Congress Must Pass a Budget Before It Can Take Up a Reconciliation Bill
Democrats want to use the congressional budget process to get parts of President Joe Biden’s agenda – like COVID-19 relief legislation – through Congress over Republicans’ objections. Specifically, they plan to use a particular aspect of the budget process – reconciliation – to circumvent an expected Republican filibuster of Biden’s proposals in the Senate. Democrats believe that reconciliation is critical in the evenly divided Senate because they do not have enough members to end a filibuster by invoking cloture under Rule XXII. That rule requires three-fifths of the senators duly chosen and sworn to end debate on legislation (typically 60 senators). But before Democrats can use reconciliation, they must first pass a budget resolution that sets up the expedited process. Democrats introduced a budget resolution with reconciliation instructions on Monday.
The Budget Resolution
The budget resolution establishes the overarching framework that governs congressional action on fiscal legislation in specified years. Congress created it in 1974 when it passed the Congressional Budget and Impoundment Control Act (Public Law 93-344) to help coordinate its members’ fiscal decisions across three broad areas: spending, revenue, and deficit/debt. The House and Senate use a concurrent resolution as the legislative vehicle for the budget resolution (i.e., H. Con. Res. or S. Con. Res.). This is because the budget resolution deals only with each chambers’ internal decision-making processes and is not presented to the president to be signed into law.)
Under the Budget Act, the resolution must cover at least five fiscal years (i.e., the budget window). In practice, however, the resolution’s budget window spans ten years. Section 301(a) of that law stipulates that the resolution must include aggregate levels for new spending (budget authority and outlays), revenue, and surplus or deficit for each of the years in its budget window. The resolution must also include new spending levels broken down by functional category (e.g., National Defense, Agriculture, Transportation), list the public debt for each year, and provide information on the outlays and revenues for the Social Security insurance programs.
Reconciliation instructions are optional under the Budget Act. They are not required. That is, a budget resolution still qualifies for expedited consideration in the House and Senate if it does not include reconciliation instructions. But Congress can’t use reconciliation to pass budgetary legislation on an expedited basis if it does not first pass a budget resolution that includes reconciliation instructions.
When included in a budget resolution, reconciliation instructions may direct one or more committees in the House and Senate to craft legislation to meet specified targets associated with the budget resolution’s spending, revenue, and/or deficit levels. Congress may include one reconciliation instruction in the budget resolution for each of the three aggregate levels it covers. And Congress may consider two or more reconciliation bills separately or together as one omnibus package. (Congress typically opts to consider one reconciliation bill per budget resolution.)
The House may consider the budget resolution under expedited procedures detailed in section 305(a) of Budget Act. But it usually establishes a different set of processes by adopting a special rule reported by the House Rules Committee that further limits debate and specifies what amendments may be considered on the floor. In recent years, the amendments allowed are typically alternative budgets that represent a different set of priorities than the underlying resolution (e.g., Republican Study Committee budget, the Progressive Caucus budget, the president’s budget).
Section 305(b) of the Budget Act details the expedited procedures that govern Senate consideration of the budget resolution. Unlike in the House, where a majority may adopt a special rule at will, the law’s expedited procedures are critical in the Senate. They empower Senate majorities to circumvent filibusters and prohibit senators from offering non-germane floor amendments to the resolution.
Under the Budget Act, floor debate is limited to no more than 50 hours, “equally divided between, and controlled by, the majority leader and the minority leader or their designees.” (The party leaders typically tap the chairman and ranking member of the Budget Committee to manage the resolution’s floor debate.) Debate time on all first-degree amendments (i.e., an amendment to the budget resolution) is limited to 2 hours, equally divided between the senator who proposed the amendment and the budget’s majority manager (or the minority manager if the majority manager supports the amendment). Debate time on all second-degree amendments (i.e., an amendment to an amendment to the budget resolution) is limited to 1 hour, as is debate on all appeals and certain motions to recommit with instructions.
The Budget Act prohibits senators from offering non-germane amendments to the budget resolution. It also bars senators from making a motion to recommit the resolution unless their motion includes instructions that the committee to which the resolution is committed report it report back to the floor within three days. Senators may continue to offer amendments after the Budget Act’s 50-hour debate limit expires during a period known as a vote-a-rama. Given that all debate time has expired, the Senate votes immediately whenever a senator offers an amendment (or makes a motion or appeals a ruling of the chair). In practice, however, senators manage the chaotic process by unanimous consent, scheduling votes and allocating additional time for limited debate.
Reconciling House-Senate Differences
The House and Senate must each pass the same budget resolution before its provisions – including reconciliation instructions – take effect. To that end, Section 305(c) of the Budget Act expedites how the two chambers reconcile differences between their respective budget resolutions. If they use a joint House-Senate conference to negotiate those disagreements, debate time on the final compromise (i.e., the conference report) is limited to no more than 10 hours. If the House and Senate instead use amendment exchange to reconcile their differences, debate time is limited for each amendment.
Democrats can use reconciliation to pass budgetary legislation over the objections of Senate Republicans. But they must first pass a budget resolution before doing so. The contents of that resolution must meet the requirements specified in the 1974 Budget Act in order to receive expedited consideration in the Senate.