Democrats are rejecting calls to overrule the Senate parliamentarian despite the bleak reality that, absent a breakthrough, they likely won't be able to get a pathway to citizenship for millions of immigrants to President BidenJoe BidenGrant Woods, longtime friend of McCain and former Arizona AG, dies at 67 Sanders on Medicare expansion in spending package: 'Its not coming out' Glasgow summit raises stakes for Biden deal MORE's desk given her unfavorable ruling.
Senate Parliamentarian Elizabeth MacDonough’s decision that the immigration plan was “not appropriate” under the rules governing the $3.5 trillion spending bill dealt a significant blow to Democratic hopes of achieving meaningful immigration reform.
But while the party is scrambling to come up with an alternative that might pass muster with MacDonough, key members are shooting down calls from activists and House progressives to play hardball and try to overrule her on the Senate floor if they can’t sway her in the behind-the-scenes talks.
“I don't believe that's realistic. I think the votes needed on the floor are not there,” said Senate Judiciary Committee Chairman Dick DurbinDick DurbinManchin: Negotiators to miss Friday target for deal on reconciliation bill Democrats look for plan B on filibuster The Memo: Cuts to big bill vex Democrats MORE (D-Ill.), asked about the possibility of trying to overrule the parliamentarian.
Sen. Bob MenendezRobert (Bob) MenendezWhy is Trump undermining his administration's historic China policies? Senate GOP signals they'll help bail out Biden's Fed chair Democrats weigh changes to drug pricing measure to win over moderates MORE (D-N.J.), during a conference call with reporters, also tamped down questions about trying to roll the nonpartisan Senate referee, while also pledging that he and Democratic lawmakers would “continue to fight on.”
“While I understand the passion and I understand the sentiment behind it, I think it’s not necessarily constructive at this point,” he said of calls to get tougher with MacDonough.
The stance is likely to frustrate activists, who are publicly calling on Senate Democrats to be willing to challenge the parliamentarian in order to get immigration reform included into the spending plan.
“The parliamentarian is a clear political actor and what her ruling has made clear is that she is not a good arbiter of justice,” said Lorella Praeli, the co-president of Community Change Action.
Rep. Ilhan OmarIlhan OmarDozens of Democrats call for spending bill to pass 'climate test' House progressives call on Biden to end all new fossil fuel permitting Overnight Energy & Environment — Presented by the American Petroleum Institute — Democrats address reports that clean energy program will be axed MORE (D-Minn.) tweeted that Senate Majority Leader Charles SchumerChuck SchumerDemocratic frustration with Sinema rises Schumer endorses democratic socialist India Walton in Buffalo mayor's race Guns Down America's leader says Biden 'has simply not done enough' on gun control MORE (D-NY.) and the White House “can and should ignore” the guidance, adding that: “This ruling by the parliamentarian, is only a recommendation.”
But part of the problem for Senate Democrats is that they likely don’t have the support needed to successfully overrule MacDonough.
To challenge the findings of the parliamentarian, Democrats would need total unity from all 50 of their members in addition to Vice President Harris’s tie-breaking vote.
Sens. Joe ManchinJoe ManchinSanders on Medicare expansion in spending package: 'Its not coming out' Glasgow summit raises stakes for Biden deal Sunday shows preview: CDC signs off on 'mix and match' vaccine boosters MORE (D-W.Va.) and Kyrsten SinemaKyrsten SinemaSunday shows preview: CDC signs off on 'mix and match' vaccine boosters Buttigieg aims to use Tucker Carlson flap to spotlight paternity leave Biden injects new momentum into filibuster fight MORE (D-Ariz.) are both viewed as unlikely to support overturning the parliamentarian. Manchin previously warned that he won’t undermine the Byrd rule, which lays out the guidelines for what can be included under reconciliation, and Sinema said earlier this year that there was “no instance” where she would overrule the parliamentarian.
It’s hardly the first time MacDonough’s guidance has crashed headlong into big party priorities. She nixed a progressive goal to include a $15 per hour minimum wage in the coronavirus relief bill earlier this year and ruled against a 2017 GOP ObamaCare repeal plan.
Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden says he's open to altering, eliminating filibuster to advance voting rights Pelosi says GOP senators 'voted to aid and abet' voter suppression for blocking revised elections bill Manchin insists he hasn't threatened to leave Democrats MORE (R-Ky.) told reporters that he expected Democrats, and GOP staff making the argument to leave out immigration, to ultimately abide by what the parliamentarian decides.
“And the parliamentarian ... both sides agree, is the final word. You can't blame the other side for trying to use reconciliation as expansively as they want to. That's always the temptation of the majority, using the reconciliation process. But abiding by the ruling of the parliamentarian is essential to the function of the Senate, and so the parliamentarian will decide that issue,” McConnell told reporters during a press conference last week.
Biden pledged during his 2020 presidential campaign to provide a pathway to citizenship for the roughly 11 million undocumented immigrants currently in the United States. The Senate previously passed immigration reform language in 2013, but it died in the then-GOP-controlled House.
But given an entrenched stalemate with Republicans on immigration reform, the spending deal represents the party’s best shot at getting immigration reform to Biden’s desk. Because Democrats are using budget reconciliation on the $3.5 trillion spending bill they can get it through the Senate without GOP support if they are totally unified.
Democrats pitched MacDonough on offering 8 million green cards as part of the $3.5 trillion spending bill. Those green cards would go to four groups: Dreamers, Temporary Protected Status (TPS) holders, agricultural workers and essential workers.
Because Democrats are trying to pass the $3.5 trillion spending bill under budget reconciliation, there are strict rules as to what can be included in order for it to be able to pass by a simple majority.
One of the requirements is that any provision in the bill has to impact the federal government's spending or revenues and that the impact can't be “merely incidental” to nonbudgetary intentions.
Democrats were feeling optimistic that MacDonough would greenlight including the immigration proposal in the spending plan because it would increase budget deficits by $139 billion over a 10-year period, according to initial estimates they’ve received from the Congressional Budget Office.
But MacDonough, in sweeping guidance obtained by The Hill, called the Democratic plan “by any standard a broad, new immigration policy.”
“The policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation,” she wrote.
MacDonough added that granting legal permanent resident status to immigrants, a key part of the Democratic bill, has “no federal fiscal equivalent.”
Democrats, publicly, say that they continue to be hopeful they’ll be able to get some sort of immigration reform into the spending bill. But a source told The Hill that MacDonough’s ruling “likely shuts [the] door on pathway to citizenship” in the spending bill.
“Last night’s ruling was extremely disappointing. It saddened me. It frustrated me. It angered me,” Schumer said on Monday. “But make no mistake, the fight continues. Senate Democrats have prepared alternative proposals and will be holding additional meetings with the Senate parliamentarian in the coming days.”