Here’s The Deal With Schumer’s Plan To Sneak Past The Filibuster Three Times In One Year

WASHINGTON, DC - MARCH 25: U.S. Senate Majority Leader Chuck Schumer (D-NY) arrives at a news conference to talk about Senate Democrats legislative accomplishments at the U.S. Capitol on March 25, 2021 in Washington,... WASHINGTON, DC - MARCH 25: U.S. Senate Majority Leader Chuck Schumer (D-NY) arrives at a news conference to talk about Senate Democrats legislative accomplishments at the U.S. Capitol on March 25, 2021 in Washington, DC. (Photo by Jonathan Ernst/Pool/Getty Images) MORE LESS
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March 29, 2021 3:58 p.m.

Senate Majority Leader Chuck Schumer (D-NY) has a trick up his sleeve: namely, an attempt to create a third reconciliation vehicle this year, which would let Democrats pass more legislation on a simple majority vote. 

Democrats already used the 2021 budget reconciliation process to pass the $1.9 trillion American Rescue Plan. (Congress didn’t pass a budget resolution last year, allowing Democrats to make use of it in 2021.) Now, Schumer plans to use the 2022 budget vehicle for chunks of President Joe Biden’s infrastructure and jobs plan.

Before Schumer concocted this plan, that looked like pretty much all Democrats could do with reconciliation — until next year, when another budget vehicle would become available. In the meantime, barring some bipartisan breakthrough, Democrats would be left clutching fistfuls of bills unlikely to overcome the current filibuster rule’s 60-vote threshold. 

Schumer is seeking a way around the legislative logjam, multiple outlets reported this morning, to give Democrats at least one more chance to pass meaningful legislation they can run on for the midterms, if he can get the approval of the Senate parliamentarian.

The plan lies in the text of the Congressional Budget Act of 1974 — section 304, to be exact. 

“By using Section 304, Democrats can revise the FY21 budget resolution, at least once, to trigger an additional set of reconciliation instructions,” a Schumer aide told TPM. “Such a Section 304 budget revision would also be available to revise budget resolutions for future fiscal years.”

Those revisions are key to Schumer’s plan. Section 304 allows for “a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to.” 

In other words, Schumer thinks Democrats can pass more bills through reconciliation as “revisions” to what they passed in the 2021 budget vehicle.

A close reading here suggests that Schumer’s office is already planning to make the most of this workaround, if they get the greenlight from the parliamentarian to use section 304 like this. The aide told TPM that Schumer’s office believes they can use the section “at least once” to trigger additional reconciliation vehicles, and that they could use it again “in future fiscal years.” 

That could mean, at the least, a potential fourth vehicle for Democrats to use piggybacking off the 2022 budget process that they’re planning to use for infrastructure legislation.

The aide emphasized that no final decision has been made on this legislative strategy, but that Schumer is eager to open “multiple pathways” to get President Joe Biden’s agenda passed if Republicans “obstruct or water down a bipartisan agreement.”

I Pledge Allegiance To The Parliamentarian

So, Schumer has found a fairly bizarre way to govern necessitated by his members’ current refusal to nuke the filibuster, or at least lower its vote threshold. If the gambit works, it could be transformative, giving Democrats really their only evident opportunity to get anything passed this year after infrastructure part 1. If it works.

“If what Majority Leader Schumer is arguing is that a Section 304 revision of the budget resolution can be used to create another reconciliation bill, I think there is a strong case,” Rich Arenberg, interim director at Brown University’s Taubman Center for American Politics and Policy, told TPM. “Of course, the parliamentarian’s view will be crucial.”

That’s the rub — it all comes down to what the parliamentarian thinks. And if she decides that this workaround is not allowed under budget rules, the ball is back in Democrats’ court to potentially overrule her and do it anyway. They resisted this approach when she nixed raising the minimum wage in the COVID-19 relief package, though this time much larger chunks of the legislative agenda would hang in the balance.

As Arenberg pointed out and Schumer’s office confirmed, there isn’t precedent in using this specific section, so there’s no history to draw from. 

How moderate Democrats will react to the plan is another question mark, and it’ll take the cooperation of all 50 of them to pass extra reconciliation bills.

“First, somebody in the current majority is going to get cold feet about essentially making a rule that all fiscal-related bills are 50 vote thresholds,” Matt Glassman, senior fellow at Georgetown University’s Government Affairs Institute, said as he predicted the gambit’s downfall to political headwinds. “Second, a lot of people are going to get tired quickly of vote-a-ramas and such eating up the calendar.”

It’s less hard to predict how Republicans will react to the gambit.

“Presumably Republicans are arguing against anything that we want to do, because that’s what Republicans do,” one Democratic aide told TPM. “Everything gets litigated these days, so we are waiting for the Parliamentarian to tell us what she thinks.”

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