Joseph Edwards is a first-year law student at American University, Washington College of Law. Prior to attending law school, he earned a master’s degree in economics from The New School for Social Research and a bachelor’s degree in history—with coursework focused primarily on post-war American history—from the University of South Carolina.

 “If there was a single moment in America’s history in which the slow slide of power… became an avalanche… it was that session… a session in which Congress scampered in panic to approve [] proposals as fast as it could… [The Emergency Banking Relief Act] had not yet been printed—only one typed copy was available… representatives were shouting, ‘Vote! Vote!’ and the vote was by a unanimous shout. The Senate was in a similar rush… ‘Come at once to Washington,’ [Senator] La Follette telegraphed… ‘Great things are underway!’”

• Caro, Master of the Senate^[1]

Congress has had an unusually productive past few years. On a range of issues, bipartisan consensus has been achieved and substantive bills passed through the Senate and the House at a pace not seen since the Great Society programs of the Johnson era.^[2] What has caused this sudden about-face in a legislative body with an historic reputation for gridlock and inefficiency? The answer, in part, might well be encapsulated by the wrangling and legislative maneuvering which took place in the summer of 2021 over the Build Back Better Act and the Infrastructure Investment and Jobs Act. At that time, Senate Majority Leader Chuck Schumer (D-NY), in outlining the Democratic strategy for getting both bills passed, stated: “For the past few months I have laid out a two-track strategy on infrastructure: a bipartisan bill focused on traditional brick-and-mortar infrastructure projects and a budget reconciliation bill, where Democrats plan to make historic investments in American jobs, American families, and efforts to fight climate change.”^[3] The use of budget reconciliation^[4] to ram through Congress partisan line-item legislation is not exclusive to the Democratic legislative playbook; Republicans made extensive use of it during the Reagan and Bush years to avoid negotiating with Democrats on spending priorities and to pass historic tax cuts.^[5] So important is the budget reconciliation process in passing significant legislation since the Mansfield reforms to the filibuster that most people (at least, those with whom Congress holds a morbid fascination) are quite familiar with the process. The key difference today appears to be its acceptance as a fixture in the modern politics of legislating; it has become normalized, taken for granted, no longer carrying the same odiousness which in the past precluded bipartisan negotiation on other issues. Observing the use of budget reconciliation last year to pass the Inflation Reduction Act, former South Carolina Republican congressman Bob Inglis had this to say: “It creates some ill will. But I think… the ill will is going to pass pretty quickly.”^[6] Thus, the atmosphere in the Senate has become conducive to “two-trackism.” Indeed, even where the process has been used to go it alone on an issue, the possibility of both sides of the aisle working together on the very same issue appears to remain open. Though expressing his distaste for use of budget reconciliation to pass the Inflation Reduction Act (which, among other things, included investment in green energy to combat climate change), Senator Mitt Romney (R-UT) recently stated his hopes of passing a bipartisan bill implementing a tax on carbon emissions in the new Congress: “I don’t need a lot [of Republican votes on a carbon tax], you know, because I think we can get a lot of Democrats and I think we can get some Republicans.”^[7]

While we’re unlikely to see any budget reconciliation bills introduced in the next two years, nonetheless the changing attitude towards this most partisan of procedures provides some illumination in understanding the current atmosphere of conviviality and dealmaking in Congress. Such an atmosphere juxtaposes the vitriolic political punditry and infighting which has plagued the public discourse for at least a quarter of a century now. While no solution seems forthcoming on that issue, a modus vivendi appears to have formed among the two parties in Congress, and there is good cause for optimism that—impasse over the debt ceiling aside—more legislation addressing America’s most pressing problems can be achieved, and that the new Congress will be able to continue the hot streak of recent years.

 

^[1] Robert A. Caro, Master of the Senate 55 (2004) (describing “the Hundred Days” of Franklin Roosevelt’s first term).

^[2] To highlight but a few items which have been passed on a bipartisan basis in the previous three Congresses: Economic Growth, Regulatory Relief, and Consumer Protection Act, S. 2155, 115th Cong. (2018) (banking reform); SUPPORT for Patients and Communities Act, H.R. 6, 115th Cong. (2018) (healthcare measures responding to the nationwide opioid epidemic); First Step Act of 2018, S. 756, 115th Cong. (2018) (criminal justice reform); John D. Dingell, Jr. Conservation, Management, and Recreation Act, S. 47, 116th Cong. (2019) (the largest land conservation bill in a decade); Families First Coronavirus Response Act, H.R. 6201, 116th Cong. (2020) (temporarily expanded unemployment benefits and provided paid family and medical leave in addition to free Covid testing); CARES Act, H.R. 748, 116th Cong. (2020) (health research and economic stimulus measures); Infrastructure Investment and Jobs Act, H.R. 3684, 117th Cong. (2021) (inter alia, lead-free water supply and high-speed internet to every corner of the country by the end of the decade); Protecting America’s First Responders Act of 2021, S. 1511, 117th Cong. (2021) (expanded benefits program for first responders); Emmett Till Antilynching Act, H.R. 55, 117th Cong. (2022) (“After more than 200 failed attempts to outlaw lynching, Congress is finally… taking the long-overdue action by passing [this bill]. Hallelujah.” 168 Cong. Rec. S1012-S1013 (daily ed. Mar. 7, 2022) (statement of Sen. Charles Schumer)); Additional Ukraine Supplemental Appropriations Act, H.R. 7691, 117th Cong. (2022) (aid to Ukraine); Bipartisan Safer Communities Act, S. 2938, 117th Cong. (2022) (gun control and mental healthcare provisions); Chips and Science Act, H.R. 4346, 117th Cong. (2022) (subsidies for semiconductor manufacturing and research); Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, S. 3373, 117th Cong. (2022) (expanded veterans’ health coverage and benefits); Respect for Marriage Act, H.R. 8404, 117th Cong. (2022) (marriage equality protections); Consolidated Appropriations Act, H.R. 2617, 117th Cong. (2022) (among many other things, provided $2 billion in loans to Taiwan for defense purposes).

^[3] 167 Cong. Rec. S5137 (daily ed. July 28, 2021) (statement of Sen. Charles Schumer).

^[4] 2 U.S.C. §§601-688. Budget reconciliation provides a process by which the Senate can circumvent filibusters and thus pass tax and spending bills with only a simple majority. It is limited by the requirements that the legislation not be extraneous to federal revenue and outlays and that it be deficit-neutral over a 10-year time frame (meaning the bill either has to pay for itself in the form of fiscal multipliers or its provisions have to sunset within the 10-year period).

^[5] See Cong. Rsch. Serv. Rep., Budget Reconciliation Measures Enacted into Law Since 1980 (2022), https://crsreports.congress.gov/product/pdf/R/R40480 (providing a comprehensive list of all 27 reconciliation acts passed by Congress since the process was first used in 1980).

^[6] Corbin Hiar, Some Republicans see climate danger. They voted ‘no’ anyway, Politico (Aug. 12, 2022, 12:56 PM), https://www.politico.com/news/2022/08/12/republicans-climate-vote-no-00050830.

^[7] Transcript: This is Climate: The U.S. Climate Agenda, Wash. Post Live (Dec. 8, 2022, 2:33 PM), https://www.washingtonpost.com/washington-post-live/2022/12/08/this-is-climate-us-climate-agenda/.