Pay special attention to the language of Senate Minority Leader Mitch McConnell (R-KY) tonight.
He agrees with his demand that Democrats promise not to give up the filibuster in a 50-50 Senate power-sharing agreement. McConnell is ready to agree now – because he knows the Democrats – and the Republicans, on this issue – there are no votes to remove the filibuster.
So, McConnell is ready to fight.
Last week, we knew it was unlikely that there would ever be votes to get rid of the filibuster. But if he fails to eliminate the filibuster, he simply puts Senate Majority Leader Chuck Schumer (D-NY) in trouble. The left wing of the Democratic Party will come to Sumer when the Senate fails to hand over major tickets important to progressives, ranging from climate change to DC statehood. Sumer could only do that by putting out the filibuster. But he lacks the votes for that.
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In other words, Sumer bears responsibility, but not power.
The opposite is true for McConnell: he has power in the 50-50 Senate, but no responsibility. Undoubtedly, McConnell could become the most powerful minority leader in Senate history.
I will now give you a lexical term: “budget coordination”. You will hear a lot about this in the next few weeks. Sumer and the Liberals may fail to change much of their legislative agenda due to filibusters. But they still have an annual opportunity to make progress on certain legislation with a fiscal impact: It’s called “budgetary reconciliation.” This is the same gambit that Democrats used in 2010 to adopt the final version of Obamacare when they lacked the votes to overcome the filibuster. Republicans also used the same tactics to repeal and replace Obamacare – but they could never get enough votes.
In recent days, it has been said that Democrats are increasingly seeking to agree on a budget to adopt the next COVID package.
Here’s how it works:
Budgetary coordination essentially deprives the Senate of its two main characteristics: unlimited debate and unlimited amendment process. In other words, no filibuster. But budgetary reconciliation can only be used for fiscal measures, such as tax policy. Obamacare qualifies because it deals with all sorts of tax issues. Weapons? Doubtful. Immigration? This pushes him, although there may be problems with taxes and the budget for new citizens. Statehood for DC? Maybe an external chance, because you deal with taxes and representation for 700,000 Americans. But it can be a stretch.
It depends on how creative they can become.
This is more art than science.
And you can only accept something with 51 votes in the Senate.
In order to have a means of approving the budget to be used for legislation, the Chamber and the Senate must first adopt a budget. In fact, they could do it like a shell. This process probably takes several weeks, even if you are moving at an accelerated pace.
You only receive one budget negotiation package per year – provided you can accept a budget.
Now, as we have said, there is a problem with the policy, which must be fiscal in order to be eligible for budgetary coordination. In other words, you can’t pass a bill that deals with federal state policy to reconcile the budget. And it must be “budget neutral”. The measure cannot increase the deficit.
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Budget approval has more implications for the Senate than for the House. Debate time is limited to 20 hours and limits change. Such restrictions on debate and amendments are not uncommon in Parliament. But budget reconciliation limits Senate finalists. It takes 60 votes to create a barrier – often twice – in the accounts for garden varieties. Senators can block efforts to call for legislation and stop the debate again. But the elite nature of the budget conciliation package prohibits senators from inventing the work at each stage. It simply takes a simple majority to approve the amendments and accept the final product. In fact, senators can only make regulations (assuming the Senate is not functioning properly) of certain amendments or other provisions in the package and then vote to “waive the Budget Act.” But the rejection of the budget law requires a majority of 60 votes.
One is to start reconciling budgets with a standard feed. But it is a high form of parliamentary art to use reconciliation for other controversial political purposes. This is where lawmakers take advantage of special reconciliation rules – and bypass a filibuster that would otherwise burn a stubborn piece of legislation.
But warn emptor. There is an inherent landmine that comes with reconciliation. It’s called the Byrd Rule, the namesake of the legendary, late Senate Majority Leader Robert Byrd (D-WV). The practical impact of Bird’s rule is that “external” legislative priorities cannot be reconciled. Some examples include whether a provision reduces or increases taxes or revenues, increases the deficit or is not related to budgetary issues. Senators may make regulations to mark an inconsistent provision. As mentioned earlier, 60 votes are needed to abandon the Budget Act and overcome Bird’s rule.
That is why the use of reconciliation can be a nest of a parliamentary hornet.
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So this may be the next tactic to approve a COVID bill. But first, the House and Senate must pass budgets. And that will take some time.