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Why the Senate hasn't passed a budget

Jeff King 2012/09/24 15:10:28

Republicans have relentlessly harangued the Senate's Democratic leadership for failing to pass a budget resolution. "1,000 days without a budget," was the title of a typical missive last month. On the weekend Jack Lew, who has just been named Barack Obama's chief of staff after serving as his budget director, defended the Senate by saying it couldn't pass a budget without 60 votes, i.e. without the cooperation of some Republicans. Republicans jumped on Mr Lew, pointing out that under Congress' budget procedure, a budget resolution cannot be filibustered and thus only needs a simple majority vote - typically 51 votes - to pass. Glenn Kessler, The Washington Post's fact checker, awarded Mr Lew four Pinocchios, the top score, for fibbing.

In fact, Mr Lew, while wrong on the narrow wording, is right on the substance. It is true that the Senate can pass a budget resolution with a simple majority vote. But for that budget resolution to take effect, it must have either the cooperation of the house, or at least 60 votes in the Senate. Only someone intimately familiar with Parliamentary procedure can explain this. Jim Horney of the Center on Budget and Policy Priorities is such a person. The following are his edited remarks from our email conversation:

It's true that you cannot filibuster a budget resolution in the Senate, because the Budget Act provides special rules for consideration of a budget resolution, including a time limit on debate. So the Senate can pass a resolution with only a majority vote. However, the resolution does not take effect when the Senate passes it. It takes effect in one of two ways: if the House and Senate pass an identical resolution, usually in the form of a conference report; or if the Senate passes a separate Senate Resolution (as opposed to a concurrent resolution, which is what a budget resolution is) that says the House is “deemed” to have agreed to the budget resolution passed by the Senate.

But there are no special procedures for the simple Senate Resolution required by this second, “deeming” process, so it is subject to the unlimited debate allowed on almost everything in the Senate. If you do not have the support of 60 Senators to invoke cloture and end a filibuster, or prevent a filibuster from even starting (because everyone knows 60 Senators support cloture), you cannot pass such a deeming resolution in the Senate.

Because its rules are different, the House with a simple majority can pass a resolution deeming that the House and Senate have agreed to the House resolution so that it can take effect. This means the allocations in the resolution, such as for appropriations, are in effect in the House and anybody can raise a point-of-order against legislation that would cause a committee to exceed its allocation.

But this is for purposes of enforcement in the House only. What the House does has no effect whatsoever on the Senate or its budget enforcement. And vice versa, if the Senate deems that its budget resolution has been agreed to.

Does the lack of a budget resolution matter? Jim notes that budget resolutions are supposed to set limits on discretionary spending in appropriations bills and facilitate changes in taxes and entitlements via reconciliation instructions or via allocations to authorizing committees. But nowadays, discretionary spending caps have already been set by the Budget Control Act (which ended the debt ceiling standoff) and there is little or no prospect of cross-party agreement on tax or entitlement policies. Moreover:

With the exception of reconciliation legislation, it effectively takes 60 votes to consider any legislation in the Senate so it really does not matter whether the resolution has been adopted; if you have 60, you can consider the legislation, if you don't, you can't.

The bottom line is the budget process set out in the Budget Act works pretty well when the Congress can agree on budget policies. When they cannot, no process in the world can make things work smoothly, but Congress muddles through and does what absolutely has to be done (like keeping the government from shutting down or defaulting on the debt). Not having a budget resolution in place is a symptom of the inability to reach agreement – not the cause of Congress not being able to accomplish things.

So yes, the Senate could pass a budget resolution, but without the cooperation of the house or 60 votes, that resolution would not take effect; it would be an empty gesture. The fact that the House managed to pass a budget last year, including a major overhaul of Medicare, reflects its different rules that allow it to deem the budget resolution to have taken effect. But it didn't ultimately matter: the provisions in its budget, including the Medicare changes, were not binding on the Senate.

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