Congress's parliamentarians do not hand down rulings
© Greg Nash

I was recently asked by a friend, who had not worked on the Hill, what it is exactly that parliamentarians in Congress do. His question was obviously prompted by news that Senate Parliamentarian Elizabeth MacDonough had advised that a $15-an-hour minimum wage increase could not be included in the reconciliation bill because it did not directly impact the budget.

But the Washington media, which should know better, contributed to the confusion surrounding that opinion by characterizing it as a “ruling” and even as “striking” the provision from the bill. As I explained to my friend, parliamentarians do not impose their decisions on the House and Senate; they merely advise their presiding officers as to what the precedents indicate should be the correct ruling on a pending parliamentary inquiry or point of order. The chair then has the discretion of either accepting that advice or rejecting it, even knowing the latter course would set a new precedent.

That scenario has played-out twice in recent times when Senate Democrats first overturned a ruling by the chair that 60 votes were required to invoke cloture on filibusters over presidential nominations to the executive branch and lower federal courts, imposing instead a new majority vote cloture threshold. Subsequently, Senate Republicans, in the same way, extended that majority cloture requirement to Supreme Court nominees. In both instances the critical vote was on appealing the correct rulings of the chair and overturning them.

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It is fair to say that House and Senate parliamentarians often find themselves between a rock and a hard place — between majority party pressures to allow certain partisan preferences to prevail and abiding by the dictates of the precedents.  As former Senate parliamentarian Alan Frumin once put it, “I know I’ve done my job if everyone thinks I’m favoring the other side.”

From my experience and observations, the parliamentarians invariably come down on the side of the precedents in advising the chair, notwithstanding potential adverse consequences. While the parliamentarians’ offices are looked upon as something of a guild, built on years of expertise and experience, they are not a lifetime sinecure. Both the House and Senate parliamentarians serve at the pleasure of the Speaker and Senate majority leader, though their tenure has usually been carried forward when there is a change in party control of the chambers.

Nevertheless, there has been an exception to such continuity. In 2001, Senate Parliamentarian Robert Dove was fired by Senate Secretary Gary Sisco (on orders from Majority Leader Trent Lott), over various controversies swirling around a reconciliation bill containing the Bush tax cuts. Ironically, Dove previously had a hand as a staffer in crafting the 1974 Budget Act (though he later cursed reconciliation because it invited all manner legislative interlopers hoping to avoid filibusters).

On reconciliation bills, the Senate parliamentarian can advise whether a provision violates the “Byrd rule” (after Senate Majority Leader Robert C. Byrd), that prohibits inclusion of non-budgetary matters in reconciliation. The rule does not apply in the House, which is why the minimum wage increase in House-passed reconciliation was not challenged. My former boss, House Rules Committee Chairman Gerald B. Solomon (R-N.Y.), used to jokingly refer to those Senate deletions as “Byrd droppings.”

In my early days as a House staffer, I learned a very important lesson about the usefulness of the parliamentarian’s office. My boss at that time, Rep. John B. Anderson (R-Ill.), was incensed that an important committee reform proposal from a bipartisan select committee had been side-tracked to a Democratic Caucus committee for “further study.”

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When it became clear that the caucus committee intended to study to death the proposal, I helped prepare a question of privilege resolution for Anderson, designed to dislodge the proposal from the caucus and send it to the House Rules Committee. Wanting to preserve the element of surprise, we did not consult with the parliamentarian’s office on the plan, suspecting that Speaker, Carl Albert (D-Okla.), if informed, might find a way to head it off. 

When Anderson raised the question of privilege on the floor, the Speaker ruled against it on grounds that it changed House rules by not being first reported from the Rules Committee. Anderson appealed the Speaker’s ruling and predictably lost on a party-line vote.

To rub it in, the Speaker announced that it was the last day of House Parliamentarian Lew Deschler’s nearly half-century in that office, serving from 1927 to 1974. Moreover, Albert noted, Deschler’s advice to the chair had never been overturned once by the House.

I later learned that had our resolution not directed the Rules Committee to report the select committee’s recommendations to the floor, it probably would have passed muster. From then on, I religiously consulted with the parliamentarian’s office on every procedural move we had in mind.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays. The views expressed are solely his own.