How Democrats can hike the minimum wage—and use the Senate's 60-vote requirement to their advantage
Monday brought good news for those fighting to increase America’s woefully inadequate minimum wage when the Congressional Budget Office (CBO) sent a letter to Vermont Sen. Bernie Sanders concluding that such a hike would have “broad economic effects” and impact most areas of the federal budget. Even better, the CBO said that a minimum wage boost would affect the economy more extensively than two measures Republicans passed in 2017 as part of their tax bill: the elimination of the penalty for not maintaining health insurance (better known as the individual mandate), and a program to allow oil drilling in Alaska’s Arctic National Wildlife Refuge.
What on earth do these extremely varied issues have to do with one another? They all concern “reconciliation,” an arcane Senate process that prevents legislation from getting filibustered, letting it pass with just a simple majority. The catch, however, is that the Senate’s own rules limit what can be included in a reconciliation package, with the key test being whether a provision’s budgetary impacts are “merely incidental” to the policy it’s trying to achieve. (This is commonly referred to as the “Byrd Rule” after its creator, the late West Virginia Democrat Robert Byrd.)
Here’s where it all comes together: The GOP’s 2017 tax bill was passed via reconciliation, with just 51 votes—all from Republicans—in favor. Because the repeal of the individual mandate and the opening of the wildlife refuge to drilling were part of this legislation, they each had to pass muster under the Byrd Rule (or as serious Capitol Hill wonks like to call it, they survived a “Byrd bath”).
You can see where this is going—and why Sanders specifically asked the CBO to compare a minimum wage increase to those two Republican-backed measures. If ending the individual mandate and permitting oil exploration came out clean from their Byrd bath, then surely upping the minimum wage, with its far greater impact, should as well, clearing it for inclusion in the reconciliation bill Democrats are gearing up to pass.
“Should,” however, is not the same as “will,” which brings us to the question of who exactly decides whether a proposal complies with the Byrd Rule. It’s generally said that this judgment call falls to the parliamentarian, an appointed official who advises the Senate on all matters of procedure. Since 2012, the position has been held by attorney Elizabeth MacDonough, who determined that the individual mandate repeal and the wildlife refuge drilling measure were both suitable for reconciliation.
MacDonough, however, does not get the last word. That right is reserved for senators themselves—the parliamentarian’s role is only advisory, and the Senate may reject her advice. That’s precisely what Democrats should do if MacDonough, for whatever reason, decides that increasing the minimum wage somehow does not satisfy the Byrd Rule.
The Senate’s presiding officer, who in this case would likely be Vice President Kamala Harris (but could be any sitting senator), can simply decide that a minimum wage hike is appropriate for reconciliation and allow it to become part of the overall package. And this is where the Senate’s supermajority rules—which Republicans are so eager to weaponize in the service of obstructing the Democrats’ entire agenda—can in fact be turned around on the GOP and used against them.
In order to overturn the ruling of the presiding officer, it takes 60 votes. In other words, to override Harris and strip the minimum wage increase from the reconciliation bill, all 50 Republican senators would have to band together and find 10 Democrats willing to join them. While moderates like Arizona Sen. Kyrsten Sinema have expressed opposition to bypassing the parliamentarian, Democrats don’t need her support as long as 41 of them hold firm. And they would, because it’s all but impossible to imagine a fifth of the Democratic caucus siding with Republicans to uphold an obscure procedural tradition at the expense of a wildly popular measure that will dramatically improve the lives of millions.
This sort of hardball hopefully won’t be necessary, but it’s by no means unprecedented, and Democrats should keep this option in reserve. Americans are counting on it.