Few fights in Congress are more bitter than fights over Senate procedure. That’s because those disputes are rarely just about the rules. Instead, they are fights about the legitimacy of political power and who gets to wield it.
The latest round of procedural warfare began after Democrats took control of both chambers of Congress and the White House following the 2020 election. Pundits speculated that they might eliminate the legislative filibuster, but they appear to have found another procedural maneuver: reconciliation.
Although Democrats have 50 seats in the Senate and Vice President Kamala Harris’ tiebreaking vote, the filibuster effectively requires a 60-vote supermajority to pass legislation. Obtaining 60 Senate votes means negotiating with Republicans. Yet many on the left see Senate Republicans as obstructionists, thanks largely to the not entirely incorrect perception that Senate Minority Leader Mitch McConnell (R–Ky.) has ruthlessly exploited procedural advantages for partisan gain. According to this view, the filibuster is a major barrier to the Democratic agenda because Senate Republicans either cannot or will not negotiate in good faith.
Progressives mounted a campaign to eliminate the filibuster, arguing that it was a legacy of Jim Crow and that Republicans, by dramatically increasing its use, had cynically transformed what was intended to be a rare procedural tactic into a de facto 60-vote requirement for any and all legislation. The filibuster already had been whittled away: Senate Democrats eliminated it for executive branch and judicial nominees in 2013, and four years later Republicans extended those exceptions to include Supreme Court nominations. Why not get rid of the requirement for legislation too?
One reason: Some Senate Democrats, including crucial moderates like Sen. Joe Manchin (D–W. Va.), opposed its elimination. Although Senate Democrats could have done it with a simple majority vote, that would require keeping the entire caucus united, and it quickly became clear that would not be easy.
But there was an alternative: Instead of ditching the filibuster, Democrats could make it irrelevant—or at least much less important than it had been. The key to doing that was a separate budget maneuver known as reconciliation.
Created as part of the 1974 Congressional Budget and Impoundment Control Act, which also gave us the Congressional Budget Office (CBO) and the modern budget process, reconciliation was designed as a fast-track tool for pushing fiscal legislation through Congress. The procedure has been used 21 times since 1974, helping to pass budget bills under Presidents Jimmy Carter and Ronald Reagan. It has also been used to pass, among other things, changes to Medicare, Republican-backed tax cut legislation, an early round of changes to the Affordable Care Act, and the American Recovery Act, the $1.9 trillion coronavirus relief bill (much of which was unrelated to the coronavirus) backed by Biden and congressional Democrats.
The details of the reconciliation process are rather complicated and in some cases subject to significant dispute. But in effect, reconciliation gives the Senate a limited opportunity to pass a bill with a simple majority, provided the legislation meets two criteria. It cannot increase the federal deficit beyond the 10-year budget window that the CBO uses to score legislation, and all of its provisions must have a direct fiscal impact.
These quirks have led to statutes with odd and sometimes deceptive structures. To avoid raising the deficit beyond the 10-year window, for instance, the Tax Cuts and Jobs Act (TCJA) that the GOP passed via reconciliation in 2017 included tax cut sunset provisions that no one expected would actually take effect.
The TCJA also eliminated Obamacare’s tax penalty for failing to carry health insurance, leaving a “mandate” in place with no enforcement mechanism. Eliminating the command—a regulation—would not have been germane to the budget, but eliminating the tax penalty had a direct fiscal impact and therefore was allowed.
The American Recovery Act originally would have raised the federal minimum hourly wage to $15. But that provision was struck after the Senate parliamentarian, a nonpartisan lawyer who adjudicates procedural disputes, ruled it out of bounds under reconciliation.
One big point of contention is how often this procedure can be employed. Typically, reconciliation has been used just once per fiscal year, although the text of the statute allows multiple vehicles, covering both taxes and spending.
In early 2021, Senate Democrats asked the parliamentarian about reopening last year’s reconciliation bill to pass what would, for procedural purposes, be categorized as a revision or addendum. In April, the parliamentarian reportedly blessed that plan. Combined with the current fiscal year’s reconciliation vehicles, that would theoretically allow Senate Democrats to pass three different bills through reconciliation in a single calendar year.
If Senate Democrats did that, it would represent an unprecedented procedural end run. The party would effectively defeat the filibuster—or at least substantially weaken it—without removing it from the books.
That Senate Democrats are openly contemplating such a maneuver is a sign of the times, and it illustrates how procedural squabbles serve as a cover for other disputes. To some extent, this maneuver is about policy: Democrats have an expansive, expensive economic agenda that they want to pass with or without Republican help. But even more than that, the fights over the filibuster and reconciliation are about legitimacy.
By effectively casting aside the filibuster while technically leaving it in place, Democrats can maintain the pretense that they played by the rules, and that any changes they made were proportional responses to Republican abuses. It is an effort to claim governing legitimacy without compromise or consensus.
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