Senator Bob Menendez (D-NJ) revealed during an Axios interview that the Democrats are trying for a third time to get Senate Parliamentarian Elizabeth MacDonough to allow them to grant amnesty to illegal immigrants in the multi-trillion-dollar reconciliation bill – a sort of “plan C,” he called it. Both prior attempts ran afoul of the Byrd Rule, which – to oversimplify it a bit – requires budget reconciliation bills to actually be about the budget. But this time, he declared, they wouldn’t “take no for an answer.”
What exactly does that mean? Was the distinguished gentleman from New Jersey merely indicating his and his colleagues’ commitment to the issue in general, or is there a way around the parliamentarian’s interpretations? Perhaps more importantly, even if there is a path around or through MacDonough, would enough Senate Democrats support such drastic measures?
Byrd Is the Word
According to Sen. Menendez, the most likely third choice is some form of immigration parole expansion – one that bestows for a limited time legal recognition for the illegals in the nation. That could make aliens eligible to work, attend school, and receive welfare benefits – but it wouldn’t grant an actual permanent status on them, which is why Menendez thinks MacDonough might accept it.
The problem with passing immigration reform through the budget reconciliation process is that it isn’t a budget issue. Sure, there are economic and even budgetary concerns – but any topic can be tied to money with a little time and imagination. Part of the Senate parliamentarian’s job is to interpret whether a measure to be included in budget reconciliation meets one or more of the six standards of the Byrd Rule, which, of course, is named for Robert Byrd – the West Virginia Democrat who was a thorn in the side of progressives since long before Joe Manchin came along. According to the House Committee on the Budget, the Byrd Rule prohibits:
- Measures with no budgetary effect (i.e., no change in outlays or revenues).
- Measures that worsen the deficit when a committee has not achieved its reconciliation target.
- Measures outside the jurisdiction of the committee that submitted the title or provision.
- Measures that produce a budgetary effect that is merely incidental to the non-budgetary policy change.
- Measures that increase deficits for any fiscal year outside the reconciliation window.
- Measures that recommend changes in Social Security.
Sen. Menendez said he read MacDonough’s opinions on the other two attempts and believes this parole idea would square. But there’s a real chance it won’t. So, for a Democratic Party that simply can’t take no for an answer, what paths are open?
Plow Right Through
According to several experts who don’t necessarily agree on the finer details, the Senate can vote to overrule the parliamentarian’s interpretation. Progressive Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) have suggested she be overruled – or even simply ignored. Some believe this would require 60 votes – which, practically speaking, is no more likely than nailing down 60 votes to pass the immigration reform they really want as a bill in its own right.
Others feel it could be done with a simple majority by using the nuclear option to set a new precedent. This wouldn’t quite be the same as nuking the filibuster, as it would only be killing the Byrd Rule – or, at least, the Senate parliamentarian’s authority to enforce it – and thus would only apply to reconciliation. Sure, whatever party holds the majority would be able to pass any measure they want through reconciliation – but that would, in theory, still be limited by the number of allowed uses. Once the filibuster is gone, a simple majority could pass nigh unlimited partisan bills.
Repeal and Replace
However, one must wonder if the senators who oppose busting the filibuster would sign on for this. Perhaps an easier route would be to go around MacDonough rather than over her. Elizabeth MacDonough was appointed by Harry Reid, a Nevada Democrat, when he was Senate Majority Leader in 2012 – and the current majority leader, Sen. Chuck Schumer (D-NY), could replace her with someone more likely to rule in his favor – and if that fails, in theory, just repeat the process until the desired results are achieved.
Some liberal activists have called on Schumer to do precisely this, and it has been done before. In 2001, then-Senate Majority Leader Trent Lott (R-MS) fired Robert Dove as Senate parliamentarian after he issued a rule interpretation that could have prevented George W. Bush’s $1.35 trillion tax cut. Still, if bipartisanship is what certain senators desire, even this could leave a bad taste behind.
Can Build Back Better Be Reconciled?
Despite Sen. Schumer’s optimism and President Biden’s claim that negotiating the 1994 assault weapons ban was harder than this process, Sen. Manchin – exactly half the reason the much higher priced version of Build Back Better didn’t make it – says he doesn’t think a deal is coming anytime soon. The current West Virginia Democrat and pest to progressives said good progress is being made, but there are a lot of details and that, “until you see the text and the fine print, it’s pretty hard to make final decisions.”
Schumer still seems to believe a deal could be reached this week, but without Manchin and Sen. Kyrsten Sinema (D-AZ) – as well as any progressives grumbling about the reduced price tag – there will be no bill, no matter what method Schumer picks.
~ Read more from James Fite.
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