Thanks in large part to resistance from Sen. Joe Manchin (D-W.Va.), Democrats appear to have lowered their ambitions for reviving the “Build Back Bankrupt” tax-and-spending legislation. Last Friday afternoon, President Biden suggested that the Senate use the budget reconciliation process to pass a bill imposing price controls on prescription drugs, while also extending Obamacare insurance subsidies to the wealthy.
But even if Democrats have now pared back their big-government legislation to focus “only” on advancing socialized medicine, conservatives still have an opportunity to highlight the way in which “Bidenflation” has harmed the economy. Republicans can and should offer numerous amendments to this reconciliation bill that would expand energy exploration, highlighting how Democrats want to keep American energy in the ground — and keep gas prices as high as possible.
The Policy
Language adopted by the Senate in 2005 serves as a potential model for lawmakers. In that year, the Senate passed a reconciliation bill that allowed for energy exploration in the Arctic National Wildlife Refuge (ANWR).
The language from 2005 (beginning on page 105 here) holds importance for two reasons. First, it didn’t just permit energy exploration within ANWR — it attempted to force the administration’s hand.
It explicitly said that Congress “authorizes the leasing, development, production, and transportation of oil and gas” within ANWR. It directed the Secretary of the Interior to conduct lease sales by a date certain. In addition, it deemed existing reviews and findings compatible with requirements under existing federal law. It also said that the Secretary “shall only identify a preferred action for leasing and a single leasing alternative, and analyze the environmental effects” only for those two leasing options for purposes of complying with the National Environmental Policy Act (NEPA). It required challenges to the NEPA review to be filed within 90 days in a specified federal court. Lastly, it stated that “judicial review of a decision of the Secretary to conduct a lease sale under this section … shall be limited to whether the Secretary has complied with this section.”
These legislative provisions made very clear: Congress wanted to support energy exploration within ANWR; the administration had to take very specific steps to advance that goal; and environmental groups could not use NEPA or other federal laws to bog these exploration efforts down in endless red tape and litigation. Amendment language this prescriptive would provide little “wiggle room” to a Biden administration desperate not to expand American energy.
The Politics
Second, the 2005 language got blessed by the parliamentarian as complying with the “Byrd rule” tests for budget reconciliation. Even though the Senate-passed ANWR language got stripped from the final reconciliation bill President Bush signed into law, the fact that the parliamentarian blessed the ANWR language gives it particular importance.
While any senator can offer an amendment during a Senate vote-a-rama on budget reconciliation legislation, constructing an amendment that requires a simple majority for passage takes more effort. Germane amendments must pertain to subject matter within the jurisdiction of the reconciliation instructions, not increase the budget deficit over 1-, 5-, and 10-year periods, and not contain “extraneous” material outside the purview of budget reconciliation.
Amendments that cannot meet these strictures will require a 60-vote threshold for passage, to waive point(s) of order under the Congressional Budget Act. Since the Senate currently consists of 50 Republican and 50 Democrat members, at least ten Senate Democrats must vote for these non-germane amendments for the amendments to succeed — meaning Democratic leaders could give their vulnerable members a “pass” to vote for politically difficult proposals, knowing the amendments will not get adopted.
By contrast, energy exploration amendments will require only a simple majority for passage, as they meet all three tests:
The Senate Energy and Natural Resources Committee, which has jurisdiction over energy exploration, received a reconciliation instruction in the budget Democrats passed last summer. Even if Democrats’ “slimmed down” budget reconciliation bill only includes health care provisions, lawmakers would still have every right to offer amendments within the Energy and Natural Resources Committee’s jurisdiction, and have those amendments be considered germane to the underlying bill.
Legislation expanding energy exploration, which will result in additional royalties to the federal government, by definition will reduce and not increase the deficit.
The parliamentarian previously advised in 2005 that the energy exploration amendment did not constitute “extraneous” material.
As a result, a single Democrat voting for the amendment, coupled with the support of all Republicans, will lead to its passage. And with the Senate evenly divided, Republicans can point out that, in the case of an energy exploration amendment that fails along party lines, every Senate Democrat “cast the deciding vote” to keep oil and natural gas in the ground — and gasoline prices higher.
The Strategy
Republicans should offer numerous energy exploration amendments — the more, the better — echoing the 2005 language to Democrats’ reconciliation bill. If Republicans make only clerical changes to the rubric from 2005 (e.g., substituting dates, place names, etc.), the Senate parliamentarian should bless them as requiring only a simple majority for passage.
Republican lawmakers can then sit back and watch Democrats squirm. If even one “moderate” and/or vulnerable Democratic lawmaker — whether Manchin, Maggie Hassan (D-N.H.), Raphael Warnock (D-Ga.), or others — votes for the amendments, they could pass.
Passage of energy exploration amendments would infuriate climate activists, who even as gas prices have approached $5 a gallon are pressuring Biden “to stop new drilling for oil and gas as well as coal mining on federal lands and waters,” The New York Times reported. Conversely, if Democrats stay united and all vote against the Republican efforts, it will show how the Democratic Party supports higher gas prices — the prime issue facing American families today.
Few things would more starkly define the stakes in the upcoming midterm elections than to have Senate Democrats vote dozens of times to keep gas prices high. And few things would do a better job of sealing Democrats’ fate in November.
