Senate GOP Gives Dems a Chance to Tank Trump's Budget Bill—Will They Take It?

By voting to overrule the Senate parliamentarian last week, the chamber's Republicans handed their political opponents a procedural weapon that could be used to hold off or even kill the House-passed reconciliation package that's central to President Donald Trump's legislative agenda.

The question is: Will Senate Democrats take advantage?

Last Thursday, Senate Republicans used the filibuster-proof Congressional Review Act (CRA) to approve a resolution revoking a federal waiver that allowed California to set tougher vehicle pollution standards. In doing so, the GOP majority ignored the parliamentarian's determination that the waiver did not qualify as a rule subject to the CRA.

Both before and after the vote, Senate Democrats warned their Republican colleagues that the move could come back to bite them in the future.

"Is this really the path we want to go down?" Sen. Sheldon Whitehouse (D-R.I.) asked in a floor speech earlier this month. "A future Democratic administration could submit every oil and gas lease issued since 1996 as a rule, as the subject of disapproval resolutions... Is it worth going nuclear, knowing full well the Pandora's Box this would open?"

The American Prospect's David Dayen wrote Wednesday that because the Senate "operates largely on precedent," Republicans' vote effectively means that "virtually any action the executive branch takes could be construed as a rule, and therefore subject to fast-track congressional review."

"For this reason, Democrats could subject the Senate to time-consuming resolution votes repeatedly, to such a degree that the Senate would not have time to do anything else for the rest of this session of Congress," Dayen wrote. "In other words, Democrats could respond to the waiver vote by paralyzing the Senate, and stopping the giant Trump tax bill from ever reaching the floor."

While Democrats are in the Senate minority, it only takes 30 senators to force a CRA resolution of disapproval to the floor of the upper chamber. Under CRA procedures, "any senator may make a nondebatable motion to proceed to consider the disapproval resolution on the floor." If that privileged motion is approved, the disapproval resolution would be subject to up to 10 hours of debate.

"The bottom line is this: If you found something like 1,000 current or former agency actions—a reasonable number considering all the work executive branch agencies do—you would probably have enough to keep the Senate debating and voting on CRA resolutions through the duration of this Congress," Dayen wrote. "Given the high stakes of the budget bill—soaring inequality as benefits for the poor are slashed to finance tax cuts for the rich—every tool at Senate Democrats' disposal should be employed. Republicans just handed them a big one."

As Dayen pointed out, Senate Democrats—including Minority Leader Chuck Schumer (D-N.Y.)—are aware of the hugely disruptive potential of the precedent set by their Republican counterparts.

In a May 1 letter to top Senate Republicans, Schumer and 19 other Democrats warned that if the GOP moved ahead with their plan to bypass the parliamentarian, "the CRA could be weaponized to retroactively invalidate decades of agency actions—including adjudications, permits, and licensing decisions that were never previously considered 'rules'—and effectively hijack the Senate floor."

It's far from clear that Democrats would be open to exploiting the procedural loophole Republicans created, even as members of the minority party face growing pressure from their base to fight back more aggressively against the Trump-GOP agenda—which includes catastrophic cuts to Medicaid, federal nutrition assistance, and green energy programs.

In a piece for the Prospect earlier this month, former House Oversight Committee staffer Todd Phillips outlined the potential CRA strategy. Asked by the Prospect on Wednesday, Phillips said he had not yet received any response on the idea from congressional Democrats.

"But we know they're aware of it; they have said it out loud," wrote Dayen on Wednesday. "They could start the campaign any day now."