ANALYSIS — Progressive lawmakers and pressure groups came out blasting after Senate Parliamentarian Elizabeth MacDonough’s guidance Thursday night that raising the minimum wage to $15 per hour would violate budget rules, likely keeping the increase out of Democrats’ $1.9 trillion coronavirus relief package.
Leaving no fundraising opportunity behind, critics of MacDonough’s decision immediately called for some combination of eliminating the filibuster, firing the “unelected” parliamentarian or overruling her opinion on the floor — what some have dubbed the “tactical” nuclear option.
It’s an old song and one MacDonough has heard from both sides of the aisle, as her predecessors have.
As The New York Times reported, MacDonough explained in a 2018 commencement speech at her alma mater, Vermont Law School, that she represents the Senate, “with its tradition of unfettered debate, protection of minority rights and equal power among the states.”
Change comes slowly to the Senate. Before 1974, there was no way to end debate without meeting some kind of supermajority threshold, or waiting until filibusterers physically exhausted themselves.
That 1974 law establishing the modern budget process, which former Sen. Robert C. Byrd, D-W.Va., helped to draft, grew out of efforts to tame Great Society and Vietnam War-fueled deficits and reclaim some of lawmakers’ “power of the purse” the Nixon administration had usurped.
A little-noticed provision enabled Congress at the end of a year to bypass a Senate filibuster for legislation to “reconcile” spending and taxes with targets laid out in a budget resolution adopted earlier in the year. The tool wasn’t even used until 1980, and the floodgates opened when Republicans assumed control of the Senate in 1981 and lawmakers stuffed the reconciliation bill with hundreds of pages of miscellaneous items.
Some examples: removing the age limit to serve as surgeon general; lifting a ban on power plants burning natural gas; changes to lawnmower safety regulations; limits on enforcing the federal speed limit; and splitting off government-backed rail operator Conrail's commuter train services, which were folded into Amtrak.
‘Super gag rule’
After a few years of this, in 1985 the first iteration of Byrd’s rule prohibiting extraneous provisions without budgetary impact or just “merely incidental” budget effects, like the minimum wage increase, was adopted on a 96-0 vote.
“A reconciliation bill is a super gag rule, the foremost ever created by this institution. Normal cloture is but an infinite speck on the distant horizon when compared with a reconciliation bill,” Byrd said in a 1989 floor speech. “So we ought to take the utmost care in handling this legislative weapon.”
Republicans have used the weapon to greater effect over the years, in part because it’s been easier to demonstrate that tax cuts have a purely budgetary impact.
“Republicans have essentially gotten rid of the filibuster for tax cuts” through reconciliation, says Kevin Kayes, a former Senate aide who spent a dozen years as an assistant parliamentarian. “Democrats are at a huge disadvantage because they have to jump through all these Byrd rule hoops in order to legislate on the spending side.”
Kayes, who went on to serve as the top aide to Senate Commerce Committee Democrats and a floor adviser to former Majority Leader Harry Reid said reconciliation has been used by both parties in a manner that wasn’t intended.
“The reconciliation idea was that it would be a quick process at the end of the year to make adjustments in direct spending and taxes,” Kayes says. “Now it’s become the one bill where the majority can actually impose its will and do what it needs to do by simple majority. ... It’s worked on the Republican side, and maybe it’ll work this time for Democrats.”
To understand how revolutionary reconciliation was, it wasn’t until 1917 that the first cloture rule was adopted, after isolationists blocked President Woodrow Wilson’s bill to arm U.S. merchant ships against German attacks.
The high bar for ending debate — two-thirds of senators present and voting — stalled civil rights legislation and sparked a decadeslong debate over filibuster rules. Hardball tactics like threatening the nuclear option, or changing the rules by simple majority, and overruling the parliamentarian played a role.
In 1949, as Southerners continued to block legislation to outlaw poll taxes on Black voters, Vice President Alben Barkley disregarded the parliamentarian’s advice and ruled that cloture applied to motions to proceed. He was overturned on appeal, but the dustup sparked a compromise allowing cloture on motions to proceed in exchange for raising the threshold to two-thirds of the full Senate.
A decade later in Byrd’s first year in the Senate, nuclear option supporters forced Majority Leader Lyndon B. Johnson’s hand, ultimately brokering a deal to bring the cloture threshold back to two-thirds present and voting.
In 1975, Vice President Nelson Rockefeller ignored the parliamentarian and refused to sustain Majority Leader Mike Mansfield’s point of order against changing the rules by simple majority, which involved a proposal to lower the cloture bar to three-fifths of senators present and voting. Byrd helped settle the matter by negotiating the threshold that stands today: 60 votes, regardless of absences.
Byrd himself filibustered the landmark 1964 civil rights law for over 14 hours. He later recanted his Klansman past, and none other than Rep. John Lewis, D-Ga., wrote after Byrd’s death in 2010 that he’d become “one of the staunchest advocates for civil rights I had ever seen.”
Still, Byrd’s association with Senate traditions isn’t exactly a selling point for progressives. But irrespective of which party is calling to upend Senate rules, the question is always: What happens when the shoe is on the other foot?
“I say to my friends on the Republican side, you may own the field right now but you won’t own it forever. And I pray to God when the Democrats take back control we don’t make the same kind of naked power grab you are doing,” Sen. Joe Biden said in 2005 as Republicans were contemplating going nuclear to confirm President George W. Bush’s judicial nominees.
Democrats did just that in November 2013 when Biden was vice president, changing the rules to allow for simple majority confirmation of all nominees other than Supreme Court justices. In her 2018 speech, MacDonough recalled warning of a “nuclear winter” that precedent would set.
“I cautioned against the loss of the 60-vote threshold as a bulwark against pressure from the executive branch,” MacDonough said. “And I hoped there would be some understanding that the rules that some in the Senate wanted to amend for a limited advantage were there to protect them from disadvantage in all other circumstances.”
Former Sen. Carl Levin, D-Mich., one of three Democrats to oppose the 2013 move, feared it would eventually lead to eliminating the filibuster altogether. “Removing these minority protections risks that in the future important civil and political rights might disappear because a majority agreed they should,” Levin said at the time.
Four years later, Republicans pulled the nuclear trigger for Supreme Court nominees, and President Donald Trump got three justices confirmed.
West Virginia’s Joe Manchin III, a Democrat who took Byrd’s seat after his death, also voted against going nuclear in 2013, and says he won’t support eliminating the legislative filibuster or violating the Byrd rule. The same goes for Kyrsten Sinema, D-Ariz., elected in 2018.
But if the presiding officer ignored MacDonough’s advice to bar the minimum wage increase, as some liberal activists are advocating, it would amount to a “super gag rule” on steroids. Under the 1974 law, a successful appeal of the chair’s ruling on a budget point of order requires 60 votes. Thus if Republicans stick together but fewer than 10 Democrats join them, a minority of the Senate would prevail.
Biden is old school enough to oppose ignoring the parliamentarian. But progressive pressure is mounting on Vice President Kamala Harris, a once and probably future presidential contender who will likely be presiding over a tied chamber when debating the relief bill in the near future.
For now, party leaders seem willing to stick to Senate norms and work with what they’ve got. And considering how thin their majorities are in both chambers, the fact that a $1.9 trillion package — full of kept promises to voters during the campaign, like $1,400 “survival checks” — is on the verge of becoming law is a testament to the powerful, if imperfect, tool that Byrd unleashed nearly half a century ago.
In the meantime, party operatives and interest groups can watch the donations roll in off the minimum wage impasse to try to grow their majorities. Democrats can cut TV ads against GOP obstructionists. And maybe there could even be a bipartisan compromise to achieve 60 votes.
“Many a mind has been changed by an impassioned plea from the minority side,” Byrd said in a 1996 address to newly elected senators. “And important compromise which has worked to the great benefit of our nation has been forged by an intransigent member determined to filibuster until his views were accommodated or at least seriously considered.”
Peter Cohn edits CQ Roll Call’s budget and appropriations coverage.