On Thursday, a key Senate official advised Democratic lawmakers that the chamber’s rules do not allow them to include a minimum wage increase in President Joe Biden’s first COVID-19 relief legislation. The ruling from the parliamentarian means that Vice President Kamala Harris could decide the fate of one of the Democratic Party’s most significant campaign promises — but it remains unclear what she will end up doing.
As the presiding officer of the Senate, Harris — who has long touted her support for a $15 minimum wage — can now use the power her predecessors have used to ignore the advisory opinion and fulfill Biden’s campaign promise to boost the wage. A confidential memo we obtained that is now circulating on Capitol Hill spells out exactly how that could be accomplished.
However, White House chief of staff Ron Klain this week declared that Harris will refuse to use that power — a decision that would effectively put the Biden-Harris administration in the position of potentially killing the prospect of minimum wage legislation for the foreseeable future. Immediately after the parliamentarian’s ruling, the White House issued a statement reiterating Klain’s comment, declaring that “Biden respects the parliamentarian’s decision.”
Some congressional Democrats have already been arguing that the Biden administration’s refusal to overrule the parliamentarian would be immoral and a political disaster for their party.
“It’s been twelve years since we’ve raised the minimum wage, and if we’re going to make those promises, we have to be able to deliver on them,” Democratic representative Pramila Jayapal said Wednesday on MSNBC. “Because, I’ll tell you what, in two years . . . when people vote in the midterms, you’re not gonna be able to say, ‘Well, I’m sorry, we couldn’t raise the minimum wage because the parliamentarian ruled that we couldn’t do it.’ That’s not gonna fly.”
“Ultimately It’s the Vice President of the United States”
The maddening process conversation surrounding a $15 minimum wage increase is the result of Democrats refusing to eliminate the legislative filibuster, which means Republicans can block most legislation unless Democrats find sixty votes.
As such, Democrats are working to pass the COVID bill using the convoluted budget reconciliation process. The process will allow for a simple majority vote on the final legislation, but it also allows Senate parliamentarian Elizabeth MacDonough to recommend tossing certain provisions if she decides they violate the so-called Byrd Rule, which is designed to prohibit extraneous matters outside of federal spending issues to be added to budget legislation.
The minimum wage, however, has budget implications, according to the Congressional Budget Office — which is why proponents had hoped MacDonough would advise that it is in order, especially since the nonpartisan parliamentarian has previously ruled that other, less significant budget-related issues were in order.
MacDonough, however, refused to do so on Thursday evening. The development is not catastrophic for the $15 minimum wage provision — if Harris simply uses her power to ignore the opinion and clear the path for the measure she has long insisted she supports.
The problem is that the White House is signaling she will do the opposite.
In an MSNBC interview on Wednesday, Klain said that if the parliamentarian advises Democrats against including the minimum wage hike, the White House will not want Democrats to move ahead with it. If Harris refuses to use her power, that decision could leave workers who are paid poverty wages and toiling in hazardous conditions during the pandemic to wait indefinitely for better pay.
“Not sure if it’s ever happened in the past,” Klain said when asked if Harris will ignore the parliamentarian. “Certainly that’s not something we would do. We’re going to honor the rules of the system and work within that system to get this bill passed.”
For those saying Harris should just overrule the Senate Parliamentarian on $15 minimum wage, Chief of Staff Ron Klain told @JoyAnnReid last night that:
"Certainly that's not something we would do. We're going to honor the rules of the Senate and work within that system." pic.twitter.com/PPbSVeCYVf
— Eugene Daniels (@EugeneDaniels2) February 26, 2021
Vice presidents have ignored the parliamentarian in the past. According to Slate, “Vice President Hubert Humphrey routinely ignored his parliamentarian’s advice.”
Roll Call reported last month: “Precedents for ignoring parliamentary advice include 1967, 1969, and 1975 efforts to change the Senate’s threshold to end debate from a two-thirds vote to three-fifths.”
“Ultimately it’s the Vice President of the United States,” said former Senate parliamentarian Robert Dove in a 2010 interview about such matters. “It is the decision of the Vice President whether or not to play a role here . . . And I have seen vice presidents play that role in other very important situations . . . The parliamentarian can only advise. It is the vice president who rules.”
At the time, the Huffington Post explained that a vice president “can choose whether or not to accept the parliamentarian’s decision or rule . . . that ruling is subject to appeal — but the appeal is decided by majority vote.”
Confidential Memo Spells Out a Path Forward
In a new memo we obtained that is circulating to lawmakers, Harris’s power as the presiding chair of the Senate is spelled out, citing a precedent set during the Clinton administration.
“It would take 60 votes to overturn the ruling of the Chair on a Byrd Rule point of order, regardless of what the Parliamentarian advises,” states the memo. “Based on a search of the Congressional Record, it appears that only twice has the chair’s ruling on a Byrd Rule point of order been appealed. Both instances occurred on August 6, 1993, during consideration of the Omnibus Budget Reconciliation Act of 1993. Neither appeal garnered the 60 affirmative votes necessary to overturn the Chair’s ruling.”
The memo spells out exactly how Democrats could use the same process now, explaining the scenario that would play out if Harris invoked her power:
“What would probably happen is a senator would appeal the ruling of the chair and then the full Senate would vote on whether to sustain the appeal,” it says. “The Chair’s ruling would be upheld as long as there are not 60 affirmative votes to sustain the appeal. So, if the majority could hold enough members together (less than 60 affirmative votes to sustain the appeal), the ruling that runs counter to the Parliamentarian’s advice would be upheld.”
The same memo also warns against Harris accepting the parliamentarian’s advice and Senate Democrats then pretending to push for the new minimum wage as part of the deliberations. In that situation, the memo suggests Democrats would be setting the minimum wage measure up for defeat.
“If in the same scenario, the chair followed the parliamentarian’s advice (and) a senator from the majority party (in favor of the provision at issue) were to appeal that ruling, then it would also take 60 affirmative votes to overturn the chair’s ruling,” says the memo. “Thus, the majority would be in a weaker position by doing it this way, because they would need to muster 60 affirmative votes to overturn the chair.”
Biden Has Been Retreating for Weeks
Biden’s “American Rescue Plan,” released on his first day in office, called on Congress to raise the minimum wage in its COVID relief bill.
“Throughout the pandemic, millions of American workers have put their lives on the line to keep their communities and country functioning, including the 40 percent of frontline workers who are people of color,” his plan stated. “As President Biden has said, let’s not just praise them, let’s pay them.”
But for weeks now, it’s seemed like Biden and his fellow Democrats were actively hoping the parliamentarian would give them a halfway plausible reason to avoid including the minimum wage in the COVID bill. Indeed, last week, Biden suggested in a meeting with governors and mayors that he didn’t think the Senate parliamentarian would allow the wage increase to remain in the bill.
If you watched White House chief of staff Ron Klain’s appearance on MSNBC on Wednesday, it was abundantly clear that he and his colleagues do not view securing the minimum wage hike in the COVID legislation as a priority.
Instead, Klain went to the mat to defend Biden’s scandal–plagued Office of Management and Budget nominee Neera Tanden, who probably won’t have the votes to win confirmation after Senator Joe Manchin (D-WV) announced he’ll oppose her.
Klain said, “We’re fighting our guts out to get her confirmed.” He added: “If Neera Tanden is not confirmed, she will not become the budget director. We will find some other place for her to serve in the administration that doesn’t require senate confirmation.”
The contrast could not be more stark: the Biden administration appears to be pulling out all the stops to confirm a Washington insider to a relatively obscure position, but not doing the same to fight for a policy that polls show is wildly popular and that economic data suggests is desperately needed now more than ever.
According to a recent study by the US Congressional Budget Office, raising the minimum wage to $15 could affect the wages of 27 million US workers. Earlier this week, the Federal Reserve published research showing that the current federal minimum wage of $7.25 is worth less today than it’s ever been.
This abominable reality could continue for the foreseeable future if Harris now refuses to use her power to add a minimum wage increase to what could be the only piece of major legislation that could move in a gridlocked Senate.