Scrapping the filibuster in the Senate would not necessarily give lawmakers less incentive to adopt budgets, but that is a possibility, according senators and budget experts.
The Senate’s looming showdown over the right of the minority to block a Supreme Court justice nomination from floor consideration could have a big impact on the already shaky congressional budget process. Prior to the adoption of the fiscal year 2017 and 2016 resolutions, Congress went five straight years without the House and the Senate agreeing on a budget blueprint.
One of those last two resolutions, the fiscal 2017 measure that did not go through committee in either chamber, was adopted simply to give Republicans a way to pass health-care legislation without having to worry about a possible Democratic filibuster. And that is why some worry the death of the judicial-nominee filibuster could lead to a loss of appetite for budgets.
Budget resolutions are not laws and by themselves are largely nonbinding. The two main exceptions are the limits they set on the upcoming fiscal year’s appropriations, the so-called 302(a) level, and reconciliation instructions giving follow-on legislation immunity from filibusters. But since the late 1990s, Congress has often set the 302(a) level by passing a “deeming resolution” instead of adopting a budget. If the filibuster against nominees falls and is followed by the filibuster on legislation, the budget reconciliation process could be seen as redundant.
“My concern is both sides of the aisle have disrespected the traditions of the Senate and both sides of the aisle have ended up in the place we are,” said Sen. Bob Corker (R-Tenn.). “We’re on this spiral downward, and obviously the next thing to go, likely, the next time there’s a big issue that comes up legislatively, will be the legislative filibuster.”
“We all know how this movie ends, OK? The big concern I have is that there be an acknowledgment that we both—if we don’t respect the institution, who’s going to? And shouldn’t we go ahead and have the discussion now about the legislative piece, which, let’s face it, is the only thing left for us to basically take down as a body.”
Bob Bixby, executive director of the anti-deficit Concord Coalition group, said there is a danger the end of the legislative filibuster would reduce the willingness to adopt budgets and use reconciliation but he was not too concerned.
“It’s a slippery slope, but it doesn’t necessarily mean you’re going to fall,” he said. “To the extent Congress fails to pass major legislation, people will start looking at that 60-vote rule.”
But he said there was still enough of a difference between legislation and nominees that the legislative filibuster should stand. “A judge isn’t a piece of legislation. You don’t cobble together a judge,” Bixby said.
That point was echoed by others.
“There’s no conversation about the legislative filibuster,” said Sen. James Lankford (R-Okla.). “Those are two very different things.”
Sen. Tim Kaine (D-Va.), who ran for vice president in 2016, said the nominee filibuster was seen as part of Congress’s check on executive power, making it different from the legislative filibuster.
“It’s legislative-executive. And I think it’s unlikely to change because people are going to look at that and say, can they imagine serving [in Congress] with an executive that they don’t particularly love and everybody will be able to answer that question ‘yes,’ ” Kaine said.
Sen. Chris Van Hollen (D-Md.), a former ranking member on the House Budget Committee, said he thought 60-vote rules like the filibuster that also gives reconciliation its procedural lure should be retained.
“I would hope all the senators would want to preserve these rules that make the Senate different than the House. If you get rid of these provisions that encourage more consensus, then you will just have a 100-person House of Representatives,” Van Hollen said.
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To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com
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