The Woke Left's very own "deep state" conspiracy theory: Why attacks on the Senate Parliamentarian are disingenuous and problematic

Credit: Dept of State

The Woke Left (TM) has decided that the real culprit to blame for the failure of Bernie Sanders's effort to include a $15 minimum wage in the COVID relief bill is the expert whose job it is to apply the rules of the Senate evenly, fairly, and without regard to policy preferences of any groups: the Senate Parliamentarian. They want Vice President Kamala Harris to ignore the parliamentarian's expert opinion on the Senate rules and operate under the assumption that the Senate is her fiefdom. Yet others are demanding that Majority Leader Schumer fire the parliamentarian for having the audacity objectively apply the rules and install a puppet instead who will take orders from the political leadership. An 'unelected' parliamentarian should not be allowed to decide what can and cannot be included in legislation under the rules, they say with great umbrage on social media.

I have explained before that the parliamentarian's determination is, in this case, correct, as disheartening as that is to progressives. I have also explained that for a single person - in her position as the Senate's presiding officer - to effectively ignore the rules of the Senate would both be ineffective in actually enacting a minimum wage hike and throw the Senate into chaos for the foreseeable future.

But for this article, I want to examine and dispel the populist myth that an 'unelected' official should not be allowed to make objective, factual determinations on what is and isn't allowed under the rules. In fact, unelected experts are the only ones who should be allowed to do so. Because of their unelected position and expert nature of the job, the parliamentarian is relatively free from the demands of contemporary political winds and therefore far less likely than elected officials to disregard or bend the rules to serve a political agenda (whether that agenda is good or ill is beside the point).

Expert civil servants serve in many critical and nominally "advisory" roles throughout the government, and there is little question that their expertise - not political winds - should form the basis of facts and rules that govern and inform public policy.

One of the more famous such expert civil servants is one Dr. Anthony Fauci, America's top expert on infectious diseases. Dr. Fauci,the Director of the Director of the National Institute of Allergy and Infectious Diseases, is a so-called 'unelected' official, and it's still a pretty safe bet to follow his advice on the coronavirus pandemic. The very fact that Dr. Fauci does not have to worry about getting re-elected every few years is what makes his advice so valuable. When Donald Trump tried to loosen federal civil service rules to make it possible for him to fire Dr. Fauci, people were rightfully outraged. Why? Because an unelected expert whose future is not dependent on whether a given president is re-elected - not a campaigning president whose crowds revved with chants of 'Fire Fauci' - is more likely to be a better neutral arbiter of the facts than elected officials who are busy catering to constituencies whose votes they crave.

Another panel of 'advisory' experts have been the center of public attention lately as well. The FDA has approved two COVID vaccines (on an emergency basis) and in the process of approving a third based on... you guessed it... the 'advice' of experts on the explicitly named Vaccines and Related Biological Products Advisory Committee. It is true that the recommendation of the panel - like the opinion of the Senate parliamentarian - is technically just 'advisory' - and yet no one believes that the FDA Commissioner - whose fate is tied to the president's whims - should simply set aside the recommendation of the advisory committee when it does not comport with a policy or political objective of the president. To the contrary, good government requires that expert recommendations are accepted without political interference, regardless of whether or not a party in power likes the outcome.

Expert, civil servant advisors line many parts of the government precisely to provide unvarnished, objective view of the facts as they are, not as politicians wish them to be. Donald Trump was harshly criticized for gutting advisory panels throughout the federal government and rightly so for this very reason.

There was outrage against Trump attempting to gut these expert advisors because they have, over time, proven their loyalty to facts and objectivity, rather than to positions held by elected politicians. And so has the Office of the Senate Parliamentarian. For that reason, the bellyaching about how parliamentarians have allowed the use of reconciliation for certain Republican priorities but never progressive ones is more than a little disingenuous.

The modern reconciliation procedures - with the addition of the Byrd Rule in 1990 - have been used successfully used to make law six times before now: once under the first President Bush, once under President Clinton, twice under the second President Bush, once under President Obama, and once under Donald Trump. The bills have included progressive provisions as often as, if not more often than, provisions Republicans like. Let's review some of those provisions over the years.

The Omnibus Budget Reconciliation Act of 1990 increased top tax rate from 28 to 31%, imposed 30% excise tax on luxury automobiles (those valued at approximately $60,000 or more in today's dollars), more than doubled the threshold of income subject to Medicare payroll taxes, and increased a tax on carbon (gasoline).

President Clinton and Democrats used the Omnibus Budget Reconciliation Act of 1993 to created 36% and 39.6% individual income tax brackets for the ultra wealthy, higher alternative minimum tax brackets, and 35% and 38% corporate income tax brackets. It expanded the earned income tax credit for middle class families. It also removed the cap on income that's subject to the Medicare payroll tax and increased the gas tax by 4.3 cents per gallon.

One of the most expansive and critical use of the reconciliation process came under President Obama, which Democrats used to enhance health care reform and reform student loans in a bill that came to be known as the Health Care and Education Reconciliation Act of 2010

After the loss of Democrats' 60-vote majority in the Senate due to the death of Sen. Ted Kennedy, House Democrats took up and passed an earlier version of Obamacare that had already cleared the Senate prior to Sen. Kennedy's death. That bill put the regulatory structures in place but provisions to assist people to buy insurance were weaker than what House Democrats wanted, so Senate Democrats used the reconciliation process to:

  • expand subsidies for individuals to buy health insurance,
  • close the Medicare prescription drug coverage gap that was created by the Bush administration when Part D was enacted,
  • impose a Medicare surtax on investment incomes over $250,000,
  • increase Medicaid reimbursement rates for providers,
  • create the employer mandate for health insurance coverage through a penalty for employers who didn't provide coverage, and
  • fast-track the outlawing of lifetime caps on health insurance benefits
The bill also enacted the first major reform of federal student assistance. It:
  • eliminated federal subsidies to banks to give out student loans so that federal loans would come directly from the treasury
  • vastly expanded the Pell Grant program,
  • lowered the income-based loan repayment maximum to 10% from 15% for new loans, and
  • provided billions in funding for community colleges and HBCUs.
It is true that Republicans enacted some pretty heinous policies like massive tax giveaways for the rich and creating a leasing program for drilling in ANWR. Bush and Trump used reconciliation to give tax cuts to the rich, but both were forced to sunset provisions of them. President Obama and Democrats used the sunsetting of the Bush tax cuts in 2013 as leverage to raise taxes on the rich even with a Republican House.

And of course, missed in all the outrage pandering is the fact that even without the minimum wage increase, the parts of the American Rescue Plan that are being allowed in the current reconciliation package by the parliamentarian are massive wins for progressives. These provisions include increasing December's direct payments to $2000, a flood of aid for  state, local, and tribal governments, enhanced and extended unemployment benefits, rental and mortgage assistance, expanded and accelerated COVID vaccination funding, money to safely reopen schools, a massive expansion of the Child Tax Credit, and increasing financial subsidies for individuals to purchase health insurance.

Clearly, the parliamentarian isn't trying to kick progressives. She is simply applying the rules as they are. And she's the right person to do so.

In each house of Congress, the respective Office of the Parliamentarian is the expert on the rules of their respective house, and their determination on the rules deserves the same level of respect and deference as Fauci's on public health or the FDA advisory panel's on vaccine approval. In other words, the Senate Parliamentarian deserves the presumption that her 'advice' on the rules is the objective application of the rules. The parliamentarian isn't blocking a minimum wage increase under reconciliation; the rules of the Senate are, and the parliamentarian is merely the messenger.

Given that the parliamentarian's determination is the objective application of the rules, it follows that the President of the Senate - Vice President Harris - who is bound by the rules of the Senate, has no real, good-government option of ignoring that determination.

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