You’ll be hearing a lot about something called the budget reconciliation process this week. It’s wonky, confusing, and probably boring to most people, but if you want to understand it (and you should), the best place to start is by reading this explainer by David Reich and Richard Kogan of the Center for Budget and Policy Priorities. I refer you to them, in part, because I don’t want to have to explain it all myself but I need you to understand some basics in order to follow what I have to say about the resulting politics.
One part of the Republicans’ legislative plan for this year involves something that has never been done before. Back in November, Senate Majority Leader Mitch McConnell held a press conference to announce that he and House Speaker Paul Ryan would be passing two budget resolutions in one year. Forbes headlined this as “GOP To Use Previously Unheard Of Tactic To Slam Dunk Trump Agenda.” It looked like some kind mad genius Jedi mind trick stuff, and it was hatched because the Republicans were trying to figure out how to enact things through the Senate without having them filibustered. The only way to do that is to attach instructions to privileged budget resolutions that only require a simple majority to pass. The instructions will tell one or more committees to figure out how to (usually) improve the budget by reducing spending. Then later in the year, those changes can be voted on again with a simple majority. It’s the second vote that is the reconciliation, because it reconciles the budget with what was intended at the beginning of the year. I can feel your eyes glazing over already, so let’s just put it this way: if you want to get around a filibuster, one way to do it is to attach your bill to the annual budget resolution.
But there are a bunch of limitations to what can be included in a budget reconciliation bill. It has to affect revenues, for example. And then there’s this (the bolded emphasis is mine and you can ignore that part about the debt limit):
Under Senate interpretations of the Congressional Budget Act, the Senate can consider the three basic subjects of reconciliation — spending, revenues, and debt limit — in a single bill or multiple bills, but it can consider each of these three in only one bill per year (unless Congress passes a second budget resolution). Consequently, in the Senate there can be a maximum of three reconciliation bills in a year, one for each of the basic subjects of reconciliation.
This rule is most significant if the first reconciliation bill that the Senate takes up affects both spending and revenues. Even if that bill is overwhelmingly devoted to only one of those subjects, no subsequent reconciliation bill can affect either revenues or spending because the first bill already addressed them.
In normal human language, what this means is that when the Republicans decided to use the Budget Reconciliation process to address the changes they wanted to make to the Affordable Care Act, they were doing something that would impact both revenues and spending. That means that they’ve already used up the Budget Resolution they passed in January. If they want to enact tax reform without worrying about the filibuster, they’ll need to pass a second Budget Resolution.
But how do you have two budgets for the same year? Has there been a tear in the space-time continuum?
Actually, no, as Forbes explained last November, this is just a gimmick made possible by a failure to pass a Budget Resolution last year.
This strategy is possible because Congress failed (or, in the case of the Senate, didn’t even try) to adopt a fiscal 2017 budget resolution when it was supposed to last April. As a result, and even though it would be way past the statutory deadline, Congress has the authority to pass one next year.
Congress did pass the fiscal year 2017 Budget Resolution this year. You can read a summary of that bill here, and the January 13th House roll call vote is here. What they just failed to do last Friday is to pass (or even vote on) a very early Budget Reconciliation bill that was meant to be the capstone on that first Budget Resolution.
Now, you’ve probably heard that the failure to pass the Obamacare-gutting Budget Reconciliation bill on Friday has “imperiled” or “jeopardized” or made it “much harder” for the Republicans to act on Trump’s plans for tax reform. What you probably haven’t had adequately explained is why this is the case.
In one sense, the plan hasn’t changed. All along, the idea was that tax reform would get around the Senate filibuster by being attached to this unprecedented second Budget Resolution bill. There is more than one reason why they set things up this way, but one of them was they wanted to act so quickly to repeal Obamacare than it didn’t give them time to really consider this fiscal year’s budget. That’s why they decided to use the empty shell of last year’s unenacted Budget Resolution for Obamacare repeal.
Still, even if Obamacare repeal and tax reform were separated, they needed to work in tandem. And this part is pretty tedious to explain because it gets down in the weeds of something called the Byrd Rule. I’m trying to avoid the weeds here as much as possible, so I’ll give you the Cliff Notes. The Byrd Rule determines what can and cannot be included in a Budget Reconciliation bill in the Senate, and it has two important restrictions, one relating to the long-term deficit and one pertaining to the short-term deficit. On the long term deficit, the Byrd Rule prohibits the use of reconciliation for provisions that would increase the deficit beyond 10 years after the reconciliation measure. This is why President Bush’s tax cuts sunsetted after ten years.
On the short-term deficit, the Byrd Rule prohibits changes that would increase the deficit for a fiscal year beyond those covered by the reconciliation measure. In other words, overall the bill cannot increase the deficit beyond ten years, and in any given year within that ten years, the increases must be authorized in the Budget Resolution.
These constraints present a variety of obstacles, and they are even greater when you consider what Tim Fernholz explained in an excellent Quartz article on March 10th.
…if your reconciliation bill isn’t revenue-neutral, like a tax cut, it will have to sunset in 10 years.
This is how former US president George W. Bush passed his massive tax-cut package in the first term of his presidency, and why it expired in 2013, setting up a massive fiscal showdown as Democrats attempted—and ultimately were able—to roll back some of the tax cuts on the wealthy.
But [Speaker Paul] Ryan and this generation of Republicans aim to avoid the fate of the Bush tax cuts. To do so, they’ll need to pass a reconciliation bill that is largely revenue-neutral. How will they get there with a plan to cut as much as $2.4 trillion in taxes over the next decade?
The answer was supposed to be that savings from gutting Obamacare would offset the costs of tax cuts, but those savings aren’t going to be available now.
Professor Rebecca M. Kysar of Brooklyn Law School explained in Slate recently why it’s bad policy to tackle something as complicated as tax reform in a Budget Reconciliation process, and one of her reasons was that tax cuts that are scheduled to sunset (but might not) create needless uncertainty in the economy. But she was assuming that the tax cuts would have to sunset. The plan, however, was designed to assure that they would not need to sunset. Whatever else you might say for the merits of Trump’s tax reform, the plan to enact them is now in tatters and a sunset provision cannot be avoided.
Another problem is political. While it’s possible to increase the deficit using budget reconciliation, the process is designed to do the opposite. As a result, opponents can raise points of order to object to provisions that raise the deficit unless those provisions are specifically authorized by the instructions given to the drafting committees in the Budget Resolution. This means, a majority in the Senate has to vote to increase the deficit before they even know the details of how the deficit will be raised. And it gets even more complicated when you realize that “the Byrd Rule prohibits changes that would increase the deficit for a (given) fiscal year beyond those covered by the reconciliation measure.” How to you anticipate the year-to-year deficit increases of a tax bill before you’ve even drafted it?
The non-eyes-glazing-over version of this is that it will be very hard to craft instructions in the next Budget Resolution bill that can survive challenges when the time comes to pass the next Budget Reconciliation bill.
So, these are some of the ways that the failure to gut Obamacare has imperiled the effort to enact tax reform using a simple majority in the Senate.
The drafters of the tax reform almost definitely will have to accept that their bill must sunset after ten years because they can’t demonstrate offsets that would make their bill deficit neutral. Politically, they need to convince their Freedom Caucus to authorize what looks like trillions of dollars in deficit spending on the front-end without being able to discuss the details. Technically, they’ll have to craft instructions for short-term year-to-year deficit spending that can survive Byrd Rule challenges, but they’ll have to do this blind before the bill is even marked up.
And if they can accomplish all of that, which seems exceedingly difficult but not technically impossible, they’ll have to make it into something that can pass the House and can avoid losing more than three members of their caucus in the Senate.
This is a challenge that looks a lot harder than getting dealt an inside straight. And that’s probably a big part of the reason that Reince Priebus went on “Fox News Sunday” yesterday and “held out the possibility of working with moderate Democrats” on tax reform.
We need to be clear that there is no way for Trump to work with any Democrats (moderate or otherwise) on tax reform if he’s still planning on using the Budget Reconciliation plan. And, I know that Treasury Secretary Steven Mnuchin tried to keep a stiff upper lip on Friday when he said that “health care is a very complicated issue,” but “in a way, tax reform is a lot simpler,” but that’s not even close to being true. The last real comprehensive tax reform plan was authored by Democratic Senator Bill Bradley for Ronald Reagan in 1986. It wasn’t easy then, and nothing that ambitious in this field has been accomplished since.
As I wrote over the weekend in my Trump Built His Own Prison piece, it’s not going to be a simple pivot for the president to go from his original plan to enact his agenda with nothing but Republican votes to asking the Democrats to join him on things like infrastructure and tax reform. In fact, I don’t think he’s capable of making that pivot and the Democrats are in no mood to welcome him with open arms.
In fact, I want to reiterate this point:
Of course, so far I’ve been ignoring the elephant in the room, which is the federal and congressional investigations of his campaign’s connections to the Russians. He needs the Republicans to be united enough behind him to create a line of defense that can hold. Having insulted so many key congressional Republicans, and running a foreign policy that is not trusted by the Republican establishment, and having made enemies of the Intelligence Community and the media, Trump can ill afford to give Republicans a reason to abandon him. That effectively cuts him off from running to Schumer and Pelosi and asking them to help him enact new tax reforms, infrastructure investment, and trade policies.
I do not feel sorry for him. But I also can’t see how he can navigate out of the prison he’s constructed for himself. He’s barely been in office for two months and he’s already cut off every possibility for success.
His administration had a plan. That plan is not going to work. The problem is, the way they pursued their initial plan has blocked them from finding a viable Plan B.
His tax reform is dead in the water and cannot be revived.
How would they go about ditching the Byrd Rule? I know they can ditch the filibuster with a majority vote. Does that hold true for the Byrd Rule too, or is it different?
I guess we need to understand why the Byrd Rule was deemed necessary and why it has the restrictions it has.
The need to pass a budget and to occasionally raise the debt ceiling made it imperative that these things couldn’t be filibustered, but they found that senators were abusing this process by attaching crap to the privileged budget resolutions that wasn’t germane for the sole purpose of passing shit that couldn’t pass with 60 votes.
So, Senator Robert Byrd, who was a genius at Senate procedure, came up with a way to keep non-germane stuff out and also to heavily disfavor anything that would tend to increase deficit spending.
So, technically, the Byrd Rule can be jettisoned the same way that Harry Reid jettisoned the filibuster for lower court and executive branch appointments, the result would be to open back up the old can of worms.
And you should consider who benefits from keeping a lid on the can of worms more, because the answer is deficit hawks and senators who want block legislative action. In general, that means that the GOP likes the Byrd Rule more (and more often) than the Democrats.
They would not lightly do away with it even for short-term advantage, and if it weren’t somehow replaced with something very similar, it would tend to gut the filibuster as a tool.
Again, filibuster for legislation is inextricably bound up with the unanimous consent rule, which is even more fervently protected than any other rule because it empowers each senator and gives the Senate its unique character. So, it’s one thing to carve out limited exceptions for the debt ceiling or judicial appointments, and completely an order of magnitude more significant to gut the filibuster altogether (or in effect).
Short answer: the GOP doesn’t have the votes to gut the Byrd Rule.
Thanks! That explains a lot. It also helps explain with the Senate is a reactive body and not helpful to Progressives most of the time.
Lets see if I got that.
To lower taxes, they need to either:
1. Have sixty votes in Senate for cloture
or use reconciliation where they need either:
And assuming they don’t have the votes for 1, they went for 2 and now they are down to 3, which is impopular among the Freedom Caucus.
Plus the Democrats can hassle them throughout the procedures by way of the Byrd rule. But is that important? Can’t the Presiding officer (presumably a republican) just strike down objections?
Not without being being dragged into court. The main reason the Filibuster is allowed to exist by the courts (and thus why it’s actually Constitutional) is because it’s Kabuki Theater.
A simple Majority can change any rule of the Senate at any time it wants to, but it actually must go through the process of changing the rules. However, the rules of the Senate are actually legally enforceable in a court of law. So until the Majority goes through the motion to actually change the rules, they are
the rulesof the Senate and an injured party can seek remedy in the courts.The courts have rarely upheld suits of this nature because of other quisling rules of Senate procedure(and the ‘Political Question’ dodge the judicial branch gives when it really doesn’t want to decide something even if it really should.), but they have done on certain occasions. (The one I mostly kinda remember off the top of my head involved one of the parties playing games with committee assignments and the courts ruled that the actions in question violated the Senate Rules and the nature of the violation deprived the Senator in question unjustly of his powers as a Senator equal to all the other Senators.)
The Rules are The Rules, until they change. If the Presiding Officer just strikes down the objections even if they are valid, there are ways they Dems can fight back and make the Repubs pay dearly for it.
I don’t think people are really asking if the rules can be ignored. They’re asking if they can be changed, and they can be changed.
It’s just that they won’t be in this case because it would not be supported by enough senators to get a majority.
Why can’t they take another run at repealing Obamacare. I understand that gets them a trillion dollar savings.
They can but this experience scared them off of it. And they won’t do squat next year since it’s an election year.
Maybe all Trump needs to do is make nice with Koch brothers and the Tea Turds.
Ah.
His statement about the Presiding Officer, just ruling objections down, made me thing of ruling it down as in just blowing off the challenge even if it was or should have been a valid challenge.
Also please ignore the strike through in the first post. Derped my html tags. I wanted to bold that, but by brain was thinking of using the strong tag and I just derped that into just s instead of b or strong
No, you got it right, that was what I was wondering.
Thanks for the answer.
I think you’re right about the political complexities of tax reform, but I think you’re overstating the technical issues. If McConnell can get 50 Senators behind him, he can “go nuclear” and overrule the parliamentarian. As the votes over the Bush tax showed, there’s a good chance of getting some Dem crossovers – especially in view of the fact that quite a few of the Dem Senators are personally quite wealthy. At the same time, I can’t recall any Republican getting in political trouble for voting for a tax cut. McConnell already knows he never pays a political price for procedural outrages, no matter how extreme. So I think that, if the Republicans can write a tax deform that isn’t totally toxic, they’ll be able to get it through the Senate.
What I think is most likely to hold it up, or perhaps even stop it, is that the amount they’ll have to divy up is quite a bit smaller than they had been expecting, because they can’t loot Obamacare and Medicaid. This is likely to be their only go at ripping off the Treasury for money for rich people for a long time. All the different interest groups are going to be fighting each other hard, like hungry jackals over a kill that’s too small. If we’re really lucky, something political will happen to make a big tax cut unpassable while they’re fighting. The very light work schedule for Congress will work in our favor here.
See my other comment in this thread.
Not really. The Congressional Budget Act is an actual law, iirc, and thus there are limits to what just McConnell can just pound away at in the Senate alone.
It pretty much comes down to that McConnell could try and do what you’re suggesting, but he can’t do it in a limited way like Reid did with his mini-nuke. The only weapons in McConnell’s arsenal are the biggest nukes left. If he pulls the trigger on this, he’s pretty much ending the filibuster in the Senate on everything related to legislation.
And he simply doesn’t have the votes for that. Well more than 3 semi-sane Repubs expect to be in the Senate when the Dems retake control in 4-8 years. Being in the Minority in the Senate is already not fun. It will be absolutely pointless to be in the minority in the Senate with no filibuster.
First of all, ducking the Byrd rule has next to nothing to do with the legislative filibuster. It’s just overruling the Senate parliamentarian on what going to be a fairly technical issue. It’s almost exactly the same as what Reid did to the judicial filibuster.
Second, after McConnell’s extended abuse of the filibuster, nobody expects the filibuster to last a long time. He made it clear that a minority party can use it to make the country ungovernable. As a result, the Dems were already fairly close to killing it in 2012. If we regain the trifecta in 2020 it’s probably gone. No Republican Senator is going to dump on his donors – and in most cases his own finances – by upholding a probably soon to be irrelevant technicality. Remember the amounts in question are going to be enormous – hundreds of billions, quite possibly over a trillion – and the pressure will be correspondingly enormous.
McConnell held back on the filibuster not because he wants the Democrats to be able to block but to give himself more options. As long as there’s a filibuster if the House passes legislation he doesn’t like he can let the Dems block it without taking heat from the wingnuts. If he wants something passed that will be blocked, he can always deploy the nuke.
If my understanding of the situation is right, the Byrd Rule is the most important piece of Senate culture that prevents pretty much anything being attached to a reconciliation bill.
If you can nuke that rule, then you can attach pretty much what ever you want in reconciliation. That does mean that you can start getting what ever pet project you want through with only 50 votes. Without the complete Byrd rule, it’s trivial to show that almost anything has some impact on spending, the budget, and/or revenue.
It would be slightly more cumbersome, but once a year (or more often depending on the exact wording of the Congressional Budget Act and it’s rules to let the Senate interpret how many bills actually qualify.) you could pretty much pass whatever you wanted with a simple majority vote.
A typo likely but I like referring to this as “tax deform.”
Can a Republican caucus that can’t agree on repealing Obamacare agree on any fiscal bill without participation of Democrats and the negotiation that that will entail?
What exactly will Democrats in Congress hold out for in negotiation and how can they make it hurt the GOP politically?
And how does President Pence get put in a box as a consequence of investigation of Trump’s alleged Russian connections?
You know, people will nitpick, but Bradley’s tax reform was a pretty solid piece of legislation considering that it was done for Reagan.
I think Ron Wyden is capable of doing something similar, provided he’s given the same wide latitude to craft the bill that Bradley enjoyed.
So, it’s not that this couldn’t happen or that it would necessarily be some disaster.
That’s why I talk about Trump lacking the political imagination of a Reagan.
But he does lack it, and the GOP in Congress isn’t going to let Wyden dictate to them.
And the Dems won’t do Trump that kind of favor anyway.
That’s why I said he screwed himself in under two months.
All good points. I hope Wyden’s got some good notes available just in case there is an appeal for Democratic help.
Bradley did good but it was soon reversed, with Democratic help over the next 20 years. The end to tax shelters was particularly notable; I had a friend who sold them back in those days, and he was really anxious about what was going on. I thinks some of the loopholes were back before Poppy took office, but it make some folks sweat for a while.
BTW, he’s done the same screw up with the fight against ISIS by loosening rules of engagement so that we wind up bombing our allies.
So, Bradley is to blame for taxing Social Security and elimination of deductions for interest on consumer debt.
“… how does President Pence get put in a box as a consequence of investigation of Trump’s alleged Russian connection?”
Uh, maybe like this?
http://www.towleroad.com/2017/03/maddow-mike-pence/
Can we please stop referring to the massively regressive, reverse Robin Hood tax cut as “tax reform” when it is anything but? Or at least put that cynical term (not yours; the GOP’s) in quotes? Actual honest tax reform that increased net revenues to the Treasury would be bitterly opposed by the GOP, of course.
Tax reform can take any form.
If Trump wants a “win” and the only people who can give him a win are the Democrats, then the tax reform won’t look like what’s he’s been proposing.
what Trump proposes, those “scare quotes” around “tax reform” seem obligatory.
*(in fact, had exactly same reaction on reading this piece)
Whatever you did to try and wake up your chi, it worked. This is some fine work.
Well, it all sounds like a lot of roadblocks and defiles for McConnell to march his patriotic gub’mint destroyers through, but I have to say the plutocrats really are not going to take “no” or “the mean Dems wouldn’t vote to loot the Treasury!” for an answer. That cuts have to sunset in 10 years is of no real consequence to plutocrats who “earn” tens and hundreds of millions a year.
I’m sure the answer is in the post or comments, but it seems like the method Cheney used in 2001 and 2003 to simply cut income and capital gains tax rates that sunset is still available, and isn’t that all they need? Surely estate taxes can be reduced to zero for all estates by this method as well. And that’s most of the “reform” the wealthy care about.
The question is simply whether Freedumbers can be cajoled to vote for more deficits, and surely savage cuts can be extracted to allay that “concern”.
The Koch brothers are 76 and 81. If it’s another fifteen years or so before the Republicans get another crack at tax deform, like the last two times, chances are they’re not going to both live that long. I’m sure they’ve sheltered most of the nearly 100 billion they own but not all. If nothing else, they are simply not going to let McConnell allow the estate tax to survive on parliamentary technicalities. They’re not the only multibillionaires in that situation, either.
Vampires never die. They are the undead.
Much of it may be offshore.
Nearly everything you say here depends upon “rules”. The Republican Party, its figurehead, and its voters, do not care about rules — no, I tell a lie: they would sooner see rules broken than not. I think we know how that ends. Trump has lived and operated on debt his entire life. The idea that anything “needs to be paid for” — except in part, and/or so far down the road that everything will have changed by then — is completely foreign to him.
Who needs the other more: the US government or its creditors?
Are you arguing the mother of all meltdowns?
Looks like the stock market agrees with you. Consensus is that today’s sharp downturn reflects Wall Street pessimism over tax cuts getting passed.
could be general uncertainty
It wasn’t that sharp by the end of the say. I think the S&P 500 actually ended in positive territory.
Nasdaq, S&p slightly lower.
NASDAQ UP
This has absolutely nothing to do with the post, but I am just going to stop and weigh in to thank you, Martin, for continuing to explain the machinations of the governmental process in a way even a neophyte such as myself can understand. If I did not have some of the resources at hand, such as this blog and its stable of informed commenters, there is just now way I would be able to wrap my mind around the intricacies of all that is going on right now.
We are all certainly rattled to our cores with the results of the election, but I have once again found that grounding myself in a community of serious minded and intelligent people is helping me to understand and to cope with navigating these insane waters we are in right now.
Thanks again for all that you do, BooMan. Between this blog and my recent subscription to Washington Monthly, I have no shortage of well reasoned information to digest and to carry with me into this fight in which will, no doubt, be engaged in for years to come.
Hi Booman! Let me echo others in thanking you for walking us through the arcana of this stuff!
I had two quick questions: