Senate parliamentarian hears arguments on coronavirus relief bill

Senate rules referee to decide whether minimum wage boost and other provisions are allowed in reconciliation bill

Sen. Bernie Sanders, I-Vt., arrives at the Dirksen Building on Tuesday, February 23, 2021.  (Tom Williams/CQ Roll Call)
Sen. Bernie Sanders, I-Vt., arrives at the Dirksen Building on Tuesday, February 23, 2021. (Tom Williams/CQ Roll Call)
Posted February 24, 2021 at 3:29pm

Democratic and Republican aides completed arguments before the Senate rules referee this morning over whether a minimum wage boost and other matters can be included in the emerging $1.9 trillion coronavirus relief package under budget reconciliation procedures.

Senate Finance Committee staff met with the chamber's parliamentarian, Elizabeth MacDonough, on Tuesday night, according to sources familiar with the discussions.

That meeting was followed by another one Wednesday morning including aides to the Budget and Health, Education, Labor and Pensions committees, with GOP Appropriations Committee staff also attending. Then a separate meeting brought back bipartisan Finance staff as well as Budget and HELP aides to talk to MacDonough about the minimum wage language.

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MacDonough is expected to render a verdict later on Wednesday or Thursday, lawmakers and aides say.

Senate Budget Chairman Bernie Sanders, I-Vt., argues the proposal to raise the minimum wage to $15 an hour over five years complies with the “Byrd rule,” a law named after its author, Sen. Robert C. Byrd, D-W.Va., who died in 2010.

House Budget Chairman John Yarmuth, D-Ky., has been skeptical that a minimum wage increase will meet the test. But he said Wednesday it will remain in the draft bill the House plans to vote on Friday.

“In the House, we’re going to leave it in, regardless of what she decides today,” he said referring to the parliamentarian in a CNN interview. “We’re going to pass it with a $15 minimum wage and let the Senate work its will.”

Republicans have argued the budgetary impact of a minimum wage increase is “merely incidental” to its larger impact. The Byrd rule bars legislation that does not have an impact on spending or revenue, or has a “merely incidental” impact, from moving through reconciliation.

Sanders has argued that the minimum wage increase should pass the test in part because it has wide impact over many parts of the budget.

In other arguments Wednesday morning, staff from the HELP, Appropriations and Budget committees pitched opposing views of whether some $450 billion in the bill should be allowed under reconciliation.

The funds have usually been classified as discretionary in the past, and therefore generally outside the constraints of reconciliation. But the funds are classified as mandatory spending in the bill because they were authorized and appropriated by authorizing committees.

Though small amounts of discretionary spending have appeared in reconciliation bills in the past, there is a general belief that reconciliation can only be used to change mandatory spending and taxes, not discretionary spending.

GOP appropriations staff argued during the meeting that the funds are within the Appropriations Committee’s jurisdiction and should not be allowed in a reconciliation bill, and that the precedent would damage the appropriations process, according to a person familiar with the arguments who was not allowed to speak on the record.

Some observers are concerned that including what in the past has been considered discretionary funding in reconciliation bills would allow the majority to use the expedited procedure to replace the regular appropriations process. It takes 60 votes to pass an appropriations bill compared to a simple majority to pass a reconciliation bill.

Democrats have countered that this is an unusual emergency, and that reconciliation could not replace the appropriations process because the scope of reconciliation bills is much more restricted than appropriations. Various policy riders couldn't be included, for instance, since they don't carry a budgetary impact.

In a statement to CQ Roll Call, House Appropriations Chair Rosa DeLauro said she wasn't concerned about the reconciliation process encroaching on her panel's turf.

"While the coronavirus crisis requires urgent action and must not be subjected to Senate delays, regular and supplemental appropriation acts remain the purview of the Appropriations Committee," said DeLauro, D-Conn. "That will not change."

Sources familiar with the talks said MacDonough has previously told Democratic aides that discretionary funds can probably be included if they meet certain conditions. But her ruling wasn't final and GOP aides were given an opportunity to argue the other side.

Jurisdictional issues

In a separate meeting, Finance aides discussed provisions that were within their jurisdiction. Democrats want to ensure that parts of the bill are charged to the Finance reconciliation instructions, which at $1.296 trillion accounts for about 69 percent of the bill's combined limit. HELP, by contrast, gets a ceiling of $305 billion under the fiscal 2021 budget resolution.

House Democrats included changes in a 138-page manager's amendment posted Tuesday night that sources said would ensure Finance can claim the multiemployer pension rescue provisions, for example, by adding conforming changes to the tax code. That section of the measure would cost nearly $82 billion over a decade, according to the Congressional Budget Office.

The pension changes also include a lot of legislative language, which can often trigger Byrd rule issues because of the potential for nonbudgetary or "merely incidental" matter to be found.

In addition, as with the multiemployer pension provisions, Finance and HELP share jurisdiction over continuing health subsidies to laid-off workers, known as COBRA for the program's inclusion in the 1985 Consolidated Omnibus Budget Reconciliation Act.

That's a relatively small cost, less than $8 billion over a decade, according to the CBO, but there's also notification requirements that would impose a mandate on employers that could possibly trigger Byrd issues.

Overall, the House bill headed to the floor Friday appeared to be slightly over its combined limit of $1.89 trillion in the budget resolution. But Ways and Means Chairman Richard E. Neal, D-Mass., told reporters Wednesday he expected that problem would get fixed with offsets in the Senate rather than at the House Rules Committee before the Friday vote.

"At the moment, I'm not worried about it, no," Neal said.

David Lerman, Lindsey McPherson and Doug Sword contributed to this report.