Democratic lawmakers are tailoring several provisions they hope to include in a forthcoming social spending package to focus on how they affect the tax code and funding government programs in an effort to meet the requirements of reconciliation.
Paid sick leave, paid family leave, and a national clean energy standard are among the priorities Democrats are aiming to tuck into the multi-trillion-dollar legislation and that are being crafted to fit the parameters of what can move through the Senate with a simple majority rather than the 60 votes usually needed.
The issue with the most questionable future is a path to citizenship for immigrants, which has leadership support and was added to a draft budget from Senate Budget Chairman Bernie Sanders (I-Vt.).
Congressional Hispanic Caucus members and advocacy groups are working to make the case for why legal status for groups such as Dreamers, farm workers, essential workers, and those with temporary protected status doesn’t run afoul of the Byrd Rule. It ensures nothing extraneous to achieving budgetary goals is included in legislation passed through reconciliation.
“We have a very strong argument to make that it is relevant and would fit within the rules of the budget reconciliation process,” said Rep. Raul Ruiz (D-Calif.), chair of the CHC. “Of course, the parliamentarian will decide, but we are prepared to make that strong case.”
That case must be made to Senate Parliamentarian Elizabeth MacDonough. She makes the call on whether the language qualifies for the process.
Ruiz said the crux of their argument is the effect that legalizing millions of undocumented immigrants would have on the economy, leading to more workers and subsequently more taxes and higher wages.
Yet several former parliamentarians and budget experts said such a provision is unlikely to clear the Byrd Rule.
Alan Frumin, who served as Senate parliamentarian from 2001 to 2012, said lawmakers could potentially allow for more funding to go to agencies that oversee immigrants who enter the country illegally, but it would be hard to suggest citizenship for Dreamers was primarily a fiscal issue.
“No one has argued you should bring in immigrants because of their effect on the federal government’s bottom line,” he said.
House Budget Chairman John Yarmuth (D-Ky.) also sounded pessimistic, saying the Byrd Rule’s ban on provisions with “merely incidental” budgetary effects is a distinction that could make a path to citizenship difficult to include.
Provisions that don’t comply with the Byrd Rule can be removed from the legislation through a point of order. Sixty votes are needed to overcome it, a tall climb for something without overwhelming bipartisan support.
“If you just said Dreamers can stay here, that’s probably not done by reconciliation,” Yarmuth told reporters. “If you created some kind of taxpayer-funded benefit for them, then maybe you could.”
“I want to do as much as we can,” added Yarmuth, who said he’s spoken with the Congressional Hispanic Caucus about the issue and is hopeful about getting some immigration items included.
For paid family leave, Ways and Means Chairman Richard Neal (D-Mass.) has proposed a federal program that would allow up to 12 weeks of family and medical leave while paying the average worker about two-thirds of their income.
On the climate side, lawmakers are looking at several options to get a clean energy standard through reconciliation, such as tax credits for companies that meet federal standards for renewable energy or grants for states and localities that reach specific energy goals.
While there are no guarantees as to what portions of reconciliation will be challenged and how the parliamentarian will assess each one, there’s a sense this will be the last chance for a while to get something done, said Sam Ricketts, co-founder of environmental advocacy group Evergreen Action.
“This is the biggest opportunity, the first opportunity, the only opportunity Congress has had in the last dozen years to take bold action to confront the climate crisis,” he said. “This could be the last good chance Congress has to meet the problem at the scale most of us feel necessary.”
For immigration, Ruiz and other lawmakers working on the issue, including Rep. Adriano Espaillat (D-NY) and Sen. Bob Menendez (D-N.J.), are focused on four specific groups of immigrants: Dreamers, farm workers, essential workers, and those in the U.S. under temporary protected status because of natural disaster or armed conflict in their home countries.
Espaillat said those groups have the most support around them, but he and others were willing to be flexible on how many immigrants could obtain a legal status through reconciliation.
“We will have a Plan A, a Plan B, a Plan C and a Plan D. We’re not just sticking to one scope of how many folks would be impacted,” he said. “We’ll try to include as many folks as possible.”
Minimum Wage Precedent
House Democrats showed near unanimous support for Dreamers, farm workers and temporary protected status holders earlier this year, passing two bills (H.R. 6, H.R. 1603) to grant legal status to those groups. The Congressional Budget Office found both bills would lead to a direct increase federal spending.
But having an effect on federal revenues was not enough to allow the last reconciliation package, a pandemic relief bill (Public Law 117-2) to include language increasing the minimum wage to $15, even though a CBO report found it would increase the deficit by $54 billion over the next decade.
Bill Hoagland, senior vice president at the Bipartisan Policy Center who worked on budget reconciliation packages during his time as a Senate staffer, said the ruling on the minimum wage set a precedent that event if a provision had a fiscal effect, it wouldn’t qualify under the Byrd Rule if it was more focused on policy.
“It had a budgetary impact, there was no question about it,” Hoagland said of raising the minimum wage. “But was that a fiscal issue or was that a policy?”
Whether the provisions on citizenship will be able to pass the Byrd Rule or not, activists are vowing to hold Democrats accountable if they don’t use every option, said Lorella Praeli, co-president of Community Change Action.
“It’s not enough to walk into the room saying you’re going to fight for immigration, that you’re going to fight to legalize people,” she said. “It is when you’re in the room, are you going to the mat for this constituency?”
To contact the reporter on this story: Emily Wilkins in Washington at firstname.lastname@example.org