Overruling the Senate Parliamentarian on the minimum wage is a horrible idea

Although Bernie Sanders continues to say that he is confident that a minimum wage increase can skip the Senate's usual legislative requirement of 60 votes to end endless debate and eek through with a majority vote as part of the reconciliation package that contains President Biden's impressive coronavirus health and economic rescue plan, his ideological allies appear less and less certain of that outcome every day. As days pass by without a ruling from the Senate Parliamentarian - who decides whether or not the rules are being followed - leftists are growing more and more afraid that when a ruling does come, it will not be to their liking. For why that might be, I offer you this reading material.

Sanders is now the chairman of the Senate Budget Committee and not just a backbencher anymore. If he is unable to convince the Senate Parliamentarian that a minimum wage increase qualifies for the fast-track of reconciliation, the lion's share of blame the failure to raise the wage will fall on him, and his buddies know it. They are growing desperate and are now suggesting that the Parliamentarian's ruling, should it be adverse, be simply ignored. Rep. Pramila Jayapal, the chair of the Congressional Progressive Caucus, said on Rachel Maddow's show on MSNBC on Wednesday that the opinion of the Parliamentarian is merely advisory, and that Senate Democrats should put up a middle finger against it.

This is both dangerous and dumb.

While it is technically true that the opinion of the Parliamentarian is advisory and the presiding officer of the Senate is not legally bound by it, overruling her will open a can of worms no one will wish on their worst legislative enemy.

First, having even 50 Democratic votes in the Senate (so that Vice President Kamala Harris, as President of the Senate, can break a tie) for a $15 minimum wage is very, very tenuous. Sen. Joe Manchin of West Virginia has thrown his support behind an $11 minimum wage, and it's not clear he supports any minimum wage increase in the COVID legislation. Manchin may well be more inclined to work with some Republicans - such as Mitt Romney and Tom Cotton - who have their own minimum wage proposals and pass a smaller minimum wage increase through regular process. Sen. Kyrsten Sinema of Arizona has said, on the record, point blank, that a minimum wage increase should not be included in reconciliation. Manchin has also informed the White House that he won't stand by attempts to get around a ruling from the parliamentarian.

If the Democratic leadership moved to overrule an adverse opinion from the parliamentarian on the minimum wage, they will give Manchin and Sinema - and perhaps others - a justifiable cause for voting against the entire COVID package as a protest against a move that can and will be understood as a power grab. With no Republican votes likely for the package, even one Democratic 'No' vote would doom the package. Even if Manchin and Sinema didn't vote against the entire package, they will undoubtedly vote for a Republican amendment to the reconciliation bill that strips out the minimum wage increase, and with Democrats having declared provisions related to the minimum wage can be changed by a simple majority vote, their votes, along with those of all Republicans will be enough to do just that.

While overruling the parliamentarian stands to put the entire COVID package in jeopardy and will almost ensure the minimum wage does not go up anyway, the real damage from pulling such a nuclear option will be far-reaching and devastating in the long term. The most foreseeable impact would be from killing the filibuster so that the next time Republicans control the Senate, the House and the Presidency, they would be able to rescind health care protections, workplace protections, climate legislation - basically, any progress we make. For those thinking that Republicans will do it anyway, keep in mind that when the Parliamentarian ruled that the Senate could not wholesale repeal the Affordable Care Act through reconciliation in 2017, the then-Republican majority abided by it, despite the fact that some Republican senators advocated for ignoring her opinion, using the same excuse as progressives are on the minimum wage, that they "campaigned on" repealing Obamacare.

The only time in modern memory a presiding officer ignored the advice of the parliamentarian was when Vice President Nelson Rockefeller - a Republican in a Democratic majority Senate - did so twice in 1975 on matters of changing the rules of the Senate (not a substantive legislative matter), and both times, he was repudiated by the Senate or forced to apologize.

It is important to note that this would not be like when the rules were changed by Democrats to eliminate the filibuster on judicial nominations - and subsequently by Republicans on all other presidential nominations - to allow for nominees to move forward with a simple majority vote. In those instances, the Chair's ruling did not contravene the advise of the parliamentarian, but rather the contemporary majority overrode the ruling of the chair by a majority vote. In this case, doing so would require 60 votes, as the threshold to overrule the chair is higher for budget matters. Needless to say, there are not 60 votes to overrule the chair's ruling on the minimum in concurrence with the parliamentarian, and those who want the chair to ignore the parliamentarian are counting on the 60-vote burden being reversed should the chair do so.

Still, an argument for majoritarianism in legislative bodies can certainly be made, and to be frank, I'm of the mind that the filibuster should go and that the people, should they choose to Republicans back in full control of the federal government again, are ultimately responsible for taking that risk in a democracy.

But ignoring the parliamentarian by the simple whim of a presiding officer isn't about majoritarianism. It's not just about killing the filibuster. It will be about destroying the very idea that the Senate operates based on rules that apply fairly and evenhandedly regardless of which party controls more seats. If a presiding officer can overrule the parliamentarian, then they can also ignore the process to amend a bill on the floor, conduct business in the absence of a quorum, and more.

Ignoring the Parliamentarian will become commonplace, whether or not a legislation is subject to the Senate's arcane 60-vote rules. Why give the minority time to question witnesses in committees, and if the majority decides not to, what's going to stop them? Heck, why even provide required notices to committee members of a meeting? After all, like the Senate itself, the opinions of parliamentary staff assigned to committees are also merely advisory, and the committee chairs can simply do what they want.

If Bernie Sanders, as chairman of the Budget Committee, really wants to pass the minimum wage through a majority vote, he should either convince the parliamentarian of the merits of including it in reconciliation - and not by saying 'well this is the only way what I want to happen can happen' - or first move to eliminate the legislative filibuster altogether on the Senate floor, and be prepared to come up with 51 votes to overrule the chair when they rule against him. Once he succeeds, any legislation can move with a simple majority vote. The twist, of course, is that Bernie Sanders, despite being a creature of Washington for over 30 years, has not cultivated the relationships to make this even a remote possibility.

For these reasons and many others, Vice President Kamala Harris - who has the Constitutional role as President of the Senate - is very, very unlikely to go against the wishes of President Biden, overrule the parliamentarian (should her ruling be adverse) and blow this up. And she'd be right not to. Just because we want something really badly shouldn't mean that the rules don't apply to us.

Progressives should find a way to raise the minimum wage without annihilating the very concept of rules.

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