After the Senate parliamentarian, Elizabeth MacDonough, concluded that a $15-an-hour minimum wage provision could not be part of a budget reconciliation bill, House progressives -- including Reps. Alexandria Ocasio-Cortez, Ilhan Omar, Pramila Jayapal and Ro Khanna -- all sung from the same song sheet: an “unelected parliamentarian” should not be allowed to block a minimum wage increase. They want the parliamentarian overruled or fired.
But how can progressives in good conscience suddenly treat unelected government officials as illegitimate? Progressives have defended unelected bureaucrats from conservative attack when they develop wide-ranging regulations, and unelected judges when they extend civil rights to those suffering discrimination. Such actions are rooted in the Constitution and the law, and should not be undermined as undemocratic.
Similar to any bureaucrat or judge, the Senate parliamentarian is tasked with interpreting rules enacted by elected officials. If you hate the ruling, don’t blame the ruler, blame the rule. In this instance, there’s no serious argument that MacDonough didn’t follow the rules. Budget reconciliation legislation, a rare type of bill that cannot be filibustered, can only include budgetary provisions -- increases or decreases in spending or revenue. Under what is known as the Byrd Rule, having an “incidental” impact on the budget is insufficient.
A higher minimum wage does have budgetary effects. The federal government would spend more money on federal contractors, for example. But it’s a policy designed to impact the entire economy; the federal government merely feels the macroeconomic reverberations. To rule minimum wage in bounds, the parliamentarian would have to stretch the definition of “incidental” in unprecedented fashion.
When Sen. Bernie Sanders said, in advance of the parliamentarian’s decision, that he was “confident” she would allow a $15 wage to be included, his reasoning at the time should have tipped us off that his confidence was misplaced.
Sanders said: “The [Congressional Budget Office] has found that the $15 minimum wage has a much greater impact on the federal budget than opening up the Arctic National Wildlife Refuge [ANWR] to oil drilling and repealing the [Affordable Care Act’s] individual mandate penalties -- two provisions that the parliamentarian advised did not violate the Byrd Rule when Republicans controlled the Senate.“ But the numeric amount of budget impact was not the issue in 2017 when the parliamentarian eventually allowed those other provisions to be included in a reconciliation bill, after negotiation and revision.
The ANWR provision was initially flagged by the parliamentarian for an obscure and technical reason. A reconciliation bill must be preceded by instructions authorizing specific committees to draft certain provisions. In 2017, the instructions assigned the drafting of revenue raising measures to the Senate Energy and Natural Resources Committee, with opening up the Arctic refuge in mind. But the bill text involved a program handled by the Senate’s Environment and Public Works Committee. So the language had to be revised to comply with the instructions.
The termination of the Obamacare individual mandate was snagged at first for the same reason as the increase of the minimum wage; it was a broad policy change, not a budget line item. Republicans solved the problem by nominally keeping the mandate on the books, but reducing the tax penalty to zero, since a change in tax policy is a budgetary item. (This is why Sanders is now trying to partially salvage the minimum wage proposal by proposing a tax penalty on large corporations who pay their workers less than $15 per hour.)
Democrats calling for the parliamentarian to be ignored or removed don’t want to be hamstrung by Senate rules. They assert, not unreasonably, that voters care about their own economic security, not arcane legislative procedures and traditions. That’s why they don’t fear fallout from using a hammer to nullify the Byrd Rule either by having Vice President Kamala Harris, as the Senate’s presiding officer, disregard the parliamentarian’s advice, or having Senate Majority Leader Chuck Schumer replace the parliamentarian with a new one who would presumably issue favorable rulings.
So why isn’t Harris or Schumer heeding the call from House progressives to steamroll over MacDonough? Because there are not 50 Senate votes for what the firebrands want.
Democratic Sens. Joe Manchin and Kyrsten Sinema are on the record opposing any move to gut the Byrd Rule, as well as to nuke the filibuster. Manchin has also stated he’s for an $11 minimum wage but not $15. Less well known is that Sanders’ stand-alone $15 minimum wage bill has 38 sponsors -- 12 short of the requisite 50.
Therefore, going to extraordinary lengths to get a $15 minimum wage in the pandemic relief bill could lead to rejection of the entire package. In the House, one of the two Democrats who voted “no” on the bill did so because he wanted to strip out the minimum wage provision (which Speaker Nancy Pelosi symbolically left in). In the Senate, it would only take one such rogue Democrat to sink the bill.
It’s not the parliamentarian’s fault that the Byrd Rule exists, or that the filibuster exists, or that Democrats are not united in support for a $15 national minimum wage. The rules stay on the books because a majority of the Senate wants to keep them on the books. If the minimum wage is to be increased, it will be because enough members of Congress who hold different views negotiate with one another and reach a compromise. Progressives should work toward that end, and leave the parliamentarian alone.