No one in their right mind would design a government that works like ours

No one in their right mind would design a government that works like ours

Immigrants and their supporters march to demand that Congress keep a pathway to citizenship in the budget reconciliation package in Washington on Sept. 21. (AP Photo/Andrew Harnik)

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By Catherine Rampell

Columnist

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As Democrats race to finish their marquee Build Back Better legislation, it’s worth noting just how much their political ambitions have narrowed in this past year. Democratic lawmakers have nearly abandoned trying to solve many of the major social problems that their constituents want them to address.

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That’s not entirely by choice. It’s because of complicated Senate rules — rules that befuddled, frustrated voters might ultimately punish Democrats for abiding by.

The problem is this: We have a system of governance that nobody in their right mind would design. It’s not at all intuitive. But, I will take a stab at trying to explain things.

In our system, a party can have unified control of government, and an agenda supported by most voters. But unless it holds a supermajority of Senate seats, this supposedly powerful party still may not be able to pass its own priorities unless it pretends every single proposal is primarily about the “budget,” rather than whatever the proposal’s actual purpose is.

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Why? For most bills, Senate rules require 60 votes to cut off debate and then bring the bill to a final up-or-down vote. That means having simple majority support for any given piece of legislation is often not sufficient; at least 60 votes might be necessary. So if the ruling party holds fewer than 60 Senate seats, as is the case today, a well-organized minority party can block most legislation from ever making it to the floor.

There are some paths out of this logjam, though. One that’s often attractive is a special process called “budget reconciliation.”

This process was originally established in 1974, and was intended to fast-track high-priority budget bills and (at least theoretically) make it easier to reduce deficits. Under reconciliation, a simple majority of senators can pass certain bills — but only if those bills pertain to outlays, revenue or the debt limit. There are, as well, some other complicated criteria restricting when reconciliation can be used.

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Sometimes there are disputes about whether any particular legislative measure meets all the criteria. When this happens, a Senate staffer called the parliamentarian is called on to interpret how the rules apply.

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The result, as you might imagine, is that lawmakers work to make sure any measure they hope to pass produces a significant, not-merely-“incidental” budgetary change. Or at least, they carefully tinker with the design so that they can convince the parliamentarian that their provisions are primarily budgetary.

This is why many different versions of immigration reform, for example, have been plugged into Democrats’ evolving budget bill. Each iteration has been designed to more closely hew to the parliamentarian’s likely interpretation of Senate rules, which are inherently a little subjective.

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So the ability of a simple majority of elected officials to address societal problems is contingent on understanding (and, perhaps more cynically, gaming) these convoluted procedural rules. As in so many areas of U.S. government, power goes not to those with the best or most popular ideas, or even the most winning personality — but to whoever can most creatively manipulate the rule book.

What about pressing issues that can’t be disguised as budgetary in nature, such as ballot access, police brutality, reproductive rights? Oops, sorry, those things can’t be addressed at all.

It doesn’t matter how popular, say, Democrats’ voting reform plan is among the general public; it can’t be construed as a budget matter, so if it doesn’t have 60 Senate votes, it won’t ever make it to a final floor vote.

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This arcane set of constraints works out well for Republicans, even when the GOP holds power by fewer than 60 Senate votes, as was the case during the Trump era. Their main policy priority, after all, is tax cuts — an easy sell as a budgetary issue. (The only other priority Republicans seem to care about — judgeships — has in recent years also required only a simple majority.)

On the other hand, this is not a system that works particularly well for a party in power that wants to do things other than narrow budgetary measures. Such as: the Democrats, right now.

Democrats do have some options for getting around these strict reconciliation rules if they want to pass some non-budget priorities, says Zach Moller, an expert at the think tank Third Way. They could, for example, buck long-standing tradition and simply ignore the parliamentarian’s interpretation of Senate rules. But this and other options would be so controversial that they might lose critical moderate Democratic votes for whatever underlying legislation they’re trying to pass.

Needless to say: This entire process is super confusing. It’s challenging for even journalists to follow along, and we’re paid to understand this stuff.

So imagine how difficult it is for regular voters to understand what’s going on. All they know is that Democrats have promised to do lots of big, ambitious things — and then, for opaque reasons, simply aren’t getting them done.