“The Parliamentarian Has No Real Legal Authority”

The modern-day filibuster is far removed from its original form.

Historically, Senators had to speak for hours on end in order to block a bill’s advancement, but that changed in 1917 when the Senate adopted “cloture” — a method to end debate and bring about a vote. The Senate adopted the modern version of the filibuster rule in 1975, which essentially allows any bill without sixty votes to be blocked, even without debate.

While lawmakers could eliminate the filibuster by adopting new Senate rules, both parties mostly refuse to do so due to threats from the opposing party.

There have been only a few instances in which Senators have eliminated the filibuster rule to advance nominations. Democrats, under the leadership of Sen. Harry Reid (D-NV) in 2013, voted to remove the filibuster rules for nominations during the Barack Obama administration; Republicans changed the rules for Supreme Court nominees under the Donald Trump administration.

“I argued against it at the time,” Senate majority leader Chuck Schumer (D-NY) said during a 2017 interview with CNN. “I said both for Supreme Court and Cabinet [positions] should be sixty [votes] because on such important positions there should be some degree of bipartisanship.”

If Democrats do not change the filibuster rules, then that just leaves one option for a Democratic majority in a non-filibuster-proof Senate: budget reconciliation.

The process bypasses debate and allows a simple fifty-one-vote majority to pass legislation directly related to the federal budget. But the process also allows bills to be reviewed by the Senate parliamentarian to decide if certain provisions violate the Byrd Rule — a process developed in the 1980s to strip provisions not related to the federal budget out of the reconciliation process.

During the 2021 minimum wage fight, Senate Democrats tried to pass an increase by attaching a provision to a COVID-19 spending bill and using the budget reconciliation process.

The Congressional Budget Office at the time determined that a minimum-wage increase has budget implications because it could affect the federal deficit.

But in February 2021, Senate parliamentarian Elizabeth MacDonough ruled the minimum wage provision should be stripped. Progressive groups and lawmakers urged Harris to overrule the parliamentarian.

“Eighty-one million people cast their ballots to elect you on a platform that called for a $15 minimum wage. We urge you to keep that promise,” lawmakers wrote in a letter to Joe Biden and Harris.

But Harris refused to intervene.

“We’re going to honor the rules of the Senate and work within that system to get this bill passed,” Ron Klain, the White House chief of staff, said at the time.

Saru Jayaraman — president of One Fair Wage, a restaurant-worker advocacy group, and director of the Food Labor Research Center at University of California, Berkeley — was one of the main voices urging Harris to overrule the parliamentarian in 2021. She called Harris’s decision a “real loss” for workers.

“The parliamentarian has no real legal authority over Congress,” Jayaraman said. “The Senate could have, and the White House could have pushed for that [recommendation] to be overruled, and they didn’t.”

Vice presidents have a history of overruling the parliamentarian.

Vice President Hubert Humphrey repeatedly ignored the parliamentarian’s advice during the 1960s, and former vice president Nelson Rockefeller ignored the parliamentarian’s advice regarding Senate filibuster rules in 1975.

“Pay You Less Than You’re Worth”

Raising the minimum wage has been a staple of the Democrats’ campaign messaging for the past few elections, but the party has routinely failed to pass any increase. The last time the minimum wage was increased was in 2009 under former president Barack Obama — but the increase stemmed from a 2007 law passed during the George W. Bush administration.

Former president Barack Obama called on Congress to pass legislation raising the minimum wage during a State of the Union address in 2013. During her 2016 presidential campaign, Hillary Rodham Clinton supported $15-an-hour minimum wage legislation, and President Joe Biden supported similar legislation during his 2020 presidential campaign.

Harris also campaigned on the initiative in 2020.

“In 2009, the federal minimum wage was set at $7.25/hour,” Harris posted on Twitter/X. “More than 10 years later and it’s still $7.25. We need a $15 minimum wage to be the national floor. Now.”

Failing to raise the minimum wage has kept millions of low-wage workers, mostly restaurant and service industry employees, from meeting basic financial demands, according to a 2023 analysis by the Economic Policy Institute, a nonprofit think tank focused on economic trends and policies affecting workers.

The institute found that single workers without children in rural Missouri need to make roughly $20 an hour to cover basic expenses like rent, food, transportation, and other costs. The same goes for workers in other cities countrywide. The costs are higher for people with children.

“In larger metro areas of the South and Southwest, a single adult without children will also need more than $17 an hour to get by: $24.30 in Fort Worth, $25.70 in Phoenix, and $26.20 in Miami,” the Economic Policy Institute found.

The political fight over raising the federal minimum wage boils down to polarization among political parties, ideology, and incorrect economic reasoning, said Michael Reich, chair of the Center on Wage and Employment Dynamics and professor of economics at UC Berkeley. Additionally, most of the concerns about price increases from raising the minimum wage are “overblown,” Reich said.

“Our studies have shown over and over again that the price increases are very modest and mostly in restaurants; elsewhere they’re too small to detect in the data,” he said.

Currently, twenty states have a $7.25 an hour minimum wage which, according to Reich, affects about 1 percent of the total workforce. But businesses have an incentive to not raise the minimum wage, because the increase would also most likely affect established workers as well.

“Low wages certainly keep [workers] desperate, and because they’re desperate, workers don’t quit even if the wage doesn’t go up or at all,” Reich said. “Employers sense that, so they keep wages low and make more profits.”

Additionally, low wages help keep workers in a precarious position, and employees can only really fight back in two ways: exercise their collective voice or quit.

“But if it is costly to leave, or you don’t have better options anywhere else, then you’re stuck and employers will exploit you. They’ll pay you less than you’re worth.” Reich added.

And as Harris touts raising the minimum wage, she has yet to release information on how much she would like to see it increased.

Fourteen Million Voters

During her first major policy speech on Friday in North Carolina, Harris promised to pass a federal ban on price gouging food products, lower costs for all prescription drugs, work with states to cancel medical debt, and bring back the earned income tax credits and child tax credits, which delivered billions to families in 2021.

Harris also promised to build more than three million homes nationwide during her first term and pledged that she would fight for a law that cracks down on rent and housing price products using artificial intelligence and algorithms.

“We will make sure those homes actually go to working- and middle-class Americans, not just investors,” Harris said.

But it is uncertain how those promises will be fulfilled even if Democrats win a majority in both chambers of Congress. Without a filibuster-proof majority, Democrats will likely have to go through the budget reconciliation process again to achieve Harris’s goals.

The Congressional Budget Office, an independent government research branch that determines impacts on the federal budget, has yet to determine budget impacts for Harris’s campaign promises. However, similar bills on earned income tax credits and child tax credits have been found to have a potential impact on the federal budget, meaning they could be added to a budget reconciliation bill — and then face the scrutiny of the parliamentarian.

MacDonough, the current parliamentarian and first woman to serve in the position, was appointed to the role in 2012 by Senate majority leader Harry Reid. MacDonough is well-liked, said Rabin-Havt, so firing her under a Harris administration is likely not going to happen. But such a move isn’t unprecedented.

Robert Dove, Senate parliamentarian from 1995 to 2001, was fired from the position after he made recommendations that weren’t in line with Republican plans on tax and budget issues.

“It is the decision of the vice president whether or not to play a role,” Dove said during a 2010 interview. “The parliamentarian can only advise; it is the vice president who rules.”

More likely is that Harris would have to work with the parliamentarian to pass her campaign promises on matters like increasing the minimum wage — or be willing to direct potential vice president Tim Walz to do what she didn’t do, and ignore the parliamentarian’s recommendations.

Breaking Senate decorum could ruffle some feathers — but it could deliver policies that have widespread appeal to the working-class and minority voters that Harris is trying to rally.

“After years and years of screaming this from the rooftops,” Jayaraman with One Fair Wage said, “there’s finally a realization that this enormous workforce — fourteen million workers work in the restaurant industry — could turn out to vote.”