Crunch Time for Congress as Deadlines Loom

Plus: Democrats' plan to pass immigration reform via budget reconciliation runs into the buzzsaw of the Senate parliamentarian.

By Harvest Prude and Ryan Brown

Published September 21, 2021

Both chambers of Congress are back in session, and your Uphill team is looking for suggestions for shoes that will allow us to comfortably roam the halls of the Capitol and look professional at the same time. Let’s get to the news.

Congress’s Heaping Pile of Homework

Members of Congress are gearing up for a very busy and chaotic legislative sprint in the weeks ahead. Take it from Rep. Peter DeFazio, Democrat from Oregon and chair of the Transportation and Infrastructure Committee: “I’ve been here for cliffs and crises and wars, and this is going to be the biggest mashup we’ve ever had since I’ve been here, with the debt limit, with the government shutdown, with reconciliation and with infrastructure,” he said. “And I have no idea how it all works out.”

For the first time since July, both chambers of Congress are back in session, and there is plenty on the to-do list—including a bill to keep the government funded and suspend the debt ceiling, while Democrats seek to advance President Joe Biden’s sweeping $3.5 trillion infrastructure and social investments package and finalize a $550 billion bipartisan infrastructure bill that focuses on traditional items like roads, bridges, and airports.

Let’s look at the deadlines we know of:

September 27: The day House Speaker Nancy Pelosi promised a group of moderate Democrats she would hold a vote on the $550 billion bipartisan infrastructure package that passed the Senate earlier this year.
Before September 27: When House progressives say they want to vote and pass the $3.5 trillion Build Back Better Act.
September 30: The day the government will run out of money and shut down if Congress doesn’t approve a spending bill first.
Late October: The Treasury Department will reach its borrowing limit and default on loans if Congress does not raise the debt ceiling beforehand.

Here’s the conundrum on infrastructure: Progressives say they will support the bipartisan package only if the House and Senate vote on and pass the $3.5 trillion package first. Meanwhile, moderate Democratic Sen. Joe Manchin is raising opposition to the hefty price tag of the reconciliation measure and suggesting the party pause talks on the massive Build Back Better plan until next year.

With a 50-50 Senate majority and a margin of only three votes in the House, Democratic leaders can’t risk losing support from any faction of their party as they bring the two bills forward.

Earlier today, House Majority Leader Steny Hoyer said a vote on the bipartisan infrastructure bill will happen next Monday. He added that he expects progressives to fall in line and the measure to pass.

Democrats are advancing Biden’s $3.5 trillion package through the budget reconciliation process, which sidesteps the 60-vote requirement (and the need for GOP support) to pass most bills in the Senate. They used the same process for the massive coronavirus relief package earlier this year. All 50 Democrats in the Senate and Vice President Kamala Harris’s tie-breaking vote are needed for success.

Manchin is not alone in his hesitation about the measure: Democratic Sen. Kyrsten Sinema of Arizona has told the White House she does not support key drug pricing reforms in the reconciliation package.

Democrats are expected to attempt to work through their differences on the matter this week.

“We are at a critical moment,” Senate Majority Whip Dick Durbin told Politico. “The total amount to be spent has to be negotiated with those who are questioning the $3.5 trillion. So, this is the key week.”

Meanwhile, party leaders will try to navigate the debt ceiling and government funding.

The House is set to vote on a bill later today to keep the government running and suspend the debt ceiling. Raising the debt ceiling allows the government to pay the debts it already owes; without congressional action, the Treasury could default on its debts for the first time. Not raising it would result in an “economic catastrophe,” Secretary of the Treasure Janet Yellen recently wrote in the Wall Street Journal.

The agreement the House will consider today would fund the government through early December of this year and suspend the debt limit through December 2022. It also includes billions in disaster relief and funding for Afghan refugees.

There isn’t a clear path to suspend the debt ceiling at the moment, though: Senate Minority Leader Mitch McConnell said last week that his members are united in opposing the hike.

“The last time the debt ceiling was raised, it was done on a bipartisan basis in conjunction with an overall caps agreement,” McConnell said at a press conference. “This year is unique,” he added, pointing to Democrats’ spending ambitions. “I’ve never seen such an effort to expand the reach of the federal government like we’ve been confronted with this year.”

Nearly all Republican senators and House members The Dispatch talked to on Monday night are not expected to support the measure. But Louisiana Republican Sen. John Kennedy said he would support it because it includes disaster relief for his state in the aftermath of Hurricane Ida. He added he doesn’t expect enough Republicans to support it to overcome an inevitable filibuster.

Republicans have argued Democratic majorities in the House and Senate can raise the debt ceiling on their own by folding it into their $3.5 trillion reconciliation package—which is true. Democrats, on the other hand, note that many congressional Republicans supported the debts already incurred in prior spending bills and raising the debt ceiling would be necessary in the coming month regardless of Democrats’ plans for additional spending this year.

Pelosi and Schumer released a statement last night asking for bipartisan support when the continuing resolution comes to the floor.

“Addressing the debt limit is about meeting obligations the government has already made, like the bipartisan emergency COVID relief legislation from December as well as vital payments to Social Security recipients and our veterans,” they wrote. “Furthermore, as the Administration warned last week, a reckless Republican-forced default could plunge the country into a recession.”

Democrats Back to Square One on Immigration

Senate parliamentarian Elizabeth MacDonough on Sunday ruled against Democrats’ hopes of including immigration-related provisions—namely a pathway to citizenship for millions of immigrants illegally in the country—in the $3.5 trillion Build Back Better package.

The decision marks what could be a fatal blow for immigration reform chances during the remainder of the 117th Congress. After it became clear earlier this summer that an immigration reform bill would be unable to garner the 60 votes required to overcome a filibuster and pass as a standalone measure, Democrats shifted to a strategy of passing it via budget reconciliation.

But now, they’re back to square one. Democratic leaders pledged to continue efforts to pass their immigration priorities in the package after the parliamentarian’s ruling.

“We are deeply disappointed in this decision but the fight to provide lawful status for immigrants in budget reconciliation continues,” Senate Majority Leader Chuck Schumer said. “Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days.”

The provision Democrats sought to include would have allowed eight million illegal immigrants to become citizens, including immigrants unlawfully brought to the United States by their parents as children, Temporary Protected Status holders, farm workers, and those deemed essential workers during the COVID-19 pandemic.

Democrats argued immigration reform qualifies for reconciliation because it would have a budgetary impact by, among other things, allowing more people to qualify for federal services and benefits.

According to reconciliation parameters, all budget reconciliation provisions must have a substantial impact on the federal budget.

MacDonough, the nonpartisan enforcer of Senate rules and a former immigration attorney, argued that passing such a massive policy shift through reconciliation would open the door for a future Congress to repeal the policy or even go as far as “stripping status from any immigrant” using the same process. She added: “That would be a stunning development but a logical outgrowth of permitting this proposed change in reconciliation and is further evidence that the policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation.”

Democrats noted there is precedent for including immigration related provisions in reconciliation because of past packages. Among the examples, they cited a provision in 2005 related to a backlog in visas.

However, Alan Frumin, the parliamentarian who preceded MacDonough, told NPR last month that the visa provision in 2005 had bipartisan support at the time and would not have faced a challenge.

In response to the 2005 example, MacDonough noted that at the time “there was no such point of order raised and no ruling by the Chair.” She added, “There is also evidence that the provisions had broad bipartisan support which made inclusion in reconciliation less fraught.”

Senate Judiciary Chairman Dick Durbin, an Illinois Democrat, and Sen. Alex Padilla, a California Democrat, who have both been at the forefront of immigration reform efforts, said they have prepared “an alternative proposal for the Parliamentarian’s consideration in the coming days.”

And Sen. Bob Menendez told The Dispatch that while the ruling disappointed him, he plans to go back to the parliamentarian to continue the discussion.

Press Secretary Jen Psaki told reporters Monday that Biden supports continued efforts to include immigration measures in the reconciliation package.

Outside immigration advocates said they think reconciliation remains the best hope for passing reform this Congress.

Peter Boogard, communications director at pro-immigration organization FWD.us, told The Dispatch that the group continues “to believe that is possible and will happen through reconciliation.”

The Hill reported Tuesday that they may attempt to tweak the registry date for some categories of immigrants, which would allow a new group of immigrants to qualify for legal permanent residency. A FWD.us analysis found that if lawmakers chose a registry date of 2010, more than 6.7 million people would be able to adjust their status.

“I personally prefer trying to get the parliamentarian to agree to a registry date change because we’re not changing the law, which was the essence of her argument that I read in her opinion,” Menendez said.

At least one progressive lawmaker urged a more direct approach: Rep. Ilhan Omar tweeted that the ruling “is only a recommendation.” She pushed for Schumer and the White to ignore it, adding: “We can’t miss this once in a lifetime opportunity.”

Meanwhile, Republican lawmakers expressed support for the parliamentarian’s ruling.

South Carolina Sen. Lindsey Graham wrote: “The Parliamentarian’s guidance reinforces long held traditions of the Senate that major policy changes should be done collaboratively and not through the reconciliation process.”

“Anything you do by reconciliation can be taken away by reconciliation,” Sen. Marco Rubio told The Dispatch. “You’re going to grant people status and then some future Congress can yank it away … using the exact same process.”

When asked if he thought there is any possibility for immigration reform in the remainder of this Congress, Rubio was skeptical: “In this environment? Where we have thousands of people coming across the border everyday?”