Parliamentarian's Guidance Contradicts Budget Rules
The Senate’s parliamentarian recently upended Democrats’ plan to use the budget reconciliation process to pass parts of President Joe Biden’s agenda through the chamber over Republican opposition. Reconciliation is a unique fast-track process that protects budget-related legislation from filibusters on the Senate floor. To set up the reconciliation process, the House and Senate must first pass a budget resolution that instructs one or more committees in each chamber to develop legislation that aligns - or reconciles - the fiscal effects of permanent law (e.g., the revenue raised by current tax rates or the money spent automatically on healthcare entitlements like Medicare) with the budget’s top-line spending, revenue, and debt levels.
Congress last used reconciliation to pass the American Rescue Plan Act of 2021 (Public Law 117-2) according to instructions included in the fiscal year 2021 budget resolution (S. Con. Res. 5). To use reconciliation again this year, the House and Senate must either pass a budget resolution for the fiscal year 2022 or revise the FY2021 budget. Democrats mostly support the latter approach - changing the FY2021 budget - because it preserves the FY2022 budget resolution and its accompanying reconciliation process to address other Democratic priorities before next year's midterm elections.
Yet, the parliamentarian's interpretation of the special rules that regulate the budget process makes it more challenging - if not impossible - for Democrats to set up another reconciliation round this year by revising the FY2021 budget. The parliamentarian's latest guidance on what those rules allow affirms her earlier advice that the reconciliation-by-revision maneuver is procedurally possible. However, the parliamentarian suggests that the rules only permit Democrats to authorize a second round of reconciliation via an FY2021 budget revision in response to changes in the Senate's external environment that senators did not anticipate when they first approved the FY2021 budget. She also concludes that Republicans on the Budget Committee can filibuster an FY2021 budget revision and, by extension, prevent Democrats in the House and Senate from authorizing a second reconciliation process.
But the Senate’s rules and precedents do not explicitly limit Democrats’ ability to revise the FY2021 budget as the parliamentarian suggests. The parliamentarian’s guidance is based instead on her interpretation of what those rules allow implicitly. However, the Constitution (Article I, section 5, clause 2) empowers senators - not the parliamentarian - to determine the rules that regulate the budget and reconciliation process. And the parliamentarian does not have the power to clarify the rules when they are ambiguous.
Revisions and Reconciliation
The rules explicitly allow senators to revise a budget after Congress has approved it. Specifically, section 304 of the 1974 Budget Act stipulates, “At any time after the concurrent resolution on the budget for a fiscal year has been agreed to…and before the end of such fiscal year, the two Houses may adopt a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to.” This part of the budget law empowers House and Senate majorities to modify a budget’s top-line levels after Congress has approved it in response to events or new information that alters legislators’ views on fiscal policy.
Congress did not limit the revision power in 1974 (or later) beyond setting an end-of-the-fiscal-year deadline for its use. Nor did senators subsequently change the rules (or create a new precedent that clarified how those rules should be implemented) to limit that power. The parliamentarian cites two instances in her guidance - the 1977 budget revision debate when the House and Senate first used the power to revise the fiscal year 1977 budget resolution to accommodate President Jimmy Carter's economic stimulus package and the 2000 debate when Congress used the power to change the FY2000 budget (in addition to setting the budget for FY2001). When Congress used the budget revision power in the past, it usually did so while setting the following year's budget. But senators did not limit that power as the parliamentarian advises when they used it in these cases.
Instead, prior debates on budget revisions demonstrate that legislators believed that the same expedited procedures that protect budget resolutions and budget-related legislation from filibusters on the Senate floor also regulate their debates on budget revisions. Section 304 explicitly stipulates that the House and Senate revise a “concurrent resolution on the budget” by adopting a new “concurrent resolution on the budget.” And, for example, section 305 of that law protects “any concurrent resolution on the budget” from filibusters on the Senate floor (italics added for emphasis).
The Parliamentarian’s Guidance
The parliamentarian’s guidance acknowledges that a budget revision takes the form of a concurrent resolution on the budget and, therefore, that the same set of rules regulate the Senate’s consideration of budget revisions and resolutions (i.e., senators cannot filibuster them on the Senate floor). The parliamentarian notes that budget revisions can include any provision under the rules that budget resolutions can consist of, including new reconciliation instructions. The parliamentarian also notes that Congress can revise a budget resolution several times in a fiscal year.
The parliamentarian acknowledges that the rules do not limit the content of budget revisions or cap the number of times Congress can revise a budget. But her guidance nevertheless suggests that the rules limit the maneuver's use to special circumstances only. The implication is that senators can only use the budget revision power to address "national emergencies and marked changes in the economy.” The effect of the parliamentarian’s suggestion - if accurate - is to limit the content of budget revisions and to cap the number of revisions that Congress can pass in a fiscal year.
The parliamentarian also advises that a majority of senators cannot circumvent the Budget Committee to debate a budget revision on the Senate floor if that panel is unwilling (or unable) to report it. In doing so, the parliamentarian treats budget revisions differently than budget resolutions when she interprets the rules that regulate the congressional budget process. Section 300 of the 1974 Budget Act sets a deadline for the Budget Committee to send a “concurrent resolution on the budget” to the full Senate. And the Senate’s precedents stipulate that “if the Budget Committee has not reported a budget resolution” by the deadline, “the committee will be discharged from such a resolution if one had been referred to it.” The parliamentarian concludes, however, that this auto-discharge precedent does not apply to budget revisions. Consequently, Republicans on the evenly divided Budget Committee can filibuster a revision (and prevent Democrats from authorizing another reconciliation process this year) simply by boycotting committee meetings to report it.
Parliamentarian’s Guidance Contradicts Rules
The parliamentarian’s suggestion that the rules permit budget revisions in extraordinary circumstances only is based on her understanding of what legislators intended those rules to allow when they first made them. However, her guidance on this question is not supported by explicit provisions in the rules or authoritative precedents that senators subsequently set to clarify how those rules should be implemented in situations where they are ambiguous. And the legislative history she cites - a passage from a non-binding House-Senate conference report on the 1974 Budget Act and statements by Edmund Muskie, D-Maine (Budget Committee chairman), Henry Bellmon, R-Okla. (Budget Committee ranking member), and Pete Domenici, R-N.M. (Budget Committee chairman) - does not provide evidence for her claim that “the drafters and early users of 304 uniformly believed that it was to be used in extraordinary circumstances” (italics added for emphasis).
The parliamentarian also omits parts of the legislative history on this question that contradict her distinction between budget revisions and budget resolutions. For example, the non-binding conference report on the Balanced Budget Act of 1997 (Public Law 105-33) stipulates that “the conferees intend that all provisions of the Budget Act apply to revised budget resolutions unless there is a specific exception made for a revision to a budget resolution." The statute does not explicitly limit budget revisions, as the parliamentarian advises in her guidance. But distinguishing between budget revisions and budget resolutions makes it possible for her to suggest that one set of rules regulates Senate consideration of budget resolutions and a different set regulates budget revisions. However, the text of the rules defines the term "concurrent resolution on the budget" as "a concurrent resolution setting forth the congressional budget…as provided in section 301" and "any other concurrent resolution revising the congressional budget…as described in section 304." Consequently, the same set of rules should regulate Senate debates on budget resolutions and budget revisions unless otherwise noted in the text of those rules.
The parliamentarian’s guidance that the Senate cannot automatically discharge budget revisions from the Budget Committee also contradicts the logic of the rules that regulate the congressional budget process by empowering a minority of senators to filibuster a budget resolution. The parliamentarian notes that the budget revision process is an "optional procedure" and is not entitled to the same privileged consideration as a budget resolution. But section 102(a) of the 1974 Budget Act stipulates explicitly that the Budget Committee shall “report the matters required to be reported by it,” including budget resolutions and budget revisions.
Finally, the parliamentarian incorrectly claims that the 1983 auto-discharge precedent was “a creation of the Office of the Parliamentarian.” But the parliamentarian did not create the precedent in 1983. The Senate created it when it decided to discharge the Budget Committee of further consideration of the fiscal year 1984 budget resolution (H. Con. Res. 91). And that resolution also revised the fiscal year 1983 budget. Consequently, the Senate has used the auto-discharge procedure in the past to get around the Budget Committee when it was unwilling (or unable) to report a budget revision.