Republicans say President Biden’s $2.3 trillion infrastructure package will have a tough time getting through the Senate intact because of several key provisions that will open the legislation up to parliamentary challenges under the arcane Byrd Rule.
GOP lawmakers plan to raise numerous procedural objections to the eventual bill, arguing that various elements violate the special budgetary rules Democrats plan to use to pass the measure in the 50-50 Senate with a simple-majority vote.
“It’s a target rich environment,” said Sen. Lindsey Graham (R-S.C.), the ranking member of the Senate Budget Committee, who will take the point in raising procedural objections to the Democratic infrastructure bill. “There are a lot of problems.”
Graham said he has been in discussions with his staff about how to use the Byrd Rule to block components of Biden’s infrastructure plan if Democrats pursue the budget reconciliation process, allowing them to sidestep a likely GOP filibuster.
At the top of the Republican target list is a section of Biden’s proposal related to legislation that would make it easier for unions to organize — a top Democratic policy goal after Amazon soundly defeated a union drive at an Alabama warehouse this spring.
Parliamentary experts say Biden and Senate Majority Leader Charles Schumer (D-N.Y.) are looking to use the Senate budget reconciliation process in aggressive new ways that will set precedents.
“A lot of this infrastructure stuff hasn’t been adjudicated in the past,” said James Wallner, a former Senate GOP aide and Senate rules expert.
“What’s interesting about reconciliation now is that it’s being used for purposes completely unrelated to what reconciliation was intended for,” he said. “No one is under the illusion that the reconciliation process is being used for purely fiscal policy reasons anymore. It’s a way to get around the filibuster.”
The reconciliation process was established by the 1974 Congressional Budget Act to make it easier for Congress to reduce the deficit by setting aside the traditional 60-vote hurdle for passing legislation in the Senate. Over the years, the interpretation of what constitutes reconciliation has become steadily more expansive.
It will be up to Senate parliamentarian Elizabeth MacDonough to decide how far Democrats can stretch the reconciliation process.
Republicans scored a big victory in February when MacDonough ruled that Democrats could not include language in Biden’s $1.9 trillion coronavirus relief bill to raise the federal minimum wage to $15 by 2025.
Republicans say they have a strong argument to strike down a section of Biden’s plan calling on Congress to pass the Protecting Right to Organize (PRO) Act, which would curb state right-to-work laws and penalize employers who interfere in union drives.
Biden’s proposal also would have Congress tie federal investments in clean energy and infrastructure to requirements that employers pay prevailing wages and that transportation investments meet existing transit labor protections.
The White House argues that increased unionization will boost economic growth by improving productivity.
But Republicans say measures like the PRO Act amount to labor policy changes that run afoul of the Byrd Rule because any changes in spending or revenue that they produce are incidental.
“It’s almost a no-brainer from my perspective: That would not pass the Byrd Rule provision,” said Bill Hoagland, a senior vice president at the Bipartisan Policy Center and a former Republican staff director for the Senate Budget Committee. “It certainly is important to the president, to his agenda, but it is merely incidental from a fiscal policy perspective.”
Hoagland also raised concerns over language in Biden’s plan that would give care workers higher pay and better benefits through “an opportunity to organize or join a union and collectively bargain.”
A provision in the infrastructure package would expand access to long-term care services under Medicaid by giving low-income people more opportunity to receive care at home. Republican critics warn this would significantly expand Medicaid authority.
Another aspect of Biden’s proposal that could run into trouble with the parliamentarian is a call to “eliminate exclusionary zoning and harmful land use policies.”
Biden’s team argues that “exclusionary zoning laws” like minimum lot sizes, mandatory parking requirements and prohibitions on multifamily housing have sent housing prices soaring and “locked families out of areas with more opportunities.”
Hoagland said these regulatory measures should be jettisoned from any reconciliation package.
“The unions, the unionization, the provision as it relates to regulations for red-lining and all the other things that are in there would not qualify,” he said, referring to language covering caregivers and exclusionary zoning. “Anything dealing with regulatory activity would not qualify either.”
One caveat to predicting how the parliamentarian might rule is that lawmakers have yet to draft the legislative language. The White House has only released a detailed fact sheet.
Some Democratic policy experts agree that language strengthening the hands of union negotiators with employers appears to conflict with Senate rules governing what can be included in a reconciliation package.
“The Pro Act does not fit under budget reconciliation,” one former Senate Democratic aide said.
“It will not have a fiscal impact, and therefore with no fiscal impact it’ll get struck down in a Byrd bath situation,” the former aide said, referring to the process where Democratic and Republican aides present arguments to the parliamentarian about what should be included in a reconciliation package.
Sen. Sherrod Brown (D-Ohio), a prominent labor advocate, said Monday that "it's still in discussions" whether to include the PRO Act in an infrastructure reconciliation package.
"It's not clear yet," he added. "It's a really high priority for a lot of us."
Sen. Shelley Moore Capito (W.Va.), the top Republican on the Environment and Public Works Committee, said Biden’s plan would appropriate tens of billions of dollars for unauthorized programs, and create another procedural problem for Democrats.
Specifically, Capito noted that congressional authorization for highway and transit funding is set to expire Sept. 30, raising questions about whether Congress can use budget reconciliation to extend highway and transit programs, or spend money for programs with either lapsed authorization or no authorization.
“My inclination is that some of what the president wants to put forward has not been authorized and you run into Byrd Rule issues, whether you’re appropriating into an unauthorized program,” said Capito, a member of the Senate Appropriations Committee.
“I don’t know if they can pass a full bill through reconciliation,” she said.
Hoagland, the former Budget Committee staff director, said Congress got around that problem earlier this year by combining authorizations and appropriations into direct spending in the $1.9 trillion relief bill.
But Hoagland warned that the workaround was seen as a one-time exception to avoid undermining the authority of the Senate and House appropriations committees.
Senate Majority Whip Dick Durbin (D-Ill.), a senior member of the Appropriations Committee, said Republicans essentially neutered the spending panel when they controlled the Senate last year.