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Schumer eyes obscure maneuver to pass Biden's infrastructure bill

▶ Watch Video: Biden signals openness to axing Senate’s filibuster rule if it causes “chaos”

Washington — As Congress pursues President Biden’s ambitious legislative agenda, Senate Majority Leader Chuck Schumer is mulling the use of an obscure procedural maneuver that would allow for the president’s massive infrastructure bill to pass without any Republican votes. Mr. Biden is set to introduce the first part of his two-pronged infrastructure package on Wednesday.

Although Democrats control both chambers of Congress and the White House, their hold on the Senate in particular is tenuous with a 50-seat majority. Most legislation requires 60 votes to advance in the Senate, and Democrats are unlikely to get Republican support for their more ambitious and expensive proposals. Absent of eliminating the filibuster, which would allow legislation to advance with a simple majority, Democrats have few options for passing their priorities without any Republican votes.

One such path is budget reconciliation, a procedural maneuver which allows for budget-related items to pass with a simple majority. Congress used budget reconciliation to pass Mr. Biden’s $1.9 trillion American Rescue Plan earlier this month without any Republican votes.

Democrats used a budget resolution for the current fiscal year to lay the groundwork for passing the American Rescue Plan. Although typically budget reconciliation is used only once per fiscal year, a Schumer aide said the majority leader is asking the Senate parliamentarian whether he can revise the current budget resolution to allow for another reconciliation process to pass the infrastructure package.

Top Schumer aides have asked the parliamentarian about using Section 304 of the Congressional Budget Act of 1974 to allow for a second reconciliation process this fiscal year. The parliamentarian is an expert on the obscure procedures of the Senate, and can determine whether certain actions are permitted under Senate rules.

Schumer aides argue that Section 304 would allow for a second reconciliation process to be used this fiscal year, because it says “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.”

Even if the parliamentarian ruled against this proposal, it would not preclude Democrats from using budget reconciliation to pass an infrastructure bill. Congress could pass a budget resolution for fiscal year 2022, which would then pave the way for using reconciliation. They will also have the opportunity to pass a budget resolution for fiscal year 2023, meaning that Democrats will have at least three opportunities to pass via reconciliation ahead of the midterm elections without stretching the rules.

However, permitting multiple bills to pass through budget reconciliation per fiscal year would make it even easier for Democrats to approve certain priorities. If the parliamentarian agrees with Schumer’s arguments, it would mean that a Senate majority could use reconciliation as often as they wished, provided they also controlled the House and White House.

The White House on Monday expressed no opinion on potentially using reconciliation to approve the Mr. Biden’s infrastructure proposal, with press secretary Jen Psaki saying the president would “leave the mechanics of bill passing to Leader Schumer and other leaders in Congress.”

Reconciliation isn’t an ideal end-run around the filibuster. It can only be used for budgetary bills, and the parliamentarian has the authority to strip any unrelated provisions. This occurred recently, when the parliamentarian ruled that a provision raising the federal minimum wage to $15 per hour by 2025 could not be included in the American Rescue Plan. 

Reconciliation is also a grueling process which includes two voting marathons in the Senate, during which any senator can force a roll-call vote on an amendment. Known as a “vote-a-rama,” these voting sessions are often prolonged and require senators to be on the floor for hours at a time. The most recent “vote-a-rama,” which occurred ahead of final Senate passage of the American Rescue Plan, extended overnight and lasted nearly 24 hours.

Other Democratic priorities, such as voting rights legislation, would not be able to pass through reconciliation because they are not budget-related. Frustrated progressives in the House and Senate argue that eliminating the filibuster would be the easiest way to pass controversial legislation, and wouldn’t require such a painful process.

But eliminating the filibuster would require support from a simple majority of senators, and at least two Democratic senators have expressed unwillingness to end the practice. Senator Joe Manchin has been particularly vocal in his opposition to ending the filibuster, arguing that it is necessary to protect the rights of the minority.

Mr. Biden expressed willingness to eliminate the filibuster last week if Republicans continue to “abuse” the practice, although he advocating for trying to reintroduce the “talking” filibuster first, which would require a senator to talk for an extended period of time in order to block a bill.

“If we have to, if there’s complete lockdown and chaos as a consequence of the filibuster, then we’ll have to go beyond what I’m talking about,” Mr. Biden said.

Alan He contributed reporting.

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