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Research Desk investigates: Could Congress still enable reconciliation for next year?

By Dylan Matthews

rwclayton7 asks:

Dylan, this is more of a legal research question but: is there any reason why Congress could not pass a 2011 budget resolution during the lame duck session? If they did, how many reconciliation bills could Congress subsequently enact in calendar year 2011 pursuant to instructions in such a resolution? Could Congress adopt a budget resolution containing nothing but reconciliation instructions?

Most years, Congress will pass a budget resolution setting limits for outlays and providing a rough outline of the fiscal year's spending. The resolution will generally include "reconciliation instructions" which govern how to use the budget reconciliation process to pass spending in that fiscal year. However, the budget resolution will also include deficit numbers, and because of a desire to avoid a vote on the deficit, Congress opted not to pass a resolution for fiscal 2011, preferring to pass a "budget enforcement resolution" -- technically called a "deeming resolution" -- which specifies discretionary spending levels but does not break that spending down, and does not specify a deficit figure.

The problem with this, explained here by Ezra, is that passing the deeming resolution and not a budget resolution means no reconciliation instructions have been passed, which in turn means that budget reconciliation cannot be used next year. The 2010 budget resolution is still in effect, but as Jason Delisle of the New America Foundation described in this report (PDF), the health care and student loan reform package passed in March used the 2010 reconciliation instructions, meaning that reconciliation cannot be used until another budget resolution is passed. This, then, raises the question rwclayton7 asked: can Congress, having passed a "budget enforcement resolution," still pass reconciliation instructions, as procedure wonk David Waldman suggests here, or has it blown its chance?

The short answer is yes, Congress can still pass reconciliation instructions. "There is no technical reason that Congress couldn’t still pass a budget resolution for FY 2011 now or in the lame duck session that included reconciliation instructions," a senior Hill aide told me.

It is worth stressing that this is, as Delisle says, "totally uncharted territory." This CRS report (PDF) on "deeming resolutions" suggests that the closest precedent was the FY1990 budget, where a deeming resolution was passed and took effect until a budget resolution was passed in October, well behind the initial timeline. However, the deeming resolution then was meant to be a stopgap, whereas the current one is intended to last. There is nothing technically stopping Congress from superceding this year's deeming resolution, but it would be unprecedented.

By Ezra Klein  |  August 16, 2010; 4:36 PM ET
Categories:  Congress  
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Comments

Thanks Dylan! I would also note, just for the record, that once you're in unprecedented territory, you need to stop worrying about precedents and take your best shot at getting the best outcome.

Posted by: rwclayton7 | August 16, 2010 4:52 PM | Report abuse

Shorter rwclayton7:
"Can we still thwart the obvious will of the American people and cram more and more unpopular socialist programs up their collective ass through this technicality?"

Posted by: WrongfulDeath | August 17, 2010 8:37 AM | Report abuse

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