President Joe Biden and congressional Democrats have clearly gotten too ambitious in their legislative agenda. Only months removed from a massive, $1.855 trillion budget reconciliation bill—the American Rescue Plan Act, H.R. 1319—Democrats want to push another round of budget reconciliation, this time for “human infrastructure,” that could potentially be twice the size of the previous package, at $3.5 trillion.
Although the Senate passed the budget resolution, S.Con.Res. 14, to get this round of budget reconciliation started, it didn’t happen without resistance. Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) voted for S.Con.Res. 14 while also making it clear that they wouldn’t support a $3.5 trillion package, although they would support a smaller package.
Now, the House has come back into session this week, in the middle of the August recess, to consider the budget resolution and other legislation, but the passage of the budget resolution is proving to be difficult. Moderate Democrats, led by Rep. Josh Gottheimer (D-NJ), have told Speaker Nancy Pelosi (D-CA) that they will withhold their support from S.Con.Res. 14 until the House takes up the $1.2 trillion bipartisan infrastructure framework (BIF), H.R. 3684. Gottheimer is joined by eight other moderate Democrats.
Considering the current composition of the House, Pelosi can lose only three votes, assuming no Republican crossover, which is highly unlikely to happen. Of course, progressives in the House Democratic Caucus won’t support the BIF unless the House passes the budget resolution. Moreover, progressives want a $3.5 trillion reconciliation bill. A package of that size won’t pass the Senate.
Pelosi floated the idea of a self-executing rule to Gottheimer in the rule governing consideration of the legislation on the floor this week, and the House Rules Committee included the self-executing rule to adopt the budget resolution in the rule, H.Res. 594, governing consideration of the John R. Lewis Voting Rights Advancement Act, H.R. 4. (While the BIF is included in H.Res. 594, it would be considered at some point in the fall, not this week.) Votes on rules governing legislation are procedural, so Members almost always vote along party lines.
A self-executing rule (also known as “deem-and-pass”) is a provision included in a rule that deems the passage of some other legislation upon the passage of the rule. As the Congressional Research Service explains, this is a “two-for-one” process. Two matters are dispensed with through one vote.
A self-executing rule is a very irregular way to consider something of this magnitude on the House floor. This isn’t some technical correction. A budget resolution to begin the reconciliation process for a package that could cost as much as $3.5 trillion is substantial. House Democrats considered using a self-executing rule to pass the Affordable Care Act (ACA) in March 2010 before eventually backing down.
Democrats would say that self-executing rules are used to a majority’s advantage whenever it suits them, and that’s true. Republicans have certainly used the tool. In 2011, Democrats alleged that Republicans used a self-executing rule in H.Res. 287 to deem passage of a budget resolution, H.Con.Res. 34, that would be tantamount to “ending Medicare.” In reality, the rule adopted the 302(a) allocations in the House Budget Committee’s report on H.Con.Res. 34 until there was a conference report. The Senate never considered H.Con.Res. 34, so there was no conference report to consider. Months later, Congress would pass the Budget Control Act, rendering H.Con.Res. 34 moot.
There are also constitutional concerns about self-executing rules, but the question hasn’t been considered by the Supreme Court. Those concerns came up in 2010 when House Democrats were considering using a self-executing rule to pass the ACA. But the ACA was legislation that had to be presented to the President; a concurrent budget resolution isn’t presented to the President. It’s simply a formal agreement between the House and Senate.
The process in the House on S.Con.Res. 14, with this self-executing rule, is undeniably horrible. Gottheimer appears to have bitten off more than he can chew. The moderates are getting a “Sense of the House” resolution in return that states that the House will consider the BIF by September 28. We’ll see if that actually happens. Progressives in the House want a $3.5 trillion package, and they may balk at the BIF if it appears that Manchin and Sinema will oppose a package of that size. Regardless, a self-executing rule is being used here to let some Members escape accountability for their vote. It’s the wrong way to go about this, but process concerns rarely matter to the majority.