Thanks To The Filibuster, Reconciliation Is The Last Train Out Of Town. Advocates Refuse To Miss It.

Now that the bipartisan infrastructure plan has been fully defined and delineated, the mad scramble for advocacy groups to get their priorities into the reconciliation vehicle begins in earnest. 

Underlying the jockeying, which has even immigration reformers hoping to expand access to citizenship in the nominal infrastructure package, is a fundamental truth: it is nearly impossible to pass Democratic priorities through the Senate with the filibuster intact. Getting 10 Republicans to expand citizenship, divest from fossil fuels or strengthen labor protections is a pipe dream, and advocates have learned that fact the hard way.

With Sens. Kyrsten Sinema (D-AZ) and Joe Manchin’s (D-WV) insistence on preserving the filibuster — a defacto Republican veto — this may be the last opportunity for Democrats to pass much of anything before the 2022 midterms, which could lose them a chamber of Congress. 

And from there, who knows? Republican legislatures across the country are studiously drawing up laws that make it harder to vote, and preparing to redistrict their states to make it even harder for Democrats to win elections. While a second effort is underway behind the scenes, Democrats’ initial attempt to pass voting rights protections was stymied by a Republican filibuster, much as future efforts almost certainly will be. 

So, this August, the train is leaving the station.  

“Everyone has their eyes on it because it’s the magic vehicle through which some strange stuff can happen that otherwise won’t go through regular order in Congress,” Muzaffar Chishti, head of the Migration Policy Institute office at NYU’s School of Law, told TPM of reconciliation. “Everyone is salivating and has been salivating for months; everyone has a favorite thing.” 

Corralling 50 Votes

For environmentalists, the legislative opening coincides with a climate disaster whose wildfires cloud skies across the country in a sickly orange haze and whose floods are already making life on the coast precarious.

“It is this key moment,” Jess Ennis, legislative director for climate and energy at Earthjustice, told TPM. “With all this extreme weather, there’s a lot more awareness of historical inequities.” 

She reeled off the list of priorities Earthjustice is advocating to include in the reconciliation package: clean transportation, clean energy, climate and agriculture protections, environmental justice, water conservation.

She noted that the Biden administration has also given the climate crisis more attention than it’s gotten in the past, making the moment opportune. 

But climate proposals, like every other provision ultimately tucked into the reconciliation vehicle, will have to overcome obstacles. Some are inherent to the system like the Byrd Rule, which blocks from inclusion in reconciliation any legislation that doesn’t affect federal spending and revenues, or that produces change in spending that the Senate parliamentarian deems to be “merely incidental.”

Some centrist Democrats have also expressed concern about the overall size of the package. Even if Democrats stick to the $3.5 trillion topline announced last month, adding money in one area means taking money away from another to keep the overall cost the same. 

That’s led to a challenging calculus for senators, and some elbowing among advocates to influence what is included and what isn’t. Core Democratic priorities will have to be scaled back to make way for others.

For environmentalists, another potential pothole is Manchin, who hails from a state with a legacy of coal mining and has expressed concern about movement away from fossil fuels. 

“We don’t know the twists and turns ahead of us, but we know there will be twists and turns,” Jamal Reed, executive director of Evergreen Action, told TPM, adding: “Obviously we’re worrying about how to get 50 votes on everything.” 

That hasn’t limited his group’s wish list though, which includes the clean electricity standard, clean energy tax credits, the Civilian Conservation Corps, investments in environmental justice, funding for clean infrastructure and manufacturing and ending fossil fuel subsidies. 

Does It Fly With The Byrd Rule?

For immigration reform advocates, threading that needle is even more difficult. Something like a clean energy tax credit seems to lie comfortably within the Byrd Rule boundaries; expanding citizenship to millions doesn’t so neatly affect the budget.

People argue that increasing the number of legal immigrants will bolster the economy, “but that’s not relevant — helping the economy is not relevant,” the Migration Policy Institute’s Chishti said. “It’s not about the economic implication, it’s not about fiscal implication — just the budgetary implication.”

His group — which is advisory and research-based, and does not advocate — finds essential workers the easiest case to make in the quest to widen the pathway to citizenship, due to their connection to the COVID pandemic, which was widely addressed in the American Rescue Plan passed through reconciliation in March. 

But still, he called it a “little stretch.” 

Far beyond the big hopes for achieving citizenship for dreamers or those with temporary protected status, Chishti homes in on a much smaller provision he thinks could actually fly with the parliamentarian.

Currently, the United States punishes anyone found to have entered the country illegally who leaves with temporary banishment — three years away if the person was in the country for more than six months, 10 years away if the person was in the U.S. for more than a year.  

There is a pathway for undocumented immigrants to get a green card from within the country, even if they entered and lived in the U.S. illegally. It’s provision 245(i) of the Immigration and Nationality Act, where immigrants can pay a fine to waive the violation and apply for a more permanent legal status. But the current filing cutoff to be applicable is April 30, 2001 — meaning that fewer and fewer immigrants can take advantage of the law and avoid the punitive bans.

If they just move that filing date up, which Congress has done in the past, it would widen the pathway to more people.

“To me, my analytical lens suggests that provision has the maximum chance of passing Byrd,” Chishti said. But still, he said — it might be worth shooting for something bigger. 

“You never know, maybe the parliamentarian will say that if you legalize five million new people, that will increase the budget allocation and that’s fine,” Chishti said. “Her opinion is considered gospel truth.” 

All Hail The Parliamentarian

Adam Shah, Director of National Policy At Jobs With Justice, told TPM that the real jockeying is likely to come during August and September — during and after the Senate recess. 

His group has been pushing Congress to expand labor protections, and believes a more aggressive approach is the best way to achieve that objective. 

The discussion comes down to the following question: Should Democratic senators include the entire PRO Act in the reconciliation bill, leaving it to the parliamentarian to remove whatever elements she deems incompatible? Or should they only include the elements of the bill that are more likely to make the cut — such as a union dues tax credit and giving the National Labor Relations Board authority to enforce civil monetary penalties — leaving the rest of the bill to go through regular order in the Senate where it will likely wither before the filibuster.

“I don’t think it hurts to have sections that the parliamentarian says have to be excised from the PRO Act,” Shah told TPM. “I don’t think it hurts anything to try to pass the entire PRO Act because it won’t affect the parliamentarian’s decision or the final bill.”

In the end, the shape of the pill may have less to do with legislative contortions or the whims of centrist Democratic senators than to the decisions of the parliamentarian. 

“There is this very opaque, anti-democratic issue that’s ruled on by a non-elected official, that nobody knows of — and it’s something that specifically exists to allow things like tax cuts. But not pro-labor changes that would help most people,” Shah said.