Democrats Take First Steps In Reconciliation Process

Senate Democrats have taken the first steps in passing a reconciliation bill through their chamber this week. They released the text of the Senate’s version of the reconciliation bill – negotiated by Joe Manchin, D-W.Va., and Majority Leader Chuck Schumer, D-N.Y. – and began placing the House-passed version directly onto the Senate floor. The draft text – the Inflation Reduction Act – is the Senate’s version of the reconciliation bill authorized by the fiscal year 2022 budget resolution (S. Con. Res. 14). The House version is the Build Back Better Act (HR 5376).

Senate Can’t Act Without House 

The House passed its reconciliation bill - HR 5376 - on November 19, 2021, on a nearly party-line vote (220 to 213; one Democrat joined all Republicans in opposing the bill.) But instead of sending the bill to the Senate for further consideration after that vote, the House held the legislation at the desk. (Clause 1(c) of House Rule XIX allows the House to “postpone further consideration” of a bill like HR 5376 “to such time as may be designated by the Speaker.”) By holding their version of the reconciliation bill at the desk, House Democrats gave their co-partisans time to resolve any differences amongst themselves before Republican senators had a chance to debate and amend it in committee or on the Senate floor.

The House sent its reconciliation bill to the Senate - 255 days after first passing it - because Senate Democrats reached an agreement amongst themselves. But, without the House's version, they also cannot meet their self-imposed August 8 deadline for getting a reconciliation bill embodying that agreement through their chamber. This is because the Constitution’s Presentment Clause (Article I, section 7, clause 2) requires the House and Senate to approve the same bill in identical form before the president can sign it into law or veto it. And the Constitution’s Origination Clause (Article I, section 7, clause 1) stipulates, “all bills for raising revenue [e.g., the Build Back Better reconciliation bill] shall originate in the House." These two clauses of the Constitution require senators to wait on the House before passing their version of the reconciliation bill.

Committee Consideration Is Optional

After Senate Democrats released their bill text and the House sent them its bill, they began bypassing committee consideration of either reconciliation altogether. The Congressional Budget Act of 1974 (Public Law 93-344) and Senate Rule XVII stipulate that the Senate’s presiding officer should have referred HR 5376 to the committees with jurisdiction over its provisions when the Senate received the House-passed bill. Democrats, however, want to get their version of the reconciliation bill through the Senate as quickly as possible. And bypassing the committee stage of the process saves a lot of time. Moreover, bringing the House-passed HR 5376 directly to the Senate floor enables Democrats to start reconciliation's 20-hour debate clock as soon as possible.

Democrats can skip the committee stage of the reconciliation process because the Senate's rules and practices allow them to do it. Rule XIV empowers senators to place bills and joint resolutions directly on the Senate’s calendar of business. The Senate's calendar of business is the list of measures eligible for floor consideration. It includes all measures reported by the Senate's committees and those placed directly on it by individual senators pursuant to the provisions of Rule XIV. But the Rule XIV process only works on bills and joint resolutions. Senators can’t use it to skip committee consideration of concurrent resolutions, simple resolutions, and presidential nominations.)

And the Senate’s precedents sanction Democrats’ Rule XIV maneuver to bypass committee consideration of the reconciliation bill. Senators - Democrats and Republicans –used Rule XIV to skip the committee stage of the reconciliation process in recent years. Democrats did it in 2010 and 2021. Republicans did it in 2015 and 2017. Before 2010, every reconciliation bill that senators debated on the floor was considered first by – and reported by – at least one Senate committee. Since then, however, senators in both parties have opted for the time-saving benefits of ignoring the requirements of the 1974 Budget Act and bypassing the reconciliation process’s committee stage altogether.

How Senators Bypass Committees

Rule XIV requires that senators give “each bill and joint resolution” that the Senate considers “three readings” before its final, up-or-down vote. Under the Senate’s current rules and practices, the first and second readings of a bill/joint resolution happen before the presiding officer refers it to a committee for further consideration. Finally, the third reading happens before senators vote at the end of the process on whether to pass the bill/joint resolution.

The presiding officer may refer a bill to a committee after it has been read twice. However, Rule XIV stipulates that the presiding officer must place the bill/joint resolution directly onto the Senate calendar if a senator objects to its first and second readings.

Bypassing Committee Consideration Takes Time

But doing so takes time. That is, time must elapse between a senator objecting to its first reading before that senator (or another senator) can object to its second reading. This is because Rule XIV requires “a bill or joint resolution” to be “postponed for one day” whenever a senator objects to its first reading. In such circumstances, the Senate must delay a bill/joint resolution by one day – at least - before a senator can object to its second reading. At this point, the presiding officer must place it directly onto the Senate’s calendar.

Yet Democrats can speed up the Rule XIV process by adjourning the Senate and then immediately reconvening it. Doing so creates a new day and allows senators to object to the second reading of a bill/joint resolution. “Day” here refers to a legislative day, not a calendar day. Senate precedents define a legislative day as a "day, which continues from the beginning of a day's session following an adjournment until another adjournment." The Senate begins a new legislative day whenever it convenes after adjourning. And whenever the Senate convenes after an adjournment, that new legislative day continues until the Senate adjourns again.

In contrast, a calendar day is 24 hours. A new calendar day always begins at 12:00 am. Given this, one legislative day in the Senate may span several calendar days. Alternatively, one calendar day may include several legislative days.

The Senate's distinction between legislative and calendar days means that Democrats can speed up the Rule XIV process for the House-passed reconciliation bill. All they have to do is vote – with Vice President Kamala Harris - to adjourn the Senate after a senator objects to its first reading. Democrats can then begin a new legislative day on the same calendar day by reconvening the Senate immediately after adjourning it. When they do that, a senator is eligible to object to the second reading of HR 5376 under Rule XIV. And after that objection, the presiding officer must place HR 5376 onto the Senate’s calendar. At this point, any senator may move to proceed to its consideration. 

Democrats used this maneuver in 2010 to expedite the Senate's consideration of the Affordable Care Act reconciliation bill. Then-Majority Leader Harry Reid adjourned the Senate after objecting to the bill's first reading. He reconvened the Senate one minute later and objected to the bill's second reading. The presiding officer then placed the legislation directly onto the Senate's calendar of business, thereby skipping the committee stage of the reconciliation process for the first time in Senate history.

The Takeaway 

Democrats have taken the first steps in getting a reconciliation bill through the Senate before the August recess. Senate Democrats released the legislative text of their version of the reconciliation bill. And their colleagues in the House enabled senators to move towards debating reconciliation on the Senate floor when they finally sent the Senate their version of the reconciliation bill. As soon as the Senate received the House bill, Senate Democrats began bypassing the committee stage of the reconciliation process to save time. They are using the Rule XIV process to bring the House's Build Back Better Act and, by extension, their Inflation Reduction Act directly to the Senate floor.