrats’ non-budgetary agenda; reconciliation is far from an ideal alternative. But their pursuit of this tact is instructive. Reconciliation’s expansion in fact reflects the filibuster’s continued entrenchment.

Bigger reform is hard, and political

Procedural reinterpretation is easier from reforms that require changes to the chamber’s or majority party’s rules.  A preference for the former often reflects a lack of votes for the latter.  Republicans expanded reconciliation not because it was the best alternative or best fit their policy goals. It was a substitute because filibuster reform was off the table. And despite growing agitation to reform the filibuster in this Congress, the current, small and diverse, Democratic caucus requires crafting fragile coalitions of senators representing dramatically different constituencies. Enacting major partisan procedural change to pursue a more progressive legislative agenda is a tough sell for a senator representing a state in which the Democratic presidential candidate won only 29.7% of the vote. Put simply, we may be inching closer to reform of the legislative filibuster after years of eroding and then eliminating filibusters for nominees. But both parties’ reliance on reconciliations is evidence neither party has the votes yet to enact legislative cloture reform.  The Senate parliamentarian’s advice may be seen as providing a pressure valve for such efforts, preventing further change for longer.  If such change does finally occur, the filibuster may go out not with a bang but with a whimper.

Majorities adjust institutions to accommodate their ends. In this case, Democrats will seek to expand a more limited process to enact their agenda. This change will significantly affect the Senate’s operation. However, it also tells us real filibuster reform remains a good way off.


Josh Huder is a Senior Fellow at the Government Affairs Institute

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