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Reconciliation Rules Redux

impeachment, Congress, COVID-19, coup, stimulus, LGBTQ+ Pride Month, LGBTQ+ equality, civil rights

Now that President Joe Biden and Congressional Democrats are moving ahead with their “human infrastructure” reconciliation bill to advance alongside the “Bipartisan Infrastructure Framework”, Democrats on Capitol Hill are spending the rest of the summer putting together legislation that may very well become the cornerstone of Biden’s presidential legacy.

Yet because of Congress’ reconciliation rules, Democrats can only pass so much through this special process. Let’s examine what’s possible under reconciliation… And what will only be possible once Democrats finally agree to end the legislative chokehold that has them relying on reconciliation in the first place.

This far-right federal judge struck an ugly blow to DACA, yet his ugly blow may result in Congressional action. Here’s why.

As we explained earlier today, President Joe Biden and Congressional Democratic leaders have reached a tentative “human infrastructure” deal that will likely include major provisions on climate change, health care, workers’ rights, and more. But thanks to a notorious far-right federal judge’s long-expected ruling last week, we’re now wondering whether Democrats’ reconciliation infrastructure bill will also include some long-awaited immigration reform.

Here’s a quick rundown on why we’ve reached this point: Ever since then President George W. Bush nominated him for the federal judiciary, Judge Andrew Hanen has been notorious for his anti-immigrant rulings. Ever since a consortium of Republican Governors and State Attorneys General led by Texas’ Greg Abbott (R) essentially shopped around their lawsuit against DACA and landed it in Hanen’s court, it’s essentially been fait accompli that Hanen would rule to abolish the Obama-era executive program that’s provided deportation relief for select immigrants with undocumented status since 2012. 

Last week, Hanen delivered on that promise with his ruling against DACA. While Hanen acknowledged that the Biden administration is under no obligation to deport these immigrants who came to America undocumented as children, and while Hanen declined to revoke DACA protection for immigrants who were already approved prior to his ruling, Hanen’s ruling nonetheless slams the door on those qualified immigrants who had not yet been approved for DACA. And considering how then President Donald Trump repeatedly stymied DACA applications throughout his presidency, there’s been a backlog of applications that may never be fully resolved. 

While Biden has promised to appeal Hanen’s ruling, the odds of the Biden administration succeeding on appeal look awfully slim. The Fifth Circuit Court of Appeals has consistently been the most right-wing in the country. And even though the U.S. Supreme Court did rule against Trump’s attempt to circumvent federal law to end DACA, that is no guarantee that the Court’s Republican-appointed majority will take direct action to save DACA. This is why immigrant rights activists and a growing chorus of Democrats in Congress are calling for Congress to finally pass a new immigration reform law that stands a better chance at providing permanent protection for these immigrants who must once again live in legal limbo. 

“It is critical that we immediately pass immigration reform legislation through any means possible, including the budget reconciliation process.” 
– U.S. Senator Jacky Rosen, in a July 17 statement on Hanen’s DACA ruling
Photo by Andrew Davey

The U.S. House passed the American Dream and Promise Act (H.R. 6) on March 18 mostly along party lines: Reps. Dina Titus (D-Las Vegas) and Steven Horsford (D-North Las Vegas) cosponsored the bill, and Rep. Susie Lee (D-Las Vegas) joined them in voting for it, while Rep. Mark Amodei (R-Carson City) voted against it despite his prior statements in support of comprehensive immigration reform. Yet despite the possibility that most U.S. Senators also support the Dream and Promise Act, the U.S. Senate’s filibuster rules have essentially given Republican leaders veto power over this and other Democratic immigration reform bills.

In the hours following Hanen’s ruling in the Texas DACA lawsuit, U.S. Senator Jacky Rosen (D) raised some eyebrows with her statement in response: “I want to take this moment to reiterate my support for comprehensive immigration reform that includes a pathway to citizenship for immigrants in our country. It is critical that we immediately pass immigration reform legislation through any means possible, including the budget reconciliation process.” Rosen has been very carefully building her reputation in the Senate as a “bipartisan consensus builder”, so it says a lot when she publicly calls for inclusion of at least something akin to the Dream and Promise Act in the Democratic “human infrastructure” reconciliation bill.

Joe Biden
Photo by Andrew Davey

In another boon for immigrant rights activists, President Joe Biden issued his own statement on Saturday: “I have repeatedly called on Congress to pass the American Dream and Promise Act, and I now renew that call with the greatest urgency. It is my fervent hope that through reconciliation or other means, Congress will finally provide security to all Dreamers, who have lived too long in fear.”

Some progressives in Congress, such as Rep. Jesús “Chuy” García (D-Illinois) and Senator Alex Padilla (D-California), had already demanded immigration reform’s inclusion in the reconciliation infrastructure bill. If there’s any silver lining for immigrant rights activists in Judge Andrew Hanen’s anti-DACA ruling, it’s this: Other Democrats who have generally indicated “support for comprehensive immigration reform” now have to go on record and declare whether they will utilize this one and probably only chance that Democrats have this year to essentially nullify this lawsuit and provide permanent protection for at-risk immigrant communities.

Now, let’s get extra nerdy with this refresher course on Congress’ reconciliation rules.
stimulus, coup, Parler, terrorism, Washington D.C.
Photo by Andrew Davey

As we discussed in February, reconciliation provides no carte blanche for Congress to just pass whatever they want through this special legislative fast lane. Rather, the Congressional Budget Act of 1974 only allows reconciliation for legislation that changes federal spending, raises and/or lowers taxes, and revises the federal debt ceiling. On top of that, the Congressional Budget Act of 1990 enshrined the Byrd Rule, named for then Senator Robert Byrd (D-West Virginia), that empowers Senators to trigger a process that can result in the removal of any section of a reconciliation bill that’s deemed to be “extraneous” or “merely incidental” to the federal budget.

As the Center on Budget and Policy Priorities’ reconciliation primer explains, “The [Byrd Rule] also declares extraneous any provision that: increases spending or decreases revenues if the provision in question results in the committee’s portion of the bill costing too much or saving too little; isn’t within the jurisdiction of the committee recommending the provision; raises deficits in any year after the period covered by the reconciliation instructions unless other provisions recommended by the same committee fully offset those ‘out-year’ costs; or changes Social Security’s retirement, survivors, or disability programs.” In addition, any attempt to circumvent the Statutory Pay-As-You-Go Act of 2010 (or Pay-Go) that restricts spending and/or tax cuts that add to the budget deficit after ten years automatically requires a ⅗ Senate supermajority to proceed.

Since it’s not that difficult to design climate change and health care legislation that can clearly tie into the federal budget, Democrats’ tentative infrastructure reconciliation agreement is virtually guaranteed to include climate and health care provisions. And though some Democrats are jittery over how the Senate parliamentarian may rule on whether immigration reform complies with reconciliation rules, there’s at least a case to be made that the kind of immigration reform that Democrats want to pursue not only ties to the federal budget, but also raises revenue. Yet when it comes to other Democratic priorities, don’t look to reconciliation as any kind of viable solution.

Why can’t Democrats use reconciliation to save Americans’ voting rights? And for that matter, why can’t it be used for LGBTQ+ civil rights or gun violence prevention either?
Joe Biden
Photo by Andrew Davey

For everyone here who’s shouting, “What about voting rights??!!,” I hear you. Unfortunately, I probably don’t have the answer you were hoping for. As we explained above, Congress’ reconciliation rules are very strict when it comes to unlocking this special legislative fast lane only for items that are deemed to have a direct fiscal impact and purpose. 

Regardless of the arguments to be made on the policy merits of the For the People Act and the John Lewis Voting Rights Act, it’s simply an unavoidable reality that there is no realistic budgetary justification for use of reconciliation to pass either. Same goes for the Equality Act. Same goes for the Women’s Health Protection Act. Same goes for the Bipartisan Background Checks Act. Even reauthorization of the Violence Against Women Act (VAWA) could have trouble complying with reconciliation rules.

Before anyone even tries to get it twisted, let’s make this crystal clear: This has nothing to do with the policy merits of these and many more bills that are currently going nowhere fast in the U.S. Senate. Rather, this has everything to do with the Senate’s rules that constrict their ability to legislate. No matter how many speeches Biden gives, or how many press conferences U.S. Attorney General Merrick Garland holds, or how many fundraising emails Democratic politicians churn out every day, none of those hold any weight as long as Senate Democrats maintain the status quo that prevents any potential for progress on so many of their “signature issues”.

If Democrats want an end to the rules that limit their legislative ability, then they must use their power to change the rules. This means they must amend or end the filibuster, and do so soon.

Let’s be real: Congressional Democrats’ use of the typically once-per-year reconciliation rules is their “easy way out” of the hard reality they don’t like to acknowledge on the filibuster rules that form an insurmountable blockade against a multitude of bills – high-profile Democratic priorities in areas like LGBTQ+ civil rights and gun violence prevention, as well as bills like VAWA and the Voting Rights Act that used to enjoy bipartisan consensus long before Donald Trump accelerated the Republican Party’s devolution into fascism.

Even when some Democrats have gone to great lengths to negotiate “bipartisan deals”, they’ve run into grassroots bipartisan backlash – such as the December 2020 mini-stimulus and government funding compromise that nearly fell apart when former President Donald Trump fomented public outrage and threatened to veto the bill that his own administration negotiated; or their “good faith negotiations” suddenly collapse – such as right here and now, as the “Bipartisan Infrastructure Framework” that the Biden administration and a group of moderate Senate Democrats celebrated just three weeks ago is rapidly falling apart because the Republicans who negotiated the “Framework” with the moderate Democrats never actually identified “pay-for’s” that everyone could support despite these Republicans themselves demanding “pay-for’s” in the bill.

During his voting rights speech in Philadelphia last week, Biden publicly called for what many more Democratic Party leaders have wished for privately: A “new coalition” of activists to “raise the urgency of this moment”. But wait, here’s the deal: They already rose. They already understood what Dr. Martin Luther King Jr. referred to as the “fierce urgency of now”. They already took action to elect Biden and give Democrats full control of Congress.

When will more Democratic politicians learn? When they promise their base and their allies results, they can’t just turn around, refuse to provide results, make excuses for their own failure to produce results, and tell their supporters to just “work harder” for another “Blue Wave!” because “Something Something Something Mitch McConnell [R-Kentucky]”. Again, the only reason why McConnell has any kind of veto power in Congress is because Democrats give him that power. If Democrats in Congress really want to escape the confines of reconciliation rules and do more with their power, then they must use the power they have now to change the filibuster rules. It’s really that simple.

Photo by Andrew Davey

Editor’s Note: Senator Jacky Rosen has endorsed ending the filibuster in order to pass voting rights legislation, and Senator Catherine Cortez Masto [D] has endorsed filibuster reform along the lines of a “talking filibuster” in order to reduce the burden of the majority to advance legislation. According to Battle Born Collective’s tracker, 18 Senate Democrats have unequivocally endorsed filibuster abolition, another 28 have expressed openness to reform, two are unequivocally in support of the filibuster as it is, and two have not made any official statement on filibuster reform.

The cover photo was taken by me.

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