GOP Baseline Plan Is Not Going Nuclear

Reports indicate that Senate Republicans plan to use a "current policy baseline" to determine the budget resolution's aggregate spending, revenue, and deficit/debt levels. A current policy baseline makes it easier for Republicans to use the reconciliation process to extend the expiring tax provisions in the Tax Cuts and Jobs Act of 2017. Democrats argue in response that Republicans are effectively eliminating the Senate filibuster by using a current policy baseline. As Minority Leader Chuck Schumer, D-N.Y., stated unambiguously, "That would be going nuclear."

However, whatever the budgetary merits of using a current policy baseline, the Republican decision to do so is not the nuclear option as Democrats claim. This is because the nuclear option refers to when a majority of senators act in explicit violation of the Senate's rules. The Senate's rules are derived from five primary sources: The Constitution, the Standing Rules of the Senate, statutory rules passed by Congress and signed into law by the president, standing orders, and informal precedents. There is no prohibition on using a current policy baseline in five of those sources. And one - the statutory rules regulating the budget process created by the 1974 Budget Act - explicitly allow it.

The Scorekeeping Process

The scorekeeping process has two purposes: First, it helps lawmakers better understand the budgetary impact of legislative measures by evaluating them against the baseline. The baseline refers to the amount of federal spending, revenue, and deficit/debt that will occur in a fiscal year under current law or - in this instance - current policy that is scheduled to expire. Second, lawmakers use the scorekeeping process to enforce the budget resolution's top-line spending, revenue, and deficit/debt levels.

The 1974 Budget Act created the House and Senate budget committees and empowered them to serve as Congress's official scorekeepers to enforce the top-line levels in the annual budget resolution. The Budget Act established the Congressional Budget Office (CBO) to assist the budget committees. However, those committees have generally deferred to the CBO to score legislative measures.

Regardless of who scores a provision - or budget resolution - for informational purposes, when a score reveals that a legislative measure violates the top-line spending, revenue, and/or deficit/debt levels - or other budget rules - a point of order will lie against it. In the Senate, it takes a supermajority to waive most budget points of order.

The 1974 Budget Act also stipulates who decides if a point of order lies against a provision. Specifically, section 312 of the Budget Act stipulates that "…the levels of new budget authority, outlays, direct spending, new entitlement authority, and revenues for a fiscal year shall be determined on the basis of estimates made by the Committee on the Budget of the House of Representatives or the Senate." Section 201(b)(5) also stipulates that "the Budget Committees of the Senate and House shall determine all estimates with respect to scoring points of order and with respect to the execution of the purposes of this act." 

The Takeaway

The Republican plan to use a current policy baseline to make extending the 2017 tax cuts easier does not violate the Senate's rules. Consequently, it is not synonymous with the nuclear option. This is because the 1974 Budget Act explicitly empowers the House and Senate Budget committees to determine the budgetary effects of provisions for enforcement purposes.