Senate Parliamentarian Elizabeth MacDonough, a “nonpartisan straight arrow,” must rule on whether including a $15/hr minimum wage provision in the $1.9 trillion coronavirus relief package meets the statutory requirements for passage via the budget reconciliation process. If so, 50 Senate Democrats plus Vice President Kamala Harris’s tie-breaker can pass the legislation via fast track authority. Otherwise, the bill faces the filibuster’s 60-vote threshold to bring it to a floor vote.
MacDonough must rule whether the minimum wage provision is “incidental” or not to the bill’s impact on the budget (Washington Post):
Sen. Bernie Sanders (I-Vt.), who is leading the charge as the Senate Budget Committee’s new chair to raise the minimum wage to $15 by 2025, has been collecting outside opinions to make the case. “Sanders argues that the measure qualifies as fiscal since the nonpartisan CBO found it to increase deficits by $54 billion over 10 years,” Bloomberg’s Erik Wasson and Laura Davison report. “Opponents say the budget impact is ‘merely incidental’ compared to the overall labor market impact. The wage provision may also violate Senate rules against adding to deficits after 10 years, and therefore would require offsetting savings or revenue to qualify.”
President Biden has already primed voters for disappointment, suggesting the $15/hr minimum wage might have to face a vote as a stand-alone bill.
To make things worse, the Post reports, Democratic senators Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) “have expressed doubts about the $15 an hour wage increase going through reconciliation process.” Manchin seems unmovable. “My only vote is to protect the Byrd Rule: hell or high water,” he told CNN last week. “Everybody knows that. I’m fighting to defend the Byrd Rule. The president knows that.”
(West Virginia’s current poverty rate is the fourth highest in the country behind New Mexico, Louisiana, and Mississippi — Poverty Rate by State 2021.)
Jordan Weissmann of Slate explains in more detail what’s going on with MacDonough’s decision:
Whether they succeed will largely boil down to how the parliamentarian interprets a single word contained in a law governing congressional procedure: Incidental. Beyond the fate of the minimum wage, her reading of this all-important adjective could also have serious implications for major Democratic priorities such as immigration reform.
Does this seem preposterous? It should. Vast swaths of the Biden administration’s agenda currently hang on the subjective linguistic judgment of an unelected congressional functionary, whose jobs is to advise senators on matters of procedure. But that’s the reality we’re currently stuck in, since moderate Democrats have refused to junk the Senate filibuster, preferring instead to force their party through joint-popping procedural contortions in order to pass laws.
To be specific, the party is attempting to enact its COVID rescue through budget reconciliation, the baroque maneuver that bars filibusters on certain tax and spending bills, allowing them to pass with a bare majority. This process is governed by a statute known as the Byrd rule, named for the late Sen. Robert Byrd. Crucially, it states that in order to pass via reconciliation, each provision of a bill must have an impact on the federal government’s finances that is not “merely incidental“ to its nonbudgetary components.
MacDonough gets to make that call. Unless Democrats eliminate the filibuster first. But then, the decision to eliminate that anti-democratic relic of the Jim Crow era must also get by Manchin and Sinema.
As the saying goes, with friends like that….