Senate's Parliamentarian Is Back Under the Klieg Lights

Elizabeth McDonough's "Ruling" Blocks Senate Democrats Back-Door Attempt to Grant Lawful Permanent Residence to 8 Million Illegal Immigrants. At Least Temporarily

Klieg lights, Wikipedia tells us, were intensely bright “carbon arc” lights used in filmmaking. They were so bright that they allowed Hollywood directors to film daytime scenes at night. They were also so bright as to cause inflammation of the eye, known as “Klieg eye.”

Let’s hope the Senate’s Parliamentarian, Elizabeth McDonough suffers no such injury. Or worse. Few people like the spotlight less than the Senate’s Parliamentarian, a senior staff member and legal expert who reports to the Secretary of the Senate, the chamber’s senior officer. And now, she has won a new Twitter hashtag, #FireTheParliamentarian.

For the second time in 7 months, she is back in the news. On February 28th, Senate Democrats and their new 51-50 majority (with Vice President Kamala Harris breaking the tie) tried to include a $15 minimum wage hike in a budget reconciliation act. Such laws, limited by statute to appropriations and tax items and even further by something called the “Byrd Rule,” were struck down by McDonough. It violated Senate rules against making policy changes with only an incremental effect on budget revenue and outlays.

And she may not be done advising the Senate that other items in the Senate Democrats’ $3.5 trillion spending boondoggle are out of order.

Senator Schumer wants to cram as much of the Biden “Build Back Better” progressive agenda into a budget reconciliation bill as possible since such bills are not subject to the Senate’s 60 vote supermajority requirement to end debate. But the guard rails for those kinds of bills are narrow indeed.

The calls for her dismissal were intense from the usual suspects, mostly far-left House members and their fellow travelers. The same folks are back for a reprise. It seems they are unhappy with the Parliamentarian’s three-page ruling on Sunday night that claimed Senate Democrats’ efforts to include giving 8 million illegal immigrants lawful protected resident (LPR) status violated the same Senate rules for much the same reason. It is somewhat technical with plenty of acronyms - typical Senate-speak - but worth reading. If you don’t have time or interest, this is all you have to know, and it is striking and powerful:

The reasons that people risk their lives to come to this country – to escape religious and political persecution, famine, war, unspeakable violence and lack of opportunity in their home countries – cannot be measured in federal dollars. The same is true of the value of having the security of LPR status in this country. LPR status comes with a wide range of benefits far beyond the social safety net programs (Medicare, Medicaid, SNAP, CHIP, SSI, etc.) that generate the CBO score. Broadly speaking, as most of the beneficiaries of this policy change are not in status, there will be other, life-changing federal, state and societal benefits to having LPR status, for example: the ability to work anywhere in almost any job, the ability to obtain a driver’s license in any state, instate tuition in any state, the ability to sponsor family members under the INA, the ability to make campaign contributions, the freedom from the specter of deportation to the very country from which they fled. Many undocumented persons live and work in the shadows of our society out of fear of deportation. They are exploited by employers, face extra hurdles in the banking and housing sectors and are often afraid to report that they are victims of crime or seek medical care for fear of exposing themselves to authorities. LPR status would give these persons freedom to work, freedom to travel, freedom to live openly in our society in any state in the nation, and to reunite with their families and it would make them eligible, in time, to apply for citizenship – things for which there is no federal fiscal equivalent. Changing the law to clear the way to LPR status is tremendous and enduring policy change that dwarfs its budgetary impact.

The calls for Senate Majority Leader Charles Schumer to fire the Senate’s Parliamentarian, Elizabeth McDonough, came quickly. Again.

If you read beyond the shouting on social media, the closest thing these folks have to a rationale was best penned by Dan Pfieffer, a former senior advisor to President Barack Obama and co-host of “Podcast America,” the uber left’s favorite podcast, from a post back in February during our first 2021 #FireTheParliamentarian tantrum. And it is a doozy.

The Parliamentarian serves at the pleasure of the Secretary of the Senate, who serves at the pleasure of the Majority Leader. Senator Schumer could fire the parliamentarian and replace her with someone who takes a more consistent approach to issues affecting working Americans. Representative Ilhan Omar called for this course of action last week.

There are several advantages to this approach. First, there is a clear precedent. The Republicans replaced the parliamentarian in 2001 for the same reason under the same circumstances. In a 50-50 Senate, Robert Dove, the parliamentarian, made several rulings that upended efforts to pass President George W. Bush’s tax plan. As the Washington Post reported at the time:

Several Republican sources said Dove angered GOP leaders when he said the Senate could use the provision for only one tax-reduction measure. Because of Dove's decision, the GOP may need 60 votes to break a filibuster for these tax bills -- a much more difficult hurdle since Democrats hold 50 seats -- or strike a deal with the opposite party.

The Democrats were annoyed. They put out some grumpy statements, but nothing else happened. A new parliamentarian ruled differently. The Bush tax cut became law, and everyone went about their business.

Another advantage to replacing the parliamentarian is that it is a decision that Senator Schumer can make on his own without the votes of Manchin or other recalcitrant Democrats. Mitch McConnell often shoulders the burden of blame for his caucus on controversial issues by making himself the focal point. Schumer could do the same here and take all the slings and arrows that come from the norm-loving crowd.

Finally, while overruling the parliamentarian solves the short-term issue of passing minimum wage, it does nothing to deal with the longer-term problem. As long as the filibuster remains, the budget reconciliation process is the only way Democrats can pass any legislation of consequence. It is simply not sustainable for Democrats to allow an unelected bureaucrat to stop Democratic priority after Democratic priority. Much like the Republicans in 2001, Democrats need a parliamentarian that shares the Senate majority's views (emphasis added).

Pfieffer’s view demonstrates the differences that divide so-called “progressives” and the rest of us. It seems people either believe in the rule of the law or the rule of the mob. Pfieffer and self-proclaimed progressives clearly espouse the latter, and Elizabeth McDonough is in the way. Good for her.

Having said that, much of what Pfieffer says is technically correct. The Parliamentarian serves at the discretion of the Secretary of the Senate. The Secretary, not the Parliamentarian, is nominated by the Majority Leader and confirmed by the Senate. Schumer could direct the Secretary to fire McDonough, and no doubt would. The question is, who would be qualified to replace her, and what would the consequences be?

Yes, Senate majority leaders have directed the firing of the Senate Parliamentarian on two occasions involving the same individual, the late Robert Dove (who sadly passed away on July 28th at age 82). When Democrats won majority control in early 1987, new Majority Leader Robert C. Byrd fired Dove and replaced him with Alan Frumin. When the GOP won control back in 1995, Senate Majority Leader Bob Dove reinstated Dove and demoted Frumin to “senior assistant parliamentarian.” During my time as Secretary of the Senate, that was the arrangement.

Fast forward to 2001. After then-Republican Majority Leader Trent Lott fired Dove, Frumin returned to his former post. Frumin, originally appointed by a Democratic Majority Leader, advised differently than Dove in a way that helped the Bush tax agenda that year. He would serve for another 12 years, giving way to McDonough, who was also appointed under a Senate Democratic majority in 2012.

McDonough - who first came to the Senate via the Senate’s Library in 1995, when I was Secretary - is only the 7th Parliamentarian in Senate history (counting Frumin once). The first Parliamentarian was named in 1935, Charles Watkins. They are legally trained experts in its 35 standing rules, procedures, and more than 10,000 precedents. Often, a junior Parliamentarian won’t sit in their chair at the Senate dais for nearly a year as they memorize . . . everything. Those rules and precedents are captured in a book entitled “Riddick’s Procedure,” authored by the Senate’s second Parliamentarian, Floyd Riddick, and updated in 1992 by Fruman. The Senate is, if anything, steeped in tradition. Spittoons can still be found under the majority and minority leaders’ floor desks, along with snuff boxes near a couple of entrances.

Senators are generally very suspicious of changes to rules and procedures. They do not like surprises. They also know full well that changes to rules today may be used against them at a future point. Case in point: the elimination of the filibuster for Senate executive and judicial nominations. In 2013, then-Democratic Leader Harry Reid and his unified caucus eliminated the filibuster for non-Supreme Court and all executive branch nominations, mostly to pack the District of Columbia Court of Appeals with Obama nominees. When the GOP won control after the next election, Leader McConnell engineered eliminating the filibuster for Supreme Court nominations. Voila, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Schumer’s Options

Majority Leader Schumer is not without his options, but all have consequences.

1) He could fire McDonough, who is scrupulously fair, highly professional, and as nonpartisan as they come - and replace her with a lackey who gives him the ruling he wants. That would mean that every subsequent Majority Leader after the Senate changes hands, replaces the Parliamentarian with a sycophant who advises the Senate the way the majority party wants. That would practically destroy the Senate. Imagine the “home team” for a football game getting to pick the referees, and firing any of them for making a call not to their liking. Schumer knows that. It is a poison pill he is unlikely to pursue. Wise people know this.

2) As has been suggested, the chair - especially Vice President Kamala Harris, the President of the Senate, and its ultimate presiding officer (except in cases of impeachment of the President) - could rule otherwise. Again, a new majority would turn the tables every time a new Vice President from the other major political party sits at the President’s Desk in the Senate. Harris might win plaudits from open border advocates, but it runs counter to public opinion and would undermine the Senate in serious ways. Last February, the White House nixed this option when McDonough rejected the $15 minimum wage as part of a budget reconciliation bill.

3) One suggestion from liberal law professors, relying on efforts by former Vice Presidents Richard Nixon and Hubert Humphrey, is to declare that the filibuster is “unconstitutional.” Why? Because of a misguided belief that the rules of previous Congresses cannot bind a future Congress, no matter that the Senate is a “continuing body” with only one-third of its members standing for election each Congress. I wrote about the silliness of that tactic last July. Departing Vice President Hubert Humphrey tried to rule that the filibuster was unconstitutional with a heavily Democratic Senate early in 1969 and was overruled by his once and future colleagues.

4) As Schumer has promised, he and Budget Committee Chair Bernie Sanders (I-VT) could come up with alternative proposals that might pass muster. They would have to show less “policy” change than budgetary and revenue impact. Good luck with that, given their desire to turn 8 million illegal immigrants into lawful permanent residents with a path to citizenship.

5) Schumer could take another pass at eliminating the filibuster through the “nuclear option,” which means overruling the chair with just 51 votes. That’s how Harry Reid and Mitch McConnell eliminated the filibuster in 2013 and 2015. The problem with that is that two Senate Democrats, Kyrstin Sinema (D-AZ) and Joe Manchin (D-WV), have been publicly quite firm against eliminating the filibuster. Schumer would lose such a vote today, so long as Sinema’s and Machin’s spines remain intact. And I suspect Schumer and Manchin might not be alone among Democrats.

There may be other options, but Schumer - and the nation - would best be served by a return to regular order. Call it quaint and old-fashioned, but how about building bipartisan compromise and get things passed the old-fashioned way? You know, the way Joe Biden promised when he was elected (how’s that working out?) It worked for most of the first 200 years of our nation’s history. It can work again. It just takes leadership more interested in the will of the nation than iron-fisted mob rule. It’s the way the Senate was built and the way things are supposed to work.

The Klieg lights may be shining intensely on the Senate’s Parliamentarian, but Senate Democrats are under our scrutiny as well. And we don’t like what we’re seeing.

The author was the 28th Secretary of the United States Senate.