The Case for Firing the Parliamentarian

Democrats can't let an unelected bureaucrat stand in the way of popular and necessary policies

On Thursday night, the Senate Parliamentarian — an unelected referee you have never heard of nor cared about — ruled that Democrats could not include a provision to increase the federal minimum wage to $15 in the COVID Relief bill. This is a big deal because it means that the $15 minimum wage will be subject to a Republican filibuster.

If raising the minimum wage requires all 50 Democrats plus 10 Republicans, the minimum wage will remain at the absurdly low level that has been in place for thirteen years. A favorable ruling from the parliamentarian didn’t guarantee an increase. Senator Joe Manchin has raised concerns about cost of living differentials. Senator Kyrsten Sinema had objected to the idea of including the $15 minimum wage in a COVID-related bill — claiming quite incorrectly that there was no connection between raising wages and helping the economy. But the parliamentarian’s decision has stalled momentum and left the 32 million Americans who would benefit from an increase wondering what — if anything — can be done.

Progressives immediately started calling for a variety of different paths forward. None of them guarantees success, and each comes with a set of political, substantive, or legislative complications. One course, though, is preferable — Democrats should replace the Senate Parliamentarian with someone who will interpret the rules to favor workers instead of corporations.

What the hell?

The ruling on the minimum wage increase is somewhat nonsensical and seems reverse-engineered from a pre-determined outcome. As David Dayen, the editor of the American Prospect wrote:

We know that the minimum wage hike produces changes in outlays and revenues, as the Congressional Budget Office confirmed earlier this month. What McDonough had to rule to put the provision out of order under the “Byrd rule” is that those changes were “merely incidental to the non-budgetary components of the provision.” In other words, she had to read the mind of a legislation and decide what parts of it are incidental and what parts are primary.

Notably, the parliamentarian took a much more expansive view of the rules in 2017 when she allowed the inclusion of a provision to allow drilling in the Alaska National Wildlife Refuge in the Republican tax bill.

It is also essential to understand that rulings by the parliamentarian are not binding. They are advisory opinions that can be ignored or overruled if a majority of Senators disagree. The Senate is governed by rules set by the majority. As the majority, Democrats are well within their rights to change those rules if they see fit—a majority of Senators changing how the body functions are neither underhanded nor unprecedented. The parliamentarian’s ruling only means the end of the road for the $15 minimum wage if Democrats let it.

Where Do We Go From Here?

In the days since the ruling, Democrats have been debating next steps while balancing several competing equities and tiptoeing around some very challenging members of their caucus. Here are the options:

  • Eliminate the Filibuster: The existence of the budget reconciliation process is essentially an acknowledgment that the Senate is broken. Because almost nothing can get 60 votes, the Senate created a limited process to get around their own dumb rules. Ditching the filibuster is the easiest and most obvious solution to pass a minimum wage increase through regular legislation. It’s also not on the table because, as we’ve discussed before, Democrats don’t yet have the votes. [Read more about how to eliminate the filibuster here.]

  • Overrule the Parliamentarian: As the Senate's presiding officer, Vice President Kamala Harris can overrule the parliamentarian and put the minimum wage increase back in the un-filibusterable COVID package. Democrats overruled the parliamentarian in 2013 when they eliminated the filibuster for executive and lower court nominations. The Republicans did the same in 2017 when McConnell completed his theft of a Supreme Court seat by lowering the confirmation threshold to 50 votes. In both cases, a majority of Senators voted to uphold the decision. There are two problems with this approach. First, the White House said that the Vice President would abide by the parliamentarian’s decision. Second, even if Vice President Harris did intervene, Manchin, Sinema, and likely others would oppose such a move. However, while there is some debate on exactly how this happens, a Congressional Research Service report suggests Democrats would only need 41 votes to uphold the vice president's decision. It’s not clear whether there are 41 votes for such an aggressive move, but it is more doable than 50 votes.

  • Reverse Minimum Wage Increase: Senator Bernie Sanders, the chair of the Budget Committee, immediately announced a plan to take away tax deductions from large, profitable companies that pay their workers less than $15/hour. Small businesses that paid their workers $15/hour would receive a tax cut. The benefit of this plan is that it almost certainly can be included in the budget reconciliation process. Millions of Americans would get a raise. But relying on taxes would also leave out millions. Large companies could turn to smaller contractors to avoid paying the new “minimum wage.”

    The Sanders plan is a good idea and should be included in the COVID package if possible. But it should be seen as a stop-gap solution while we figure out how to enact the original plan.

Most of these options suffer from the fatal flaw that there is little to no appetite to undertake them from the White House or the Senate, but there is a better option.

Remove the Parliamentarian

The Parliamentarian serves at the pleasure of the Secretary of the Senate, who serves at the pleasure of the Majority Leader. Senator Schumer could fire the parliamentarian and replace her with someone who takes a more consistent approach to issues affecting working Americans. Representative Ilhan Omar called for this course of action last week.

There are several advantages to this approach. First, there is a clear precedent. The Republicans replaced the parliamentarian in 2001 for the same reason under the same circumstances. In a 50-50 Senate, Robert Dove, the parliamentarian, made several rulings that upended efforts to pass President George W. Bush’s tax plan. As the Washington Post reported at the time:

Several Republican sources said Dove angered GOP leaders when he said the Senate could use the provision for only one tax-reduction measure. Because of Dove's decision, the GOP may need 60 votes to break a filibuster for these tax bills -- a much more difficult hurdle since Democrats hold 50 seats -- or strike a deal with the opposite party.

The Democrats were annoyed. They put out some grumpy statements, but nothing else happened. A new parliamentarian ruled differently. The Bush tax cut became law, and everyone went about their business.

Another advantage to replacing the parliamentarian is that it is a decision that Senator Schumer can make on his own without the votes of Manchin or other recalcitrant Democrats. Mitch McConnell often shoulders the burden of blame for his caucus on controversial issues by making himself the focal point. Schumer could do the same here and take all the slings and arrows that come from the norm-loving crowd.

Finally, while overruling the parliamentarian solves the short-term issue of passing minimum wage, it does nothing to deal with the longer-term problem. As long as the filibuster remains, the budget reconciliation process is the only way Democrats can pass any legislation of consequence. It is simply not sustainable for Democrats to allow an unelected bureaucrat to stop Democratic priority after Democratic priority. Much like the Republicans in 2001, Democrats need a parliamentarian that shares the Senate majority's views.

Timing Matters

There will be a lot of pressure on the Biden White House and Senate Democrats to take dramatic action as soon as humanly possible to ensure the minimum wage increase is included in the COVID bill. However, it is doubtful that they will take that action. It’s not because they don’t want to pass the minimum wage or because they aren’t smart or strong enough.

The success of Joe Biden’s presidency depends on controlling the virus and fixing the economy. The COVID relief package includes the funding for vaccine distribution and the economic aid needed to accomplish that goal. There is a ticking clock. Unemployment benefits will expire in a few weeks. Every day that the bill doesn’t pass, the task gets more challenging. Because of the 50-50 Senate, there is no margin for error. Two of the fifty votes Biden needs were skeptical of including the minimum wage increase through regular order. It’s hard to see how you get their support in a situation where you have to overrule or fire the parliamentarian to include a provision they don’t support, to begin with. Putting the COVID relief package in jeopardy of not passing or being delayed is not a risk Biden can take.

Advocates should push as hard as they can for the minimum wage right now. But I want people to understand what I believe to be the strategic calculus behind the hesitancy to act immediately. Also, there is still time. As Axios reported last week, Senator Sanders is currently working on an infrastructure bill to be passed through the budget reconciliation process. This bill seems like the next best time to fight over the minimum wage.

Whether it happens now or later, Democrats must take action. The voter mobilization Democrats need to win in 2022 depends on people believing elections matter — that their vote makes a difference. Allowing an unelected bureaucrat to keep 32 million Americans from getting a desperately needed raise would send the exact wrong message. Democrats cannot ask people to donate, volunteer, and vote to keep Democrats in power if they do not use their power to fulfill their promises. Governing is hard. Progress is slow, but the whims of the parliamentarian cannot be the reason important stuff doesn’t get done.