Over the past week, Democratic congressional leadership scuttled proposed $15 minimum wage legislation. They were forced to abandon it not because of the actions of any legislator, but rather, due to those of a relatively obscure non-partisan official, Senate Parliamentarian Elizabeth MacDonough.
Congressional Democrats had hoped to attach the measure to their $1.9 trillion stimulus plan, which would make it eligible for the reconciliation process, a legislative “fast-track” exempting certain budgetary bills from the filibuster. That way, the increase would have required just 51 votes to pass instead of effectively needing 60 due to the threat of a filibuster. However, on Thursday, Feb. 25, MacDonough, who arbitrates what does and does not qualify for reconciliation, ruled that the provision could not be included.
Progressive Democrats such as Rep. Pramila Jayapal (D-WA) called on Vice President Kamala Harris, acting in her capacity as President of the Senate, to take the rare step of ignoring MacDonough’s ruling, which is technically an “advisory” opinion. Rep. Ilhan Omar (D-MN) even suggested firing the Parliamentarian, an extreme action taken only once before, by Republicans in 2001. But these actions do not appear likely, as the Biden administration and many more moderate Democrats have rejected them.
1. Is the Parliamentarian correct?
The standard governing whether a given proposal can be included in the reconciliation process is the Byrd Rule, named for the late Sen. Robert Byrd (D-WV). The rule was intended to curb some of the most egregious abuses of reconciliation, which in the early 1980s was often used to pass legislation clearly unrelated to the budget (for example, changes to lawnmower safety regulations).
The critical portion of the Byrd Rule states that measures with “merely incidental” impacts on the federal budget do not qualify for reconciliation. In the past, this language has been interpreted to allow welfare reform in 1996, portions of the Affordable Care Act in 2010, and tax cuts in 2017, but it forced changes in Republicans’ 2017 ACA repeal effort.
This case hinged on issues regarding the esoteric distinction between discretionary and mandatory spending. Ultimately this did not come as too much of a surprise; even before MacDonough’s decision, President Biden, who served in the Senate for 36 years, openly speculated that the increase would be rejected (making it a “Byrd dropping”).
2. Is “rule by reconciliation” good for democracy?
Currently, the viability of highly consequential legislation often depends on the subjective judgment of a single unelected bureaucrat on the rather arbitrary question of whether its fiscal effects are “incidental.” In other words, no.
Furthermore, extensive reliance on reconciliation to subvert the oft-abused filibuster impairs the quality of legislation. Gregory Koger, author of Filibustering, explains that “Good laws often incorporate non-budgetary components, but this is prohibited by the reconciliation process, especially the Senate’s Byrd Rule. The result is stunted legislation.” This could be seen in the ACA: Democrats’ use of reconciliation to finish the bill meant they were unable to revise non-budgetary portions, which may have contributed to subsequent implementation troubles.
However, one cannot discuss the merits of reconciliation without also considering the practice which prompts its use: the filibuster. In recent years, many have argued that the filibuster is a relic of the Jim Crow era. Even those who believe it promotes compromise, debate, and moderation acknowledge that it has become a tool of scorched-earth obstructionism. Some Democrats are even pushing for its abolition.
It is important to remember, though, that rolling back institutional guardrails should not be taken lightly. Thinly-veiled partisan power plays risk backfiring and precipitating a dangerous cycle of tit-for-tat destruction of constraints. One way to show that the filibuster is being scrapped in good faith would be for the ruling party to agree to wait for a newly-elected Senate for the change to take effect.
Reconciliation is a deeply imperfect solution. However, the filibuster may well make it a necessary evil, a way to overcome otherwise intractable gridlock.