The Senate parliamentarian may be key to pushing Biden’s infrastructure bill without Republican support

Senate Majority Leader Chuck Schumer believes he has a solution to the impasse in the Senate: pass legislation through the reconciliation process with approval from the Senate parliamentarian.

The Senate parliamentarian serves a small but specific role in the federal government.

Because politics in the United States has become so polarizing, Democrats, who – in addition to holding the White House – now have a majority in both houses of Congress, are looking to make sweeping changes.

However, the filibuster continues to be a major obstacle to Democrats’ hopes of getting the Biden administration’s agenda through the Senate. With the filibuster in place, any piece of legislation needs 61 votes in order to pass the Senate, yet Democrats only hold 50 Senate seats.

But now, Senate Majority Leader Chuck Schumer believes he has a solution to the impasse in the Senate: pass legislation through the reconciliation process with approval from the Senate parliamentarian.

Who is the Senate parliamentarian?

The official position of Senate parliamentarian was created in 1935 and first given to Charles Watkins. Watkins had spent years as a journal clerk in the Senate and his fascination with Senate procedures and photographic memory made him a reliable source to turn to.

As Senate procedures became more and more complex and the government grew beyond the imagination of the founding fathers, this new position was created to advise the Senate on the interpretation of its rules and procedures.

The Senate parliamentarian, who is unelected, is commonly referred to as the Senate referee. Elizabeth MacDonough has held the position since 2012. MacDonough started off as a Senate library clerk and, after graduating from law school, spent most of her working life in the office of the parliamentarian.

The position is nonpartisan and is mostly used to settle disputes between parties inside the Senate. MacDonough has largely remained anonymous since her appointment because of her apparent dedication to the job and has received praise from both sides of the aisle.

“She’s been around a long time, so she’s very steeped in the traditions of the Senate and understands how it works here,” Republican Senator John Thune said in 2015. “If and when the time comes, I’m sure she’ll be ready to do her job.”

Reconciliation

Thune was referring to the potential use of MacDonough when Republicans were trying to repeal Obamacare using the budget procedure called reconciliation. Ultimately, after conferring with MacDonough, Republicans chose not to repeal the bill.

Reconciliation, incorporated into Congress in 1974, is what Democrats used to pass the US$1.9 trillion COVID-19 relief bill last month without the support of a single Republican.

In order for a bill to pass using the reconciliation process, the Senate must go through what is called the “Byrd Bath,” named after its originator former Senate Majority Leader Robert Byrd. The complicated process involves a closed-door session where Republicans and Democrats make their case for what should stay in the bill and what should be removed.

MacDonough allowed for the passage of the US$1.9 trillion COVID-19 relief spending bill, but made Democrats remove the US$15-an-hour federal wage increase because, as she argued, the language was different from the rest of the bill and did not meet the strict requirements of reconciliation.

This move angered many progressives, but the Biden administration ultimately accepted the decision.

New ruling interpretation opens door for Democrats

After the passage of the latest COVID-19 relief bill, the Biden administration unveiled a new multi-trillion-dollar infrastructure agenda. Though improvements to infrastructure have bipartisan support, Republicans have taken issue with how Democrats want to pay for it – through an increase in taxes on corporations and the closing of tax loopholes.

Without Republican support, Democrats would not have the votes to pass their infrastructure plan. So, in a long-shot move, Senate Majority Leader Chuck Schumer asked MacDonough if they could reuse the same reconciliation process they used to pass the COVID-19 relief bill.

MacDonough gave the green light, allowing Democrats to use this process as often as they want. Democrats could break up the infrastructure bill into smaller pieces, potentially making parts of their agenda easier to pass

Despite early optimism from Schumer and others, Democrats may not want to use reconciliation over and over again. The procedure mandates that members spend hours on the floor in both chambers and take part in two voting marathons in which anyone can force a roll-call vote on an amendment of their choice. The time consuming nature of this process may dissuade Democrats from repeatedly using the reconciliation process.

President Joe Biden has stated his openness to working with Republicans in negotiating an infrastructure deal, but the parliamentarian’s option leaves a backdoor that Democrats can use as a last resort.

“The Parliamentarian’s opinion is an important step forward that this key pathway is available to Democrats if needed,” Justin Goodman, a spokesperson for Schumer, stated.

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