Democrats wrong to attack Senate parliamentarian

With Republican Members of Congress united in opposition to the pending coronavirus relief legislation, Democrats require both an unusual degree of consensus and the special protections of “budget reconciliation” procedures to enact the legislation on their own. Budget reconciliation allows Congress to pass certain kinds of important fiscal legislation with only a simple majority rather than the 60 votes ordinarily required to cut off a filibuster in the Senate. To keep reconciliation procedures from being hijacked to ram through every item on the majority party’s wish-list on which it lacks the votes to end a filibuster, the statute establishing them imposes strict criteria for what provisions are eligible for reconciliation treatment.

Democrats have known all along that some provisions they wanted to include in the relief bill might not meet the requirements for budget reconciliation. Chief among these was their proposed stepped increase in the minimum wage to $15 per hour. Superficially, that looks more like a regulatory initiative rather than a fiscal one.

Democrats’ hopes were buoyed when the Congressional Budget Office estimated that increasing the minimum wage would cost the federal government a lot of money. This is not because the federal government has a lot of minimum wage workers itself, but rather because CBO believes an increase in the minimum wage would prompt employers to eliminate some low-skilled jobs, reducing those workers’ tax payments and increasing their need for subsistence benefits.

Not just any fiscal impact, however, suffices. Architects of budget reconciliation procedures knew the possible effect of some tax or spending provision in an otherwise unrelated proposal. One could, for example, repeal the Clean Water Act but charge polluters a trivial tax for each ton of sludge they dumped. To guard against this, the statute excludes not just overtly non-fiscal provisions but also those whose fiscal impact is “merely incidental” to their non-budgetary effect.

And last week, the Senate parliamentarian told Democrats and Republicans that she would sustain an objection to the minimum wage increase on the grounds that its fiscal impact was merely incidental to its fundamentally regulatory character.

The response from many Democrats and minimum wage supporters was swift and fierce: Some called for firing the parliamentarian; others wanted Vice President Harris to disregard the parliamentarian’s ruling and overrule any objection to the minimum wage increase — or for Democratic senators and the Vice President to vote to sustain an appeal of the parliamentarian’s ruling. And, of course, the Democrats’ large anti-filibuster contingent seized on this moment to insist that now is the time to do the deed.

These reactions, while understandable, are misguided.

The parliamentarian had a strong basis for her ruling, which is largely consistent with her prior rulings against Republican proposals. Even if she were wrong, the minimum wage increase likely was not going to survive in this legislation anyway. And even without reconciliation procedures, Democrats have a clear path to enacting the broadly popular increase in the minimum wage.

The federal statute — known as the Byrd Rule — provides little guidance for how to determine whether a provision’s fiscal character is “merely incidental” to its non-fiscal effects. One possible way of doing so would be to compare the relative size of the fiscal and non-fiscal impacts. Although CBO estimated a large cost to the federal government of increasing the minimum wage — wrongly, in my view — this impact clearly is swamped by the impact on employers, workers, and their families throughout the economy.

Another possibility would be for the parliamentarian to treat indirect fiscal impacts as “merely incidental” to a provision’s direct non-fiscal implications. The minimum wage increase has almost no direct costs to the federal government: CBO’s estimate depended entirely on its indirect macroeconomic effect.

A third approach — and one that appears central to the parliamentarian’s thinking — is to try to discern the motivations of a provisions’ supporters. If the fiscal effects are central to motivating supporters, the provision is appropriate for reconciliation bills; if the fiscal effects are irrelevant or regarded as a necessary evil, they are “merely incidental” to the provision’s non-fiscal impact. Here, nobody supports increasing the minimum wage because they hope it will lead to job losses and require the federal government to fill some of the resulting gap in family incomes.

This is far from the parliamentarian’s first time sustaining objections to reconciliation provisions on “merely incidental” grounds. She prevented Republicans from splitting the U.S. Court of Appeals for the Ninth Circuit — which would have raised costs by letting President Trump appoint new judges — because she correctly believed that the primary motivation was to steer the judiciary to the right. She rejected various abortion restrictions on reconciliation legislation because she understood that the passions surrounding that issue swamp any fiscal considerations. Her rulings likely prevented Republicans from including enough special-interest provisions to succeed in their 2017 attempt to repeal the Affordable Care Act.

The parliamentarian faltered — in my opinion — when she allowed the Republicans’ upper-income tax cut bill — which passed under reconciliation procedures — to open the sensitive Arctic National Wildlife Refuge to oil drilling. Although the federal government would receive some modest revenues from this drilling, the overwhelming effect — and the motives of the procedures’ determined lobbyists — was to transfer resources to the petrochemical industry and to the State of Alaska. Overall, however, her record is one of conscientious fairness.

Assailing the parliamentarian for her ruling on the minimum wage provision is unwise for much more fundamental reasons. At a time when a large part of the Republican Party refuses even to accept the results of elections it loses, Democrats need to be the party that scrupulously follows the rules.

A lawless environment does not benefit Democrats’ agenda and provides cover for Republicans’ anti-democratic moves.

Removing the parliamentarian might be defensible if she were a partisan Republican hack, but she is not:  She was elevated on a bipartisan basis when Democrats controlled the Senate. When Republicans previously had fired a parliamentarian in response to rulings they disliked, the Senate came close to grinding to a halt.

Even with a different ruling from the parliamentarian, the $15 minimum wage had little chance of moving this week. Senate Democrats have no consensus on the minimum wage’s proper level, and with no votes to spare, that disagreement is fatal.

Liberals may dislike Sen. Joe Manchin (D-W.Va.), but he is by far the most progressive senator West Virginia will elect for the foreseeable future. Unless and until Democrats can win more senate seats in places like Florida, Maine, North Carolina, Pennsylvania, and Wisconsin, they must continue to seek consensus within the caucus they have. 

The path forward on the minimum wage is not procedural wizardry but leveraging the proposal’s broad public popularity. Including a minimum wage hike in a partisan reconciliation bill would have been a political gift to Republicans, who could point to any number of other provisions in that legislation to justify voting “no.”

Democrats should bring free-standing minimum wage legislation to the Senate floor and dare Republicans to filibuster it. If Republicans do, Democrats should force them to conduct an old-fashioned filibuster: holding the floor around the clock, talking continuously to prevent a vote on giving low-skilled workers a raise.

With many Republicans representing states that already have raised their own minimum wages, leadership may have difficulty finding senators to take their turns in the well of the Senate. As voters watch their senators literally interposing their bodies to block a minimum wage increase, the party’s current claim to be working people’s champions will collapse.

Democrats could even sharpen the point by tying inflation adjustments for the richest taxpayers to inflation adjustments to the minimum wage. For example, if the threshold for the top income tax bracket could only rise when the minimum wage had itself kept pace with inflation, some Republican donors might reconsider their opposition. And, indeed, that could even make the fiscal impact of future minimum wage increases not “merely incidental” to their non-budgetary effects.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1