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Principle & The Parliamentarian: Democrats Need to Play More Aggressively, and Firing the Senate’s Archaic Arbiter Is the First Step

A Republican Senate Majority Leader called her “one of of [the Senate’s] most dedicated floor staffers” and praised “her dedication and wonderful sense of humor,” while the minority leader said she was “a delight to work with.” In 2012, she was a non-partisan appointment to a little-known position in the Senate bureaucracy. In 2021, Senate Parliamentarian Elizabeth MacDonaugh has the de facto power to deny millions of Americans something closer to a living wage or citizenship for millions of people without documentation. Unless Democrats take action, she holds the fate of President Biden’s legislative agenda and the 2022 midterms in her hands. For this reason, Congressional Democrats must fire Elizabeth MacDonaugh as a first step towards a more aggressive pursuit of their legislative agenda. Democrats have thus far avoided any drastic—or even controversial—measures to advance their legislative agenda; firing MacDonaugh can and should be first in their path to pass popular policies benefiting the American people.

The role of the Senate Parliamentarian is “to provide expert advice and assistance on questions relating to the meaning and application of that chamber’s legislative rules, precedents, and practices,” according to the official Senate website. This seems like a simple functionary position that would hold limited influence over the actual lives of everyday Americans; it is fair to question how many Americans even know that the role of “Senate Parliamentarian” exists. That number is certainly greater now than it was the day of Biden’s inauguration. 

In February, MacDonaugh ruled that a provision gradually increasing the federal minimum wage to $15 an hour by 2025 could not be included in the $1.9 trillion Covid-19 relief bill passed via budget reconciliation. Budget reconciliation allows the Senate to evade the filibuster’s 60-vote requirement: under budget reconciliation, policies relating to government spending and revenues can be passed with a simple majority and cannot be filibustered. In late September, MacDonaugh ruled that the Democrats cannot include a provision that would provide a pathway to citizenship for millions of immigrants in their $3.5 trillion budget reconciliation bill. The proposed reform would have made it easier for essential workers, those fleeing from humanitarian crises across the globe, and people who were brought to the U.S. as children, to pursue lawful permanent resident status. She issued the ruling on the basis that the “policy change” brought about by immigration reform “substantially outweighs the budgetary impact” of the provision, even as precedent exists for immigration being included in the reconciliation process. In 2005, a GOP-controlled Senate with a 55-seat majority passed provisions relating to the number of immigrant visas that could be given out annually as part of the Deficit Reduction Act. These provisions were scrapped later on in the legislative process, but they still passed the Senate and established  precedent for immigration to be included in reconciliation. 

Both a minimum wage increase and immigration reform poll incredibly well among Americans. A July 2021 poll from the Pew Research Center found that 67 percent of Americans supported a $15 minimum wage, with 41 percent indicating strong support for such a measure. Polling on immigration reform points to a less clear-cut solution, but Americans still seem open to increased pathways to citizenship. According to an NPR/Ipsos poll from May, 71 percent of Americans support pathways to citizenship for essential workers, 70 percent for those fleeing humanitarian crises, and 66 percent for those who were brought into the U.S. without documentation as children. Given the hyperpolarization within Congress and the power of the filibuster to prevent  legislation from being passed without 60 votes, it has become functionally impossible to fulfill major campaign promises like minimum wage increases or immigration reform without  budget reconciliation. MacDonaugh is now the main obstacle preventing the passage of popular policies that Democrats desperately need passed. 

Fortunately for the Democrats, there is a clear solution to the problem of MacDounaugh: fire her. The position of “Senate parliamentarian” isn’t constitutionally enshrined; it is a Senate office that the Majority Leader can change as they please. That’s exactly what happened in May 2001, when Parliamentarian Robert Dove was effectively forced out by GOP leadership after issuing rulings that obstructed the Bush administration’s legislative agenda. The rulings of a single Senate functionary should be a mere speedbump, not a roadblock,  in Democrats’ path to passing key parts of their agenda. 

Many Democrats may fear the political consequences of firing the parliamentarian. In the midst of a bruising fight over the filibuster, Democrats may have understandable concerns that any change to Senate rules could lead to a political firestorm. Yet adherence to customary practices and a fixation on “principle” could be the undoing of the Democratic Party—especially if they are unable to parlay their first time fully controlling the government since 2012 into tangible, lasting progress. Republicans gained an extra seat—or, one could argue, two extra seats if Merrick Garland was appointed in early 2016 and the winner of the 2020 election was allowed to fill the vacant seat after the death of Justice Ginsburg—on the Supreme Court in perhaps their most egregious example of acting how they please and retroactively applying shoddy justifications. “Principle” is a political ball and chain the Democrats have attached to themselves, entirely of their own volition. While Democrats have stayed away from eliminating the filibuster or appointing more justices to the Supreme Court, Republicans have shown little reverence for tradition in pursuit of their political goals over the last few years. 

Republicans, and Mitch McConnell most of all, pursue their agenda relentlessly, sweeping aside obstacles and changing the rules to their convenience. “Everybody knew that neither side, had the shoe been on the other foot, would have filled it,” he said in 2017 of his decision to block Garland’s confirmation. The filibuster for judicial nominees stood in the way of McConnell’s ability to confirm conservative judges, so he did away with it. He manufactured legally-dubious arguments to block the confirmation of Merrick Garland several months ahead of an election in 2016 on claims that the people should get to choose who selects the next Supreme Court Justice. In 2020, he subsequently pushed through Amy Coney Barrett’s confirmation after millions had already voted his party out of power. In 2016, he succeeded in making the vacant Supreme Court seat a central election issue; in 2020, he succeeded in preventing it from ever becoming an issue on which the American people could vote. He often claims that Democrats would have done the same in his position. Based on how Democrats act when they have the power to change the rules to their advantage, his statement seems misplaced. In their roughly nine months in power, the Democrats have not eliminated the filibuster, packed the Supreme Court, or even fired an uncooperative Senate official. What seems certain, however, is that if he were in the Democrats’ position, he would fire the parliamentarian immediately.

It is in this same vein that the “rules are rules” criticism falls short. Rules are neither predestined nor preordained nor inflexible; they are an artificial construction meant to aid certain processes and ultimately lead to good outcomes. When the rules stand in the way of outcomes that are both beneficial and popular, they should not be upheld solely for the sake of “rules are rules.” Rules are a means, not an end, and in the case of the Senate and its parliamentarian, the means are leading away from the end. There is also a strong case to be made that MacDonaugh, by precluding immigration from the reconciliation package, is willfully disregarding precedent and that in removing her Democrats would be following precedent.Firing MacDonaugh would undoubtedly prompt Republicans to call it a partisan power grab. To a certain extent, they would be right. But if firing the Parliamentarian opens up an opportunity for the Democrats to deliver major campaign promises, then the choice should be clear. President Biden’s approval rating is tumbling, according to an AP-NORC poll: his overall approval is down to just 50 percent, as compared to 59 percent in July. Outlets such as Gallup have shown an approval as low as just 43 percent, a discouraging number for Democrats. The way to alter course and avoid a disastrous Democratic showing in 2022 is not to stand still and follow “principle,” but rather to use a rare Democratic controlled legislature and presidency to pass popular policies It’s doubtful that voters at the ballot box will remember the preservation of “principle” over the failure to raise the minimum wage. Democrats cannot simply sit back and use “principle” to deflect all criticisms that have very little to do with the  lives of actual Americans. If they have any conviction about wanting to help the American people, the Democrats’ decision to fire MacDonaugh should be no decision at all.