In a September 13 post, I explained that House Democrats were trying to pass a massive and extremely costly amnesty through a little-known (and little-understood) process known as “reconciliation”. Those plans have hit a snag, as the Senate parliamentarian ruled on Sunday that amnesty was “a policy change that substantially outweighs the budgetary impact of that change”, and therefore could not be included in a reconciliation package. Significantly, she also noted that a change allowing a simple majority to give green cards would allow a future simple majority to take them away, too.
Role of the Parliamentarian. Even powerful congressional leaders must follow legislative rules (unless they change them), and the parliamentarians in the House and Senate interpret those rules. Elizabeth MacDonough is only the sixth Senate parliamentarian since the position was created 86 years ago (the first one created the job), but as the National Constitution Center notes:
The office of the Parliamentarian has its roots in Article I, Section 5, of the Constitution, which says that “Each House may determine the Rules of its Proceedings” and that “Each House shall keep a Journal of its Proceedings.” Thomas Jefferson played a key role in the early process of compiling the operational rules of the House and the Senate when he published his Manual of Parliamentary Practice in 1801.
Parliamentarian may be a powerful job (you can see them sitting off to the left side at the top of the dais during State of the Union addresses), but it is also a thankless one. I considered not including MacDonough’s name in this post, because she likely prefers to avoid the limelight and controversy that accompanies her decisions.
Those parliamentarians are required to be masters of congressional history and precedent. While judges also pore over old opinions in making their decisions, as H.L. Mencken noted, “A judge is a law student who marks his own examination papers,” if you are parliamentarian, you don’t have that luxury, because you are left to face the wrath of your titular employers when you rule against them.
When it comes to reconciliation, parliamentarians have had the power to decide what can and cannot be included since 1986.
Why Reconciliation? Why would congressional Democrats use this approach to seek to pass such a major change in immigration policy as an amnesty for upwards of eight million aliens who are illegally present in the United States? Because of Senate rules, which I explained in an August 2020 post.
To pass a bill in the House, all that sponsors need is a simple majority (218 votes when all 435 seats are filled), and the rules in the lower body allow the party in control to limit debate.
Senators can speak on an issue for as long as they want, however, and to get to a vote on passage of a bill in the Senate, 60 senators have to first vote to end debate through “cloture”. Cloture is closely related to the more popularly understood “filibuster” (popularized by Jimmy Stewart in Mr. Smith Goes to Washington), under which senators can stem-wind to block consideration of a bill.
Reconciliation does not require that initial cloture vote. The Heritage Foundation has explained:
What makes reconciliation especially tricky are specific rules for using it. Under those rules, bills must contain only subject matter with a direct budgetary impact. Otherwise, a reconciliation bill “loses privilege” — that is, it loses the ability to avoid a filibuster.
In the Senate, any senator may cite something called the Byrd rule to challenge provisions of a reconciliation bill as not having to do with spending, taxes, the debt limit, or deficit reduction.
What Reconciliation Giveth, It Could Take Away — and More. The parliamentarian made one important point at the end of her decision, which touches on the non-legal “law of unintended consequences”. If amnesty granting green cards were found to be appropriate to include in a reconciliation, then it would also be appropriate for repeal by a simple majority in the future.
Most critically, however, as she explained:
[P]ermitting this provision in reconciliation would set a precedent that could be used to argue that rescinding any immigration status from anyone — not just those who obtain LPR status by virtue of this provision — would be permissible because the policy of stripping status from any immigrant does not vastly outweigh whatever budgetary impact there might be. That would be a stunning development but a logical outgrowth of permitting this proposed change in reconciliation and is further evidence that the policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation.
What’s Next for Amnesty? Some Democrats called on Senate leadership to fire the parliamentarian when she ruled against including a $15 minimum wage in budget reconciliation (it has happened before; the same parliamentarian was fired by Democrats in the 1980s, rehired, and then fired by Republicans in 2001), but leadership and the White House resisted that call.
The same calls will likely be repeated after this ruling, but Senate Majority Leader Chuck Schumer (D-N.Y.) will likely resist them as well.
The Senate has a 50-50 Democratic-Republican split, and 34 senators are up for reelection in 2022. The outcome of that race is a toss-up at this point, but placing decision-making for rules in a neutral “umpire” like the parliamentarian protects the rights of the minority (which Schumer could be leading in January 2023).
That said, even if Senate Democrats fired the parliamentarian, they probably could not just hire a new one more to their liking. As the Washington Post has explained: “There’s a parliamentarian office, where people work and study for years and years to get to the job. That creates a line of succession that insulates the job from politics.”
Senate leadership could also ignore that ruling, but again doing so sets a precedent that a future Republican-led Senate could use to run roughshod over Democrats. Respect for such decisions helps to preserve norms in a body that relies on them to do its work.
Further, there is a distinct possibility that Schumer may face push-back from his own caucus if he were to ignore MacDonough’s decision.
There are probably several Democratic senators who did not want to push a massive amnesty in what would likely have been a party-line vote, particularly Sens. Mark Kelly (D-Ariz.), Raphael Warnock (D-Ga.), and Maggie Hassan (D-N.H.).
Each is up for reelection in a toss-up “purple” state, and Hassan (who won last time by .1 percent) in particular faces a tough potential opponent in popular Gov. Chris Sununu (R-N.H.), who has yet to announce whether he will run.
They (and others) may be happy not having to take a hard vote until they are more firmly ensconced in their seats.
That said, Democrats may push some version of amnesty for certain aliens (including DACA recipients) in an end-of-the-year “omnibus” spending bill. Multiple bills that cannot pass on their own are usually packed into such “must pass” legislation at the eleventh hour and with little debate. They are known on the Hill as “Christmas trees” for a reason — you never know what all is in them until they are unpacked.
Finally, of course, the Senate could always ditch the filibuster to pass an amnesty. Given the fact that the filibuster also protects minority rights and enables the body to function, and that many senators face an uncertain mid-term election in less than 14 months, even the prospect of eight million new voters may seem like too low a return for the risks involved.
Summary. If congressional Democrats want to pass a widescale amnesty with a huge price tag, they will likely have to do it the old-fashioned way — through committee hearings and votes, and bruising floor debates. They will likely find it is less popular than the D.C. echo-chamber believes. For now, reconciliation is off the table, and likely will stay that way.