This unelected functionary has moved the goalpost on reconciliation.
Over the weekend, countless media outlets gleefully reported that the Senate parliamentarian had all but killed the Republican effort to dismantle Obamacare. These reports claimed, based on a memo written by Democrat staffers, that she had declared several sections of the Better Care Reconciliation Act (BCRA) in violation of reconciliation rules under which the GOP hopes to pass the legislation. This created consternation among pro-life conservatives. One of the endangered provisions defunds Planned Parenthood, yet the same parliamentarian approved the same provision for a 2015 budget reconciliation bill that Congress passed. That bill was vetoed by then President Obama, of course.
This was the “clean repeal” that Senator Rand Paul and other conservative Senators would like to vote on rather than BCRA, and President Trump would certainly sign it into law if Congress could get it to his desk. Would the Senate parliamentarian move the goalpost on reconciliation to prevent that? Probably. This functionary is expected to be a kind of nonpartisan referee and advisor to the Senate leadership concerning the proper interpretation of that body’s rules and procedures. That anonymous person you sometimes see on C-SPAN quietly conferring with the presiding officer is likely to be the parliamentarian explaining some arcane rule. But that specialized knowledge is no guarantee of political neutrality.
The current parliamentarian is Elizabeth MacDonough, who was installed in that position while Harry Reid was still the Senate Majority Leader. And she has a rather worrisome history. Her alumni profile from Vermont Law School, for example, indicates that she was an advisor to Vice President Al Gore during the Florida recount charade. And she recalls that experience fondly: “Here I was, just a few years out of law school, helping to advise Vice President Gore on the procedure for counting the ballots in his own election. It was very exciting.” This part of her CV is not reassuring to pro-life groups like the Family Research Council and the Susan B. Anthony List, who issued this joint statement:
The expectations of the pro-life movement have been very clear: The health care bill must not indefinitely subsidize abortion and must re-direct abortion giant Planned Parenthood’s taxpayer funding to community health centers. The Senate discussion draft includes these pro-life priorities, but we remain very concerned that either of these priorities could be removed from the bill for procedural or political reasons.
As it happens, media hype notwithstanding, MacDonough has yet to produce her final ruling on BCRA. She has only issued a preliminary guidance. Nonetheless, considering her history of hobnobbing with creatures like Al Gore, and that she is one of the few people who really understand the arcane subtleties of Senate reconciliation, it’s a pretty good bet that she’ll find that the defunding of Planned Parenthood doesn’t make the cut. That would very likely damage her credibility among the few Americans who have actually heard of her and know about her 2015 ruling, but she may well prefer that to being smeared in the “news” media and receiving random death threats from pro-abortion zealots.
The question, then, is what can the GOP leadership do to keep MacDonough honest? One choice is to simply fire her and give the job to someone who can be trusted. The Senate Majority Leader certainly has the power to do so and, if Mitch McConnell chooses to go that route, he would by no means be the first to pull the plug on a parliamentarian. In fact, it has been done as recently as 16 years ago. In 2001, then Majority Leader Trent Lott got so sick of inconsistent rulings by the parliamentarian with whom he had been saddled, he fired the man. The Washington Post provided a few of the details at the time under this predictably tendentious headline: “Key Senate Official Loses Job in Dispute With GOP.”
Senate Parliamentarian Robert Dove, the official responsible for enforcing the chamber’s rules and procedures, has been asked to leave his post after a dispute with the Republican leadership, Senate sources said yesterday.… Republicans declined to say why Dove had been asked to leave, but his departure will force the appointment of a new parliamentarian — one of the Senate’s most important, if least-known, officers.
It isn’t necessary to fire the parliamentarian, however, to get around an obviously partisan ruling. If MacDonough actually reverses herself on whether Planned Parenthood defunding cannot be accomplished via reconciliation, it is also possible for the President of the Senate (i.e. Vice President Pence) to ignore her. This is a solution to the MacDonough problem that has been advocated for months by Ted Cruz. The Texas Senator says that the role of the parliamentarian is to advise rather than to issue rulings. The Senate usually follows the advice of the parliamentarian, but that isn’t required if she takes a position that contradicts one of her own previous rulings. The Hill quotes Cruz thus:
Under the Budget Act of 1974, which is what governs reconciliation, it is the presiding officer, the vice president of the United States, who rules on what’s permissible on reconciliation and what is not.… You don’t have to override the parliamentarian or get a new parliamentarian. Under the statute, it is the presiding officer who makes the decision. The parliamentarian advises on the question.
No matter which of these choices the Senate leadership takes, they will be denounced by all of the usual suspects, accused of destroying democracy, and ushering in an age of neo-fascism. But that’s what the disloyal opposition does. What Majority Leader McConnell cannot do under any circumstances is allow a Senate staffer to arbitrarily scuttle BCRA, or anything else on the GOP agenda. McConnell isn’t likely to ask me, but my opinion is that he should fire her. It would help to rehabilitate his damaged image among conservatives and it would be fun to get out the popcorn and watch the talking heads explode and Minority Leader Charles Schumer squeeze out a few more crocodile tears.