**UPDATE: How they’ll do it: House to vote on middle class tax cuts today (and can’t Senate use reconciliation?)

UPDATE 2: The word of the day … is “chickencrap!”

UPDATE: A test vote on the middle class tax cut provision in the House has passed, with 30 Democrats defecting and voting “no” with Republicans.


David Waldman of Congress Matters posts (also at DKos) the detailed mechanics of how the House vote on middle class only tax cuts will proceed today. So can’t the Senate use an old procedural trick to do the same? We ask… you decide …

It’s a bit complicated, but here goes:

Here’s a trick you’ll like. So, you can see that the House is finally planning to vote on a middle class-only tax cut bill today. And yet, in all the time you’ve been waiting for it, you’ve been hearing that the big problem with just biting the bullet and doing it was that there was the danger that a motion to recommit would end up extending the tax breaks to the rich as well, and spoil the party. So maybe you began to hear that the House might bring the bill to the floor under suspension of the rules, which precludes amendment and motions to recommit, but requires a 2/3 vote (290 in a full House) to pass. And that seemed unlikely.

Well, how about this instead? Go have a look at what they’re calling the “Middle Class Tax Relief Act of 2010. It’s H.R. 4853. Go ahead, click it. Take a look at it. What do you see?

It’s really the “Airport and Airway Extension Act of 2010, Part III.” And that has a familiar ring to it, sort of. The very next bill on the schedule for today is the “Airport and Airway Extension Act of 2010, Part IV,” but the bill has no number yet, which means it’s brand new and the number hasn’t been assigned yet.

What the hell is going on here?

The Airport and Airway Extension Act of 2010, Part III was originated in the House and passed back in March. (And remember, if there are going to be revenue provisions in this thing, it has to have originated in the House, so that’s important.) It then went to the Senate, and sat around until September.  When it came to the floor, the Senate amended it, passed the amended version, and sent it back to the House.

Now, the House plans to take up the Senate amendment, which it does under a rule governing debate, just as it would with any bill. And if you want to, you can write the rule for the bill to disallow any amendments to it, and that’s just what they’ve done with this one. But writing a rule to disallow a motion to recommit is just not done. It could be done, but it would be a very, very serious infraction against the rights of the minority. So it’s not done.

But guess what? Because this is a bill that’s already passed and left the House, and the only changes in it are Senate-made amendments, it can’t be recommitted, which means there can’t be a motion to recommit. Why not? Well, when a motion to recommit passes, it technically sends a bill back to the committee that reported it out. But this bill has already left the custody of the House when it passed the first time. That material can’t be recommitted, and neither can the Senate material, which was never in the hands of the House committee in the first place. So by definition, it can’t be recommitted. The only thing that can happen is that the House can agree to the Senate amendment, disagree to it, or agree to it with additional amendments. That’s it. No recommittal. And only the amendments the Rules Committee allows.

And what amendment will the Rules Committee allow? An amendment to strip out the current contents of H.R. 4853, and replace it with the new, Middle Class Tax Relief Act.


Got that? (Feel free to re-read if necessary. I did…)

Now the question is, why can’t the Senate put up a bill on just the middle class tax cuts, too? After all, Democrats have 56 votes, and even if they lose the Republicrats (Ben Nelson, Joe Lieberman and other conservatives) it’s pretty clear they could get 50 votes at least, to pass a middle class tax cut bill, using the vice president’s vote if necessary. How could they do that, and get around the sure-to-come filibuster? Well, they could simply go back to what works.

It’s instructive to remember that BOTH of the Bush tax cuts, in 2001 and 2003, passed via the process of “budget reconciliation,” in which Republicans were able to limit debate and prevent a filibuster (our friend Ben Nelson even supported it.) In fact, reconciliation has been used quite a lot, to push through cherished budget items, mostly tax cuts, and quite often by Republican-led congresses. In the case of the 2003 tax cuts, they passed by that 50 vote threshold, with then- Vice President Dick Cheney casting the deciding vote.

Politifact reports:

The 2001 tax cuts passed 58-33. All the Republican senators (with the exception of John McCain, R-Ariz.) were joined by 12 Democrats to pass the measure.

… The 2003 tax cuts were also passed by reconciliation. These were more controversial, because at this point the wars in Iraq and Afghanistan had started, and later the same year Congress passed a Medicare prescription drug benefit. The vote in the Senate was 51-50, with vice president Dick Cheney breaking the tie. (The vice president is technically the president of the Senate and can break ties.) In this vote, only two Democrats joined the Republicans.

The 2003 tax cuts included a number of measures, but the most significant reductions were taxes on dividends and capital gains taxes.

Here are the roll calls: 2001 and 2003.

More recently, here’s what the Brookings Institution had to say about reconciliation back in the bad old days of trying to pass healthcare reform:

Whether reducing or increasing deficits, many of the reconciliation bills made major changes in policy. Health insurance portability (COBRA), nursing home standards, expanded Medicaid eligibility, increases in the earned income tax credit, welfare reform, the state Children’s Health Insurance Program, major tax cuts and student aid reform were all enacted under reconciliation procedures. Health reform 2009 style would be the most ambitious use of reconciliation but it fits a pattern used over three decades by both parties to avoid the strictures of Senate filibusters.

To be sure, there is a price beyond the political one for using reconciliation. Elements in bills that are not strictly designed to have a budget impact can be removed on points of order, leaving comprehensive bills less than comprehensive. And the time frame for reconciliation bills is at most ten years, after which they expire unless explicitly renewed (the problem, of course, with the Bush tax cuts.)

The best path would be to have reconciliation as an implicit or explicit threat: if Democrats can employ it to accomplish the policy goal with only a simple majority, Republicans may be persuaded to abandon efforts to use their 41 votes to just say no and instead engage the majority constructively to find common ground. But if that is not feasible, it is perfectly reasonable for Democrats to use the process for health care reform that both parties have used regularly for other major initiatives. The result might be more piecemeal and imperfect, but it would be better than the alternative of no bill at all.

Ultimately, that’s exactly what Senate Democrats did. With no options left, they first threatened, and then passed, healthcare reform via reconciliation. And you know what? The world didn’t end.

So why not use reconciliation now?

Senate Democrats are reportedly huddling today to figure out their strategy going forward. Some of the ideas that have been floated have included the Chuck Schumer plan, of putting forward a “millionaires tax rate” and proposing cuts for everyone below the million-dollar income threshold — a good, clean way to make the point that Republicans look out for millionaires, since it would force the GOP House to put forward a millionaires and above tax cut next year; trying to move a solo $250k and below tax cut, which Republicans would surely filibuster, or just cutting a deal, perhaps to get unemployment extension and maybe START in exchange for extending the tax cuts for all rate classes for another 2 years (which would mean they would never go away, since neither party is going to kill tax cuts in a presidential election year.)

At the same time, the White House team of Geithner and Lew is “negotiating” its own deal with Republicans, who having given Democrats a Monday deadline to capitulate or else, probably are “negotiating” total Obama surrender on behalf of his party. And won’t that go over well in the House after today’s vote.

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One Response to **UPDATE: How they’ll do it: House to vote on middle class tax cuts today (and can’t Senate use reconciliation?)

  1. Using reconciliation in the Senate to pass the bill passed by the House today isn’t really available as an option.

    Reconciliation was never supposed to be used for things like tax cuts, and after the Republican abuse of the process for that purpose in 2001 and 2003, the Senate adopted rules changes (offered by Dems) to essentially prohibit its use for bills that caused a net increase to the deficit.

    A reconciliation bill that does increase the deficit is subject to a point of order that requires 60 votes to waive, and will kill the bill or the portion of it that increases the deficit without that waiver.

    Technically speaking, other options are available, such as passing a bill to extend all the tax cuts, and then using reconciliation to repeal the extension for the top income bracket. Or combining the tax cuts with other measures that masked their effect so that the whole package came out as a net savings. But a reconciliation bill has to be designated as such and brought to the floor under that procedure from the beginning. I don’t think you can just declare a bill already passed in the House under regular procedures to be a reconciliation bill once it hits the Senate, even if there were no rule against reconciliation bills that increase the deficit.

    So it’s still possible to make some use of reconciliation, but it would require moving very, very quickly, and on a different bill that would have to start from square one.

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