Dynamic Scores No Longer ‘Informational Only' in Senate

By  Jonathan Nicholson
Aug. 26 — Despite being seen as “for informational purposes only,” dynamic budget scores are poised instead to be used on the Senate floor to determine whether bills can overcome parliamentary challenges.

According to a Senate Budget Committee staffer, the format the Congressional Budget Office (CBO) uses for the scores means the dynamic estimates, which include the projected impact of changes in the economy on the budget, can be the numbers that hold sway when a procedural challenge is raised on the floor. The difference between whether such scores are supplemental or binding may have a significant impact in the future, because some budget-related points of order—which often require a supermajority to be waived—apply to regular legislation, as well as to bills that are immune to filibuster as part of the budget reconciliation process.

The House in January made clear that it would use dynamic scoring for large bills by adopting a change in that chamber's rules, but the picture in the Senate has been less clear. When the final budget resolution (S. Con. Res. 11) was adopted in May (87 DER A-35, 5/6/15), the two chambers appeared to be at odds. While the criteria for scoring bills dynamically appeared in the budget resolution text under a section titled “Budget Enforcement in Both Houses,” the conference committee report, which lays out the original House and Senate positions and explains how they were resolved in the final legislation, appeared to clearly say dynamic scores would not be the official estimates.

‘For Informational Purposes Only.'

“In the Senate, these estimates would be provided for informational purposes only,” the report said.

In addition, a summary of the budget released by the Senate Budget Committee touted its changes in scoring, but did not say dynamic scoring would be used for enforcing points of order on the Senate floor. The summary said the budget resolution “improves honest and responsible accounting practices as part of the federal budget process by ensuring that fair value accounting estimates along with Federal Credit Reform Act estimates, in addition to dynamic scoring and static scoring, are used.”

In addition, the budget resolution had the support of Sen. Rob Portman (R-Ohio), who said his own legislative language providing for supplemental dynamic scores had been adopted in the original Senate-passed budget resolution that was taken into conference.

“I think everyone in the Chamber would agree there is some impact on the economy. We have to know what it is. This is informational. We will still get the static score, but also get a macroeconomic score,” Portman said on the Senate floor March 26.

In the first bill to be assessed under dynamic scoring, the nonpartisan Congressional Budget Office said extending a set of already-expired or expiring tax breaks, often called tax extenders (S. 1946), would cut federal receipts and add $86.6 billion to the deficit over 10 years, including its dynamic impact.

Notably, it also said the estimate for the bill's pay-as-you-go impact—how much it would add to the separate scorecards kept by the OMB and the Senate of the cumulative costs of bills in each congressional session—was $89.6 billion, a figure based on the dynamic score. Pay-go is one of several procedural points of order that require a supermajority to waive in the Senate, if the parliamentarian decides, usually based on CBO figures, the challenge is applicable.

Dynamic ‘Completes' Scoring

A Republican Senate Budget Committee staffer confirmed to Bloomberg BNA on Aug. 24 that the Senate Budget Committee majority staff believes the dynamic scores can be used for deciding whether a bill is vulnerable to a point of order challenge on the Senate floor, though it was unclear whether Senate Budget Chairman Mike Enzi (R-Wyo.) will choose to make them binding for those purposes.

“They could be used for that,” the staffer said, speaking on condition of anonymity to explain the committee's thinking.

Because the dynamic portion of the score is now included in the CBO table of the score, that makes it an integral part of the score, the staffer said. “It's not an extra score. It completes the scoring,” the staffer said.

The staffer said the committee's reading is based on concerns raised by the Senate parliamentarian that there be only one official score for each bill and the CBO's decision to include the dynamic impacts in the formatting of the score's tables.

In the format the CBO used for the extenders bill's score, the office included three broad tables: “estimated changes without macroeconomic feedback,” “estimated budgetary impact of macroeconomic feedback” and “total estimated changes, including macroeconomic feedback.” The last table combined the effects of the first two tables.

“There was a concern on her part that dynamic scoring might result in two scores,” the staffer said. “We'll work with the parliamentarian to see if that meets her requirement for a single score.”

The staffer said the use of dynamic scores was not without precedent, pointing to the CBO score of the Senate's immigration bill in 2013 (S. 744). In that score, the CBO included impacts related to the expansion of the U.S. labor force resulting from an immigration overhaul to reach the conclusion the bill would result in the deficit shrinking by $157.7 billion over 10 years. In that score, the CBO did not break out the dynamic portion of its score in the bill's table.

‘A Little Bit Strange.'

The prospect of using dynamic scores for budget enforcement purposes in the Senate is likely to take many budget observers by surprise. Budget-related points of order can sometimes result in changes to the legislation, and constitute one of the Senate minority's few procedural weapons in the Senate.

In 2001, for example, because the initial round of tax cuts pushed by the George W. Bush administration would have increased the deficit outside the 10-year budget window, it would have required a supermajority to make it permanent. Instead, a portion of those tax cuts ended up being scrapped in 2012 as part of the “fiscal cliff” deal between the White House and congressional Republicans. A binding dynamic score could make such challenges harder to mount for Senate Democrats.

Bill Hoagland, a former Republican Budget Committee staff director and now senior vice president with the Bipartisan Policy Center, said the divergence between the report's “informational purposes only” language and the approach being taken by Budget Committee Republicans was disconcerting.

“Why would you put that language in the report language? It does look a little bit strange,” he said. “I just thought that report language meant something.”

But former CBO Director Douglas Elmendorf said the decision to include the dynamic effects in scores in the first place made the question of whether they should be used for deciding points of order somewhat moot.

“If the macroeconomic effects are included in the cost estimate, then it's legitimate that points of order should be decided on the total estimated cost, including macroeconomic effects,” he said.

A spokeswoman for Portman told Bloomberg BNA by e-mail that Portman never opposed making the dynamic score the binding estimate, and that his most recent dynamic scoring bill in March had not required that the dynamic numbers be informational only.
Hoagland said making clear the Senate would use the dynamic scores instead of the conventional ones may not have made a difference in whether the budget resolution was adopted.

“I think there would have been more discussion of it,” he said. “Would it have changed the outcome? I doubt it.”

The budget staffer did not explain why the “for informational purposes” language was included in the budget resolution report.

Asked why some people would be surprised to hear the dynamic estimates would be binding, the staffer said, “I think everybody is catching up.”

To contact the reporter on this story: Jonathan Nicholson in Washington at  jnicholson@bna.com
To contact the editor responsible for this story: Heather Rothman in Washington at  hrothman@bna.com