In the Age of Rage, no institution or process appears inviolate. When the majority of the Supreme Court shifted right, liberal academics and members demanded court packing — a practice long denounced as anathema to the rule of law. When the Supreme Court commission voiced concerns over court packing, it was denounced by liberal groups and two of the few conservative members resigned during the outcry. Academics have been called to “redo” the First Amendment after it became an impediment to social justice efforts. It is not surprising, therefore, that some of the same activists are now calling for the sacking of Senate Parliamentarian Elizabeth MacDonough. Her offense? She rendered a non-partisan judgment that Democrats could not push through the sweeping immigration reform package as part of the budget reconciliation process. Like the Supreme Court, the Parliamentarian was now an impediment to politics so she or her authority (or both) will have to go. Democratic members and staff are repeating the same menacing mantra that is now familiar in Washington of politics “by any means necessary.“
Democrats previously called for firing MacDonough when she ruled against them on a legislative issue. Rep. Ilhan Omar (D., Minn.) called for the the Senate to “replace the parliamentarian. What’s a Democratic majority if we can’t pass our priority bills? This is unacceptable.” Similar calls followed this decision. After all, what is the value of having a majority if you cannot do whatever you want in the way you want to do it?
That was the same question asked when the filibuster rule became an impediment rather than a benefit for members. For years, Democrats defended the rule as essential for the Senate in protecting minority rights. “God save us from that fate … [it] would change this fundamental understanding and unbroken practice of what the Senate is all about.” That included then Sen. Joe Biden and his colleagues, including then-Sen. Barack Obama (D-Ill.) and now-Majority Leader Chuck Schumer (D-N.Y.). To their credit, the Republicans refused to kill the rule despite calls to do so from President Donald Trump when they had the majority. However, once the majority shifted, the filibuster rule became one more casualty of convenience.
In the latest controversy, MacDonough was conducting what is referred to as the “Byrd bath” — a non-partisan function named after the late Sen. Robert Byrd, D-W.Va., during which the Senate parliamentarian ensures that every provision inside a reconciliation bill is tied to the budget. The immigration reform is clearly not a budget item, but the Democrats want to use reconciliation to bypass the filibuster rule and to use Vice President Kamala Harris to cast the deciding vote in a 50-50 tie.
The Byrd Bath process is meant to protect the Senate’s traditions of compromise and deliberation by preventing such efforts at end running the filibuster or the legislative process. The ruling of the Parliamentarian is not binding but comes with the force of a non-partisan professional applying these rules evenly and fairly. MacDonough did that.
There is little tolerance today, however, for jurists or clerks who reach their own conclusions on the merits of such questions. It is the wrong conclusion so MacDonough or her ruling would have to be removed.
Even if MacDonough keeps her job, various members are calling for a rare override of the ruling while others want the Democrats to simply pick a Senator for the chair who is willing to ignore the Parliamentarian and just follow pure muscle politics. Democratic members and staff are repeating the same menacing mantra that is now familiar in Washington “by any means necessary.”
Sen. Elizabeth Warren (D., Mass.) who came out for court packing the same week, declared simply that MacDonough was “wrong” and, like her colleagues, emphasized that “we’re keeping all options on the table.” Likewise, Majority Leader Charles Schumer (D., N.Y.), and Sens. Dick Durbin (D., Ill.), Bob Menendez (D., N.J.), Catherine Cortez Masto (D-Nev.) and Alex Padilla (D-Calif.) all indicated a willingness to override or ignore the ruling.
For her part, Sen. Mazie Hirono (D., Hawaii) made it personal by not only saying “all options” are on the table but “the protection of millions of undocumented immigrants cannot be halted due to the advice of 1 person.”
Of course, it is not the decision of one person. The rule itself was adopted by the Senate as a whole as a matter of principle before that principle came with a cost. The rule was then implemented by not just the Parliamentarian but her entire apolitical staff.
Hirono’s response captured the ends-over-means mentality of modern American politics. Rather than address the purpose of the rule or the nonpartisan judgment on its meaning, Hirono just cited the value of making millions of undocumented immigrants citizens and then juxtaposed their fate against the decision of one person. MacDonough was not enforcing a rule, she was putting millions into harm’s way.
It was reminiscent of Rep. Alexandra Ocasio-Cortez justifying court packing by questioning “just, functionally, the idea that nine people, that a nine person court, can overturn laws that thousand– hundreds and thousands of legislators, advocates and policymakers drew consensus on.” She then added “How much does the current structure benefit us? And I don’t think it does.”
When the Byrd rule no longer benefited the Senate Democrats, it likewise became as expendable as the person who enforced it.
Thus, one plan would have Harris simply ignore the Parliamentarian and the rules. The implications of that move has a few Democrats uneasy over, what Sen. Ben Cardin (D., Md.) acknowledged would be “a pretty dramatic change” and a “direct attack with the parliamentarian.”
Sen. Joe Manchin (D, W.Va.) has also insisted that you have to “stick with the parliamentarian … on every issue. You can’t pick and choose.” (Manchin later also said that he would vote no on the Build Back Better bill). Sen. Kyrsten Sinema (D-Ariz.) also insisted that “there is no instance in which I would overrule a parliamentarian’s decision.”
That is not a lot of members but it would be enough to halt the effort to bulldoze the parliamentarian on immigration. However, the immediate response of Democratic members and groups captured how principle has little place in politics today. No institution or individual is a barrier when members have embraced politics “by any means necessary.”