How Coronavirus Disaster Relief Will Move Through Congress, Part II

David Super

     Following up on my discussion of the congressional budget resolution last week, this post charts the path that the President’s coronavirus relief legislation is likely to take as it moves toward enactment. 

     Last week, Congress approved the budget resolution very much as planned.  The House passed it along party lines with no amendments permitted.  The Senate rejected amendments that could have changed the course of the subsequent reconciliation bill, also on party-line votes.  The Senate did accept non-binding messaging amendments endorsing a long list of causes:  sending aid to bars and restaurants affected by the pandemic; preventing tax increases on small businesses; strengthening extra-territorial tax collections; targeting relief to people affected by COVID-19; supporting schools in areas losing revenues because of the President’s oil and gas leasing moratoria; strengthening the Provider Relief Fund; stepping up interventions against sexual assault, family violence, domestic violence, dating violence, and child abuse; supporting the hospitality, convention, trade-show, entertainment, tourism, and travel industries and their workers; keeping the U.S. embassy in Jerusalem; increasing the federal minimum wage; funding a variety of police activities; providing on-line information about how coronavirus relief funds are spent; improving the solvency of federal trust funds; entrenching certain environmental and water policies; discouraging state and local recipients of coronavirus relief funds from discriminating against houses of worship; preventing the U.S. from becoming more dependent for energy on countries with weaker labor or environmental standards; expanding health savings accounts; and fully inspecting every partridge found in any pear tree.  Although several of these propositions may have little support within the Democratic caucus, Members recognized that they are completely non-binding and declined to be side-tracked into purely symbolic battles over them. 

     The House reconvened and ratified the Senate’s meaningless changes to expedite the process without going to conference.  As a concurrent resolution that affects only Congress’s internal rules, it did not require the President’s signature. 

     With the budget resolution in place, committees that received reconciliation instructions are free to start working on reconciliation bills.  With Senate floor time largely occupied for the next week or so with President Trump’s impeachment trial and the confirmation of senior Biden appointees, action is beginning in the House.  The drafts House committees are releasing were, however, drafted in close consultation with their Senate counterparts.  The complexity of this legislation may make a conference committee inevitable, but the Democratic leadership of both chambers is exerting strong pressure on the committees to minimize House-Senate differences as the bills move forward. 

     Consistent with the desire to save Members from taking difficult-but-unnecessary votes, such as those in prior congresses on environmental and immigration measures that had little chance of bicameral success, the Leadership and committee chairs are consulting closely with the various wings of the party as they craft their bills.  Indeed, they did so prior to releasing their budget resolution, which was crafted to fit a fairly precise vision of what the final legislation would do. 

     Departing from the past practices of both parties when crafting major legislation of this kind, the Leadership and committees are giving a hard “no” to many popular proposals being pushed on them.  Prior Democratic reconciliation bills have come close to exploding when leaders allowed groups with irreconcilable demands to think that they still had a chance until late in the process.  The Republican 2017 tax cut bill similarly almost collapsed – and ended up having to include some deeply unpopular tax increases to free up money to meet the demands of the various business lobbies to whom they had made commitments.  Although I am disappointed at some of the ideas the Leadership has nixed, I am hopeful that this indicates the leaders are being similarly straightforward with other interests and staying on course to craft a bill they can enact quickly (and without the wrenching choices at the end that come from over-promising).    

     In accommodating competing demands over what can go into this legislation, the Democrats are aided immensely by the availability of a second reconciliation process over the summer.  That legislation, which Democrats can trigger by passing a budget resolution for federal fiscal year 2022 in the spring, seems likely to carry more policies not as closely tied to the current crisis.  Thus, when the leaders rule out particular proposals for the present reconciliation bill, their message can be “not now” rather than “not ever.” 

     With paper-thin margins in both chambers, securing the support of moderates is crucial to the legislation’s success.  Media accounts have focused overwhelmingly on Sen. Joe Manchin (D-WV).  This is somewhat misguided.  Although Sen. Manchin probably is the most conservative Democratic senator, and has certainly rejected some proposals, he is by no means Congress’s only moderate Democrat.  Representing, as he does, a very red state, media coverage of other Democrats’ frustration with him will actually benefit him electorally.  He has no risk of a primary as everyone knows he is the only Democrat his state will elect to the Senate for the foreseeable future.  Other moderates, on the other hand, seek to avoid policies that they see as electoral liabilities while not alienating any of the Democratic factions they need to hold together to win re-election.  Having Sen. Manchin appear as “Dr. No” benefits everyone.

     Although the Leadership has maintained strict confidentiality concerning these consultations to avoid getting Members entrenched in mutually incompatible positions, there is no reason to believe that Sen. Manchin has obstructed efforts to get aid to those harmed by the current economic downturn.  Indeed, because he has plenty of such people in West Virginia, he has sought to strengthen those parts of the package.  He and the other moderates are likely to become more cautious as the discussion veers from economic relief and public health measures.

     Once the Senate finishes former President Trump’s impeachment trial, those of its committees that received reconciliation instructions will begin to release drafts of, and vote on, their reconciliation legislation.  When they are done, they will send both legislative language and report content to the Budget Committee.  The Budget Committee then will knit them together into a unified reconciliation bill and a single committee report.  The Budget Committee has no authority to edit any of what the committees send it, although if another committee were to fail to comply with its reconciliation instruction (unlikely in this context), Senate Budget Chair Bernie Sanders would be expected to offer an amendment on the Senate floor to bring that committee’s title of the reconciliation bill into line with budget resolution.

     The Budget Committee’s sending the reconciliation instruction to the Senate floor will trigger twenty hours of debate.  It also initiate a “Byrd bath” in which Republicans try to persuade the parliamentarian that one or another provision of the reconciliation bill violates the strict limits on what content may move through the expedited reconciliation procedures.  Provisions that put a committee over its spending ceilings (or under its revenue floor) as specified in the budget resolution are subject to points of order.  So are provisions that either lack any budgetary impact at all or that only have budgetary effect that is “merely incidental” to a larger non-budgetary purpose.  For example, increasing penalties for carrying an automatic weapon in the Capitol building might result in somewhat higher fine revenues, but that money would be merely incidental to the non-fiscal desire to banish those weapons from the seat of government. 

     Once the reconciliation bill is on the floor, senators may offer amendments, subject to much harsher requirements of germaneness than the Senate usually applies.  Amendments may change numbers or strike provisions altogether but generally may not bring new ideas into the legislation.  Amendments, like the underlying bill, are subject to the Byrd Rule.

     Typically, senators will refrain from bringing their amendments to a vote until the permissible twenty hours of debate have expired.  From then on, each amendment customarily will be allowed one or two minutes of debate before senators must vote.  This “vote-a-rama” is a superb mechanism for adopting ill-considered policies with seductive soundbites.   

     If the Senate bill survives the committee process and vote-a-rama relatively intact, the House may simply pass it.  If, as is more likely, Republicans successfully insert one or more unwelcome provisions, the legislation will have to go to a conference committee.  Even if the prospective conferees are prepared to move quickly – indeed, even if Democrats negotiate an agreement within hours after Senate passage – the process of agreeing to go to conference, approving committee leaders as conferees, and then receiving and bringing up a conference agreement takes a fair amount of time.  Those steps may prove necessary, however, to secure the immunity from amendment in the Senate that conference reports enjoy. 

     Two other potential issues hover over the coronavirus relief bill.  First, the Byrd Rule prohibits legislation that would increase the deficit in any year beyond the budget “window” covered by the budget resolution (in this case, ten years).  That was no problem for the Affordable Care Act, which was more than fully paid-for in both the near-term and the long-term.  It does, however, limit the budget resolution’s ability to license deficit increases.  This restriction is why many of the major tax cuts in Republicans’ 2001, 2003, and 2017 bills had to expire prior to the end of their ten-year budgetary windows.  Although the pending coronavirus relief legislation is not paid-for, it is intended to focus on immediate responses to this crisis.  Short-term, fast-expiring legislative changes should not raise the deficit beyond the ten-year window.  On the other hand, any permanent changes to the decrepit unemployment compensation system or other steps to prepare for the next economic downturn might have to include expiration dates.

     The other shadow looming over the relief bill comes from statutory rules enforcing the “pay-as-you-go” principle.  These rules do not prevent consideration or passage of deficit-increasing legislation, but they do require the Office of Management and Budget (OMB) to eliminate the resulting deficit increase by imposing automatic spending cuts.  Some programs targeting low-income people are exempt from sequestration cuts; others are not.  Medicare and farm price supports would take heavy hits.  Neither the budget resolution nor reconciliation rules prevent a pay-go sequestration, and the Byrd Rule prohibits including any changes to budget process rules, such as suspending a future sequestration, in reconciliation bills. 

     Democrats have several options here.  They could include a waiver of pay-go sequestration in the reconciliation bill and dare Republicans to raise a point of order, noting that the only consequence of such an objection succeeding would be to force cuts in Medicare and farm programs.  Democrats also could include a pay-go waiver in another bill and, again, dare Republicans to block it when doing so would only force unpopular sequestration cuts.  This is what Republicans did to avoid the staggering sequestrations that would have resulted from their 2001 and 2017 tax cuts.  Democrats predictably acquiesced once the tax cuts were law.  One of the appropriations bills for next fiscal year might well be a convenient vehicle for pay-go waivers to cover this legislation (and perhaps the additional reconciliation bill expected to move this summer).  If Republicans blocked that, they would trigger both a partial government shutdown and deep automatic cuts in popular programs. 

     @DavidASuper1