Nancy Solomon: This week, Washington received some interesting procedural news. After the Senate parliamentarian, the rules expert determined that Democrats could pass additional legislation through the budget reconciliation process. Now, we're going to get into the weeds a bit here, but come along with me. It's wonky, but it's important. Democrats can use the budget process to pass legislation relating to taxing and spending with just 51 votes instead of the 60 votes most bills required to pass. They most recently used the reconciliation process to pass the 1.9 trillion COVID relief package. It's a way to avoid the filibuster, but it can only be used in a limited fashion.

While Democrats are pleased to have an additional method to enact their agenda, Senator Joe Manchin of West Virginia and Senator Kyrsten Sinema of Arizona have signaled that they are resistant to using the reconciliation process again. To discuss what the senate parliamentarians' latest decision means for the Democrats policy wishlist and the future of the legislative filibuster, I'm joined by Caroline Fredrickson, law professor at Georgetown University and senior fellow at the Brennan Center. Thanks for joining us.

Caroline Frederickson: It's a pleasure to be with you.

Nancy Solomon: Caroline, tell us about the senate parliamentarians ruling from earlier this week and what it actually means in practice?

Caroline Frederickson: Well, so what she actually ruled on was the question of whether the Democrats could take the budget resolution they already passed and revise it. The budget resolution is the legislation that includes the reconciliation provisions that you mentioned. Those are the ones that allow Senate to consider legislation that is not subject to the 60 votes filibuster, but it has to be budgetary, which makes sense since it's under the Budget Act. There had been some understanding that the budget reconciliation could be only used once in a calendar year. She ruled that no, in fact, they could use the budget reconciliation more than once.

Nancy Solomon: Did this surprise you?

Caroline Frederickson: Not entirely. It's just something that they haven't tried. nobody's really thought about it, but when you really consider the language, I don't think it would give rise to the interpretation that it has only one use per year, but normally they only pass one budget resolution. So your assumption is that's only going to happen once, but there's no reason to think that they couldn't revise it as budgetary needs change.

Nancy Solomon: Democrats have the opportunity to use the budget reconciliation process to pass President Biden's 2 trillion, quite a bit more money, $2 trillion infrastructure plan. That would mean all 50 Democrats need to be on board. What options do Democrats have if one or two senators aren't willing to go that route?

Caroline Frederickson: Well, there would be the option of getting a few Republicans to vote with them. Certainly, I think that is what President Biden has indicated he is working on. He is bringing Republicans to the White House to talk about infrastructure. He's indicated openness to compromise to negotiation. It obviously makes more sense to have your party vote with you. It's really an evenly divided Senate, with the vice president being able to vote on the side of the Democrats, giving them the added vote. Senator Manchin and Senator Sinema you mentioned earlier are clearly very powerful in this situation, but so is Susan Collins, and Lisa Murkowski, and a few of the others who might be really inclined to want to talk to the President about infrastructure funding, because their states might have particular needs.

Nancy Solomon: One of the reasons why this is such a big deal is because it's a way to get around the filibuster. Let's go there to explain what it is exactly and why the filibuster matters.

Caroline Frederickson: Well, the filibuster is basically-- That is an informal term for an attempt to block or delay Senate action on a bill or other matter through extended debate. There is a rule called the Cloture Petition under Rule 22, which enables the Senate to bring a filibuster to a close under the Senate rules, bringing a debate to a close when there's filibuster requires 60 votes.

That's why as you mentioned, most legislation now in the Senate requires 60 votes, but that's not because the senate requires normally 60 votes to pass any legislation. It's only when there's a filibuster, but the filibuster has, unfortunately, become the standard practice now, whereas, in the past, it was more of a rarity.

Nancy Solomon: Both former President Obama and President Biden have referred to the filibuster as a relic of the Jim Crow era. Can you explain that for us?

Caroline Frederickson: Sure. For any of your listeners who watch Turner Classic Movies, or like old movies, they might have seen Mr. Smith Goes to Washington, which is this the mythological view that people have of the filibuster in its glory. It's this earnest, idealistic senator comes to Washington prepared to fight corruption, holds the floor sounds at length.

Well, the reality is that the filibusters that are most famous are those that were used to block civil rights legislation in the 50s and 60s. Particularly, senators like Strom Thurmond use the filibuster frequently. Thurmond was actually known for having the longest time on the floor, he spent 24 hours himself on the floor as part of a much longer filibuster to hold up the Civil Rights Act of 1957. The filibuster really when senators did used to actually speak on the floor, we're about disrupting civil rights legislation about blocking it, about preventing it from passing. It's not been a tool to fight corruption as much as a tool to fight progress.

Nancy Solomon: We only have a minute left, but how much would getting rid of the filibuster change gridlock on Capitol Hill?

Caroline Frederickson: I think it would change it a lot because you'd have Senator Manchin and Senator Sinema, Senator Collins, Senator Murkowski, and a few others. They'd actually really be pushed to negotiate. Their votes would really matter if either side was trying to get to 51. When you're trying to get to 60, and you only have 50. It's such a big hill to climb, it's almost not worth negotiating.

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Nancy Solomon: Okay, Caroline Fredrickson is a professor of law at Georgetown University and a senior fellow at the Brennan Center. Thanks so much for joining us.

Caroline: It's been a pleasure.

Speaker 3: Senator Smith has not talked for 23 hours and 16 minutes is the most unusual and spectacular thing in the senate panels. One lawman, simple American, holding the biggest floor in the land.

Senator Smith: I'm sorry, gentlemen, and I know I'm being disrespectful to his honorable body. I know that. I hate to stand here and try your patience like this, but either I'm dead right on I'm crazy.

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[00:07:59] [END OF AUDIO]

 

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