When the US legislative process is working normally, it can be hard enough to follow. When things get complicated, it can be darn near impossible. On the upside, the weird contortions the lawyers in DC come up with can be downright comical. In this article, I’m going to highlight some downright weird stuff I came across today.
While we can laugh at it, it’s a good sign that there are people working hard to find a way to get the important things done in the face of Republican roadblocks, even if it looks weird.
During Normal Times…
It used to be that we could easily understand the “sausage making” process in Washington, DC. It pretty much went like the Schoolhouse Rock cartoon, the one that explains how a bill becomes a law. The kid follows an anthropomorphic piece of paper (“Bill”) as he works to become a law. Bill goes to the House, gets through committee, and then gets voted on. Then, he goes to the Senate and the same thing happens again while Bill sits and stresses about his future. Finally, he goes to the President, and gets signed into law at the end of the song.
The Schoolhouse Rock video doesn’t tell all of the ins and outs of the process, but it covers the important highlights. Even with all of the weird procedural hurdles a bill can face, it’s still possible for people to come up with a one-page infographic that covers it all.
Now Things Aren’t “Schoolhouse Rock” Simple
That process can be confusing enough in normal times (many people don’t know that a bill isn’t a new law, etc), but now things are even more confusing in Washington. Confusing enough, in fact, that our top editor had to write an article explaining what’s going on with the Infrastructure Bill. In short:
“The solutions Democrats in charge have come up with is to pass a bland infrastructure bill that gets some Republican votes and a tiny amount of what they actually want, and then also pass a much stronger “reconciliation bill” that actually delivers on the cleantech and climate solutions they know we need.”
Going back to the infographic above, we can see how this works. The infrastructure bill (as well as the bigger “reconciliation bill”) has to go through the Conference process in the middle of the chart. As one box on the right side of the chart says:
Normally, the Senate needs 60 votes (ten more than a simple majority) to get a bill passed, but one exception exists for budget bills, which can then be pushed around the center of the flowchart a bit to get them passed without those 60 votes. But, the process isn’t simple. Wikipedia says:
“Reconciliation is an optional part of the annual congressional budgetary process. Typically, the reconciliation process begins when the president submits a budget to Congress early in the calendar year. In response, each chamber of Congress begins a parallel budget process, starting in the Senate Budget Committee and the House Budget Committee. Each budget committee proposes a budget resolution setting spending targets for the upcoming fiscal year; in order to begin the reconciliation process, each house of Congress must pass identical budget resolutions that contain reconciliation instructions. Other committees then approve bills that meet the spending targets proposed by their respective budget committees, and these individual bills are consolidated into a single omnibus bill. Each house of Congress then begins consideration of their respective omnibus bills under their respective rules of debate.”
So, the infrastructure bill that was passed in the senate, and the new budget bill that passed the house (Zach called this the “reconciliation bill” above) aren’t really normal bills. They’re just instructions for the conference to come up with a final bill, which would then need only a simple majority vote in both chambers (House and Senate) to pass.
Sneaking Things Into The Budget Bill Instructions
There’s one problem, though. Everything in a budget reconciliation must be budget related, and often must be put in as “reserve funds.” For actual budgetary concerns, creating funds in the budget for different line items makes perfect sense. when you try to stuff other things into a budget reconciliation bill, it starts looking really, really weird.
Here’s an example of a Republican amendment to the budget bill that got crammed in there:
SEC. 3004. DEFICIT-NEUTRAL RESERVE FUND TO PROHIBIT THE GREEN NEW DEAL.
The Chairman of the Committee on the Budget of the Senate may revise the allocations of a committee or committees, aggregates, and other appropriate levels in this resolution, and make adjustments to the pay-as-you-go ledger, for one or more bills, joint resolutions, amendments, amendments between the Houses, motions, or conference reports relating to Federal greenhouse gas restrictions, which may include limiting or prohibiting legislation or regulations to , by the amounts provided in such legislation for those purposes, provided that such legislation would not increase the deficit over either the period of the total of fiscal years 2022 through 2026 or the period of the total of fiscal years 2022 through 2031.
Let’s unpack this a bit.
First off, this isn’t a “reserve fund.” It’s an instruction for the committee, telling them to not “implement the Green New Deal, to ship United States companies and jobs overseas, to impose soaring electricity, gasoline, home heating oil, and other energy prices on working class families, or to make the United States increasingly dependent on foreign supply chains”.
Everything else that comes before and after this instruction is basically fancy lawyer copypasta that turns a generic instruction into a directive for the budget committee. Or, in other words, it’s a bunch of legalese gymnastics meant to turn something that doesn’t really belong in a budget bill into something that belongs in a budget bill.
There are a number of others, but let’s look at a couple:
“… address the crisis of climate change through new policies that create jobs, reduce pollution, and strengthen the economy of the United States”
“The Chairman of the Committee on the Budget of the Senate may revise the allocations of a committee or committees, aggregates, and other appropriate levels in this resolution, and make adjustments to the pay-as-you-go ledger, for one or more bills, joint resolutions, amendments, amendments between the Houses, motions, or conference reports relating to addressing the crisis of climate change through new policies that create jobs, reduce pollution, and strengthen the economy of the United States by the amounts provided in such legislation for those purposes, provided that such legislation would not increase the deficit over the period of the total of fiscal years 2022 through 2031.”
Same copypasta boilerplate language, different instruction stuffed in the middle. And this one’s a “reserve fund” too.
I won’t paste in any more of their lawyer copypasta here, because I think I’ve made my point. This legislative “redneck engineering” is what it takes to get things through the process, even if it looks really strange.
This Shows Hard Work
Normally, it’s easier to not get the 60 votes together for something, throw your hands up, and blame the other party. That makes for great theatrics and can even get people re-elected, or get the incumbents thrown out for obstructing things people want.
The hard work that they’re putting in here, to pass bills into law with only the normal constitutional requirements (majority) despite the filibuster, shows how dedicated some are to getting climate change and infrastructure bills passed. It looks funny, and maybe a little dishonest (I’ll address this in a minute), but when we eventually get things like more charging stations, be sure to remember the people working on this crazy process for us.
Other Things They Stuffed In There
Here are a few notable “reserve funds” they stuffed in their “budget”:
SEC. 3006. DEFICIT-NEUTRAL RESERVE FUND RELATING TO SUPPORTING PRIVATELY-HELD BUSINESSES, FARMS, AND RANCHES.
SEC. 3008. RESERVE FUND RELATING TO PROTECTING TAXPAYER PRIVACY WHILE ENSURING THOSE EVADING THE TAX SYSTEM PAY WHAT THEY OWE.
SEC. 3016. DEFICIT-NEUTRAL RESERVE FUND RELATING TO MEANS-TESTING ELECTRIC VEHICLE TAX CREDITS.
That last one is the one where they limit EV tax credits to people making under $100,000 a year, and only for cars that sell for less than $40,000.
There are tons more you can look at here, but at this point it’s almost a waste of time. We need to wait and see what is in the final bill to see what’s actually going to happen.
This Looks Dishonest. Will It Get Struck Down Later?
Some might wonder how these shenanigans can pass any later scrutiny. Using a budget bill to cram other stuff in isn’t really honest, so that might mean anything that ends up passing in the end could be challenged on that basis, right? Did they really pass that law, or was it a sham? Is it really a law at all if they don’t follow the rules??
It turns out that these sorts of arguments have come up many, many times before. One big example was when tax protesters challenged income taxes, saying that there were procedural issues and discrepancies in a number of states when they voted to ratify the Sixteenth Amendment (which is what allows the Federal government to do an income tax). Despite these discrepancies, the legislatures themselves sent a letter to the US government saying they had passed the amendment, and the federal government got enough of these letters to pass the amendment.
Ultimately, a legislature is who decides whether they passed something or not. This is known as the “Enrolled Bill Rule.” No matter how messed up and weird a process is inside of a legislature, the final vote and the final enrollment certifies that all of the rules were followed and that the bill is legitimate.
If there’s a clear violation of the Constitution, courts can still invalidate a law, but it takes something fairly severe and obvious for that to happen.
In nearly all cases, if the Senate says they passed something, they passed it, period.
Things That Are Actually Worth Worrying About
The complexity of the process does still have some chances for the infrastructure bill and the larger budget bill to die.
Most importantly, to get the bare minimum majority needed to pass, the US Senate will need all 50 Democrats to vote for it at the end. If the committee comes up with something they feel they can vote for, it could get to President Biden’s desk. If they don’t (and several of them are known to be unreliable), it would require a few Republican votes to pass.
As Yogi Berra said, “It ain’t over ’til it’s over.”