Parliamentarian Autocracy and Congressional Mojo

Back in June, the Senate Parliamentarian told the U.S. Senate that it lacked the power to pass multiple pieces of legislation through the Budget Reconciliation Process in one year. Instead, Senate Democrats wishing to circumvent the filibuster in order to pass Democratic Party priorities would only get one shot to do so this year. The Reconciliation Process, wrote the Parliamentarian in a 4-page opinion, should only be used “in extraordinary circumstances” and not as a routine procedure.

Today, Senate Democrats are once again bellyaching about the possibility that the Parliamentarian will rule against them, this time regarding the debt ceiling. With the Treasury set to run out of money in the coming months, the question now on the table is whether the Senate can simply suspend the debt limit for a period of time, thereby allowing the Treasury to borrow needed funds. Or, as Republicans following Sen. Mitch McConnell are insisting, do the Democrats have to use the Reconciliation process and vote along party lines to raise the debt ceiling to a specific dollar amount?

What’s truly bizarre about this (now recurring) spectacle is that, at least publicly, none of the Senate’s members seem to be bothered by the fact that the Senate is having its own rules explained by someone who doesn’t even belong to the Senate. Rather, they seem to be taking it for granted that the Parliamentarian’s opinions are sacrosanct, and that they, the duly-elected and Constitutionally-authorized members of our regime’s upper house, have nothing to say about the matter.

This is a bizarre view, indeed. As the Senators surely realize, the very office of Parliamentarian is a creature of the Senate. Per the U.S. Constitution, Article 1, section 5, the Senate—not the Parliamentarian—has the authority to “determine the Rules of its Proceedings.” In fact, the office of Parliamentarian wasn’t officially created until 1935. Before that, presumably, the Senate had the mojo to figure out what its own rules meant. If a majority of the Senate wanted to, they could swat down the Parliamentarian in a heartbeat, or simply get rid of the office altogether!

To be sure, what happened to the Senate’s mojo is a complicated story, one that many scholars–including The Constitutionalist’s own Jeffrey Tulis–have begun to explicate. What I want to briefly observe here is that the Senate’s increasing deference to the Parliamentarian illustrates the broader phenomenon of Congressional decay: as an institution, the Congress appears to have forgotten how to wield its own powers and stand up for its own prerogatives. As a consequence, it now allows one of its own employees to boss it around.

Clearly, hyperpartisanship has something to do with all of this. Today, Senate Republicans count it as a win if the Parliamentarian writes an opinion in their favor at the expense of Senate Democrats; and the Democrats would undoubtedly do the same if their roles were reversed. The partisan incentive structure being what it is, members of Congress find it in their own interest to defer to the Parliamentarian (and to presidents and the Court) at the expense of the authority of their own institution.

In contrast, members of an earlier Senate would have taken umbrage at a non-member making authoritative-sounding pronouncements about Senate rules; they would have felt solidarity with members of the other party, and they would have bristled at an interloper trying to explain to them how their own institution should do business.

The fact that it is difficult, if not impossible, to imagine Republican Senators putting aside their party allegiances and standing by their Democratic colleagues to oppose the Parliamentarian’s rulings on Budget Reconciliation out of a sense of institutional loyalty confirms the extent to which the incentive structure within Congress has changed.

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