It’s Really Not That Hard: Just Ignore the Senate Parliamentarian – Jacobin magazine

If you care about justice, democracy, or labor rights, a path to citizenship for undocumented immigrants should be a no-brainer. Denying millions of US residents the right to vote in elections that impact their lives is an affront to basic democratic principles, and noncitizens who have to worry about deportation are far more likely to hesitate before joining unions or seeking legal action against employers who violate labor laws.

Ideally, this path would be about as complicated as getting a public library card after moving to a new town. But even a long and winding path is better than no path at all. And given Democrats campaign rhetoric on this issue, enacting some path for at least a significant percentage of undocumented workers is the least they can do.

Or so you would think.

Under the absurd and deeply antidemocratic Senate rules, essentially all legislation requires a supermajority to pass. Theres one major exception: if a bill is deemed to have more than incidental budgetary impact, it can pass with a simple majority using the budget reconciliation process.

The problem, of course, is that nearly everything has some impact on the budget. Pretending that determinations of whats incidental and whats more than incidental are like objectively correct solutions to complex mathematical equations, waiting in some abstract Platonic realm for a sufficiently clever expert to discover them, is more than a little implausible.

The provision in the $3.5 trillion reconciliation package providing a pathway to citizenship, for example, would ultimately lead to millions more being eligible for food aid and various health care programs like Medicaid and the Childrens Health Insurance Program (CHIP). The estimated budgetary impact is $139.6 billion over the next decade.

Is that significant, or is it incidental? How about raising the minimum wage to $15 an hour? That would certainly change which tax revenues were coming from which sources, but is that change more than incidental?

At the very least, these are judgment calls. Realistically, theyre political decisions.

The current Senate parliamentarian, Elizabeth MacDonough, has decided that the budgetary impact of the proposed immigration provision is incidental. She made the same determination earlier this year about the minimum wage.

In both cases, the Democratic leadership has thrown up their hands and claimed theres nothing that they can do.

The great twentieth-century philosopher Harry Frankfurt has a classic example to test our intuitions about free will and determinism: If theres only one possible thing that will happen, does that mean we arent responsible for our actions?

Frankfurt asks us to imagine that a man named Jones is preparing to make a decision. A villain named Black is prepared to intervene to manipulate Jones into doing what Black wants him to do. Perhaps hell hypnotize Jones. Perhaps hell use some science-fiction device that will alter the chemistry in Joness brain. Depending on how you fill out the details, you get one of the many variations of what philosophers call Frankfurt cases.

But heres the twist: Black will only intervene if he doesnt think Jones will do what Black wants him to do on his own.

If Black intervenes and somehow makes Jones do what Black wants him to do, wed all agree that this wouldnt be Joness fault. (It would be Blacks fault, of course.) But what if Jones does what Black wants him to do because its also what Jones wants to do? In that case, Frankfurt thinks, its clearly Joness fault.

If Jones says, I had no choice Black would have made me do it anyway, Frankfurt thinks no one should be impressed by this excuse. Jones made the decision because thats what he wanted to do. The fact that Black hypothetically would have forced him if he hadnt wanted to do it doesnt matter. Jones is at fault.

Many leftists suspect that what the Democratic leadership is doing right now is similar playing a rotating villain game where they let various figures take the blame for not passing important reforms. Sometimes its Joe Manchin and Kyrsten Sinema. Sometimes its the parliamentarian. But these obstacles arent really why the Democratic leadership isnt passing these reforms. They just dont want to or at least they dont want it enough.

That sounds cynical, but in this case, the truth is even worse. Its not that Democrats are using the fact that they cant do something they dont want to do as an excuse. The more we look at the actual legal status and powers of the Senate parliamentarian, the more the real situation starts to look like this:

Black points his finger at Jones and says, This is a gun. If you dont do what I say, Ill shoot you! Jones grins from ear to ear and says, In that case, I better do what you say!

As democratic socialist congresswoman Ilhan Omar has pointed out, Elizabeth MacDonough isnt stopping the Democratic leadership from including immigration reform in the reconciliation package.

Responding to Omars tweet, right-wing blowhard Sean Hannity accused her of advocating that the Senate ignore the Constitution. Nothing could be further from the truth.

First, the budget reconciliation process is only necessary in the first place because of the filibuster. Not only is this not hinted at it in the text of the Constitution, but the framers were quite explicit in opposing any kind of supermajority rule in the Senate. In the decades after the founding, the previous question rule stopped minorities of senators from blocking legislation supported by a majority. An overhaul of the Senate rules later accidentally created the loophole that allowed for a filibuster, but defenders of Southern slavery only started exploiting the loophole decades later. No law never mind any constitutional provision mandates that the Senate maintain the filibuster. Current Senate rules include both the filibuster and the budget reconciliation process as a way around it, but the Senate has the power to change its rules at any time.

Second, even those current rules dont make the parliamentarians judgment about what counts as more than incidental binding. A quick glance at a relevant report from the Congressional Research Service shows that Congresswoman Omar is unambiguously correct: As a staff official, neither parliamentarian is empowered to make decisions that are binding on the House or Senate. The parliamentarians and their deputies/assistants only offer advice that the presiding Representative or Senator may accept or reject . . .

Third, far from being an office specified in the Constitution, the Senate has only hired a parliamentarian to advise the body on interpretive questions about its rules since 1935. Over the last several decades, there have been multiple instances of the vice president, as presiding officer of the Senate, simply ignoring that advice. In 2001, Senate Republicans fired a parliamentarian whose advice they didnt like.

Democrats can evasively mumble about the importance of norms, but you shouldnt buy it. The simple truth is that theyre pretending to be powerless before the nonbinding recommendations of a staffer they could literally fire at any time. Thats grotesque.

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It's Really Not That Hard: Just Ignore the Senate Parliamentarian - Jacobin magazine