View from the United States: From impeachment to political reconciliation

The storming of Capitol Hill highlighted the significant rifts in our legislative body that will have dramatic implications for the American way of life and our democracy. 

While the government grapples with a path forward, the Covid19 pandemic continues to take more lives each day, making the need for vaccines and economic relief more urgent. In the next few days, our country will have a new President and a unified government held together by narrow majorities, these dynamics will present both challenges and opportunities for legislating in 117th Congress. 

IMPLICATIONS OF A 50/50 SENATE 

Democrats have swept the Georgia run-off elections, securing both seats and a razor-thin Senate majority comprised of 48 Democrats, 2 Independents that caucus with the Democrats, and the ability to call on Vice President-Elect Harris when a tie-breaking vote is necessary. 

The last time the Senate was confronted with this scenario was 20 years ago in 2001. In response, the Senate leaders negotiated a power-sharing arrangement that recognized these unique circumstances. 

Key features of this arrangement included: 

• The party in control of the Senate assumed the Chairmanship of the Committee (in this case the Democrats would occupy this role); 
• Committees were comprised of an equal number of Democrats and Republicans and Committee budgets and office space were split equally between the two political parties; 
• In the case of a tie vote in Committee, the Majority or Minority leader could move to discharge the Committee from further consideration of a bill or nomination and a vote would be held by the full Senate with limited debate. If the full Senate vote was affirmative, the measure or nomination would be placed on the appropriate Senate calendar; and 
• Specific to the floor agenda, the agreement required both leaders to try to maintain a “balance of interest of the two parties” when scheduling legislative and executive business. 

During a colloquy on the Senate floor, the leaders furthered clarified that they would refrain from using a procedural tactic known as “filling the amendment tree” to allow for more debate on more floor amendments and avoid potentially controversial votes. We anticipate leaders Schumer (D-NY) and McConnell (R-KY) will come up with a similar power-sharing agreement that will be an effect for the duration of the tied Senate in the 117th Congress. 

IMPEACHMENT? 

The House is pursuing impeachment articles against President Trump in the wake of the events on Wednesday, January 6, 2021, where the United States Capitol was overrun by rioters. The primary driver associated with revisiting impeachment this late in the President’s tenure is that, if impeached by the House and convicted by the Senate, President Trump would be barred from seeking elective office in the future. 

Even if the House does move quickly, a Senate trial may not occur until after the inauguration when President Trump is no longer in office. At present, it is unclear when the House would transmit the articles to the Senate. Moreover, the Senate is not scheduled to return to session until January 19, 2021. 

While it is likely that the two Georgia Senators will be certified and sworn in on or near inauguration day, nothing yet has been announced. Similarly, it is expected that the California Senate seat being vacated by Vice President-Elect Kamala Harris also will be filled in the same timeframe, thus the Senate will have its full 100 members. 

Once the House has sent over Articles of Impeachment, the Senate must convene a trial, which could slow or delay action on other Senate business, notably the confirmation of President-Elect Biden’s cabinet nominees and consideration of additional Covid and other economic relief. 

Therefore, it is possible the House would take the Senate scheduling issues into account when deciding when to transmit the articles of impeachment. 

OVERVIEW OF THE RECONCILIATION PROCESS 

President-Elect Biden’s priorities are not going to see a major overhaul with the Senate victories in Georgia, but the tactics available to implement them have shifted significantly. Most notably, the budget reconciliation process, which creates an expedited path for certain legislation because it allows bills to pass the Senate with a simple majority vote, is now a viable option with Democrats controlling both chambers. 

Reconciliation is an effective legislative tool, but its arcane rules on what provisions can be advanced in such a bill also can create difficulty when crafting nuanced policies that do not have direct spending or revenue effects. 

The reconciliation process begins with Congressional passage of a budget resolution that includes, among the topline spending and revenue assumptions that make up the overall budget blueprint guiding legislation, a set of instructions to certain committees that they craft legislation to change current law and programs to achieve specific budgetary results. 

Only legislation that complies with these instructions receives the procedural protections that expedite its consideration. Once each instructed Committee reports out its legislation, the respective House and Senate Budget Committees compile each bill into a single legislative vehicle that is considered by each chamber. 

Differences between the bills as passed by the House and the Senate then are hammered out by a conference committee, which produces a final product that must be passed by both chambers before it can be enacted into law. The rules that govern the consideration of the initial reconciliation bills in each chamber also apply to any conference agreement. 

The most notable rule that governs this process is the so-called Byrd Rule, named after its author, Senator Robert Byrd (D-WV). Under this rule, a budget point of order could be raised against any provision that is considered “extraneous” to the purpose of amending direct spending or tax law. 

Waiver of any such point of order requires 60 votes in the Senate. Failure to waive a point of order strikes the offending provision from the bill. This mechanism is designed to limit what can be included in the reconciliation process.