A Guide to Reconciliation

The threat by Senate Democrats to pass President Biden’s $1.9 Trillion Covid Relief Bill without Republican support through “Reconciliation” may have you wanting to know more about that process.

If so- here is a quick guide with numerous links and citations for further study, plus geeky fun facts to WOW your colleagues at your don’t-we-miss-it watercooler!

Reconciliation Exists Because of Filibusters

Filibuster occurs when a member of Congress prolongs debate on a bill, killing it by preventing a vote (think “Mr. Smith Goes to Washington”).

The House of Representatives amended its rules to prevent Filibusters in 1842, but they have remained a significant part of how the Senate operates.

Hijacking the Senate was limited in 1917 by adding a rule allowing a two- thirds majority vote to stop a Filibuster, called “Cloture.” To get Cloture, 60 Senators must vote to end the Filibuster. (Sidebar- I know! 60 isn’t 2/3 of 100, but it used to take 67 votes before the rules changed in 1975. Here is a resource about that.)

The net effect is when one party has 41 votes (which could include Independents who align with that party), it becomes impossible for the other party to pass any (controversial) legislation.

To put it the other way- the party in majority needs 60 votes to be Filibuster-proof; currently, the Democrats and Republicans each hold 50 seats in the senate, but the tie-breaking vote of Vice President Kamala Harris puts the Democrats in the lead on any party-line vote.

Reconciliation is a Filibuster Workaround

The Congressional Budget Act of 1974 created the procedure known as Reconciliation, the House and Senate Budget Committees, and the Congressional Budget Office [CBO], which provides independent analysis of the cost of a proposed law in a strictly nonpartisan manner. (Go here for more and the CBO and a 10-minute introductory film)

Reconciliation rationalizes “the process by which Congress set the federal budget.” [quoteIt allows bills to pass in the Senate by a simple majority (51 votes)but only if the legislation in question changes (up or down) spending, revenues, and/or the federal debt limit.

Not only does Reconciliation avoid the Filibuster problem, but it also expedites legislation by limiting amendments to a bill and shortens the time for any debate.

The Byrd Rule & the Parliamentarians
(*warning- this gets wonky- I will be Quick)

There are limits to Reconciliation. The Byrd Rule (named for Senator Robert Byrd and passed in 1985) requires that a bill proceeding under the device may not contain an “extraneous matter” or something “merely incidental” to the federal budget.

Specifically, under the Byrd Rule,  if one party is trying to use Reconciliation, that bill:

  1. May only involve budget-related changes and cannot include policies that have no fiscal impact (or “merely incidental” impact);
  2. May not change Social Security spending or dedicated revenue;
  3. May not increase the budget beyond “the window” (usually 10 years).

The House of Representatives and the Senate each have their Parliamentarian, whose role is to inform their respective bodies about the rules and procedures for passing laws. The Parliamentarians keep Congress in line. The Senate Parliamentarian assures that proposed legislation meets the requirements of the Reconciliation process and follows the Byrd Rule as well. (Remember that none of this has to happen in the House of Representatives because they got rid of their Filibuster option a long time ago– like when John Tyler was President.)

Is Reconciliation Unfair?

Reconciliation always raises alarms in the party not in power.

Last week Minority Leader Mitch McConnell (R, Ky) complained, “notwithstanding the actual needs, notwithstanding all the talk about bipartisan unity, Democrats in Congress are plowing ahead… They’re using this phony budget to set the table to ram through their $1.9 trillion rough draft.” [quoteBut the picture of Senator McConnell is gleeful in the coverage of his leadership passing the $1.4 Trillion tax overhaul through Reconciliation in December 2017 (you do want to look at the picture here).

Similarly, Senate Majority Leader Chuck Schumer (D, N.Y.) now justifies the use of Reconciliation to pass President Biden’s Covid Relief Bill: “We want to work with our Republican colleagues to advance this legislation [but] we’re keeping all our options open, on the table, including budget Reconciliation.” [quote]), but in 2017, in reaction to the GOP Tax Bill, Senator Schumer complained, “We hear from the other side professing they want to work in a bipartisan way, but every step they take takes away bipartisanship. Reconciliation takes away bipartisanship.” [quote]

The Tit-For-Tat Extends to The Senate’s Role In Confirming Federal Judges

In 2013 the Democratic party voted to avoid both a potential Filibuster and the need for Reconciliation by changing the votes necessary to confirm most executive-branch positions to a simple majority, including the Cabinet and federal judges (not nominees to the Supreme Court).  At the time, Senator McConnell called it “a sad day in the history of the Senate” and a “power grab” by Democrats [quotes]; in 2017, Mitch McConnell led his party in exercising “The Nuclear Option” of changing the votes required to confirm a Supreme Court Justice to 51 as well (allowing the easy elevation of all three of President Trump’s nominations).

In reaction, Senator Schumer called the move “disgraceful,” a “sad day in the Senate’s history,” and said he was “so sorry that my Republican colleagues have gone along with Sen. McConnell’s debasement of the Senate.”  Senator McConnell responded, “He started this whole thing,” pointing at Schumer. “This is not a sad day. This is a glad day.” [quotes]

In true school-yard tradition, the fight over “who started” the process of taking bipartisanship out of federal judicial appointments continues to this day.

The Only Thing Bipartisan About Filibusters & Reconciliation Are the Threats

The warnings reverse course as power shifts between the two parties in the Senate.

In 2017, as the Democrats were trying to change the rules to allow more of President Obama’s picks to move forward, McConnell’s threat was, “I say to my friends on the other side of the aisle, you’ll regret this… And you may regret it a lot sooner than you think.”

On the eve of the confirmation to appoint Justice Amy Coney Barrett to the Supreme Court, Democrats had a similar pledge: “Mitch McConnell believes that this fight is over. What Mitch McConnell does not understand is this fight has just begun” (Sen. Elizabeth Warren)

I know I’m not alone in thinking it is time to end this constant battle!

Getting Rid of the Filibuster (and the need for Reconciliation)

The ultimate “Nuclear Option” would be to get rid of the Filibuster in the Senate entirely. (There are many reasons to get rid of the maneuver, and we will get back to those arguments in a future Fontenotes.) All it would require is 51 votes– within reach for the Democratic Senate plus Vice President Harris.

In negotiating special rules to manage a 50/50 split Senate, Mitch McConnell asked for the Filibuster death threat to be taken away- Chuck Schumer didn’t give it up. Still, it became a moot point after Democratic Senators Joe Manchin (W.Va) and Kyrsten Sinema (Ariz.) publicly said they would vote “no” to protect the Filibuster.

Having said that, the 117th Congress only began on January 3rdWe have 2 years, minus a month to see many battles in Washington, and maybe, just maybe, we will see rule changes in Congress after all. But until (unless) that happens, expect to hear “Reconciliation” thrown about as both a dare and a warning. And assume a lot of work will not be done in the Senate.

Want to know more?

  1. Because over the years, the mere threat of a Filibuster has changed legislative strategy, few people stand to speak for hours on end anymore. But not true of Senator Ted Cruz, who memorably held a 21-hour speech on the Senate floor in an attempt to defund Obamacare in 2013, including his reading (in full) of “Green Eggs and Ham.” Here is a video of the moment. Enjoy.
  2. I hope this Fontenotes left you more comfortable about this arcane Senate rule, but you could also just watch an excellent 4-minute video from Kaiser, which explains Reconciliation with brilliant simplicity. You can find it here. (It was created when the GOP was trying to use Reconciliation to Replace & Repeal Obamacare in 2017, but still offers a valuable understanding of the procedure.)