« The Weeds

Filibusted

2021-01-29

Matt is joined by author Molly Reynolds of the Brookings Institution to talk about the intricacies of the Senate filibuster, budget reconciliation, and the Byrd rule, with a view toward the prospect of getting legislation through a divided Senate.

Resources:

U.S. Senate rules on filibuster and cloture

"The history of the filibuster" by Sarah Binder, Brookings

Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate by Molly E. Reynolds (2017).

Guest:

Molly Reynolds (@mollyereynolds), Senior Fellow, Brookings

Host:

Matt Yglesias (@mattyglesias), Slowboring.com

Credits:

Erikk Geannikis, Editor and Producer

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
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Change our environment and working towards a better future, learn more it INDIGO Ag, Dotcom, Slash, Reechoed, eyes, budget, reconciliation and the filibuster are things we have been talking about, and the weeds for years and years and years and years they ve been very relevant to political views. This week I think it's going to be incredibly important by administration covered relief bill is likely to be. A budget reconciliation measure and a lot of other stuff that we are interested in here is ultimately get a hinge on whether the filibuster can were formed. Ass, always really glad to sit down with Molly. Reynolds is one of the top experts on procedure. Books on this to really explain it. This is the thing like I'm a professional I've been doing this for seventeen years and I feel, like I'm. Com like getting this history and the detailed facts here long is it's like nobody except Molly, washing understands. So I really think you're gonna enjoy, but before We get to the show. I want you to know as a binding measures.
Gears up box is going to help. You understand this unprecedented burst of policy making starting today, Herman Lopez on Fox's top reporters is going to be in your inbox every Friday to explain the biggest policy debates of the week. You want to sign up, you go to dot com, slash weeds, Haifa Newsletter, reminders great newsletters, great checking hello. Welcome for another episode of the weeds on the box media Pike, s network. I met in place. Yes, my guest today, Molly Reynolds is a senior fellow in governance studies at bookings. We we ve taught Senate procedure so many times here in the weeds, but never with a with a true expert is becoming a sort of dominant factor in american politics, but remains very poorly understood. So thank you so much
My pleasure, I glad to be here so I'm going to start this with like the big dumb question, as we say in Fox like what is buster, because we know that it's not like. Mr Smith, goes to Washington Jimmy Stuart talks for seventy two hours and then and then we see what happens like what What is the actual issue which are so at the highest level? to filibuster a measure in the sun. It means to use any number of tactics to prevent that measure from coming to of oats, though ability of centres to do that, comes from the fact that, generally the send its rules don't put restrictions on how long the Senate can debate a particular measure. There are really important exceptions that I think we're gonna, about budget reconciliation, but in general there
nothing in the Senate, rules that allows for only a simple majority of senators to decide to stop debating something and take em take about it. So one way to filibuster, enmesh earnings, kind of that we have it. Our minds than the heck. Mr Smith goes to Washington type floor, an individual, its recommend. Talk about a bell adjust keeps talking until either the bill that he or she is objecting to gets cold, or here she got something outside they want an exchange. So we really see this very often they more. We can get into a kind of why that is. We see an occasional arms, out in twenty, sixteen, for example, at Chris Murphy of cut out again spent about fifteen hours on the centre for holding up his ass Intolerably leaders agreed to hold supple votes on God issues, but again, This can have re filibusters like don't evolve. This kind of I'm speechifying instead
evolve, one amongst others simply threatening to drag out debate indefinitely because they oppose bill or because they want to get something off, an exchange which then forces their colleagues a file. What we call a closer motion and that's the tool that son has to cut off debate and actually take a boat on something but get in most circumstances that needs votes to pass, and the mechanics of this is that there doesn't need to be actual debating occurring to say that the debate is not cut rate because, like this is this is where you just like, confuses a normal persons. Intuition, like you, could be it a pda meeting and like there's a debate happen and then somebody wants to say, hey guys like. We should stop arguing about this and just take the vote. And then there may be some Robert jewels of orders kind of thing, but you have to be conducting a debate for a debate to just.
You in like people's normal gatherings, but the Senate just kind of comes in, and I like nobody has to be on the floor for the quota quote debate to be ongoing yeah. That's that's just a really important and that actually, when we start to think about particular proposals that people have made to change the way the filibuster works, like that's our shared important dynamic, because it's it's a in adaptation that the Senate has made to deal with like what it means. To be the U S Senate in the current moment- and I don't just mean in twenty Anyone I'm going back importantly. About them seventies, I'm all before that, but basically, as the Senate. Workload gets bigger and bigger things too, like up more activist federal government that grows out the great society and the new deal before that, there's just more for the Senate to do, and so they needed kind of these adaptations to help them be.
To use their time more effectively, but you're absolutely right that if an average person nothing most average people turn on C span to benefit did. They would often see the Senate in what is called a quorum call, which is kind of a holding pattern. Until and even when this, the Senate is more actively debating. You generally see one, maybe a couple of senators on on the floor and time when etc. They did give speeches, but it's not, it's not like a discussion right it? It is different, certainly a different attitude. There are some trouble. The similarities between the Us Center and PTA meetings, but that's not one of them No I mean I just gets like eight. It is important to sort of clarified because it means that to say: ok, you need sixty votes to cut off debate. Doesn't me in You need sixty votes to do this sort of rude thing and force people who are actively engaged in a dialogue to shut
It's come to mean in a fact that you need sixty votes like all the time my people may have nothing left to say about. Such as much better, but it just like they can pass on. My sixty senators wanted to pass, and that has changed as a norm. I mean I remember I am moved. Did you see him? Two thousand three out of college and one of the first things I covered was the Medicare Reform bill that passed back then, and Prescription, drugs benefits and there were Democrats were mostly opposed to it, but MAX Balkis and one other, I think, was for it John Bro, and there were some thought that, like Democrats had the votes to filibuster it and they just didn't, but I think that's the last time that
yeah. I know I am it's in these conversations, there's always sort of a temptation to say like this is the moment. Nothing has changed and there are a couple dar shortly. A couple of am really pivotal moments, particularly in the last decade or so in kind of the use of that the faster we can talk about the age of twelve thirteen, twenty seventeen of the nuclear option I think that again, like Turkey zoom out a little bit and if we go back even farther than two thousand and three, and I think that, like the midsummer do again a really important more to think about here. So because in time for everyone yeah, we ve got so. I was talking about like a more activist federal government, which means a couple of things: one. It means there are more targets. There are more things the Senate is talking about that someone might try to obstruct, as there are more targets. That agenda is bigger, there's
also a bigger costs, the majority party of letting something just sort of sit on the agenda and consume for time and then ass. We think about and changes side of the sun and are more external groups that are putting pressure on centres to explain all of their individual. Procedural rights there are more and more incentives for senators and make their own Brion said a fun rings and then We also at the same time has this like explosion, the sort of that at the beginning of the explosion, in the polarization of them these, which then obviously shapes the incentives that members have to. Actually obstruct what each other are trying to and waited desert. This sort of big shift in the party dynamics, starting that right, where they become both more sorted on ideology, but also sort of em less institutional. I stride so like groups become more important. Red silk is like that.
The classic way of thinking about this right is that, like the Party Qua Party like just wants its members to get reelected, but the issue groups want their allied members of Congress to actually do something right and that that starts in a lot of important ways to include again using all of your individual procedural rights, the senator to stop things from happening that you or or in his ear allied groups. I don't agree with and then took to your point about that the parties you know wanting their members to get reelected. We have this development that can put a scientist. Frances Lee has demonstrated most effectively that again starting in about nineteen eighty, we have this change in the level of macro political competition that both parties start to look at the next european elections,
say, hey I'm in the minority now, but the circumstances are different. We're moving out of this, where everyone expected that the Democrats were going to be the permanent majority in Congress. So if we're that, if or the Republicans and we're in the minority, we have very little incentive to cooperate with the Democrats to give them wins. When Democrats are in the minority they have the same, and the back also drive this desire to obstruct things in the Senate. Gently, at least of others is, is fascinating itself. Weird but like for decades, the Republicans basically wouldn't bother trying to win. Like you we just hopeless read, so they were adapting to inform all Cross Party alliance with conservative Democrats as the way they would do things and then there's a switch after Reagan's election till I know we could. We could win we could hold the majority and that, as a Dutch and then, as the parties get farther apart from one another, it becomes even harder to build, though
super majority coalitions when you need to do so. With Just further incentivize is not cooperating and it's it's kind of cheese, the the lead rotten term. It's a duel, I have the greatest at least her virtually by that he is. Are you applied it to our Archie Party system and that there are some there's some elements of that that we get in this sort of filibuster, dynamic in the Senate is that, when filibustering switches from being sort of something use sometimes to baulk mostly civil rights, cells to something that's used all the time. Yes, this is actually an important distinction, I'm in here and get it out to some work that I and my british colleagues harbinger has done. I'm actually her original buck with political scientist, Steve Snuff, unless came out in the mid nineties, and one of the things that they talk about in the book is that we have this understanding,
I saw how popular understanding of the filibuster as something there is only used for civil rights legislation in thy middle part of that of the twentieth century and nodded It is certainly true that it was used to great consequence to obstruct some reforestation, between the late. Thirty is unlighted sixties, but is also true that before that in the nineties entry we saw. I am lots of lots of obstruction in the Senate. Obviously the filibuster looked a little bit different in the nineteenth century, because the closure role that allows for sixty votes to cut off debate doesn't come into effect until now. In seventeen, but there there certainly a longer history of sun obstruction on both issues, related to civil rights and racial equality and on other like parochial, I'm I'm parties? she is in the nineteenth century. Technically you couldn't force closer
at all, until one thousand nine hundred and seventeen that started between one thousand eight hundred and six and one thousand nine hundred and seventeen there's no Jen available in the Senate to to kind of debate, and so the Senate had various kinds of adaptations over that period of time to deal with that, were times when Senate leaders tried to reform the chamber to impose limits on debate. They got obstructed in doing so Adam, but then we get makings of a tea and I'm in this whole story of President Wilson and a proposal to arm merchant ships. This is this actually important, as we can think about where we might be going in that when we think about changes to the fell, buster, recognising the really close linkage between particular policy areas and particular policy proposals and procedural change. So when you, when you listen to senators taught you get a lot of help
rhetoric about the character of the chamber and the world's grace liberative body, and you know, I think, about the Us Senate for a living, and I know that a lot of that is just kind of like fig leaf cover and it's really die, but they care about is kind of what the rules do not allow them to do. Policy and so when we saw Kali the greatest change and I in the use of the rules on these two filibusters, the creation of rule twenty two in and he's obtain it. Because there is something that the present also was trying to get done. The Senate was obstructing him and he served when public and could the Senate to change the rules, to put in something to kind of debate, to get this proposal and active and it's probably not a coincidence that it was. It was war. Many right I mean national security topics have a kind of special status in in democratic politics. Is where you could say at a certain point. Look like we,
stand that there's a pacifist block in the Senate, but, like these and others who are not pacifists me to ask themselves like. Are they going to let that minority like cause us to who's. This war gases is something important about panic issue, salience and the degree to which, like you, have to convince people that something is really important and again, as we think about where we might be go. With the filibuster, I'm in the coming weeks, months and years and we we asked ourselves like what might actually drives a democratic majority like the the wonder at the Senate, has now to get rid of it. The question that I am always how things like what is the issue that day think is that importance, but they would choose to do that on right. I've been so before, before we move on, I just wanna and want to shut out if we have any historian, sir or whatever, in the audience that I think I'm late nineteenth century
american political history. Is this like black hole that infamously boring, and nobody can remember what order the president's were. Ended. Grover Cleveland comes up twice and as we talk in the present day, more and more about highly polarized congressional politics that actually understanding what was happening. Ride like I was talking about Anti trust with you know, what's in some way or the other day, but it's like How does the german act pass with his like? Incredibly lopsided majorities in this superpower? settings like it is actually interested you know and like we could. We would benefit from knowing bore I'm like a micro level about what what the members at that time were were doing and thinking, but Ok, so look forward to in Inward George W Bush is president there is
a change or sorry, there isn't a change to the rules, but Democrats have been filibustering. Bushes circuit court nominees and Republicans are like really steam. About this and it becomes. This is what the term the nuclear option first first comes to light, and so what what's that about? How does that fit into? yes, there's this others period and tell us that the Bush administration, where am Democrats, are preventing the confirmation of some of bushes after so many years and had it gets point where there is some pressure on Republicans took two core unquote: go nuclear to change that the closer thresholds for coming about you. He took out after me and eventually gets kind of diffused by sound cooperation, and I believe it's a game of fourteen, even as someone who thinks about this have alot
I confuse my Senate This was the original gal. I believe I believe it was the first time we are hoping. As I'd look this up, I mean it's not the first bipartisan group of senators, but it was. It was the first time that that such a group was referred to as a gang another all gangs. Yet other than the current, and the current set of sixteen senators is apparently still discussing what it wants to call itself. A gang of his attitude does not appear to be on the table on. I wonder why we we have to re, invent the wheel of lights, the anyway so day isn't actually gets diffused, but I think its relationship, the relevant. I should say judicial nominations to this kind of overall trajectory in the filibusters really important, because there is again take anything about where we are now. There has been a conceptual distinct.
Between, like oh, the filibuster for nominations and the filibuster for legislation, which is a little bit of just like a construct of cut. Aware, though, where the the politics, our butts, you write the innate in their mitya, thousands p m. We have this. This pressure, it eventually gets diffused and then third there's no that didn't go nuclear, I'm in the early two thousands wonder things is important to remember about the sun is that I'm senators have long memories. I met DEC, and be sort of some some bad that blood and some some frustration lingers I'm into into the future way, and so the I have been part of. The importance of this is the least Republicans perception was the Democrats that, even though it had been within the rules to filibuster judicial pointy is the Democrats were breaking some kind of
understanding that they have rightly Ronald Reagan. Presumably appointed judges and Democrats had a set of majority and, like Clarence Thomas, was seated on the Supreme Court. In a democrat then a majority yeah. Some of this again has to do with like how we understand, in this case the role little judiciary in the broader scope of the american political system so like at the same time we're having this increasing polarization the parties are getting. For their part, are also having like of rising importance of the courts, the locusts of policy making and so and those things are unrelated, like as it becomes harder to do things in Congress like it with the court's, become more important. If you want to make policy change, and so there are lots of pieces of the puzzle and when one of them is that can what's exactly happening in in the sun. At this time, but it certainly
like, I said, I hesitate to serve put lots of citizens hence by, and it certainly important episode in the development of the failed us over time. I ve been a guess what it seems to me that there is a there's, a feedback loop between actually filibustering things and pressure to change the rules to make it impossible. Read that, like that's part of the whole story, it's not like every single piece of legislation that past pre nineteen seventeen was unanimous rank. Now some things were filibustered, but liked controversial laws could pass, despite the ability to filibuster, yet is also the case that, like as you and the long speed histories, real tit for tat situation here so one
does something the other side response, but though that spill over into other parts of the Senate does, and so like. One of that, when we think about kind of the current centre and the dominance of the sixty both thresholds, the one thing we in, like as the sun, has become more and more use to needing to get to sixty two do most things like. That's hide that spilled over into things like now they were team. We negotiate agreements where they're gonna subject things to sixty vote thresholds. This is again kind of a technical point to actually passed something in this. It is less it's something like a treaty. You still only need fifty one votes. The vote on final passage itself is,
It's a simple majority threshold. It's the the need to build the coalition to invoke closer and cut off debates, and that that takes sixteen circumstances and so like to adopt an amendment to a bill you again till I actually have I'm passage like that's a simple majority threshold descendants gone around negotiating these agreements that say we're gonna have this vote. I we're gonna subjecting it to a sixty that threshold because we ve got in its. It seemed so far into the way. We do business. Our whole negotiating m o is gonna, be sixty. Sixty sixty One thing that I was remembers. I think it was two thousand five also or six it with some justice of leaders. Confirmation
fell and then Senator Barack Obama votes no on his confirmation. But yes, the closure and people grass roots people are becoming more politically sophisticated over time, and so this, like a lot of people on the internet yelling at him, and he goes on like the daily coasts, blah and like write a about. Why he's? Why he's doing it and it's the kind of thing where don't you don't notice that the norm is going away until it's but right, but you can say that in retrospect, like members of the public had come to expect that legislators would filibuster things that they opposed and would treat. As a form of betrayal right that you bring you couldn't go back home and be know. I I totally voted against that guy. When actually you voted for the motion motion,
I want to be like I voted for it before I voted against the very rights I mean to say that, like the one I have overstate, the degree to which the average person pay much attention to who votes for or against closer and, however, on final passage, but certainly the ability to say cut adds that point out those kinds of those kinds of discrepancies. Again, unlike some of that, the rise of the internet and of internet media like helps get that message out her a broader audience, but it again like if we look back into the seventys and would like the rise of direct mail and all that those those had a protein internet changes in America, the it's happening there too. This is more, I mean the more you got nationalization of politics. The more politics gets issue sort of centric more entrepreneurial, like the members themselves, have to be right. It gets less
to this all feeds off each other by the notion that, like you, ve got an folks Are seeing the Senate racism and the house is an argument that at Valverde. I think big, certainly persuasively about the degree to which get more and more members. Who'd like see. Congress is a platform from which to pray, rapid and image, is opposed to a place to do legislative work like that. That's another element here and that that again shaped your incentives to be obstructionist for things that you that you that you oppose in addition to two even to the extent that people are so tries to legislative work, as the filibuster becomes more normal using. The thought that you're trying to extract concessions and not join till it actually stop someday a piece of legislation that you oppose from becoming law right, the boy you're making their right. This is like. Come I don't know like
My job as a pundit by like working as an obscure journalist for awhile? And and get better known, but now it's a the best known members of Congress. It's like they basically do my job, but it's like, the because there in Congress, their famous and like everybody, pays attention to their tweets and, like Josh Holly, publishes up ads but they're not merrily focused on legislating in this. Always been. That sort of poor course show horse dichotomy in Congress, but it's because media is different. It's just becoming, I think, more prominent trade Congress is, is a soap box that you can stand on rather than a workplace, I'd, say it's a place to say things rather than do things and to that end it there's a lot of it and a chicken and egg scenario here, and that you, as both the house in the Senate,
become more more powers. Decentralized in the hands of party leaders. There are fewer opportunities for reconcile legislators. Two percent allege that process, which that changes, the nature of the kind of person who wants to rent for Congress and edit adult it's all just again, a cycle by it in the some of the filibuster again, it really, I think, has affected the way that Individual members who do want to use them. The sun had another as a platform for their broader political persona, like what that's meant for their use of the tactic. Well yeah, because, as you know, the sort of most earnest members of Congress I know, are all incredibly board because because they wait I'll do anything rank is its is, as you say, it's a very leadership driven and increasingly so. Obviously we should we should take a break and then ask about budget reconciliation if You'Re-
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shit yeah! Well, the hell. Yes, actually, the first start by saying that reconciliation is probably the most famous I to the extent that end Hannah procedures famous, but is probably the most famous of a class of procedures, that thou the Senate to get around the filibuster in particular cases. So I'm glad this is french than what the Senate has done on judicial nominations. So just a Catholic makes her that's your clear for everyone, The Senate has done with nominations both to executive branch appointments, and the judiciary? Is it actually adopted a new precedent That says something about how many votes it takes to cut off debate on on a nomination. It did that two stages. Twelve, thirteen, twenty seventeen reconciliation is a case of is assessed. Of congressional procedures that say that in the Senate you,
Only debates a particular piece of legislation for some amount of time, and the effect of that, the debate is is to prevent the possibility of a Lester, because what happens is that Piece of legislation comes to the floor. There s clock starts when the clock runs out, then you have to vote in the in the of reconciliation. There's this like extra peaceful the vote. A Roma which senators love to wine about, but also use to their great political effect, but again with the point here, is that the way that this works is that there's a there's, a women under me. Reconciliation is a really important case of it, but there are other cases too. The congressional Review ACT, which were not talking about right now as much as I thought. Maybe we would be allows for the overturning of certain exactly branch regulations. Subject area this is a really big deal and twenty seventy. It was a huge twenty seventeen and I think it would have been
bigger deal right now, Actually, if Democrats had not taken control of the sun it because I think we would have seen a lot more unforced votes on commercial Review ACT, resolutions and in the Senate, there there's that if there are listener to have paid attention to the debate over arms sales by the trunk administration in particular, particularly the south, Libya around the conduct of the Saudi led war on in Yemen? Over the past couple of years, the Senate, some votes on this day. Effort than led by Bernie Sanders and Chris Murphy and a couple of Republicans that those that those are procedures that again have this way to get around. Investors, tribesmen alike, support reconciliation context by reconciliation is a is us is again probably the most consequential any allows
for certain types of budgetary legislation so affecting the revenue side budget, so that tax code and sometimes a federal, spend, to move through the legislative process, without the possibility of Ethel Buster in the Senate, the process, unlimited spect, we're gonna talk about the bird rule, but there are at our constraints on how this process can be used, but it is really attractive because it allows for legislating without delay, the Lady Russell of Western Sahara, and this is another another seventies and am I am I like to think that its origins were closer to a sort of budget policy. An filibuster but did they get. There was actually some concern, and I guess you were saying before right: it's pretty changes get made for substantive reasons, and they were so kind of concern about the budget right said. The way
that reconcilation comes to be part of the budget process, so nine. Seventy four Congress passes the Congressional Budget ACT, which does a whole host of things related to the budget process and really comes about, because Congress was a disadvantage in the power struggle over the federal budget visited the executive branch. It did not, prior to the crucial budget that we had no commercial budget office. President Reagan had tried to how excuse me Reagan, President Nixon sorry had tried to impound various federal spending, so Congress is trying to kind of push back against this expansion of executive power and it passes the budget act in the original budget act. There's a call for two congressional budget resolutions and also prior to the budget act. Congress didn't have a legislative tool to take a big picture. Look at the federal budget every year and set kind of a high level approach,
to answer congressional, mentioning the ideas that Congress was gonna. Do a budget resolution first in the spring and then over the course of the year and as the start of the new federal fiscal year approach that may be, there would be changing circumstances that meant that it might need to revisit that big blueprint so they were going to do second budget resolution later in the year and that their need to be after that second budget resolution changes made. To actual laws so to either the tax code or to the palazzo, actuating federal spending and because the new fiscal year was coming up soon, that they will need to do that quickly and so do the kind of justification for having the limitation debate, for this reconciliation bow to reconcile federal law to this big budget could blueprint. They have just set out there. We need to act quickly, I'm sure. That's when I put the debate limit in place since I've come
and so again it's to say that, like to your point about policy matter, here, like they're, trying to improve the way the budget process works and they see a place in the legislative process with anything the procedural too weak to make that happen. I'm enter into again. That's like how these two things are linked: your, which cleared reconciliation right originally, because you see this city government all the time which is at the city, council passed some kind of budget and it has different provisions, but then, like stuff happens over the course of the year and you dont get exactly the sales tax revenue that you forecast. The police may have extra overtime needs because of protest whatever and sometimes midway through the year. The mayor comes in his like. We got to change something right because, like that, the eight you didn't come out is forecast, so Congress good reconcile
right d, like actual public policy, the United States, with the plan set out in the budget right through the term, comes from battle. So it is a very innocuous sound But then you eventually get to the point where, because you can't filibuster the reconciliation measure that becomes a useful vehicle yeah. It's it's it's not until the early is that it sort of gets that that change happens, and so it's in it's after Reagan. Right on my present, now gets elected in in nineteen eighty, and has these kind of big plans for slashing the federal budget that this becomes an attractive tool for getting getting around a possibility. Not just of filibustering the Senate. But at that point, when Democrats uncontrolled back so neatly, wine republicans. But White House
have the sun edge? Democrats control the house and there were looking for a way, to try and expedite the process of enacting budget cuts, and so some of it has to do with house politics at that point, as well as Senate politics. But that's when we really start to get this the process being used in the way hey that we think about it now wreck is, it starts with what we might need to make budgetary corrections and they might need to be fast and then it goes backwards, and it says we have this expedited process. So we can put our budgetary changes like on the on the fast moving. Try exactly because that's more convenient and then it starts to become a question over time of like exactly how, much like how much can we hit to this Terry right and that's where the bird rule that would sort of says what you can and can't say as part of your budget reconciliation effort right. So I'm by
teen. Anyone first like consequential use of reconciliation. Looking like we think of now, and then it's kind of by the maid Eighty is that some folks Congress, notably Robber bird for on the rule, is names around and say, oh, this is being being this process being used. To do things that are on there are nine nine budgetary nature, a guy like tickets, the earlier by the conversation or other changes that are happening in the sun at this time. That mean that the prospect of a filibuster proof piece of legislation,
and is becoming more attractive to senators, and so I'm imagine eighty five is I'm is when we get on get the bird rule initially adopted. Interestingly, the amendment that creates the the bird rule is adopted with kind of overwhelming support in the sun. It bites, The idea here is that you getting all this kind of additional material getting into these reconciliation battles that are eating is it reduction, which is what the underlying purpose of the the process is meant to be, and also like you, your bird talk a lot about the deliberate character of the Senate. He talks about this alive. I'm stat that's kind of how we get get the rule and put in place to these two parts of the bird raw that I feel really confident that I understand correctly why
Is you can't change social security? Cracked? The other is the long term budget deficit has to go down defined as outside the ten year, Cbo scoring window yes other than the window, the window need not be ten years. The conventional pelikan national practice now that its ten years, the budget window has ever been shorter, actually I'm. As far as I know, nothing that could stop them from making it blogger at their there a bad budget reasons for during my in that, like the longer the window, that's the like less certainty. We have as we get farther and farther into the future. But yes, whenever that budget window is that's, the timeframe is one thing you see as a result of the budget window is sometimes these kind of August, or whether my like bad faith, explorations of tax measure slightly
the Bush tax cuts pass into thousand one their skin. Or to expire. At the end of the scoring window, seventy qualifies under the bird rule, but then immediately Republicans turn around and say what we should make this permanent like didn't. They did they. They were complying with the rule it. They didn't actually believe that making the tax cuts expire was a good idea. They just sort of craft the measure to to comply. But what's the what's, the the other thing like so its rule, the rules have to be budgetary, and then we argue as to what that means. Legwork, what's gotten sell, em snare? I there are six components: the bird rule we ve covered, two of them cobbler, the other ones are also reasonably easy to and to explain, and one of them is that, basically,
so the way they are reconciliation. Those construct end this actually, I think he's gonna be really important in emerging democratic strategy, around reconciliation, because the last several experiences we have with the procedure have they ve been really the policy changes, but they ve been relatively narrowly focused on to a specific policy area, so tax cuts in twenty seventeen that attempts to repeal the SBA and twenty seventeen again big bills, but like narrowly focused whatever butter
talking about doing now is something that would actually potentially involve the jurisdictions of lots of different congressional committees and one of the things that the bird rule says is that the way the bell is constructed is that the budget resolution that starts the reconciliation process says to a bunch of different committees or only a few candidates, Hey Committee ways in its committee payments Committee sounds of our goal, legislation in your jurisdiction and make a certain amount of budgetary change on comply with these instructions that were giving out of one of the things the bird well says is that the sun, its agriculture committee, can't go making changes to things that are the Senate finance Kennedys jurisdiction. So if something like that, the burden as that a provision is extraneous a a violation of the rule if it's outside the jurisdiction of the committee
That's I'm submitted that particular section of of the bill. So that's one of the thing Another is that- and this gets into some of the things are a little bit harder to define, but wine is, I am, each provision has to actually produce it. Engine outlays or revenues and more- and this is this- is where it gets trickier. A change of iter, firms or conditions under which outlines are made or residues are collected so the day in important piece of this part of the bird role for Canada conversation having right now is it's the part of this. That says that you accept a pretty change in outlays or revenues that has generally restricted the reconciliation process from treating discretionary spending post Alberto
if you were to make a change to discretionary spending, suspending that his candle to the annual appropriations process, I'm through reconciliation, its thoughts, that the parliamentarian and the sun had who makes kind of advisers on the virtual would say: hey. You're changing something and reconciliation, but we were naturally realise that change in outlay is actually realise that changing what gets pushed out the door from the federal budget unless there was a subsequent change in legislation like the reconciliation but isn't gonna do that oughta. So that's a tough another part of them. Rob and then I know I have wanted, because, even though our home return, we have on the bird will specifically, but at last the last thing that I'll say. Probably the first one is that the The bird rule says that you can't have a change, not laser revenues, that his coat mirror
incidentally, to the non budgetary components of the parisian rats. And what does that mean? It's it's a little bit a little bit of a black box, and what it means in practice is that in a lot of cases it absolutely matters how the permission itself is written, but you're all get so tracing some. Easy cases here you can't say: ok, I'm gonna, make abortion illegal and that's fine because it has some impact on the timing of child birds, which has some impact on people's tax situation. Ride like definitely not that but then I was surprised I was telling people that they weren't gonna be able to open the alaskan that national Wildlife refuge to drilling in a reconciliation bill, but
certain things, so I don't know what I'm talking here and I don't know exactly how they I'm having had. They wrote the provision that allowed them to do that. But as a guiding a really useful example of this. This, like it matters how you, how you approach the actual task of writing. The law is the whole debate over and repealing the individual mandate in upon the king, so in in twenty five ten Republicans do this reconciliation that they know it's gonna get vetoed by President Obama and one, but one of the reasons they do. It is to figure out what parts of repealing the SBA they could do to the reconciliation process like what the parliamentarian was going to say this is this is ok, but then she can say is not ok
today they go to the parliamentarian with a repeal of the individual mandate, just like stripping out of a parliamentarian says not permissible under the bird rule by the big brother go back to the drawing board and this ok, what if we just set the penalty on the Monday at zero? What if we just said there is no country, and so the problem turns, has doubts except an answer, then, when we get to eventually to try something tax bill like that's, how they ultimately got the act at the mandate, so you could conceivably So this one I were. I was toying with right, so you may be can't change the minimum wage in a reconciliation bill, but you could like impose a punitive tax on low wage employers and create the of the desired effect of making them
raise what they pay people right, because it's like a metaphysical distinction to the material, not it not a consequence based one, far as I? As far as I know this, actually, I think, is what democratic talking about it and reporting in the Wall Street Journal that that floats. This idea that basically, I'm cool aid could Democrats Craft minimum wage increase structure of attacks against companies that don't pay the higher minimum wage, and there are other folks, including army, build ouster, whose one kind of Senate Democrats- leading or through the democratic parties, are leading budget minds on this stuff and who is literally like a written that the crucial documents on us who thinks you could make the argument that there's enough of I am a budgetary impact of the minimum wage anyway, to increase that through
Through reconciliation by a really is- and this is the spur why like it's, this is hard to do because it really matters like how's that suffers room. It's like I had put it it's it's like a lawyer. Forward process right like the way I generally talk about it is that it's a really it's really clergy way to make policy and so you kind of to take a little bit of a step back if you're thinking about like the strategic reasons you'd reconciliation. Even way verses, eliminating filibuster for legislation. You ve got yourself like from it from the perspective of the policy itself like you, might be able to accomplish the same goals, but it's gonna be.
Messier to get there. If you go through reconciliation, I'm in a lot of cases and if you go through reconciliation and you have- and you ve done it with a well simple majority, I think it can be harder to revisit things later because you didn't have a broader coalition, and I think that some of what we saw with the former carrots and make things that happens. Like things that turned out to be drafting errors or just come down, anticipate consequences, it was one of the reasons it was harder to revisit. That later is because it This very partisan teach way, but though I guess Rachel to appoint radiates. If you want to change the filibustered, which some people do, you need, like I'm a specific reason, not not a generalised critique, the flip side,
this minimum wage point is that like well, it would be a more elegant, politically sustainable way to do it like that. Second, account is a good enough nice right sure. It's like that. The fact that you arguably can squeeze this through into reconciliation, even though it doesn't seem like a great idea like adenoids like to me with a normal person brain this side will, if you want to raise them in a wage like you, should change the hats to rule, but like the Senate way of thinking about it is what we don't actually have to change the filibuster wall to deliver on this policy commitment, then we're not gonna. Do it right that the that the filibuster debate in practice seems to be about?
I don't want DC statehood, maybe but like it it doesn't. It doesn't seem like there's something that the pivotal members are enthusiastic about the day, can't do and reconciliation. That's that's! That's the question and they d, like metaphor that I generally used when I think about this is to say that if the legislative follow basher goes away, it's gonna go away because something's gonna break the damn. I'm and I dont know what that is. And then there is the question of what you break down. There's all this other stuff upstream. That's gonna move through more quickly, but is not itself the thing that would break the dam on the floor after an answer maybe it's maybe it's easy statehood. Maybe it's something really the tone to the fellow
words I maybe maybe it is if they can't jam something like the minimum wage or other kinds of important legislation responding to covered through the reconciliation process like maybe they and and and also that Republicans are unwilling to vote any of that baby. Maybe that's where we end up but like until we have a better sense of what that is what is and say that it is what is Christian Cinema say that is worth more Kelly said. That is all that sort of thing like that. It's it is hard to know where exactly were going and that we come to the point of some prisoner Obama at John Louis's funeral talking about a new voting rights at rates, a hip he's trying their to cause. He had made genetic
clean critical comments about the muster before going back years right, but he's trying to line up a specific set of dominoes where inside Democrats are all saying the Jean Louis is a hero and an icon they're all saying that they support. New voting Rights ACT, which was hampered by the Supreme Court, can't be real rise, were republicans get em are not interested in a change or or we are the relation. It's very clearly not bird of all and he's trying to say, like this is a topic of transcendent moral significance. That, like should inspire you to change the rules and. What is interesting is that lie issue activists, groups a little more scattered than that in terms of what it is there there talking.
But, like Obama, knows a lot about politics and he's like he's he's he's trying to get. You know like use the magnifying glass to burn the ant, unlike get people to focus their energy behind this one thing that he thinks like carries enough cloud on the hill to possibly make change yet, and I think that that die pretty aside everything I've said about, might not put pointing out specific moments like that was a really. Consequential moment for me last summer watching that happen, because if I think We see Democrats start to be active or continue to be active in Congress. I'm trying to push me running
legislation like that amount of elite leadership. I think is going to matter or has the potential to matter a lot, but again comes back to this question of like is that where they're going to oh and the like of the menu of things They are the Democrats in Congress care about right now. How are they breaking them in relative priority and it seems like from reporting that, like the first place they are going is to try to use the reconciliation process for cover part or all of vitamins, covert, really planet. And the question is: how much of it can they do that process where anything Its tricky is that Obama there he's linking a procedural reform to essentially another process question which is the kind of thing that. I don't know like journalists are really interested in, but I think lax
The kind of urgency of like Woodrow Wilson, wartime measure rate were that the thing about Republicans in the circuit court judges is that republican Align interest groups are very focused on This all issues like output. They put a ton of stock in that where's, the voting rights staff has has occurred second order impact on things that private whose care about, but not necessarily yeah. True, in some cases and less sure and others I mean, I think there are huge parts of if you think about kind of the democratic coalition as a collection of group, There are certain groups within not orbit, for whom voting rights is incredibly, and you ve seen you see more and more on rhetoric around that, I think from from elite democrats on particularly If we think about the time between, when Obama said,
Jean Louis is wrong and that the election of a time since the auction theirs more attention, I'm not to say there was no attention before that. Obviously each all widened Congress has Democrats like number one legislative priority was a democracy and reform bill that included voting rights. So I think I think moments, it's possible that they have done That's will see vertical legislation as more of a first order policy item, then it it I spend- and I think we should rethink efforts within they're kind of democratic universe to focus attention on it mean that way. Bites I mean I think, but you're you're broader point about that. If to see changes to filibuster need to link them to policy is, and is really important, that its part of why- and why happened over the past few weeks with measurement
all, and the organizing resolution was was interesting to watch because that's like a case, where was he trying to get them to try to get the Democrats to use the nuclear option? organized the Senate, like that's the most process, a process, oriented things that was aware because I've been, I guess you back down eventually, but if it be, it struck me weird because he was like he was almost making Democrats use the nuclear option right. Over something we're gonna. Clearly, their preference was not to do the right, but like they're, not gonna, not organise the Senate, didn't you know, even though its not a real policy issue. Like I mean I don't know it was it was. It was in a little pause flights am but I'm having probably his ultimate goal. Was
one to see you at the start, he could like drive a wedge within the democratic progress, and then I'm in that didn't work like get mansion and cinema to say publicly that they're not gonna vote to limit the felt better, which is really easy to say. Is there going to be against eliminating the filibuster until if and when they are, for a lady, reformat, fairly cracks? The way this works evidence it inherently non credible yeah, you know promised so I'll be way: If I let you go, I do want to look back to reconciliation, because I was talking before the election to some of the people buttons transition tee and they were already working on their strategy, for fiscal relief, etc, etc, etc, and I set at one point lag think you can put all that one bill and they were like now know the budget experts say we can do to reconciliation bills, I think I saw you say on twitter- you could do for a decision
Is there an actual rule about this? So the answer is yes and no So again, without going like super- and this is the way and spent without going so, we d to be too easy for the winds and the way that the regulation process works. As I am there's out, there's our budget resolution tat you want about that before that Canada he had the reconciliation process under an guidance from the parliamentarian, and they did to the mid two thousand pounds each budget resolution can set up. Am I a reconciliation bell should do to make changes to spending one that climate change is to revenue and not one that can make changes to the Dalai Lama, and so we have available to us at this moment a budget resolution for the fiscal year,
that is already in progress fiscal year, twenty twenty one that Congress did not act on last year. So it's an unfinished budget resolution. So what day? What tenor? I would have thought of Democrats? Can I think, I'm going to do are your future is take up that budget resolution put some reconciliation instructions in it and get a reconciliation process started. This is analogous to what Republican stayed in the beginning of twenty. Seventeen where they checked them, they acted on twenty September. The resolution did that right out of the gate. Try to repeal the easier by using it ultimately failed, and then we get after that process kind of plate itself. Out and they had a second available budget resolution before the next fiscal year so that it was at my eighteen now would be a flight. Twenty twenty two, the danger that the second by you didn't require.
The first one to have felt like it. It happened to be the case that only one past, except That'S- that's not like relevant now so is John Mccain- had showed up in the middle of the night in the Senate and said thumbs up incentive thumbs down. That would not have affected their ability to use the brand new one new one I'll get sorted out the one. The one caveat this were resort of really get inter like who knows what could happen is the possibility of revising the budget resolution and whether that could set up additional opportunities to use the reconciliation process. That's like a huge open question, but I think that the end of the day like there, the thing to remember is that Democrats have multiple bites at the apple. If you well and a big constraint is going
to be like how long it actually takes them to eat the apple. If you're that like this is not even under the best of circumstances, this is often not a quick process and the rules are magic. So at the end of the day, with the requisite, the rules can't force agreement where agreement doesn't exist, and so whatever it is, the Democrats decide to use the process for their still didn't need to get all fifty of their members in the Senate, and a team of their house numbers to agree on the underlying policy that can be harder to do in the presence of the bird rule. You have less kind of levers to to try to get people on board your more constrained and how you can make make legislative trades and so upon the end of the reconciliation rainbow but like you're gonna, get everyone to
free on how to get there before before the rules are useful to you for that purpose. Answer recoil unless it and you can not do discretionary, spend in visa it's it's again post bird The understanding has been that it would be difficult to get discretionary spending through the reconciliation process in the presence of the bird There are, we is, and I think that this is going to become a really live issue. There are away is to structure spending that might otherwise be discretionary, as mandatory spending, and I think again, I think that a lot of conversation about what this might look like and then the last thing that I say is that the rules are itself enforcing. We talk about the parliamentarian, reviewing the text in advising what is and is not a violation of the bird rule, but unless someone stands up on the Senate floor and says that provision is in there, and I think that is a violation of them.
Rule, there's no mechanism for enforcing the constraints that the roll places and so as always the option of just two tempting for it and saying like. Could we get thing that might be a violation of the bird role through and just hope. No one says anything: that's probably not gonna work, but again later there, the rules, We need only think about the way the congressional roles front than other rules. This is an important and important one of those ways and in a pinch the majority can overrule the poem Terry Yep and ve seen folks kind of make this argument that also strategy available and to the democratic, the burden Specifically provides for the option of waiving the Berulle with sixty votes, so if you had something that you want money inflation but had support like that's it, that's an avenue available to you and then there
also, there are also procedural ways to to disregard the parliamentarians on advice and the question is whether whether Democrats would would want do that, you know you ve seen and you ve seen some folks tat. You saw when Republicans The majority. You saw tat crews, probably most notably foots. Let us in respect to two there is ever appeal so that that's that's another possible avenue available who what I'll let you go, you know everybody at home. You gotta try to see if we can find a weighted like shrink this down to index cards size. You can keep the ready
go through this. That's the original VOX Card stack yeah, exactly it's a dream: the dream: okay, Molly, Reynolds Bookings, institution! Thank you so much thanks as always to our sponsors for a producer or genus, and the weeds will be back on Tuesday.
Transcript generated on 2021-05-13.