The Senate Has Become a Dadaist Nightmare

 

The Senate Has Become a Dadaist Nightmare

No one would ever design a legislative body that worked this way.

 

By Ezra Klein The New York Times Opinion Columnist

 

 

This week, congressional Democrats advanced a budget resolution — the first step in using the filibuster-proof budget reconciliation process to pass President Biden’s $1.9 trillion fiscal rescue plan. I recognize that is not the most thrilling start to a column. But now that Senators Joe Manchin and Kyrsten Sinema have pledged their undying fealty to the filibuster, the budget reconciliation process is where Biden’s agenda will live or die. Oy, is that depressing.

Budget reconciliation reveals the truth of how the Senate legislates now. To counter the minority’s abuse of the filibuster rule, the majority abuses another rule, ending in a process that makes legislation systematically and undeniably worse. The world’s greatest deliberative body has become one of its most absurd, but that absurdity is obscured by baroque parliamentary tricks that few understand.

“Budget reconciliation.” It sounds sober, important and official. But it’s farcical — or it would be, if the consequences weren’t so grievous.

It’s understood, by now, that the filibuster has mutated into something it was never intended to be: a 60-vote supermajority requirement on almost all legislation considered by the United States Senate. I have made my case against the filibuster in detail before, and I won’t repeat it here. Suffice to say, in a closely divided Senate, with highly polarized parties, it’s almost impossible to get 60 votes on major legislation. But there’s a workaround, and that workaround is getting both wider and dumber.

The budget reconciliation process was created in the Congressional Budget Act of 1974. It was an afterthought: an optional process to let Congress quickly clean up its spending plans so they matched the budget. No one even used it until 1980. But as the Senate was stalled by more frequent filibusters, clever legislators realized that the budget reconciliation process was immune to the filibuster, as it was limited to 20 hours of debate, and all kinds of bills could be routed through it.

In response, Senator Robert Byrd persuaded his colleagues to pass new rules to ensure budget reconciliation remained true to its original purpose. These rules, formally enshrined in the Budget Act in 1990, impose a series of tests on budget reconciliation bills. The most consequential are that every individual provision of the bill must alter taxes or spending, and not in a “merely incidental” way; the bill cannot increase deficits after the budget window, which is usually around 10 years; and the bill cannot muck with Social Security. Any senator can challenge any provision of any budget reconciliation bill for violating these rules. The parliamentarian then rules on the question, and if the parliamentarian rules for the challenger, the provision is struck from the bill. (The Senate can choose to ignore the parliamentarian, just as they can vote to change any Senate rule. That hasn’t happened yet where budget reconciliation is concerned, but it may soon. More on that later.)

Byrd’s reforms didn’t work as he intended. The problem of the filibuster demanded a solution, and even covered in “Byrd droppings,” budget reconciliation was the closest thing to an alternative. The Byrd rules didn’t prevent non-budgetary legislation from being passed through reconciliation, but they did make that legislation worse, and weirder, and the Senate has simply decided to live with the ridiculous results, and make the rest of us live with them, too.

President George W. Bush’s tax cuts, for instance, were designed to expire — expire! — after 10 years because otherwise they would have increased deficits after 10 years, and so been ineligible for reconciliation. President Donald Trump’s tax cuts employ the same trick. This is a legacy of budget reconciliation: Massive chunks of our tax code are just set to disappear at an arbitrary point in the future, and what happens then is anybody’s guess.

The distortions don’t end there. Budget reconciliation warps policy design by pushing away from regulation and toward direct spending and taxation. An example: If you were designing a health care bill in budget reconciliation, you couldn’t pass a rule saying private insurers had to cover pre-existing conditions. But you could add a trillion dollars to Medicaid funding so it could cover anyone with pre-existing conditions who couldn’t get private insurance. Or to use an example that is actually in the reconciliation package Democrats are designing now: You can pass $1,400 checks through budget reconciliation, but you can’t pass emergency paid leave. When Congress writes laws through budget reconciliation, it writes them with one arm tied behind its back.

Even worse is the way budget reconciliation quietly decides which kinds of problems the Senate addresses, and which it ignores, years after year. Both House and Senate Democrats have said that their first bill will be the “For The People Act,” a package making it easier and safer to vote, and weakening the power big donors wield in politics by matching small donor donations at a 6:1 rate. But the “For The People Act” can’t pass through the budget reconciliation process, so it’s a dead letter.

“Why should it only take a simple majority to do tax cuts for the rich but it takes a supermajority to address the integrity of our elections?” Senator Jeff Merkley, a Democrat from Oregon, told me. “That makes no sense. Access to the ballot shouldn’t have a higher hurdle than helping the rich get richer.” But in today’s Senate, it does. The same is true for gun control or immigration reform.

But budget reconciliation doesn’t just alter liberal priorities. Social conservatives often complain that when Republicans hold Congress, their legislative asks are shunted aside for tax cuts and health care repeal laws. That is, in part, a budget reconciliation issue: You can pass tax cuts and (partially) repeal Obamacare through budget reconciliation. You cannot regulate pornography or push school prayer through the process.

You can also only do a limited number of budget reconciliation packages each fiscal year. That forces legislators to craft giant bills that jam every legislative priority into one rushed package, rather than crafting one bill, debating and modifying it, and then passing it and moving onto the next.

“I find it ironic that people suggest reconciliation is somehow better for the institution,” Adam Jentleson, former deputy chief of staff to the former Senate majority leader, Harry Reid, and the author of the excellent new book, “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy,” told me. “It’s terrible for the Senate!” As he notes, budget reconciliation decreases the power of committees and increases the power of the Senate leadership, “since leadership drives the assembly line for putting together these mega-packages. There’s no transparency and it creates a field day for lobbyists.”

In 2012, Steven Teles, a political scientist at Johns Hopkins University, published a paper arguing that American public policy had become defined by kludges. “The term comes out of the world of computer programming, where a kludge is an inelegant patch put in place to be backward compatible with the rest of a system,” he wrote. “When you add up enough kludges, you get a very complicated program, one that is hard to understand and subject to crashes. In other words, Windows.”

Or, the Senate. The modern use of budget reconciliation is a kludge. The institution has become paralyzed by the filibuster and rather than rewriting its rules to solve that problem, senators have instead patched it through budget reconciliation. The Senate gets just enough done that no one can say it is actually impossible to pass big bills through the body. But budget reconciliation narrows the range of problems Congress can solve, the number of bills it can pass and the policy mechanisms it can use. No one would ever design a legislative body that worked this way, but this is how the Senate has come to work, one kludge on top of another. “For any particular problem we have arrived at the most Gerry-rigged, opaque and complicated response,” Teles wrote. That is both an apt description of today’s Senate and of the kind of policy budget reconciliation produces.

All of this is a choice. Every Senate rule can be changed by a simple majority vote. A simple majority could end or reform the filibuster — as we saw when Democrats ended it for most executive branch nominations and most judicial nominations in 2013, and when Republicans ended it for Supreme Court nominees in 2017. The details quickly get complicated, but a simple majority of senators could vote to loosen some of the limits on budget reconciliation, as Senator Bernie Sanders, the new chair of the Budget Committee, has suggested. The Senate is bound by nothing but its own convictions.

But this is a Senate that, collectively, has no convictions. It does not believe enough in the filibuster’s 60-vote threshold to simply abide by it. It does not believe enough in passing bills by a simple majority to make that the standard. It is the self-styled moderates, like Manchin and Sinema, who freeze the institution in dysfunction, but there is nothing moderate about the modern Senate: It is radical in its inanity, a legislative chamber designed by dadaists.

“Democrats have an opportunity to restore our democracy and deliver on the promises they campaigned on,” the Rev. Dr. Stephany Rose Spaulding, founder of Truth and Conciliation, told me by email. “But they can’t do that without breaking down structural barriers to progress — that starts with eliminating the filibuster. If we allow the filibuster to block voting rights, gun violence prevention, Covid relief and more, we’re sending a clear message to millions of voters that their votes and voices don’t count in our democracy.”

To be clear, if Democrats will not get rid of the filibuster, it is better that they use budget reconciliation than that they fail the American people totally. But the fact that Democrats are using budget reconciliation at all is evidence that even Sinema and Manchin know the filibuster has gone too far, that the chamber cannot operate under supermajority rules, all of the time.

This is a terrible way to legislate. Enough with kludges. End the filibuster, and make the Senate great again.

Ezra Klein joined Opinion in 2021. Previously, he was the founder, editor in chief and then editor-at-large of Vox; the host of the podcast, “The Ezra Klein Show”; and the author of “Why We’re Polarized.” Before that, he was a columnist and editor at The Washington Post, where he founded and led the Wonkblog vertical. @ezraklein