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WASHINGTON — Democrats might not have the votes to gut the filibuster, but they were just handed the procedural keys to a backdoor assault on the Senate’s famous obstruction tactic.
With a ruling on Monday that Democrats can reuse this year’s budget blueprint at least once to employ the fast-track reconciliation process, Democrats can now conceivably advance multiple spending and tax packages this year alone without a single Republican vote as long as they hold their 50 members together. It is a means of weakening the filibuster without having to take the politically charged vote to do so.
Democrats insist that they have made no decisions about how to use the tool.
“It is always good to have a series of insurance policies,” Senator Chris Van Hollen, Democrat of Maryland, said about the possibility that Democrats could repeatedly duplicate last month’s party-line passage of the $1.9 trillion coronavirus relief legislation should they not be able to work out deals with Republicans.
But whatever strategy they employ, it is clear that the decision by the Senate parliamentarian to agree with Senator Chuck Schumer, Democrat of New York and the majority leader, that a musty 47-year-old budget provision could be used more than once in a fiscal year widens President Biden’s path to enacting his emerging infrastructure plan by shielding it from a filibuster if need be.
It also means other Democratic initiatives could become filibuster-proof moving forward, and that is already spurring creative efforts among lawmakers and activists to imagine other priorities that could be stuffed into reconciliation packages.
“I always would prefer to do legislation in a bipartisan way, but we have to get big, bold things done,” Mr. Schumer said in an interview. “And so we need to have as many options as possible if Republicans continue to obstruct.”
The filibuster — which takes 60 votes to overcome — remains an obstacle for many of the cutting-edge policies Democrats would like to enact, such as a sweeping campaign finance and voting rights measure as well as new gun laws. But if stymied by Republicans on measures that they can protect under reconciliation — which applies to policy changes that directly affect federal spending and revenues — Democrats will now have more opportunities to move ahead on their own if they choose.
Senator Mitch McConnell, Republican of Kentucky and the minority leader, said Democrats were being driven to twist the process by their inability to win Republican support for their plans and the fear that they will lose the majority next year. Republicans can be expected to put up as many roadblocks as possible to what they see as an attempt to exploit a loophole.
“This is a party that is going hard left, and they are audacious, and they are ambitious, and they will bend the rules and break the rules and rewrite the rules and do everything they can to get what they want as fast as they can,” Mr. McConnell said in an interview.
Given the vast ideological differences between the two parties, many progressives have been urging Democrats to use their bare majority to take steps to weaken, if not eliminate, the filibuster so that Democrats can overwhelm Republican resistance. But a handful of Democrats — notably Senators Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona — have resisted. They argue that by requiring a supermajority, the filibuster forces bipartisan compromise, and that upending it would destroy the fabric of the Senate and its history of protecting the rights of the minority party.
But reconciliation is another matter entirely. Since the enactment of the 1974 Budget Act, both parties have used the maneuver to push a variety of tax cuts and social programs into law, often over the unified opposition of the minority party. Ms. Sinema and Mr. Manchin supported reconciliation as recently as last month, when Democrats used it to muscle through Mr. Biden’s stimulus plan. Democrats expect that they could be enticed to do so again if they can be convinced that there is no chance of bipartisanship and it is the only available route to accomplishing vital objectives.
In fact, the process would further strengthen the hand of centrist Democrats to shape legislation, given that the party would be unable to afford any defections. Mr. Manchin, for instance, held up action on Mr. Biden’s pandemic aid plan last month because he was dissatisfied with the unemployment benefits and Democrats could not pass the measure without his vote.
Progressives who want to overturn the filibuster cheered the decision by the parliamentarian because of the possibilities it opened up for enacting the rest of Mr. Biden’s agenda. But some of them expressed concern that the ruling could sap momentum for the fight to eliminate the filibuster altogether, or push the Senate into a series of reconciliation battles that would leave behind the voting rights bill, known as H.R. 1, and other liberal priorities.
“The Parliamentarian’s ruling on reconciliation is great but doesn’t change the fact that Democrats must either end or reform the filibuster, or HR1 and other voting rights bills will die,” Adam Jentleson, a former Senate Democratic aide backing a filibuster overhaul, wrote on Twitter. “The ruling allows for more vehicles but doesn’t expand the scope of what they can contain.”
Democrats were reluctant to discuss how they would employ their new power, partly because they have not explored it too deeply and also because they want to show continued openness to working with Republicans. One senior Democratic official described the ruling as an extra arrow in the majority leader’s quiver, but most likely not a cure-all to Republican resistance on a broad range of issues. The official said that options such as weakening the filibuster remained in play.
Democrats might not ultimately be the only beneficiaries of the ruling. It could also empower Republicans who have favored using reconciliation to enact tax cuts should they return to power.
Intensified use of reconciliation would represent just the latest erosion in the might of the Senate filibuster, which has undergone multiple transformations as recently as 2013, when it was eliminated for judicial and executive branch nominees, and then in 2017 for nominees to the Supreme Court.
The reconciliation process, which itself has a tortured history, has come to be seen as a way to circumvent the filibuster. Initially, its chief objective was to guard against deficit spending by requiring legislators to “reconcile” federal spending with actual budget targets. But crafty lawmakers and budget experts in the White House and on Capitol Hill recognized that the filibuster protection provided by the budget law presented a golden opportunity to muscle measures through the Senate.
Beginning in the 1980s with the Reagan administration, reconciliation became the go-to vehicle to skirt the filibuster and enact a series of tax cuts, the Clinton-era balanced budget, a children’s health insurance program, a major welfare overhaul and the George W. Bush tax cuts of 2001 and 2003, among other big pieces of legislation.
Growing use of reconciliation quickly caught the attention of Senator Robert C. Byrd, a West Virginia Democrat who saw himself as a defender of the filibuster. He persuaded his colleagues to rein in the budget tactic and put limits on what could be included in a reconciliation bill. The restrictions, known as the Byrd rule, allow opponents to try to strip out provisions considered extraneous to budget goals and force proponents to muster 60 votes to keep them in, effectively imposing a filibuster on parts of the bill.
Despite the advantages of reconciliation, congressional leaders have been reluctant to rely on it too frequently, because it is so cumbersome and working out an agreement is preferable. It was also thought to be limited to one attempt per fiscal year, so lawmakers deployed it strategically and only for their highest priorities. But Monday’s ruling appeared to lift that restriction, opening the door to much more frequent use at a time when compromise is highly elusive.
Democrats said reconciliation had also been used sparingly in the past because it exposed lawmakers to an onslaught of hot-button policy votes as part of a debate-ending “vote-a-rama” that many senators were eager to avoid. But such voting showdowns have become more common, and senators appear willing to accept them as a cost of enacting far-reaching legislation.
The ramifications of the ruling are just now being assessed, and it remains uncertain exactly how Democrats will employ it. But they are welcoming it as another way to sidestep the filibuster — and a clash over eliminating it — if necessary to pursue their policies.
“The American people want bold action to address our country’s many challenges,” said Senator Ron Wyden, Democrat of Oregon and the chairman of the Finance Committee, “and Democrats now have more options to overcome Republican obstruction and get things done.”
Emily Cochrane contributed reporting.
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