By: AmyClaire Brusch
There is a lot of discussion in Washington and in the news about “reconciliation.” The process is being touted as the Republicans’ key to passing all sorts of legislation including measures to repeal and replace the Affordable Care Act. So what is reconciliation? How does it work? Can Republicans use reconciliation to make good on the many promises that were made during this long campaign?
President Trump, along with members of the new Congress, campaigned on a platform that called for large policy changes. Some of these changes will be difficult to achieve through the normal legislative process. Getting something like tax reform or the repeal and replacement of the Affordable Care Act would be nearly impossible under regular order. Legislating is a complex art and, when traditional methods stall, Congress looks deeply into its rulebook. In this case, the Republican majority will likely turn to the budget reconciliation process (“reconciliation,” for short) to advance top agenda items in 2017.
The budget reconciliation process was first used in the 1980s as a means of enacting spending, tax, and entitlement reform measures that the then-Senate minority would have filibustered. Under Senate rules, it only takes one Senator to hold up a piece of legislation with a filibuster (think: Ted Cruz reading Green Eggs and Ham). The only way to place a time limit on debate is with a supermajority (three-fifths of the Senate). Today, the Republicans control the Senate but only narrowly. At 52 seats, they are nowhere near the 60 needed to break a filibuster. However, some bills, namely budget resolutions, are filibuster-exempt. Since budget resolutions are protected from the Senate filibuster, so, too are budget reconciliation resolutions.
Okay, but what’s a reconciliation resolution?
At its heart, a budget reconciliation bill “reconciles” some aspect of spending, revenue, or the national debt. Because it is a budget resolution, reconciliation has no force of law but outlines what changes authorizing committees should make to the issue at hand in order to meet that year’s budget targets. Those committees then have to pass legislation detailing those changes. Finally, since that legislation is under the directive of reconciliation, it is not subject to typical House and Senate rules. As a result, it is very difficult for the minority party to hold it up with procedural moves.
So are the Republicans going to run roughshod through this Congress?
The short answer is: No. There are checks on the reconciliation process. It does not give the majority party free reign. First, the very nature of reconciling the budget offers limited possibilities to do so. There are three applications eligible for budget reconciliation – spending, revenue, and debt limit – but each of those applications can only be used once per budget. Once Congress has taken each of those three bites at the apple, it cannot continue to “reconcile” the budget. That is one reason the process is usually saved for big items. Second, the president can always veto a reconciliation bill, as President Clinton did with the tax relief act in 1999. Given that congressional Republicans are not necessarily in line with President Trump, they will need to be careful with what reconciliation bills they send to his desk. Finally, the Senate’s “Byrd rule” prevents the majority from throwing everything but the kitchen sink into reconciliation bills. The rule stipulates that the items within the bill must actually reconcile some part of outlays or revenues and be within the jurisdiction of the authorizing committee receiving the reconciliation instructions.
Why doesn’t this process come up more often?
The budget reconciliation process is not often used. That’s partly because, in order to ensure its success, the House, Senate, and presidency really need to be occupied by the same party. Otherwise, one chamber could simply ignore the legislation or the president could veto it. The aforementioned restrictions also make the process challenging to wield. Reconciliation is, by its very nature, not easy. Though a congressional staffer for over a decade, I only saw the reconciliation process used successfully a few times (including the 2001 and 2003 tax cuts and Affordable Care Act).
Part two of this post will focus on reconciliation and specific legislation.
To learn more about our federal relations services visit our website www.oneillandassoc.com or call us at 617-646-1000.