McConnell gives in to the Senate obstruction fight, here’s why

Pay close attention to the language of Senate minority leader Mitch McConnell (R-KY) tonight.

He is giving in to his demand that Democrats promise not to abandon obstruction in a 50-50 Senate power-sharing deal. McConnell is willing to negotiate now – because he knows the Democrats – and the Republicans, by the way – have no vote to remove the obstruction.

So McConnell is ready to negotiate.

We knew last week that it was unlikely that there would be votes to get rid of the obstruction. But failing to remove the obstruction simply presents the Senate majority leader, Chuck Schumer (D-NY), with a problem. The left wing of the Democratic Party will come for Schumer when the Senate does not approve expensive items important to progressives, ranging from climate change to the creation of a state in DC. Schumer could only do this by removing the obstruction. But he has no votes for that.

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In other words, Schumer has the responsibility, but no power.

The reverse is true for McConnell: he has the power in a 50-50 Senate, but no responsibility. Undoubtedly, McConnell can emerge as the most powerful minority leader in the history of the Senate.

Now, I’m going to give you a vocabulary term: “Budget Reconciliation”. You will hear a lot about it in the coming weeks. Schumer and the Liberals may not be able to advance much in their legislative agenda due to obstructions. But they still have an annual option to advance certain legislation with tax impacts: it’s called “Budget Reconciliation”. This is the same move that Democrats used in 2010 to approve the final version of Obamacare, when they had no votes to overcome an obstruction. Republicans also used the same tactic to repeal and replace Obamacare – but they never got enough votes.

And, it has been said in recent days that Democrats are increasingly looking for budget reconciliation to potentially approve the next COVID package.

It works like this:

Budgetary reconciliation essentially robs the Senate of its two main characteristics: unlimited debate and unlimited amendments. In other words, without obstruction. However, budget reconciliation can only be used for fiscal measures, such as tax policy. Obamacare was qualified because it deals with all kinds of tax issues. Weapons? Doubtful. Immigration? This is pressing, although there may be fiscal and budgetary problems for new citizens. State for DC? Perhaps an external chance, because you are dealing with taxation and representation issues for 700,000 Americans. But this can be overkill.

It depends on how creative they can be.

This is more art than science.

And you can pass something with just 51 votes in the Senate.

To have a budgetary reconciliation “vehicle” to use in legislation, the House and Senate must first adopt a budget. In fact, they could do this as a shell. This process probably takes a few weeks, even if you are moving at a fast pace.

But…

You only receive one budget reconciliation package per year – as long as you can adopt a budget.

Now, as we said, there is a policy issue that needs to be fiscal in order to qualify for budgetary reconciliation. In other words, you cannot put a bill that deals with federal land policy in budget reconciliation. And it must be “budget neutral”. The measure cannot increase the deficit.

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Budgetary reconciliation has more consequences for the Senate than it does for the House. The debate time is limited to 20 hours and restricts changes. These restrictions on debate and amendments are not uncommon in the Chamber. But budget reconciliation prevents Senate obstructors. 60 votes are needed to prevent an obstruction – usually twice – in garden variety accounts. Senators can block an attempt to call part of the legislation to the floor and again to interrupt the debate. But the elite nature of a budgetary reconciliation package prohibits senators from disrupting construction at any stage. A simple majority is required to approve the changes and adopt the final product. In fact, senators can only make points of order (suggesting that the Senate is not functioning properly) for certain amendments or other provisions of the package and then vote to “waive the Budget Law”. But the waiver of the Budget Law requires a majority of 60 votes.

It is one thing to implement reconciliation for standard problem budgets. But it is a great form of parliamentary art to use reconciliation for other controversial political goals. That’s where lawmakers take advantage of special reconciliation rules – and avoid an obstruction that would have otherwise set fire to stubborn legislation.

But caveat emptor. There is an inherent landmine that comes with reconciliation. It is called the “Byrd Rule”, the namesake of the legendary Senate majority leader, Robert Byrd (D-WV). The practical impact of Byrd’s rule is that “strange” legislative priorities cannot fall into reconciliation. Some examples include whether a provision cuts or increases taxes or revenues, increases the deficit or is not related to budgetary issues. Senators can make a point of order to signal a non-compliant provision. As mentioned earlier, 60 votes are required to dispense with the Budget Law and overcome Byrd’s Rule.

That is why using reconciliation can be a nest of parliamentary wasps.

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So, this may be the next tactic to approve a COVID account. But first, the House and the Senate must adopt budgets. And it will take some time.