The Parliamentarian Does Not Decide Byrd Rule Questions


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Last week, the senate parliamentarian expressed her opinion that a provision to gradually increase the minimum wage to $15 per hour is not allowed under the reconciliation rules established in the Congressional Budget Act. This set off a debate about whether the vice president, who is also the president of the senate and the presiding officer of the senate, should overrule the parliamentarian on this question.

As a matter of simple language, it’s fine of course to talk about the parliamentarian doing a ruling and then shift the question to whether that ruling should be overruled. But this common way of discussing the topic may also be confusing people about the nature of the parliamentarian’s authority.

The section of the Congressional Budget Act that governs this part of the reconciliation process never mentions the parliamentarian. Instead, it states quite clearly that, when a senator raises a point of order that a provision contains extraneous matter, “the Presiding Officer may sustain the point of order as to some or all of the provisions against which the Senator raised the point of order.” The presiding officer is the vice president of the United States, which is Kamala Harris. She has the sole authority to sustain or dismiss a point of order. The parliamentarian has no formal role at all.

When people say that the parliamentarian ruled that the minimum wage hike violates the Byrd Rule, what they are saying is that the parliamentarian has declared that she would advise the presiding officer to sustain a point of order that claimed that the minimum wage hike “produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision.” The presiding officer does not have to defer to the parliamentarian’s opinion on how to rule on the point of order, nor should the presiding officer take that advice where the question is how to interpret a vague phrase in the Congressional Budget Act.

People who object to having Harris exercise the judgment that the statute requires her to exercise claim that this would cause some kind of dangerous political escalation:

“It would mean that henceforth, all ‘rules’ in the Senate are subject to the blatantly partisan interpretation of the VP, who is following the dictates of the president,” says Gregory Koger, a political scientist at the University of Miami and the author of the book Filibustering.

Koger’s objection, which lots of Senate rules wonks share, is that at least when you change the rules, you change them for everyone. Simply commanding the vice president to stop enforcing them creates a Senate where anything goes. “This would represent a tremendous escalation of partisanship in the Senate, and of presidential control over the Senate,” Koger says.

But this is completely demented.

Having the presiding officer rule on points of order is no less anarchic than having the parliamentarian rule on them. Either one could rule correctly or incorrectly, intentionally or unintentionally, in good faith or in bad faith. The idea of a neutral rules adjudicator, especially when it comes to a rule that is impossibly vague, is pure fantasy.

Furthermore, nobody is saying that Harris should “stop enforcing” the rules of the Congressional Budget Act. They are saying that she should use her own judgment about whether a minimum wage hike that increases outlays by $74 billion and revenues by $20 billion is a provision that “produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision.” If she thinks that is “merely incidental,” then she should say so and sustain the point of order objecting to its inclusion. If she thinks it is not, then she should not sustain it.

What she should not do is pretend like her hands are tied by some other person with no authority saying that they read that phrase as excluding the minimum wage. It is not the parliamentarian’s call. It never has been the parliamentarian’s call. It is Harris’s call and, if the provision is stripped out of the reconciliation bill, it will be her fault.