Parliamentarians, Byrd rule, and reconciliation

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With only 50 Democrats in the Senate, supporters of President Biden’s COVID relief package don’t have the 60 votes necessary to overcome the filibuster and pass it as standard legislation. They also haven’t demonstrated a willingness to abolish the filibuster, leaving Senate Dems with one option: budget reconciliation. This process allows a simple majority to pass legislation by incorporating it into the budget, but it comes with some additional constraints.

The Byrd rule states that the Senate can’t include “extraneous matter” in the reconciliation process. It must have a budgetary effect, and if it does have a budgetary effect, it cannot be “merely incidental.”

We will find out in the next couple of days whether or not the person in charge of deciding this, the Senate Parliamentarian, believes this applies to the $15 minimum wage, a key piece of Biden’s COVID relief plan.

The Parliamentarian’s decision is extremely important. The Parliamentarian is the Senate’s advisor, whose job is to interpret the Senate rules and procedures, and the Byrd Rule gives discretion to the Senate Parliamentarian to decide what is “merely incidental.” If the Parliamentarian decides to allow the minimum wage via reconciliation, the Raise the Wage act could be passed in mid-March in the COVID-19 relief package (provided Democrats can unify behind it). If not, it’ll be much more difficult to pass.

Here’s where things will stand based on either a “yes” or “no” from the Senate Parliamentarian:

The Parliamentarian rules that the minimum wage can be included in reconciliation:

The $15 minimum wage will remain in the COVID relief package with overwhelming support from Democrats. It will almost certainly pass the House by the end of the week, leaving a small group of Democratic Senators who have not yet supported a $15 minimum wage as the only roadblocks left. They have both expressed their desire to see a small increase, but may be pressured by constituents and their peers to accept $15. An important point to note is that they cannot single out the minimum wage as a single piece to reject if leadership keeps it in the bill – they would have to vote yes or no on the whole package, putting them in the difficult position of being forced to kill the entire relief bill just to stop a minimum wage increase.

The Parliamentarian rules that the minimum wage cannot be included in reconciliation:

Under current Senate norms, if the parliamentarian decides minimum wage can’t be in the relief bill, Democrats will have to remove it from the bill. But while this is likely what they’ll do, Democrats aren’t actually helpless in the face of the Parliamentarian – they have a lot of options to keep the minimum wage, they just need to start prioritizing helping the American people over protecting norms. Here’s what Democrats can do:

  1. Accept what the Parliamentarian says and take the minimum wage increase out of the relief bill.

  2. Ignore the Parliamentarian and proceed as if she had said yes. The Parliamentarian technically only advises the Senate – the President of the Senate, Vice President Kamala Harris, has the authority to simply ignore the Parliamentarian. It would take Republicans getting 60 votes to overturn Harris’ decision.

  3. Fire the Parliamentarian, and hire one who will decide differently. The Parliamentarian works for the Senate. If the Senate Majority Leaders decides that he wants a different Parliamentarian who will rule differently, it is well within his power to fire her and hire another one. This is an unusual move, but not unheard of. Republicans did this in 2001 when they had the same split of 50/50.

  4. Remove the Parliamentarian from the equation entirely and pass the bill through normal order by eliminating the filibuster. The only reason the Parliamentarian’s interpretation of arcane reconciliation rules is so important is that Democrats haven’t mustered the courage to take this bold step to be able to pass legislation normally. If Democrats are going to have any chance of legislating on many of their key issues which fall outside of reconciliation, this is their only option.

In all likelihood, Senate Democrats are going to choose option 1. They are too uncomfortable violating Senate norms, even when those norms are completely arbitrary and standing in the way of helping millions of Americans. That attitude of paralysis by norms must change if this Senate is to accomplish anything of value.

No matter the outcome of this week’s parliamentarian decision, Democrats could and should push forward to pass a $15 federal minimum wage. They have the power, the numbers, and the constituent support, but they have to make bold and swift action to keep it.

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