The Senate Has Become a Dadaist Nightmare

Even worse is the way budget reconciliation quietly decides which kinds of problems the Senate addresses, and which it ignores, years after year. Both House and Senate Democrats have said that their first bill will be the “For The People Act,” a package making it easier and safer to vote, and weakening the power big donors wield in politics by matching small donor donations at a 6:1 rate. But the “For The People Act” can’t pass through the budget reconciliation process, so it’s a dead letter.

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“Why should it only take a simple majority to do tax cuts for the rich but it takes a supermajority to address the integrity of our elections?” Senator Jeff Merkley, a Democrat from Oregon, told me. “That makes no sense. Access to the ballot shouldn’t have a higher hurdle than helping the rich get richer.” But in today’s Senate, it does. The same is true for gun control or immigration reform.

But budget reconciliation doesn’t just alter liberal priorities. Social conservatives often complain that when Republicans hold Congress, their legislative asks are shunted aside for tax cuts and health care repeal laws. That is, in part, a budget reconciliation issue: You can pass tax cuts and (partially) repeal Obamacare through budget reconciliation. You cannot regulate pornography or push school prayer through the process.

You can also only do a limited number of budget reconciliation packages each fiscal year. That forces legislators to craft giant bills that jam every legislative priority into one rushed package, rather than crafting one bill, debating and modifying it, and then passing it and moving onto the next.

“I find it ironic that people suggest reconciliation is somehow better for the institution,” Adam Jentleson, former deputy chief of staff to the former Senate majority leader, Harry Reid, and the author of the excellent new book, “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy,” told me. “It’s terrible for the Senate!” As he notes, budget reconciliation decreases the power of committees and increases the power of the Senate leadership, “since leadership drives the assembly line for putting together these mega-packages. There’s no transparency and it creates a field day for lobbyists.”

In 2012, Steven Teles, a political scientist at Johns Hopkins University, published a paper arguing that American public policy had become defined by kludges. “The term comes out of the world of computer programming, where a kludge is an inelegant patch put in place to be backward compatible with the rest of a system,” he wrote. “When you add up enough kludges, you get a very complicated program, one that is hard to understand and subject to crashes. In other words, Windows.”

Or, the Senate. The modern use of budget reconciliation is a kludge. The institution has become paralyzed by the filibuster and rather than rewriting its rules to solve that problem, senators have instead patched it through budget reconciliation. The Senate gets just enough done that no one can say it is actually impossible to pass big bills through the body. But budget reconciliation narrows the range of problems Congress can solve, the number of bills it can pass and the policy mechanisms it can use. No one would ever design a legislative body that worked this way, but this is how the Senate has come to work, one kludge atop on top of another. “For any particular problem we have arrived at the most Gerry-rigged, opaque and complicated response,” Teles wrote. That is both an apt description of today’s Senate and of the kind of policy budget reconciliation produces.

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