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Though Democrats have an extremely narrow path to holding the House of Representatives, the expectation is that Republicans will eke out a narrow victory, largely on the strength of outsized performance in two states, New York and Florida. This has major implications for the final two months of legislative work in this Congress, nicknamed the lame-duck session.
While Democrats have already signaled the end-of-the-year session will be busy, one priority shines above everything else: the need to prevent a debt limit hostage situation before it develops by extinguishing this unnecessary anachronism entirely. And Democrats can do this, in contrast to many of their other priorities, by using the last unused tool for a majority vote in the Senate: the fiscal year 2023 reconciliation bill.
That reconciliation process (which can’t be filibustered) will take just a few weeks in the lame duck, and include either raising the debt limit to some astronomically high amount, or eliminating it entirely. It must be done before Republicans take the House and fulfill their stated plan to use the debt limit as a mechanism to force deep spending cuts they couldn’t get otherwise.
President Biden in a Wednesday press conference said he would not negotiate over those programs under any circumstances. But ending any possibility of hostage-taking is easy: Just take away the means by which Republicans can threaten the full faith and credit of the U.S. government, and the integrity of the global financial system, if they don’t get their way.
Now, it’s worth emphasizing that Congress shouldn’t have to rely on yet another end run around the filibuster to accomplish something of value. Lawmakers should be able, as Ryan Grim wrote on Wednesday, to abide by the closest thing to a midterm mandate and codify Roe v. Wade. They should be able to reinforce the right to same-sex marriage, whether Republicans agree to support it or not. But this would require tossing out the filibuster, and Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have said time and again that they are not interested in doing so.
There might even be other options for the lame duck that have broad bipartisan support. Changes to the Electoral Count Act that would make it more difficult for Congress to overturn an election have been endorsed by Senate Minority Leader Mitch McConnell. A stock trading ban almost certainly can cross any vote threshold. The SAFE Banking Act to allow cannabis-based businesses to get bank accounts has won House votes repeatedly, and there’s an effort in the Senate to team that with other marijuana policies. The Biden administration has said they will make an effort in the lame duck to pass two tech antitrust bills.
Even without any such bipartisan bills, Congress can fill the lame-duck schedule with judicial and executive appointments in the Senate (which are vital especially if Senate control hinges on a Georgia runoff on December 6) and routine business. There are a couple of must-pass pieces of legislation: funding the government after December 16, and passing the defense authorization bill. It’s possible that some version of permitting reform, which failed in the last government funding effort, could be appended to one of those bills, as could legislation that would enable the Justice Department to sanction OPEC nations for cutting oil production, funding to help Ukraine in its war with Russia, and some other items.
Congress has the ability to use the 2023 reconciliation bill right now.
But nothing would have a more wide-ranging effect on policy and politics, and be more inarguably necessary, than neutralizing the debt limit.
As a reminder, the debt limit does not authorize any new spending. It allows the government to pay the bills for spending already appropriated by the Congress. The debt limit was last extended a year ago, and is set to offer enough breathing room to last until sometime in spring 2023. Republicans have not been shy about saying they would use the debt limit as leverage to deal with social insurance programs, undoubtedly through cuts or increases in the retirement age (which is functionally the same thing).
Ordinarily, raising or eliminating the debt limit runs into the same problem that faces all Senate legislation: It needs either 60 votes thanks to automatic Republican filibusters, or 50 votes to eliminate the filibuster, neither of which it has right now.
But this is where the newest reconciliation bill comes into play. Every budget includes the opportunity for reconciliation. The two most consequential bills in the first Biden term—the American Rescue Plan in 2021 and the Inflation Reduction Act in 2022—were a product of reconciliation. But today we are in fiscal year 2023, which started on October 1. Congress has the ability to use the 2023 reconciliation bill right now. And reconciliation can be a vehicle to increase the debt limit; it was done four times in the 1980s and ’90s.
In fact, Mitch McConnell suggested exactly that path in 2021; he’s well aware that this is allowed under the budget rules. At the time, Majority Leader Chuck Schumer (D-NY) called it a nonstarter. But that may no longer be operative.
Here’s how it would work: Democrats would have to pass a 2023 budget resolution, with instructions to committees for reconciliation. These could include raising the debt limit to $5 quadrillion or $100 quintillion or Graham’s number, for a simple example. Then, the Senate could automatically discharge that reconciliation bill from committee, and set up the familiar “vote-a-rama,” where senators can vote on really anything in an all-night session. The House has an even quicker process, mainly about 20 hours of debate.
This would take up about two weeks, leaving enough time left over to take care of whatever else Congress wants or needs to take care of in the lame duck. Of course, it would have to work around Sen. Raphael Warnock’s schedule, as he campaigns in the December 6 runoff in Georgia. But it’s very possible, and according to Democratic aides in Congress and the White House, it’s on the table.
There have been some thoughts that McConnell would participate in this defusing of the debt limit bomb, but he’s unlikely to give up such a plump hostage. Either this happens through reconciliation or it doesn’t happen. House Democrats are ready to do it, and some in the Senate as well.
Failing to do so would be irresponsible. Republicans are vowing to force cuts to earned benefit programs that are a bedrock of the Democratic Party. The party campaigned on rejecting any such cuts, and the president has given an ultimatum. This would push them into an impossible choice: go back on their word, or risk a default of U.S. debt. Neither is advisable or necessary. There’s a third option that is available, has been used before, and would permanently end the toxic politics that corrodes faith in government. That can be avoided. It’s up to the leadership, and they need to figure it out quickly.
