The reconciliation process has been in the headlines for months as Democrats have moved ahead with the process to pass their expansive $3.5 trillion budget bill, a move that Republicans have strongly criticized. The process, while very powerful, must comply with a slew of rules and restrictions that normal legislation is not subject to.
The budget reconciliation process allows certain types of legislation related to government finances to pass through the Senate without meeting a 60-vote threshold to order cloture on debate, a privilege that very few legislative proceedings have in the deliberative upper chamber.
The process has a relatively short history, and its applications have expanded significantly since its introduction to Congress’ rulebook.
Originally, the process was intended as the act of a resistant Congress taking back its financial powers.
Budget reconciliation was first formulated as a response to perceived executive overreach into the state’s finances following the Watergate scandal. At the time the new process, included in the Congressional Budget Act of 1974, was intended to give Congress the power to set overall spending targets for a fiscal year.
Since reconciliation bills have an exclusively privileged status, lawmakers in both parties have used the legislative maneuver for decades to push policy priorities through the Senate without risk of a filibuster.
A coalition of Republicans under President Ronald Reagan were the first to realize the legislative potential of the reconciliation process, and in 1981 used it to push a wide-ranging bill to cut government spending. Throughout Reagan’s presidency, several other omnibus reconciliation bills were zipped through Congress.
Since 2000, reconciliation has taken on an increasingly partisan role.
It was used to pass the so-called “Bush tax cuts” in a series of two bills, an expansion of the Affordable Care Act [“Obamacare”], another sweeping tax cuts bill in 2017, and a CCP (Chinese Communist Party) virus relief package in 2021; Each of these packages were passed broadly along party lines.
Rules of the Reconciliation Process
On the other hand, because of its substantial legislative potential, the reconciliation process has been reined in over the years, and today is subject to a laundry list of rules, conditions, and limitations. These are some of the most important.
The Byrd Rule
In the 1980s, the majority party began to use the process for bills and provisions that lay well outside of budgetary matters, leading Congress to adopt the first major limitation of the process: the “Byrd rule.”
Named after its sponsor, the late Sen. Robert Byrd (D-W. Va.), the rule forbade lawmakers from including “extraneous” provisions in reconciliation bills. Broadly, the rule stated that provisions included in reconciliation bills must have an effect on federal spending or revenue that is not “merely incidental.”
The Byrd rule activates when a senator raises an objection against a provision of a reconciliation bill.
The presiding officer, who relies on the ruling of the parliamentarian—the Senate’s nonpartisan referee—can sustain the point of order against the provision or reject it. If sustained, the offending provision will be struck out of the bill; this can only be overridden by a three-fifths supermajority (60 votes); If rejected, the provision remains in the bill.
Recently, the requirements of the Byrd rule led the Senate parliamentarian to reject the Democratic effort to include substantial immigration reforms in their omnibus reconciliation bill. Some Democrats contested, arguing that the proposed reforms would have more than an incidental effect on federal finances, but the current parliamentarian has thus far been resistant to such protestations.
Another key rule governing the reconciliation process limits the long-term effects that a reconciliation bill can have.
At most, new revenue or spending policies in reconciliation can remain in effect for 10 years, causing programs in reconciliation bills to include “sunset provisions” which set an expiration date on the programs. After the program is “sunset,” the law—including tax rates and other revenue schemes, spending, and new programs—goes back to the way it was before the reconciliation bill was passed.
For example, President George Bush’s Economic Growth and Tax Relief Act of 2001, (known colloquially as one of the “Bush tax cuts”), included sunset provisions to return the federal tax scheme to its pre-2001 status after ten years had elapsed.
The Byrd rule also affects these provisions.
If the majority party can muster a supermajority of 60 votes in favor of a provision, that provision can be made permanent. This rule ensures that no change can be permanent without first meeting the supermajority threshold needed for any permanent piece of legislation to pass the Senate.
Finally, opponents of a reconciliation bill can subject it to a so-called “vote-a-rama,” a string of votes on various amendments and provisions that can be dragged out for hours or days.
For most bills, Senate leaders can use a slew of procedural maneuvers to avoid voting on each and every proposed amendment. Not so with reconciliation: Under the rules of the reconciliation process, every single amendment must be voted on.
While the majority party takes little pleasure in these back-to-back voting sessions, they provide the minority party with several opportunities.
They allow the minority party to slow the passage of the bill. Each amendment vote takes around 15 minutes. This includes time for the amendment’s sponsor to introduce and explain the amendment, time for a short two minutes (or so) of debate, and ten minutes for voting.
While this does not give the minority party the ability to kill the bill, as with a filibuster, it does allow the minority to make the process far more arduous for the majority party.
For example, Democrats used the process early in 2021 to pass the American Relief Plan Act (ARPA), Republicans subjected the bill to a laundry list of amendments to vote on, slowing its eventual passage.
During these vote-a-ramas, minority party lawmakers have the added benefit of being able to force votes on issues that would otherwise not make it to the floor for debate.
For example, Sen. Rick Scott (R-Fla.) submitted an amendment during the ARPA voting that would have cut the billions in grants to Amtrak and used the funding on high-tech aircraft for the Coast Guard. An amendment proposed by Sen. Tommy Tuberville (R-Ala.) would have refused federal funds to schools that allow biologically male transgender athletes to play on girls’ athletics teams. Another would have forbade prisoners from receiving tax rebates included in ARPA.
While all three were rejected, they demonstrate the wide range of issues that the minority party can touch on during a vote-a-rama.
Reconciliation Bills Can Be Changed, Repealed, or Suspended
Due to their limitations, reconciliation bills are relatively easy for a party to override after taking control of both chambers of Congress and the White House.
While reconciliation bills’ programs can continue for as long as a decade, they can be changed or revoked through a future reconciliation bill or through the normal legislative process.
For example, Democrats used the reconciliation process to expand President Barack Obama’s Affordable Care Act (ACA) [“Obamacare”] in 2010.
The ACA itself was passed by Democrats as a normal piece of legislation, because they controlled a supermajority in the Senate at the time, and was thus not subject to the restrictions on reconciliation bills. After the death of one of their members, the party lost its narrow supermajority and was forced to resort to reconciliation to further tweak the fine details of the ACA.
In 2016 while Obama was still in office, Republicans, having taken the majority back from Democrats, used reconciliation to pass a repeal of the ACA. Unsurprisingly, Obama vetoed the bill.
Because the ACA was passed as a normal piece of legislation, this Republican reconciliation bill would not have been able to permanently repeal the bill. Still, if the bill had been signed by the president, Republicans would have de-activated the ACA for up to ten years.
Since Democrats are using the same process to pass their $3.5 trillion budget, it will be far less secure than the ACA, and will not have the full force of normal legislation behind it.
Even if Democrats can rally their deeply divided caucus in both chambers to pass the bill, it can still be overturned in the future. If Republicans take control of the House, Senate, and White House in 2024, they would be able to use the reconciliation process to pass a new bill that could repeal or override the Democratic bill.
If this does not happen, Democrats can use the reconciliation process later to renew the bill, pushing off its sunset provisions to a later date. Democrats can renew the bill indefinitely, and continually push off its expiration date. But only passage of the bill along the normal legislative track can make these changes permanent.
If Democrats do not renew the bill, it will simply fade by the end of the decade once its sunset provisions go into effect. After this point, any changes the bill made will not have the force of the law, and budget, spending, and tax rules will return to the status quo ante.
Since reconciliation is used as an alternative by party leaders to achieving a supermajority in the Senate, most reconciliation bills do not have the full status of law and are—by the rules of the process—temporary.
Thus, Democratic passage of their current reconciliation bill, if achieved, will not have a permanent or irrevocable effect on U.S. law, and can be easily overridden by a Republican majority in the future.