What the Senate Parliamentarian Could Learn from Justice Scalia

David Super

      Late Thursday, Senate Parliamentarian Elizabeth MacDonough rejected Democrats’ third proposal to include relief for undocumented immigrants in the pending Build Back Better reconciliation bill.  Specifically, she ruled that these provisions violate section 313(b)(1)(D) of the Congressional Budget Act, which allows a point of order to be raised against a provision “if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”.  This was the same basis on which she rejected the Democrats’ two previous proposals. 

     All three of these invocations of the “merely incidental” rule are strange because the various immigration provisions that have been proposed for inclusion have been estimated to cost tens of billions of dollars.  (Once legalized, immigrants will be able to apply for benefits such as Social Security that their taxes have long supported.  Immigrants also will apply for refunds when their taxes are over-withheld.)  The “merely incidental” rule’s primary function is to prevent senators from inserting some token fines or salary money into a revision of a regulatory scheme having little to do with fiscal policy:  it says you cannot rewrite telecom policy on reconciliation just by charging the big carrier a few dollars. 

     The Parliamentarian justifies her ruling against legalization of undocumented by saying that she believes sponsors’ purposes are primarily non-fiscal even if the language and effect of the provision is quite large.  Taken seriously, this standard has serious problems.  Virtually nothing in this reconciliation bill, in the 2017 tax cut reconciliation bill, or in any reconciliation bill that increases the deficit has a primarily fiscal motivation.  The sponsors of provisions increasing food assistance are not trying to drive up the deficit:  they are trying to feed people, with the increase in the deficit an undesired but acceptable consequence.  The sponsors of the tax cut provisions in the 2017 reconciliation bill did not seek to increase the deficit – indeed, they claimed that dynamic effects would prevent that from happening – they were trying to lower taxes for corporations and the affluent.  Perhaps some Keynesian stimulus measures genuinely seek to increase the deficit, but even then senators emphasize the benefits to the direct recipients. 

     Thus, if applied consistently, the Parliamentarian’s rationale would deny reconciliation protection for measures that increase the deficit.  That might not be bad policy, but previous parliamentarians rejected that interpretation of the Congressional Budget Act when they allowed massive unfunded tax cuts to pass through reconciliation in 2001 and 2003.  Parliamentarian MacDonough followed their precedent in 2017.

     The “merely incidental” rule has not been consistently tied to sponsors’ purposes.  Even if the Parliamentarian was writing on a clean slate, a purposivist standard for interpreting the “merely incidental” rule would be a serious mistake.  Here, she could learn two important points from judicial approaches to statutory interpretation. 

     First, as Justice Scalia notes in A Matter of Interpretation, purpose is almost never unitary.  Some of the immigration provisions’ sponsors likely have primarily non-fiscal purposes, but others just as surely are driven by the desire to have the government stop further impoverishing immigrant communities by collecting, or over-collecting, taxes from them while denying them the benefits those taxes fund.  The Parliamentarian has no possible way of knowing which purpose predominates among supporters or, indeed, which purpose drives any given senator.  Surely an identical provision cannot be “merely incidental” when offered by a civil rights-oriented senator but permissible when offered by one with a redistributive (i.e., fiscal) motivation.  Even on the much more copious record available once a bill has been enacted into law, Justice Scalia warns that divining a unitary or even predominant congressional purpose is a fool’s errand.

     Second, when interpreting statutes – which is what the Parliamentarian is doing when she applies section 313(b)(1)(D) – courts commonly employ a super-strong form of stare decisis.  Because Congress can readily amend a statute that it believes the courts are misapplying, the value of consistency in application supersedes the importance of reaching what the current adjudicator believes is the “best” interpretation.  This is all the more true when interpreting the Congressional Budget Act, which governs repeat players who alternate between the sponsor’s and objector’s roles. 

     Thus, even if the Parliamentarian believes that purposivism is the best method for applying the “merely incidental” rule, consistency is more important.  During consideration of the 2017 tax cut reconciliation bill, the Parliamentarian ruled that Republicans could include a measure opening the sensitive Alaska National Wildlife Refuge to drilling.  The fiscal impact of that provision was much smaller than that of the current immigration changes, and it obviously was motivated by the desire to resolve a question of environmental regulation in favor of the oil companies rather than bring in revenues.  Yet she did not attempt a purposivist analysis of that provision shoe-horned into legislation otherwise uninterested in federal lands.  People who know her tell me she now regrets that decision, but she made it, and as a result that provision is now law.  Whatever the merits of a consistent purposivist approach, an episodic one is both unjust and unhelpful to building respect for the Senate’s procedural traditions and the Parliamentarian’s office.  Even if her decision on the Wildlife Refuge was a mistake, she now should continue making similar “mistakes” and allow Congress to enact a correction if it disagrees. 

     Some are calling for circumventing the Parliamentarian.  In theory, this could be done by having the presiding officer – Vice President Harris or a Democratic senator – overrule a point of order against the immigration provisions of the reconciliation bill notwithstanding the Parliamentarian’s advice. Formally, the power to make these rulings resides in the presiding officer, not the parliamentarian. 

     This would, however, be a radical break from longstanding Senate procedure where knowledge of parliamentary procedure has been considered irrelevant to serving as presiding officer because the real decisions are made by the parliamentarian.  It would effectively obliterate all Senate rules as it would empower the majority party, or the vice president, to ignore those rules at will.  Although the case against the Parliamentarian’s rejection of the immigration proposals is strong, one can readily imagine future Republican presiding officers making completely nonsensical rulings to evade rules that have gotten in their way.  An electorate that was mostly oblivious to Senator McConnell and President Trump packing the Supreme Court would surely not punish these far more nuanced transgressions. 

     Democrats also could circumvent this ruling by firing Elizabeth MacDonough and appointing a new parliamentarian inclined to overrule the point of order.  Because the merits of this ruling are so dubious, Democrats would have little trouble finding a credible replacement who would wholeheartedly agree with their position.  Moreover, precedent exists for such a move:  Republicans once fired a parliamentarian whom they themselves had installed for showing too much independence. 

     This, too, would rapidly result in a lawless Senate.  Firing the parliamentarian felt sufficiently transgressive in 2001 that Republicans felt obliged to reinstall the previous parliamentarian, who had originally been installed by Democrats and who was emphatically not a hack.  If Democrats fire Parliamentarian MacDonough, one can be confident that, no matter how competent her replacement may be, the next Republican majority will install a Sidney Powell clone to replace that person.  Democrats rightly criticized Trump Administration officials, such as former Attorney General William Barr, for focusing their loyalty on their party rather than their country.  We do not need a proliferation of partisan hacks in positions charged with exercising impartial judgment to uphold systemic values.  Parliamentarian MacDonough is wrong in this ruling, but there is absolutely no reason to believe her rulings are anything but sincere.

     Remarkably, some progressives are using this ruling as further justification for eliminating the filibuster.  With an assertive right-wing supermajority on the Supreme Court, strong indications that gerrymandering will put the House of Representatives in Republican hands for most of the coming decade, and polls suggesting that Democrats’ Senate majority and control of the White House are in grave danger, the filibuster may soon be all that prevents the wholesale gutting of almost a century of social progress.  Senator McConnell repeatedly showed his commitment to the filibuster for legislation even when he controlled the Senate and major pieces of the Republican agenda were at stake.  But if Democrats tamper with the filibuster now, Senator McConnell will have neither reason to preserve it nor, likely, the ability to persuade his caucus to do so. 

     If Democrats gut Senate rules now, whether by ignoring the Parliamentarian, sacking her, or curtailing the filibuster, no group will be more vulnerable than immigrants.  The many victories immigrants’ advocates had against the Trump Administration’s anti-immigrant initiatives overwhelmingly relied on statutes that Republicans could easily gut were it not for the filibuster and limitations on the content of reconciliation bills.  This Supreme Court is certainly not going to be extending new constitutional rights to immigrants:  very much to the contrary. 

     And even if the Democratic leadership was short-sighted enough to be willing to incur these huge long-term costs to enact a path to citizenship, the simple fact is that these tactics just would not work.  For this provision, or any other, to make it into law, it must pass three distinct hurdles:  (1) it must be included in the package Senate Majority Leader Schumer brings to the floor; (2) it must survive any points of order that may be raised against it; and (3) it must not be stricken by a Republican floor amendment.  The parliamentary struggles have dominated public attention, but even before the Parliamentarian ruled the first time some moderate and conservative Democrats were expressing opposition to including a path to citizenship in Build Back Better.  If the Democrats were to bypass the Parliamentarian, those senators would be even less likely to agree to include the path to citizenship in the base package and would be all-but-certain to support a Republican amendment to strike it.  The moderate and conservative Democrats have made clear that they see themselves as guardians of Senate traditions; they surely will not abandon those beliefs for a provision they do not like in the first place. 

     Out of all the crucial reforms in Build Back Better, the one I care most about is the path to citizenship.  I value it even more than the Child Tax Credit’s expansion (which involves much more money), more than universal pre-K (an provision I worked on significantly), and more than the improvements to food assistance programs that have been central to my professional career.  Since the outset of the pandemic, I have spent far more time on immigration issues than on any others. 

     It therefore pains me greatly to say this, but a path to citizenship will not be in Build Back Better.  Because the Parliamentarian is focused on provisions’ purposes rather than their particular content, no redraft is likely to change the outcome.  And even if it could, the moderate and conservative Democrats will not walk the plank politically to vote down a Republican amendment to strike it.  The longer Build Back Better is delayed in search of a magic elixir that could allow the path to citizenship to advance, the more the other provisions of that package will be endangered.  And, ultimately, further delay may jeopardize the legislation itself.  This battle was lost not so much when the Parliamentarian ruled as when Democrats failed to take the Maine and North Carolina Senate seats in 2020, failed to preserve more of the moderate senators up for re-election in 2018, and failed to win the Pennsylvania and Wisconsin Senate races in 2016.  No parliamentary gimmicks can patch those fundamental political failures. 

     @DavidASuper1