“More Than Incidental”

Under the absurd and deeply antidemocratic Senate rules, essentially all legislation requires a supermajority to pass. There’s one major exception: if a bill is deemed to have “more than incidental” budgetary impact, it can pass with a simple majority using the budget reconciliation process.

The problem, of course, is that nearly everything has some impact on the budget. Pretending that determinations of what’s “incidental” and what’s “more than incidental” are like objectively correct solutions to complex mathematical equations, waiting in some abstract Platonic realm for a sufficiently clever expert to discover them, is more than a little implausible.

The provision in the $3.5 trillion reconciliation package providing a “pathway to citizenship,” for example, would ultimately lead to millions more being eligible for food aid and various health care programs like Medicaid and the Children’s Health Insurance Program (CHIP). The estimated budgetary impact is $139.6 billion over the next decade.

Is that significant, or is it “incidental”? How about raising the minimum wage to $15 an hour? That would certainly change which tax revenues were coming from which sources, but is that change “more than incidental”?

At the very least, these are judgment calls. Realistically, they’re political decisions.

The current Senate parliamentarian, Elizabeth MacDonough, has decided that the budgetary impact of the proposed immigration provision is “incidental.” She made the same determination earlier this year about the minimum wage.

In both cases, the Democratic leadership has thrown up their hands and claimed there’s nothing that they can do.

Harry Frankfurt and the Senate Parliamentarian

The great twentieth-century philosopher Harry Frankfurt has a classic example to test our intuitions about free will and determinism: If there’s only one possible thing that will happen, does that mean we aren’t responsible for our actions?

Frankfurt asks us to imagine that a man named Jones is preparing to make a decision. A villain named Black is prepared to intervene to manipulate Jones into doing what Black wants him to do. Perhaps he’ll hypnotize Jones. Perhaps he’ll use some science-fiction device that will alter the chemistry in Jones’s brain. Depending on how you fill out the details, you get one of the many variations of what philosophers call “Frankfurt cases.”

But here’s the twist: Black will only intervene if he doesn’t think Jones will do what Black wants him to do on his own.

If Black intervenes and somehow makes Jones do what Black wants him to do, we’d all agree that this wouldn’t be Jones’s fault. (It would be Black’s fault, of course.) But what if Jones does what Black wants him to do because it’s also what Jones wants to do? In that case, Frankfurt thinks, it’s clearly Jones’s fault.

If Jones says, “I had no choice — Black would have made me do it anyway,” Frankfurt thinks no one should be impressed by this excuse. Jones made the decision because that’s what he wanted to do. The fact that Black hypothetically would have forced him if he hadn’t wanted to do it doesn’t matter. Jones is at fault.

Many leftists suspect that what the Democratic leadership is doing right now is similar — playing a “rotating villain game” where they let various figures take the blame for not passing important reforms. Sometimes it’s Joe Manchin and Kyrsten Sinema. Sometimes it’s the parliamentarian. But these obstacles aren’t really why the Democratic leadership isn’t passing these reforms. They just don’t want to — or at least they don’t want it enough.

That sounds cynical, but in this case, the truth is even worse. It’s not that Democrats are using the fact that they can’t do something they don’t want to do as an excuse. The more we look at the actual legal status and powers of the Senate parliamentarian, the more the real situation starts to look like this:

Black points his finger at Jones and says, “This is a gun. If you don’t do what I say, I’ll shoot you!” Jones grins from ear to ear and says, “In that case, I better do what you say!”

Ilhan Omar vs. Sean Hannity

As democratic socialist congresswoman Ilhan Omar has pointed out, Elizabeth MacDonough isn’t stopping the Democratic leadership from including immigration reform in the reconciliation package.

This ruling by the parliamentarian, is only a recommendation. @SenSchumer and the @WhiteHouse can and should ignore it.

We can’t miss this once in a lifetime opportunity to do the right thing. https://t.co/r1T7T7uQIP

— Ilhan Omar (@IlhanMN) September 20, 2021

Responding to Omar’s tweet, right-wing blowhard Sean Hannity accused her of advocating that the Senate ignore the Constitution. Nothing could be further from the truth.

First, the budget reconciliation process is only necessary in the first place because of the filibuster. Not only is this not hinted at it in the text of the Constitution, but the framers were quite explicit in opposing any kind of supermajority rule in the Senate. In the decades after the founding, the “previous question” rule stopped minorities of senators from blocking legislation supported by a majority. An overhaul of the Senate rules later accidentally created the loophole that allowed for a filibuster, but defenders of Southern slavery only started exploiting the loophole decades later. No law — never mind any constitutional provision — mandates that the Senate maintain the filibuster. Current Senate rules include both the filibuster and the budget reconciliation process as a way around it, but the Senate has the power to change its rules at any time.

Second, even those current rules don’t make the parliamentarian’s judgment about what counts as “more than incidental” binding. A quick glance at a relevant report from the Congressional Research Service shows that Congresswoman Omar is unambiguously correct: “As a staff official, neither parliamentarian is empowered to make decisions that are binding on the House or Senate. The parliamentarians and their deputies/assistants only offer advice that the presiding Representative or Senator may accept or reject . . .”

Third, far from being an office specified in the Constitution, the Senate has only hired a parliamentarian to advise the body on interpretive questions about its rules since 1935. Over the last several decades, there have been multiple instances of the vice president, as presiding officer of the Senate, simply ignoring that advice. In 2001, Senate Republicans fired a parliamentarian whose advice they didn’t like.

Democrats can evasively mumble about the importance of “norms,” but you shouldn’t buy it. The simple truth is that they’re pretending to be powerless before the nonbinding recommendations of a staffer they could literally fire at any time. That’s grotesque.