On Immigration, the Senate Parliamentarian Is Trying to Save Democrats from Themselves

Liberals are upset, but the ruling on the reconciliation bill will help the party in the short and long term.

Senate Parliamentarian Elizabeth MacDonough issued an advisory opinion Sunday concluding that the Democratic proposal to provide 8 million undocumented workers with green cards cannot be passed through the filibuster-proof budget reconciliation process. The ruling has enraged many Democrats who already consider the Senate’s rules undemocratic and do not believe that some unelected parliamentarian should determine what they can pass. With no way around the filibuster, Democrats understandably fear that immigration reform will once again be stymied by obstructionist Republicans, as it was during the Obama administration.

But MacDonough was just doing her job, and doing it well. Her interpretation followed both the letter and the spirit of the Senate rules. And she admirably took the unnecessary but welcome step of explaining the rationale behind the rules and the potential consequences of running roughshod over it. Democrats may not admit it publicly, but the parliamentarian’s ruling prevents the creation of an inherently unstable immigration system in which one’s legal status can easily change from one election to the next.

The budget reconciliation process was not designed to make sweeping policy changes. Congressional Democrats created it in 1974 in the heat of Watergate as part of a package of reforms designed to wrest back spending power from the Nixon administration. Between the first reconciliation bill in 1980 and 1985, Senator Robert Byrd of West Virginia had grown concerned that the new procedure was being used for policy changes and eroding the filibuster. So he created what is now known as the “Byrd rule.” As the Congressional Research Service explains, if a proposed provision “produces a change in outlays or revenues which is merely incidental to the nonbudgetary components of the provision,” then the provision must be stricken from the bill.

But what constitutes “merely incidental” is open to interpretation. Both with February’s push to include a $15 minimum wage in the American Rescue Plan and this month’s push to include immigration reform in the Build Back Better Act, Democrats made a mathematical argument: The proposed policy changes have a significant impact on how much money comes into the government’s coffers. But both times, MacDonough ruled that the numerical amount of the impact is not the issue.

MacDonough detailed how legal immigrant status profoundly affects people’s lives in ways that “cannot be measured in federal dollars,” including “the ability to work anywhere in almost any job,” receive “in-state tuition in any state,” and gain “freedom from the specter of deportation.” She concluded that the human impact of such a “tremendous and enduring policy change . . . dwarfs its budgetary impact.”

MacDonough’s reasoning may feel like a legalistic denial of a positive human impact. But the ruling is in line with the intent of the Byrd rule. And she gave a compelling hypothetical reminding us that there is humane logic underlying the rule:

An obvious corollary of a finding that this proposal is appropriate for inclusion in reconciliation would be that it could be repealed by simple majority vote in a subsequent reconciliation measure . . . Permitting this provision in reconciliation would set a precedent that could be used to argue that rescinding any immigration status from anyone—not just those who obtain [lawful permanent resident] status by virtue of this provision—would be permissible.

In other words, slipping such a sweeping reform through Congress by scrapping Senate precedent doesn’t provide a happy future for the undocumented. Eroding the Byrd rule would create an unstable immigration system that could change dramatically from election to election, where noncitizen immigrants—not just the undocumented—would never truly know how long they could stay in America.

Democrats who support abolishing or weakening the filibuster to pass an expansive agenda often contend that a purely majoritarian system will lead to the enactment of progressive policies. In a January polling memo, Data for Progress’s Ethan Winter argued, “Eliminating the filibuster would allow Democrats to pass popular legislation that will provide tangible benefits for voters and help them win future elections.” Some left-leaning filibuster opponents further argue that even when Democrats lose elections, Republicans will have great difficulty corralling their members to repeal popular legislation. As Ezra Klein argued in Vox last year, “When it came to repealing and replacing most of Obamacare—which Republicans used budget reconciliation to try and do with only 51 votes—it turned out that Republicans couldn’t even muster the votes in their own party to repeal the law. If they had, and tens of millions had lost health insurance, the political backlash could have been cataclysmic.”

Put aside for now that the need to use the reconciliation process for repeal—precisely because the filibuster was still in place—forced Republicans to adhere to Byrd rule constraints and craft very awkward, unappealing legislation. Let’s accept the premise that progressive programs, once they are embedded in the social fabric and are helping vast numbers of Americans, would be hard to repeal even without a filibuster. But what about progressive legislation that is not designed to help a majority? Progressives are not strictly interested in appealing to the median voter; they often want to help oppressed minorities, such as undocumented immigrants. One cannot be so confident that a populist right-wing backlash won’t repeal such legislation at the first possible opportunity.

Of course, many Democrats believe that the Republican Party has already gone so far off the bigoted deep end that the notion of bipartisanship to lift up oppressed minorities is ludicrous. In turn, they can’t quit looking for a partisan pathway forward. They want the parliamentarian’s advisory opinion to remain just that: advisory, not determinative. Under the Senate rules, Vice President Kamala Harris, as presiding officer of the Senate, can reject the parliamentarian’s advice. While a senator can raise a point of order to challenge the presiding officer, that challenge needs 60 votes to be sustained. Only 41 Democratic votes would be required to back up the vice president, overrule the parliamentarian, and obliterate the Byrd rule.

The problem with that strategy is that Democrats would still need 50 votes for the final bill. And at minimum, Senator Joe Manchin has been adamant that the Byrd rule, named after his West Virginian predecessor, should not be weakened in any way. His vote on the final bill would likely be lost. (On Monday, Senate Majority Whip Richard Durbin, asked by reporters if overruling the parliamentarian was a feasible option, replied, “I don’t believe that’s realistic. I think the votes needed on the floor are not there.”)

Some Democrats had argued that Barack Obama wasted too much time trying to forge bipartisan agreements when Democrats had big majorities. I’ve never understood that argument, considering that Obama passed the stimulus, Obamacare, student loan reform, Wall Street reform, criminal justice reform, “Don’t Ask Don’t Tell” repeal, and new food safety regulations in his first two years. (All of the above accomplishments, except for health care and student loans, came with at least a necessary number of Republican votes, albeit with Democratic majorities that dwarf what Biden has in his quiver.)

But this year, I would argue that Democrats have wasted a lot of time trying to avoid bipartisan negotiations—even after MacDonough, Manchin, and Senator Kyrsten Sinema all gave very clear indications early on that wasn’t going to be a productive path.

I remain optimistic that the Build Back Better reconciliation bill will still pass; there’s nothing wrong with Democrats trying to do all they can, on their own, with the rules as they are. But non-budgetary issues like raising the minimum wage, securing voting rights, and reforming immigration will need a 60-vote bipartisan supermajority. Finding the bipartisan sweet spot on these tough issues takes time. Time wasted repeatedly running into a brick wall on abolishing the filibuster could have been spent trying to reduce political polarization and create the conditions for productive negotiations on these other matters. That happened with the Senate infrastructure bill. But now, with the reconciliation process in full swing, partisanship has been ramping back up. And the closer we get to the midterm elections, the harder it will be to lower the political temperature and cross the aisle.

In her immigration ruling, MacDonough gave Democrats a fresh reminder that they have been letting their mistrust of bipartisanship push them toward rules changes that, while seemingly democratic, could badly backfire on democracy. Functional, stable democracy requires more than crude partisanship. That’s reflected in the Senate rules and in the parliamentarian’s precise and admirable interpretation of the Byrd rule—one she’s likely to issue again and again. MacDonough didn’t make the rules, and Democrats shouldn’t get mad about having to play by them.

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Bill Scher

Bill Scher is the host of the history podcast "When America Worked" and the co-host of bipartisan online show and podcast "The DMZ"