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The Little-Known Senate Rule That Could Change Everything

Voilà! All sorts of great stuff can suddenly be passed with a simple majority under the auspices of reconciliation.

Senate Majority Leader Chuck Schumer speaks about Senate Democrats' legislative accomplishments as he holds a news conference at the U.S. Capitol on March 25, 2021, in Washington, D.C.

If the reports hold true and the rug doesn’t get jerked out from under us, it appears Chuck Schumer and his slim Senate Democratic majority have located a tool that will pull most of Mitch McConnell’s filibuster fangs right out of his frowny mouth… and maybe, just maybe, bring some of the changes we most desperately need.

“Elizabeth MacDonough, who serves as the parliamentarian, is reportedly willing to accept an interpretation of an obscure budget rule to let Democrats use previously passed legislation, enacted through the reconciliation process, to bypass the standard 60-vote filibuster threshold that Republicans were threatening to use to block future legislation,” wrote Chris Walker for Truthout. “That rule, Section 304 of the Congressional Budget Act of 1974, allows lawmakers to make amendments to reconciliation bills that have already passed and become law.”

Genius, no? A trick of the language, some deft lawyer’s sleight-of-hand, and voilà! All sorts of great stuff can be passed with a simple majority under the auspices of reconciliation. President Biden and Schumer got the first one across the goal line — the American Rescue Plan — and going forward, so long as they affect the budget somehow and stay within parliamentary lines, vast new pieces of legislation can be passed simply by labeling them as “amendments” to the bill that’s already done.

The key number in that report is “1974,” the year this rule was made law. That makes it 47 years old, a comfortably middle-aged rule, much like myself. How, after decades of ruthless Republican interference in basic good government by way of the filibuster, did I/we/Chuck/Obama/Joe/Every Democrat since Watergate miss Rule 304? It is the sword in the stone, legislatively speaking, and if the Democrats don’t mess it up, it could become the biggest political game-changer of our lifetime.

“It’s as if the Senate has discovered water,” former Senate parliamentarian Alan Frumin told CNN. “We have known about it for years. It’s anybody’s guess why it hasn’t been utilized for years.”

Thanks, buddy. You could have dropped a note.

The very idea gets me to giggling like a titmouse in a tree. Take Biden’s pending massive multitrillion-dollar proposal for infrastructure reform and repair, called Build Back Better (BBB). Before the advent of Rule 304, and after the passage of the American Rescue Plan, getting infrastructure through this Senate was going to be like rolling blood up a sandy hill in the rain pretty much forever. Beyond the fact that 10 Republicans would leap from the Capitol dome before voting to give Biden a legislative win, “centrist” Democrats like Joe Manchin would be ever circling, like sharks looking to take bites out of the prize.

With 304? All they have to worry about is Manchin and his cohort, and they are manageable.

I have a vision of Schumer oozing ersatz courtesy as he says, “Pardon me a moment, Mitch, I just want to make some… revisions to that… bill we passed already… yeah, revisions… hang on… nip here, tuck there… 51 votes… and yeah, HOWYA LIKE ME NOW, MITCH? INFRASTRUCTURE, CLIMATE LEGISLATION, GUN REFORM, ANOTHER STIMULUS, RIGHT IN YOUR BITTER FACE!” At which point Chuck will start doing the Floss with giddy gusto, and I will fall down dead and smiling at the glory of it all.

Preposterous? Probably the Floss bit, yeah, but the rest is well within reach. The possibilities here, while not endless, are pretty damned dramatic. It’s not just Build Back Better we’re talking about here. The parliamentarian has strongly suggested Democrats could move as many as six pieces of legislation under Rule 304 before the end of this Congress. What six policy initiatives are most dear to you? Call your Democratic senator if you have one and let them know. If you don’t have one, call them anyway.

Rule 304 is not a silver bullet, however. Whatever goes into the proposed legislation must adhere to the rules of reconciliation as interpreted by the parliamentarian. MacDonough already struck the $15 minimum wage hike from the seedcorn American Rescue Plan, so that vital initiative will have to fight it out over the longer, and far more perilous, way home.

Biden and the Democrats have to decide to use the thing first, and if you listen to them talk, that decision has not yet been made. “Democrats insist that they have made no decisions about how to use the tool,” reports The New York Times. “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.”

We shun predictions here at Truthout, so I am not saying the use of 304 is a done deal. I’m not not saying it, either. I am saying that they’d be a pack of kick-me-sign folks if they don’t deploy this thing with fireworks and a parade. Build Back Better by itself has the potential of being transformative on a generational level, and the White House knows this full well. That alone is worth the reach.

“President Joe Biden’s sprawling infrastructure plan doesn’t just attempt to turn decades-old progressive policy pursuits into law,” reports Politico. “Aides and operatives inside and out of the White House are coming to view it as an ambitious political play to cement, and even expand, the coalition of voters that delivered Democrats to power in November.”

If and when this does go down, there is one large concern to encompass. If progressive legislation starts flying out of the Senate like it’s a fire sale at a Frisbee factory, and if Rule 304 blocks all Republican obstruction, the GOP could still reach for the last bloody club in its bag.

The Capitol has already been sacked once by the same people McConnell will exhort into a frothing rage once he is fully thwarted… and never forget Donald Trump squatting down in Florida waiting for a new chance at relevance. What better way to recapture the spotlight than to call for an insurrection against the egghead libs trying to steal our cows and cars and Jesus? He did it once, and this would be fertile tinder for him to try again.

All that is filed under “maybe,” and no reason at all to stop. The pieces are still moving, but if they fall into place just so, this could be a summer and fall beyond many of our wildest dreams.

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