WASHINGTON — Democrats were dealt a blow Sunday when the Senate parliamentarian ruled that immigration reform policies can't be included in the party's $3.5 trillion reconciliation package.
The move again highlighted the role the parliamentarian plays in how laws are crafted in the nation's Capitol.
Congressional parliamentarians are nonpartisan, unelected staff who serve as referees on procedures. The House has had a parliamentarian who advises the speaker of the House since 1927; the Senate has had a parliamentarian since 1935. Neither is a constitutionally required position.
"As the government began to grow and get bigger, the senators had less time to devote to procedure, and it was just natural that they had to begin to depend on somebody to do the procedural aspects for them, leaving to themselves the substantive natters to be put into the legislation," said Floyd M. Riddick, the Senate parliamentarian from 1964 to 1974, in a 1978 interview.
Crucial to the parliamentarian's role is a duty to judge the actions of Congress based on the rules that lawmakers have set out for themselves. The parliamentarian's rulings can be ignored by lawmakers, though the norms of both chambers mean judgments are usually respected.
The Senate parliamentarian's role is especially important in determining if legislation is in compliance with the Byrd rule, which determines what policies qualify for the budget reconciliation process.
Who is the House parliamentarian?
Jason Smith, the House parliamentarian, was praised by House Speaker Nancy Pelosi, D-Calif., when he was appointed as "a brilliant legal mind and great rigor of judgment" who would carry out his duties well.
While the speaker appoints the House parliamentarian, the role is officially nonpartisan and parliamentarians often serve for decades. The last House parliamentarian served for eight years. In just shy of a century, there have only been six House parliamentarians. Before it was established, much of the job was carried out by a "Messenger to the Speaker" or a "Clerk at the Speaker's Table."
Who is the Senate parliamentarian?
Elizabeth MacDonough, the Senate parliamentarian, has held the role since 2012 and has earned praise — and criticism — from both sides of the aisle during her tenure.
In 2015, MacDonough highlighted budget rules that made it more difficult for Senate Republicans to repeal the Affordable Care Act, former President Barack Obama's signature health care policy.
McDonough's perspective was also taken into account by Supreme Court Chief Justice John Roberts, when he presided over the first impeachment of former President Donald Trump.
In February, she ruled that a clause to raise the federal minimum wage to $15 an hour could not be included in Democrats' $1.9 trillion March stimulus package. In April, she ruled that Democrats could use budget reconciliation once more in 2021 and multiple times in the next fiscal year.
Why is the Senate parliamentarian so important now?
Democrats are pursuing a $3.5 trillion reconciliation package that encompasses policies touching many of the party's priorities, including child and family care, climate change, jobs training and education.
Many provisions in the bill are fiercely dividing Democrats and are considered dead on arrival with Republican lawmakers, who would otherwise filibuster the proposals.
With the Senate evenly divided, the filibuster can kill legislation.
What is the filibuster?: A look at the Senate’s consequential quirk and debate on its future
To get around GOP opposition, Democrats intend to pass the package through budget reconciliation, which follows the Byrd rule. The rule, named after the late West Virginia Democrat Sen. Robert Byrd, says that only policies that have a direct impact on the federal budget can be included in the process.
In a highly partisan era, when most bills are stuck in gridlock, the parliamentarian's role in determining what policies can fit into budget reconciliation becomes much more important.
Some progressives have called for Democrats to play procedural hardball and fire MacDonough to replace her with an aide who would rule in their favor on issues like minimum wage and immigration reform. Congressional leaders from both parties have so far rejected calls for such a move.
Follow Matthew Brown online @mrbrownsir.
This article originally appeared on USA TODAY: Senate parliamentarian Elizabeth MacDonough plays key referee role