Bill Clark/CQ Roll Call via AP Images
A sign marks the entrance to the Senate parliamentarian’s office in the U.S. Capitol, August 4, 2022.
In the recent Senate passage of the Inflation Reduction Act, the dread parliamentarian Elizabeth MacDonough made an appearance. She declared that a stipulation penalizing drug companies that raise their prices in the private market more than the rate of inflation was out of order, as well as a proposal to cap the cost of insulin at $35 per month for the privately insured. Now the roughly half of Americans who get their insurance on the private market will not have those protections from predatory pharma companies, who will no doubt be looking to make up their diminished margins from new Medicare rules that did survive reconciliation by mercilessly gouging their other customers.
The ruling, along with the general drift of parliamentarian decrees lately, suggests that only one type of health care reform obtained through reconciliation will be on solid footing—that affecting public programs. It follows that if we want any kind of serious health care reform, the choice is effectively between the filibuster or Medicare for All.
Let me review the (impossibly stupid) procedural situation here. The IRA is structured as a reconciliation bill because of the practice Mitch McConnell invented in 2007—that the filibuster is now applied to virtually everything, a break from the practice in prior decades. Reconciliation bills only require 51 votes to pass, so these days parties naturally try to cram as much as possible in there. But the Congressional Budget Act says that reconciliation bills must limit themselves to budgetary matters; if a proposal is “merely incidental” to the federal budget then it’s not allowed.
Under current practice, the parliamentarian gets to decide what that incredibly vague phrase means. Back in 2021, for instance, she ruled that Democrats could not include a $15 minimum wage in the American Rescue Plan, while in 2017 she nixed several portions of the Republican attempt to repeal Obamacare (which ultimately failed to pass).
Now, one might think that a smart majority party would just fire the parliamentarian and replace her with someone who will say whatever they want. Indeed, Republicans did just that in 2001 over a minor dispute about appropriations, also with a 50-seat majority. Alternatively, the vice president arguably has the ability to overrule the parliamentarian. The Congressional Budget Act doesn’t declare this obscure Senate staffer the Emperor of Budget Metaphysics—instead it is the Senate presiding officer (the vice president) who rules on points of order. The parliamentarian merely provides an advisory opinion, which by tradition is seen as binding. That tradition could be tossed.
But if you’re going to do that, it would be both cleaner and more honest to just get rid of the rotten filibuster entirely. The reconciliation process genuinely is not supposed to be what it has become—it was meant to streamline the ordinary budget process, not be a virtually all-purpose vehicle for sweeping reforms, or indeed most legislation of any kind.
By the same token, the parliamentarian is not remotely supposed to be in the business of making hugely consequential policy decisions. The only reason she can do anything is because of prior Senate actions. The filibuster, for instance, only exists because the Senate accidentally deleted a debate-ending rule when it was rewriting its rulebook in 1806, and its rules have since changed many times. The Congressional Budget Act was also passed through the Senate. Fundamentally, the Constitution is completely clear that each branch of Congress is in charge of its own procedures: “Each House may determine the Rules of its Proceedings.”
The parliamentarian is not remotely supposed to be in the business of making hugely consequential policy decisions.
Like any such officer, the Senate parliamentarian is not elected, and her only legitimate purpose is ensuring Senate rules are interpreted and applied consistently—helping the Senate govern itself, not issuing diktats about what it can or can’t do. It’s only senators’ hidebound attachment to their nonsensical rule book and (largely invented) traditions that give her any power at all. It’s as if Democrats were dissatisfied with just one Supreme Court telling them they can’t do things, so they made up another one out of pure masochistic depravity.
Conversely, if the Senate operated on majority rule, the insulin price measure would have gotten through. After the parliamentarian took it out, Democrats set up a normal vote to overrule her and put it back in, which would have required 60 votes to succeed under current rules—and they did get some Republican support, but with seven votes, not enough.
Incidentally, that disproves one of the arguments from the pro-filibuster crowd—that it enables bipartisanship. The reality is the exact opposite. What gets bipartisan support is when vulnerable swing-state senators fear to vote against something that is wildly popular, or see something that is bound to pass and try to get a piece of the action. But if passage can be blocked entirely, the partisan temptation to harm the opposition predominates.
The fallout of these drifts in Senate practice mean that the majority of Americans who are not currently on public health insurance programs cannot be helped by the federal government. It took a financial cataclysm to win a 60-vote Senate for Democrats in 2009-2010, and Obamacare barely squeaked by. The odds of 60 votes for Democrats in the future, given the malapportioned Senate, are extremely low. And make no mistake, that is what it would take to come up with a health care reform that benefited those on private insurance today. The filibuster ensures that Republicans can block any assistance, and the parliamentarian has blocked the reconciliation path.
So, if Senate moderates want to preserve their cherished employer-sponsored insurance system, they would be well advised to get rid of the filibuster and start queuing up some moderate reforms, like that $35 insulin price cap. Clinging to current practice will allow dysfunction in the private system to fester, and increase the pressure to fix problems by shunting more people onto Medicare and Medicaid. There is literally no alternative under the current norms. End the filibuster, or Medicare for All: Democratic moderates can choose their weapon.
