How Coronavirus Disaster Relief Will Move Through Congress, Part I

David Super

      Barring a last-minute deal with Senate Republicans, congressional Democrats are taking steps to move a coronavirus relief bill quickly through Congress, relying only on their own votes.  The procedures they will follow are a bit arcane and likely to get misunderstood in some popular media accounts.  Accordingly, some explanation seems worthwhile.  This post will cover the first half of the process:  passage of a budget resolution.  A subsequent post will explain the actual enactment of a coronavirus relief bill. 

     The device Democrats will use is “budget reconciliation.”  Originally designed to ease passage of unpopular deficit reduction measures, Republicans long ago persuaded the Senate parliamentarian that its expedited, filibuster-proof procedures should be available for deficit-increasing legislation.  Most recently, Republicans increased the deficit $1.9 trillion over ten years when they pushed the 2017 tax law through under reconciliation procedures.  Reconciliation procedures are skewed somewhat toward deficit reduction, but a determined majority can overcome that tilt to pass legislation that raises the deficit.

     The term “reconciliation” does not refer to human amiability – some reconciliation battles would make Hobbes blush – but rather to the reconciliation of tax and spending laws with a plan laid out in a concurrent budget resolution.  Passage of a budget resolution therefore is a prerequisite to invoking reconciliation procedures. 

     Like budget reconciliation legislation, a budget resolution is fully protected against filibusters and partially protected against amendments on the Senate floor.  (The House leadership can, and typically does, completely foreclose floor amendments through its control of the Rules Committee.)  Because the budget resolution is not destined to become law – it adjusts internal congressional procedures and so is not presented to the President for signature – its most significant feature is a seemingly endless array of numbers representing how much may be spent on each broad government function and how much may be spent within the jurisdiction of each congressional committee.  The former are not binding; the latter are.

     Deciphering these numbers requires knowing what baseline estimates the Congressional Budget Office has made about spending levels.  If the budget resolution’s figures for a committee are higher than the CBO baseline, that committee may report out legislation increasing spending by the difference.  If a committee’s total in the budget resolution is less than the CBO baseline, the resolution is asking that committee to cut programs within its jurisdiction by that amount and creating a point of order against spending legislation from that committee that fails to bring the committee into conformity with the budget resolution’s expectations.

     A budget resolution can go further and issue “reconciliation instructions” to committees, requiring them to report out legislation to change the spending or revenues within their jurisdiction.  Committees invariably comply with reconciliation instructions because failure to adhere to a reconciliation instruction can cede jurisdiction to the budget committee to craft legislation; that is unlikely to be an issue this year with the instructions calling for increases. 

     A committee that does not receive a reconciliation instruction may not submit content to be included in the reconciliation bill.  This evening, the House Budget Committee released its budget resolution, with reconciliation instructions for the Committees on Agriculture, Education and Labor, Energy and Commerce, Financial Services, Foreign Relations, Natural Resources, Oversight and Reform, Science, Space and Technology, Small Business, Transportation and Infrastructure, Veterans’ Affairs, and Ways and Means.  Although the House Budget Committee’s report will explain what legislative changes it is assuming each committee will make – the amounts of the reconciliation instructions are the cost of those changes – the committees may propose any changes within their jurisdiction that meet the targets they are given. 

     A budget resolution can, and the House’s proposed budget resolution does, include “reserve funds”.  Contrary to their name, these are not actually pools of money but rather a procedural device to allow other fiscal legislation to avoid budgetary points of order so long as it is deficit-neutral.  It is unclear if the proposed budget resolution’s reserve funds represent any particular legislation that Members have in mind.

     Because the Democrats’ margins in each chamber are so narrow, the terms of the budget resolution and the broad outlines of the ultimate reconciliation legislation have been negotiated carefully between the leadership of each chamber, with Speaker Pelosi and Majority Leader Schumer coordinating with their respective Members to ensure that the necessary votes will be available.  The last time Democrats controlled both chambers they did not attempt such advance negotiations; Members became inflexibly committed to inconsistent positions and no resolution was passed.  This time, all Democrats’ commitment to enact coronavirus relief legislation is driving them to work out their agreements before anyone becomes dug in. 

     Because the House Rules Committee, which is wholly controlled by the majority leadership, sets the rules for floor consideration, passage in the House will be relatively straightforward – and fast.  The Budget Committee will take up and approve the budget resolution on a series of party-line votes February 2.  The Rules Committee will send the budget resolution to the floor later that day.  The resolution will come to the House flood February 3 and will pass that day, likely by a pure party-lines vote. 

     Consideration in the Senate is longer and messier.  The Senate also is likely to start its consideration of the budget resolution on February 3.  The Congressional Budget Act allows fifteen hours of debate on the Senate floor.  This likely will expire late Thursday.  Once it does, the Senate will begin an unpleasant process known as “vote-a-rama” to dispose of all remaining germane amendments that have been filed.  Typically, the Senate will agree by unanimous consent to extend debate by one minute each for the amendment’s author and an opponent (commonly the chair of the Budget Committee).  Senators then vote with little other information on the amendment. 

     Only germane amendments may be offered.  To be germane, an amendment must change one or more of the numbers in the proposed budget resolution.  If Republicans seek to shrink the ultimate relief bill, they could try to reduce the amounts of new spending allowed by the reconciliation instructions. 

     Other amendments are largely expressive.  For example, a senator wishing to put the Senate on record as opposing the building of another aircraft carrier might file an amendment titled “To educate our children instead of building needless weapons” that makes an arbitrary reduction in the spending assumed for the Defense function and a corresponding increase in the spending assumption for the Education function.  Because these functional assumptions are not binding, such an amendment technically does not constrain the ultimate legislation.  Nonetheless, committees typically hesitate to propose legislation inconsistent with an adopted floor amendment.  Both Democrats and Republicans are likely to offer such “message amendments”, both to put themselves on record on issues important to them and to try to embarrass their opponents.

     The vote-a-rama likely will last until the wee hours of Thursday night or Friday morning.  Once it is complete, the resolution will go back to the House.  The House is staying in town this coming weekend so that it can repass the budget resolution with whatever amendments the Senate adopted.  This will get a final budget resolution in place by the end of the weekend, allowing the various committees to start work on their components of the reconciliation bill as early as February 8.  If the House and Senate were to resolve their differences in a conference committee, the process might slow down by as much as two weeks. 

     This schedule, although ambitious, could allow Congress to put relief legislation on the President’s desk by the end of February or very early March. 

     Even if the Democrats gain sixty votes in the Senate from an agreement with the group of Republicans that has sought negotiations with President Biden, it is far from clear that they could move legislation any faster:  even though sixty votes is enough eventually to suppress a filibuster, Senate rules force several votes to make that happen, with considerable floor time consumed leading up to each vote.   

@DavidASuper1