November 28, 2017

Debate, and Amendments, and a Vote-A-Rama (oh my!)

Keith Smith, Marty Paone

Keep up to date on the ever-changing tax reform efforts on the Tax Hub.
“It’s going to be harrowing and could be some near-death moments,” a senior administration official said to reporters. “But I think we get it done.”
The Senate Budget Committee today reported out the two reconciliation items sent to it per the Budget Resolution’s instructions. These are the Energy Committee bill which meets its instructions of raising $1 billion over the next 10 years by opening up a portion of the Alaska National Wildlife Refuge (ANWR) to oil exploration and drilling and the Senate Finance Committee’s piece which also meets its ‘Get Out of Jail Card’ instructions to add up to $1.5 trillion to the deficit over the same 10 years.
When more than one Senate committee has reconciliation instructions, they report their respective bills to the Senate Budget Committee, which is not allowed to amend their work product if the committee meets their instruction. Since this is a tax measure, the House bill, HR 1, needs to be the ultimate vehicle sent to the President so the Senate will offer its Energy/Finance committee package as an amendment to the House bill. Senator McConnell last night began the Rule 14 process of placing the House bill on the Senate Legislative Calendar, rather than having it referred to the Finance Committee, which would allow him on Wednesday to move to proceed to the bill and begin its consideration.
Since this is a Budget Reconciliation bill, it is privileged, and the motion to proceed is non-debatable and only requires a majority vote. Once the bill is pending, Senator McConnell can be expected to offer the Senate package as a substitute for the House language.
If they begin consideration of the House bill, HR 1, on Wednesday then it will have a time limit for debate of 20 hours, equally divided between the two leaders, or their designees. Within that timeframe amendments also have time limits of 2 hours on a first degree amendment and 1 hour on a 2nd degree amendment. However,  during the pendency of any amendment, the manager can yield time from his bill time to other senators for their debate. As a result, sometimes only a few amendments sometimes are debated and voted on during the statutory 20 hour debate cap. The Budget Act also requires that the amendments be germane to the Energy/Finance Committees work product.
At the end of the debate time, senators can offer amendments that are voted on without debate, in return for reducing the vote time down to 10 minutes from the standard 15 they will allow the proponent 30 seconds and the opponent 30 seconds to ‘discuss’ the amendment. They average 3 votes per hour during this non-stop vote period referred to as the “vote-a-rama.” Since it’s a Republican initiative, most of the amendments will be from the Democratic side of the aisle. If necessary, Leader McConnell can continue to negotiate with his members right up to the end of the vote-a-rama and, if he puts together some ‘tweaks’ to get his votes, can then he can offer that amendment to the substitute, get it adopted and then proceed, if there are no further amendments, to vote on the substitute and then vote on final passage of the House bill, as amended, and send it back to the House.
They can resolve their differences in one of two ways- through a conference, which produces an ‘unamendable’ conference report, or through a further amendment process, called a ‘message between Houses’.  In each case there is a time limitation of 10 hours for debate, equally divided between the two leaders, but the message route is open to amendment  and as such a new vote-a-rama’ would be possible which makes the conference route far more preferable.
If at the end of the process Leader McConnell still finds a majority elusive, he can hit the ‘pause button’ before they vote on final passage. He can move to consider other matters like a nomination or another piece of legislation leaving the Reconciliation Tax bill in suspension or status quo. If, at a later time, he has put together a winning package of ‘tweaks,’ he can return to the measure and offer his changes, adopt them, and then perhaps the vote-a-rama resumes, but in any case he will then be on track to a successful vote on final passage of the bill.
It appears that the Senate has only enough energy at this time to focus on getting its Senate bill passed, and not any resources to “pre-conference” a final bill with the House.  If that is the case, then some form of a conference will be needed with the House to create a final bill.  There may not be enough time to conduct a formal conference with the FY-2018 budget bearing down upon us next week.

Marty Paone

Martin P. Paone is a Senate Procedure expert and serves as a Senior Advisor at Prime Policy Group. Marty rejoined the firm after a two-year hiatus spent working for President Obama as his Deputy Assistant for Legislative Affairs and Senate Liaison. Marty served on Capitol Hill for 32 years, including 13 years as Democratic Secretary.

Keith Smith

Keith brings over 30 years of public affairs experience to Prime Policy Group. Managing the firm’s tax lobbying practice, he assists some of the largest multinational companies and some of the smallest business in the United States with their tax concerns before Congress and regulators, in addition to working on international trade issues.