Nothing in politics causes my eyes to glaze over quite like the arcana of congressional rulemaking. I never worked on Capitol Hill or much cared for the staid artistry of legislative machinating. Unlike the scores of determined dorks who haunt the Hill’s hallowed halls, my pocket protector is not made tumescent by clever maneuvers around the parliamentarian’s pronouncements. Nor do I enjoy referring to self-important do-nothings as “the Congressman” to give them the aura of dignity that they require to offset the trauma they experienced in the high school cafeteria.
But despite this deep-seated aversion to Hill culture there is one lawmaking procedure that I’ve become acquainted with over the years—a legislative cheat code that has become fundamental to wielding political power in Washington. It is called reconciliation.
Shit, you just dozed off. CLAP. Hey there! CLAP CLAP. Stick with me.
Reconciliation is a Get Out of Filibuster Free card that allows the Senate to pass taxing, spending, or budgeting legislation if it adheres to certain magical rules. Among the rules is that reconciliation can (basically) be deployed just once per fiscal year.
Since it’s so hard to get 60 votes in Our Polarized Times™, reconciliation has been the vehicle for passing the signature legislative achievement of every president during my adult life:
- the 2021 COVID rescue package—reconciliation
- the Trump tax cuts—reconciliation
- both Bush tax cuts—reconciliation
You get the gist.
Given reconciliation’s centrality to successful policymaking in the modern era, it has been clear from the jump that the Democrats would have to use it to get any big-ticket agenda items passed. After all, Senate Majority Leader Chuck Schumer is playing a weak hand: He has 48 reliable votes, 2 unreliable votes, and an opposition party that is more likely to spontaneously break out in song on the Capitol steps than give him a win in an election year. He ain’t getting to 60 votes on anything remotely controversial. Reconciliation was his only move if the Democrats wanted anything big besides infrastructure enacted into law.
The party’s first pass at doing something under reconciliation was the multi-trillion-dollar Build Back Better grab bag which failed spectacularly last winter when Joe Manchin said he wouldn’t vote for it after Nancy Pelosi made her caucus vote on a controversial version that never had a prayer of becoming law, just to make the Squad and some people on Twitter happy. Oops.
After this embarrassing faceplant, I figured that the Democrats were working behind the scenes on a reconciliation package that was smaller—something that Manchin and Kyrsten Sinema, his partner in crime, could get behind.
Because—again—this was the only option available to Democrats if they wanted to do something.
Ideally the particulars of what they were working on would include some popular agenda items that aim to address inflation concerns. Back in January, Jordan Weissman over at Slate suggested something like universal Pre-K + climate action + in-home nursing care for the elderly + tax increases on the super-wealthy + deficit reduction. But there are a bunch of other ways to skin this cat. Democrats could instead focus on cutting prescription drug costs or decide child care might make more sense than elder care. Politically, the details are all academic because the policy any individual would prefer doesn’t matter unless that individual happens to be Joe Manchin or Kyrsten Sinema. No matter the specifics, the basic recipe would be the same: Lower some costs for working Americans, take a small bite out of the deficit, force Republicans to defend blocking a popular bill because of humina humina humina Let’s Go Brandon.
The whole deal was so blindingly obvious that you would have to forgive me for assuming six months ago that Democrats were hashing it out in private on Manchin’s houseboat and were going to announce the result imminently.
But nope. According to NBC News, Senate Democrats have not been doing anything of the sort.
For the last half-year, Schumer has apparently been waiting for Manchin to write his own bill—and, well, he hasn’t done it. There has been no movement. They are still at square one.
How in God’s name is that possible? What does Chuck Schumer do every day? How is he filling the hours? He has one job, literally! I mean, maybe he’s also trying to engineer a deal on the Electoral Count Act—although there’s scant evidence of movement on that front. And the Senate has various confirmations to push through. But besides that, nothing else matters. Vote counting, reconciliation, and appointments. That’s the to-do list.
Everything that the Senate Democrats are doing that is not on that list is just kayfaybe—which Schumer is also not very good at, by the by. Take the Senate’s plans for tomorrow. To the delight of Republican senators, Schumer plans to make Democratic senators vote on abortion legislation that is both unpopular—it would legalize abortions through all nine months of pregancy, a position most Americans disapprove of—and hopeless, since it does not have the votes to pass.
Here’s a tip: If you are going to force everyone to take a meaningless messaging vote for public-relations purposes, consider choosing a bill that hurts the other party’s popularity, not your own!
As Schumer dithers, the clock ticks on.
The fiscal year ends on September 30. That night, the magic reconciliation carriage turns into a worthless pumpkin. That’s 143 days from now—which might sound like plenty of time, until you remember that it includes an August recess and a bunch of other vacation days in between, and that the markup process for a reconciliation bill can be painfully slow.
By way of comparison, look at this retrospective calendar my parliamentary-procedure pal Liam Donovan tweeted out showing the breakneck pace that was required to get the Trump tax cuts passed in a similar window:
With Dem leaders ratcheting up expectations for Sept action, I went back to look at the (whirlwind) TCJA timeline
9/19: Corker-Toomey Deal
9/27: Big 6 Framework
10/5-26: Budget adopted
11/2-16: House action
11/9-12/2: Senate action
12/15: Conf agreement
12/19-20: Final passage
— Liam Donovan (@LPDonovan) August 23, 2021
As you can see they did it all in about three months from the moment they had a deal on the contours of the bill.
So, yes, it’s still possible for the Democrats to get their shit together before September 30—but to do so would mean agreeing on the basics pronto. Not to mention that, assuming the bill would actually be popular and useful—a big assumption, I know—if Democrats want to use it as a campaign issue, the sooner it passes the better.
When it comes right down to it, I find it hard to to see the current legislative logjam as anything but a monumental failure on the part of Chuck Schumer and Democratic leadership . . . with a fail assist given out to the White House for chilling in the back seat while their Build Back Bettermobile veers over the median and into oncoming traffic.
It’s not as if they couldn’t have seen this coming. They had only the one cheat code, and there were only two senators who needed to get brought on board in order to use it. Cut a deal and get ’er done.
This is 101-level politicking.
Sure Manchin and Sinema don’t seem to have been the most fun to deal with. But any Democrat with a brain had to recognize that to get something passed they would eventually need to stop moaning about how unfair it all is, recognize that a magic filibusting fairy wasn’t going to save them, and get Manchinema to the table to produce the best deal they could muster.
But nearly a year and a half has gone by, wasted.
Time is running out. If Schumer isn’t capable of getting a deal done by Memorial Day, Senate Democrats should find someone else who can. Otherwise they are going to butt fumble away both their majority and their agenda without even using the one weird trick that could’ve let them get something done.