Congress

The Senate Parliamentarian, Explained

by Matt Gontarchick

On September 19, Democrats’ plans to offer undocumented immigrants a legal pathway to permanent residency was torpedoed when the Senate Parliamentarian ruled against including immigration reform in their $3.5 trillion human infrastructure package.   As Democrats attempt to advance key priorities via budget reconciliation, the role of the Senate Parliamentarian has garnered much attention. 

Background: Democrats have long been seeking a way to offer permanent residency to Dreamers, who are undocumented immigrants who were brought to the US at a young age and have lived most of their lives in America. Currently, many Dreamers do not have a clear path to gain legal permanent residence status, which would then allow them to pursue citizenship.   

The role: The Senate parliamentarian interprets the Senate’s often complicated rules.  The position of the Senate Parliamentarian is strictly non-partisan, and individuals are traditionally appointed to the role from senior staff in the Parliamentarian office. There have only been six Senate Parliamentarians since the position was created in 1935.  Senate Parliamentarians have no defined term length and serve at the pleasure of the Majority Leader.  The current Parliamentarian is Elizabeth MacDonough, who was appointed by then-Majority Leader Harry Reid (D-NV) as the first woman to hold the position in 2012. 

Did you know?  The Senate Parliamentarian’s salary is $171,315 per year, as of 2019.

Some of the things the Senate Parliamentarian might do include:

  • Advising the Senate’s presiding officer, or Majority Leader, on the appropriate procedure, statements, and responses of the Senate.
  • Offering written guidance on procedural questions.
  • Recommending the referral of measures to relevant committees.
  • Maintaining and publishing procedural rules.

It’s not just the Senate: The House of Representatives has its own Parliamentarian, too, with a similar salary and responsibilities.  The current House Parliamentarian is Jason Smith (not to be confused with the Missouri Congressman), who was appointed in 2010.

Why the Senate parliamentarian is getting so much attention this year:  The Democratic majority is using the budget reconciliation process to accomplish their policy goals and bypass the need for Republican support. Therefore, enter the Parliamentarian, who decides what can and can’t be included in legislation passed under this process. The Parliamentarian uses the Byrd Rule to analyze legislation and makes a determination on whether a provision produces a change in spending or revenues and does not increase the deficit within a set period. 

This isn’t the first time where the Parliamentarian says no to a Democrat policy: Back in March, top Senate Democrats were upset by the Parliamentarian’s decision to not include a minimum wage increase in the American Rescue Plan due to an “incidental” impact on the federal budget. 

What Could Senate Democrats Do? The Senate Majority Leader does have the authority to fire the Senate Parliamentarian.  This last happened in 2001, when then-Majority Leader Trent Lott (R-MS) fired then-Parliamentarian Robert Dover after he interpreted Senate rules in way that would have made it difficult to pass then-President George W. Bush’s tax cut proposal through budget reconciliation. 

However, MacDonough’s job seems safe for now.  While Majority Leader Chuck Schumer (D-NY) has expressed disappointment with her recent rulings, he has yet to call for the Parliamentarian to be replaced.  Senate Majority Whip Dick Durbin (D-IL) has similarly indicated he doesn’t think MacDonough should be dismissed.  Instead, Senate Democrats have expressed a willingness to advance immigration reform and other priorities that can’t be included in budget reconciliation through regular order, even if the chances of doing so are slim to none. 

Senate Democrats could also overrule MacDonough’s ruling with the support of all 50 Senate Democrats and Vice President Harris, but this won’t be happening, either.  Both Sens. Joe Manchin (D-WV) and Kyrsten Sinema  (D-AZ) have previously stated they won’t overrule the parliamentarian, while Sens. Dick Durbin (D-IL) and Bob Menendez (D-NJ) have thrown cold water on the idea.

Politics

Lay of the Land for 2022 Senate Elections

by Matt Gontarchick

The 2022 midterm election for the US Senate is a tale of two conflicting narratives.  On the one hand, the map favors Democrats, who only must defend 14 seats compared to Republicans’ 20 seats.  On the other hand, midterm elections typically do not bode well for the party that occupies the White House, giving Republicans an advantage.  Given the current 50-50 split in the Senate, the stakes for either party couldn’t be higher.

To illustrate the current lay of the land, the map below shows all the seats up for the 2022 election along with the party of the incumbent.

The 2022 Outlook

Below is a chart of all the states with a 2022 Senate election, their likely outcome according to the Cook Political Report with Amy Walter, and a comparison with 2020 presidential election results.

StateIncumbentPartyProjection2020 Presidential Margin
AlabamaRichard Shelby*RSolid RTrump (+25.5)
AlaskaLisa MurkowskiRSolid RTrump (+10.1)
ArizonaMark KellyDLean DBiden (+0.3)
ArkansasJohn BoozmanRSolid RTrump (+27.6)
CaliforniaAlex PadillaDSolid DBiden (+29.5)
ColoradoMichael BennetDSolid DBiden (+13.5)
ConnecticutRichard BlumenthalDSolid DBiden (+20)
FloridaMarco RubioRLean RTrump (+3.4)
GeorgiaRaphael WarnockDLean DBiden (+0.2)
HawaiiBrian SchatzDSolid DBiden (+29.5)
IdahoMike CrapoRSolid RTrump (+30.7)
IllinoisTammy DuckworthDSolid DBiden (+16.9)
IndianaTodd YoungRSolid RTrump (+16)
IowaChuck GrassleyRSolid RTrump (+8.2)
KansasJerry MoranRSolid RTrump (+14.6)
KentuckyRand PaulRSolid RTrump (+26)
LouisianaJohn N. KennedyRSolid RTrump (19.6)
MarylandChris Van HollenDSolid DBiden (+33.5)
MissouriRoy Blunt*RSolid RTrump (+15.4)
NevadaCatherine Cortez MastoDLean DBiden (+2.4)
New HampshireMaggie HassanDLean DBiden (+7.4)
New YorkChuck SchumerDSolid DBiden (+23.1)
North CarolinaRichard Burr*RToss-upTrump (+1.3)
North DakotaJohn HoevenRSolid RTrump (+33.3)
OhioRob Portman*RLean RTrump (+8)
OklahomaJames LankfordRSolid RTrump (+33.1)
OregonRon WydenDSolid DBiden (+16.1)
PennsylvaniaPat Toomey*RToss-upBiden (+1.2)
South CarolinaTim ScottRSolid RTrump (+11.7)
UtahMike LeeRSolid RTrump (+20.3)
VermontPatrick LeahyDSolid DBiden (+35.4)
WashingtonPatty MurrayDSolid DBiden (+19.2)
WisconsinRon JohnsonRToss-upBiden (+0.6)

*not seeking reelection

Democrats May Have an Advantage…

Five Republican incumbent Senators, Shelby, Blunt, Burr, Portman, and Toomey, are not seeking reelection, and three of them represent states that are currently rated as “toss-up.”  This leaves the GOP without the advantage of an incumbent candidate on the ballot for three key races.  Furthermore, the number of “toss-up” states without an incumbent GOP Senator on the ballot could grow from three to four if Sen. Ron Johnson (R-WI) decides not to seek reelection.  In contrast, none of the 14 Democratic Senators in the mix for 2022 have announced retirement plans.

Democrats are also heading into the 2022 Senate races with an impressive war chest.  During the second quarter of 2021, several Democratic candidates in competitive states announced sizable fundraising totals, including Sen. Raphael Warnock (D-GA) with $7 million and Sen. Mike Kelly (D-AZ) with nearly $6 million.  The strong fundraising shown thus far is reminiscent of the 2018 and 2020 cycles, where Democrats translated money raised into electoral victories. 

…Or Not

However, there are many other factors to consider, namely the popularity of President Joe Biden.  As mentioned before, midterm elections tend to not favor the party that controls the presidency, and an unpopular president has the potential to hurt Democrats even more.  Recent polling shows that President Biden’s approval rating has dipped below 50% as the Delta variant, inflation, and the evacuation of Afghanistan take a toll on Biden’s agenda.  If these trends persist into 2022, Democrats might find themselves in a tough position to win any “toss-up” seats.

Trump: the X Factor

A major unknown factor heading into the 2022 Senate races is the role of former President Donald Trump.  Since leaving office, Trump has continued to hold rallies with his supporters and endorsed candidates who he perceives as loyal to him.  In June, for instance, Trump endorsed Rep. Ted Budd (R-NC) in the GOP primary to succeed the retiring Sen. Richard Burr (R-NC) in the race for North Carolina’s open Senate seat.  This endorsement conflicts with Sen. Rick Scott (R-FL), Chairman of the National Republican Senatorial Committee, who has expressed a desire for the former president to refrain from endorsing candidates until the primaries have wrapped up.  

While it remains uncertain how much influence Trump will have over Senate races, the former president’s influence over recent House special elections offers clues.  In a July 27 special election for the 6th Congressional District of Texas, Republican State Rep. Jake Ellzey defeated the Trump-backed candidate Susan Wright in a runoff race to succeed Wright’s late husband, Rep. Ron Wright (R-TX).  However, a Trump endorsement may have been helpful to Republican Mike Carey, who won the Republican primary for a special election on August 3 to fill a seat representing the 15th Congressional District of Ohio.  The seat, which was vacated with the retirement of Rep. Steve Stivers (R-OH), leans Republican, meaning Carey is highly favored to win the general election on November 2, 2021.  Trump’s mixed record on special elections in 2021 further indicates the continued uncertainty on his sway over the Senate races next year.

Uncertain Impact of 2018 Midterm Elections

With the 2022 midterm elections on the horizon, it remains unclear whether the trends from the 2018 midterm elections will carry over into next year, especially for the Senate.  While the 2018 midterm elections saw the highest turnout in over half a century, the results were split between both parties.  While Democrats gained a total of 39 seats in the House, Republicans were able to gain two Senate seats, partially defying a trend that typically sees the party which occupies the White House lose seats in Congress.  However, the 2018 Senate map was historically bad for Democrats, and Republicans face a similar situation heading into 2022.  That said, with a new president and new issues currently dominating the public discourse, 2022 presents a different landscape from 2018, making it difficult to draw any hard conclusions from the previous midterm elections.   

Congress

Can Democrats Scrap the Filibuster?

by Matt Gontarchick

The filibuster is a time-honored tradition in the Senate that allows any Senator to prolong debate and delay or prevent a vote on a bill.  Currently, 60 votes are needed in the Senate to end debate and pass most pieces of legislation, a threshold that requires Democrats to have the support of at least 10 Republicans to advance bills through the 50-50 Senate.  It has been difficult thus far for Senate Democrats to win over enough Republicans which is severely limiting what Democrats can accomplish legislatively.  This begs the question: why don’t Democrats simply scrap the filibuster?

Changing the Rules

Rules are made to broken, right?  Well, it’s not that simple.

There are 2 options to end the filibuster rule.  One option is to move forward to change Senate Rule 22, the rule that requires 60 votes to end debate.  BUT, Senate Democrats need a super-majority – 67 votes – to change the rule.  The other option is to create a new precedent in the Senate.  Changing the precedent, also known as the “nuclear option,” would require only a simple majority.

Not Enough Democratic Support

While Senate Democrats only need 50 votes to create a new precedent on the filibuster, the biggest hurdle is that not all 50 Senate Democrats are on board.  The most vocal supporters of the filibuster are Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), who have repeatedly voiced their opposition to removing the filibuster since Democrats narrowly regained control of the Senate in January 2021. 

Manchin most recently affirmed his filibuster support on June 6 when he wrote, “I will not vote to weaken or eliminate the filibuster” in an op-ed in the Charleston Gazette-Mail.  In his op-ed, Manchin pointed out that Senate Democrats were quick to defend the filibuster when then-President Donald Trump called for the tactic to be thrown out in 2017 when the GOP controlled both chambers of Congress and the White House.  Similarly, Sinema declared on June 2 that the filibuster “protects the democracy of our nation rather than allowing our country to ricochet wildly every two to four years.”  More so, Sinema has expressed support for restoring the 60-vote threshold to advance nominations. 

Other Senate Democrats have conveyed some hesitancy to remove the filibuster.  When asked in January 2021 if he supported keeping the filibuster, Sen. Mark Kelly (D-AZ) declined to answer specifically and instead stated that he supports bipartisanship.  Additionally, Sen. Mark Warner (D-VA) also said in January that “it would take an awful, awful lot for me to end the filibuster.”

What About Reforming the Filibuster?

Between keeping or throwing away the filibuster, reforming the filibuster as we know it could be a third option and a compromise for Manchin and Sinema to consider.  On March 7, Manchin did state that he supports making the filibuster more “painful” if senators want to use it.  The scenario Manchin referred to is the “talking filibuster,” whereby members of the minority party can filibuster only as long as they are on the floor.  Once a senator relents, there would be a simple majority threshold.  The talking filibuster used to be the norm in the Senate until it was scrapped in 1975 because senators thought it was too time-consuming.

There is more recent precedent for reforming the filibuster.  In 2013, then-Majority Leader Harry Reid (D-NV) led the way to allow all nominees except for Supreme Court justices to advance in the Senate with a simple majority.  It should be noted that Reid accomplished this following a strong 2012 midterm election that saw the number of Democratic Senators grow from 53 to 55, while then-President Barack Obama publicly admonished Senate Republicans for consistently blocking his agenda.  In 2017, Republicans expanded on this when then-Majority Leader Mitch McConnell (R-KY) permitted Supreme Court nominees to also be approved with a simple majority.  McConnell proceeded to strike the filibuster in this scenario after Senate Democrats blocked the confirmation of Supreme Court nominee Judge Neil Gorsuch.

However, it’s unclear to what extent Manchin and Sinema would be open to even reforming the filibuster.  Manchin’s June 6 op-ed clearly states an opposition to “weakening” the filibuster, while Sinema’s comments on restoring the 60-vote requirement to advance all nominees suggests an unwillingness to change.

What Does Biden Say?

Over the course of his long career in Washington, President Joe Biden has evolved from being a staunch supporter of the filibuster to embracing calls for reform.  In the wake of the Sandy Hook mass shooting, then-Vice President Biden referred to the filibuster as a “perverted” rule after the Senate failed to advance gun violence legislation in 2013.  More recently, Biden expressed support for restoring the talking filibuster in an April 2021 interview.    

On June 2, Biden took a rare move to say “two members of the Senate who voted more with my Republican friends” when asked why progress on a voting rights bill has stalled.  Biden was of course referring to Manchin and Sinema, who still technically vote with Democrats more often than not.  Biden’s move to publicly call out the two suggests a willingness to use the power of the bully pulpit to condemn Democrats opposed to changing the filibuster, especially if his agenda continues to face staunch GOP opposition.

What Happens Next?

So far, the filibuster hasn’t totally derailed the Biden Administration’s agenda.  The Administration and congressional Democrats have already scored a policy victory by advancing the American Rescue Plan Act, and most of the Senate’s business has focused on nominations.  However, if Senate Republicans continue to oppose key Democratic proposals on voting rights, infrastructure, and other issues, Biden and other top Democrats could turn up the pressure on Manchin, Sinema, and other Senate Democrats to support changes to the filibuster.  Whether the President or Senate Majority Leader Chuck Schumer (D-NY) are willing to do that remains to be seen.