Using the budget reconciliation process to speed President Joe Biden’s infrastructure bill through Congress with only Democratic votes will pose new procedural and political hurdles that the party avoided in their earlier fiscal stimulus bill, their first big legislative package, experts say.
Democrats say they are still unsure whether they will use reconciliation, an optional process that involves first passing a budget that spins off later legislation immune to filibuster in the Senate. But if they do, they’ll face a tougher road than they did with the $1.9 trillion stimulus bill passed in March.
“It’s the difference between juggling one ball and three balls. Many people can juggle three balls. That is not a crazy rare skill, but it’s harder than juggling one ball,” said Zach Moller, deputy director for economic programs with center-left think tank Third Way.
For one thing, unlike the economic stimulus that Democrats had been been mulling for months ahead of the bill’s introduction, there’s no consensus on the composition or size of the infrastructure package, known as President Joe Biden’s American Jobs Plan, and it has been taken more as a starting point than a final blueprint by lawmakers.
If they go the reconciliation route, Democrats also will face issues with the Senate parliamentarian they didn’t see with the stimulus.
Part of that is connected to the way much of America’s highways and bridges are funded: the diesel and gasoline tax motorists pay when they fill up the gas tank. The money collected from that tax is deposited into a trust fund for highways and transit systems.
And that’s where the problem is. The trust fund is set to be exhausted next year, at which point states wouldn’t be able to plan projects because of uncertainty about when or if they would see promised federal dollars. The trust fund faces a deficit of $195 billion over the next 10 years, assuming the current tax structure continues and highway and transit spending grows with inflation, according to the nonpartisan Congressional Budget Office.
But the solution that’s been used in the past – transferring money from other revenues raised by the government to the trust fund – can’t be shoehorned into a reconciliation bill, Moller said.
Under a rule named for deceased West Virginia Senator Robert Byrd, provisions in a reconciliation bill must have more than an “incidental” budget effect, and the transfers – which basically are just moving money from one imaginary pocket of the government to another before it is spent – wouldn’t meet that test.
Moller said Democrats could do something like what was done in 2009 with the American Recovery and Reinvestment Act by setting up a grant program for construction and repair. But that would raise its own issues – individual projects could not be singled out for funding without also likely running afoul of the Byrd rule.
There are multi-billion dollar projects, like a new tunnel connecting New Jersey and New York City or adding a new bridge to connect Ohio and northern Kentucky, that have broad bipartisan support but they could not be singled out for guaranteed funding under reconciliation. That would deprive infrastructure supporters of big legislative carrots that could help get a bill across the finish line.
Rep. Peter DeFazio, the chairman of the House Transportation and Infrastructure Committee, expressed his frustration with the possible limits reconciliation would put on an infrastructure bill and the opaque process the Senate parliamentarian uses to determine what is Byrd Rule compliant.
“Reconciliation is not the answer for many of the things in Build Back Better. They cannot go into reconciliation,” he told reporters Thursday.
“There are myriad things you can’t do in reconciliation. The parliamentarian has a séance with a senator that has been dead for 11 years and created a rule 37 years ago. It’s arbitrary, capricious and stupid,” he said.
DeFazio’s infrastructure bill last year, which stalled in the then-Republican led Senate, included provisions for a general fund transfer to the Highway Trust Fund and an increase in contracting authority for the Fund’s programs that probably would be killed by Byrd Rule objections if included in a reconciliation bill.
Politically, a transportation-focused infrastructure bill passed through reconciliation could lay bare a schism between not just Republicans and Democrats but a deeper, if wonkier, divide: between appropriators and authorizers.
The way Congress is set up most committees authorize programs and policies – basically, they write bills putting those in place and saying it’s OK to fund them, up to a certain level. But the Appropriations Committees in both the House and Senate determine how much in annual funding actually goes to those programs and policies approved by the authorizers. That makes the Appropriations Committees among the most powerful committees in Congress.
But while there is generally a prohibition on reconciliation bills dealing with annual appropriations, one of the lessons Democrats drew from the stimulus bill earlier this year is that can be written around, effectively making the authorizers the stewards of both programs and the cash.
“Spending needs to have budget effects, and the concern about highway trust fund spending is that the CBO traditionally scores the outlays to the Appropriations Committee. But the Rescue Act showed that we can spend money in a big way by writing spending as mandatory spending and we could do that here again,” said a Democratic Senate aide in an email.
While that approach worked in the stimulus bill, it may be a tougher sell in an infrastructure bill.
“I really think this is much, much different. I think the appropriators are not going to be quite as malleable, shall I say, as they were,” said Bill Hoagland, senior vice president of the Bipartisan Policy Center and former long-time Capitol Hill budget staffer for Republicans.
Moller said that concern is real.
“In a 50-50 Senate, any one Democratic senator can say ‘I’ve had enough.’ And there are a lot of senators on the Senate Appropriations Committee who can say, ‘No, this is too much,’” he said.
“They didn’t during the American Rescue Plan. I think there’ll probably be some determination where the line is,” Moller said.
“The whole purpose as I think of the appropriations process coming in was to prevent the logroll, kind of a checks and balance amongst themselves. And so, if checks and balances matter still to the American public out there, on what is spent and how and who’s controlling the spending, I think they would be concerned about the elimination of the appropriation process,” Hoagland said.