Sen. Ted Cruz (R-Texas) is calling on Vice President Mike Pence to use his position as president of the Senate to take dramatic action as the Senate's presiding officer in the event of adverse advice by the Senate's parliamentarian regarding the GOP's ObamaCare replacement.
At issue is the proper use of the reconciliation process which was created in the 1974 Budget and Impoundment Act. The Budget Act was enacted in reaction to the presidential excesses of the Watergate era. At the time, senators of both parties considered the law a "good government" and bipartisan tool for Congress to better control the budget process. Reconciliation was a little-discussed, minor part of the bill, which was expected to be used to make small budgetary adjustments in existing law conform to the budget.
Both parties have attempted to distort reconciliation over the years to allow the majority in the Senate to accomplish major legislation in a way which circumvents the normal Senate rules.
This circumvention is accomplished because the 1974 budget statute imposes a time limit on debate on reconciliation bills. Since debate is limited to 20 hours, filibuster of reconciliation bills is not possible. Consequently, only a simple majority is necessary to pass these bills.
Over the years, reconciliation has been used in ways not contemplated by the Senate in 1974, to pass such major controversial legislation as President George W. Bush's huge tax cuts and President Clinton's welfare reform bill. It was also used in a less direct fashion to pass a second bill that cleaned up some of the problems in President Obama's Affordable Care Act, aka ObamaCare.
Now, Republicans in the House and Senate are using the reconciliation process to push through a partisan "repeal and replacement" of ObamaCare.
In 1985, Sen. Robert Byrd (D-W.Va.), one of the great defenders of the integrity of the Senate rules, and an author of the original reconciliation language in the 1974 act, became alarmed by the way in which reconciliation was growing into an ever-increasing loophole in the Senate's rules that threatened the Senate's historic role as the protector of the legislative minority.
The Senate adopted the Byrd rule, which narrows the loophole. It permits non-budgetary provisions to be stripped from a reconciliation bill. Overcoming the Byrd rule requires a supermajority of 60 votes in the Senate, thus closing the loophole.
Decisions about which provisions can and cannot be protected from filibuster under reconciliation, because of the Byrd rule, then fall into the lap of the Senate's parliamentarian. While these decisions may seem obscure, they often have critical public policy impacts.
As the current reconciliation bill proposing to replace ObamaCare works its way through the House, Cruz is advocating radical behavior by the vice president for when the bill is considered in the Senate.
Cruz argues that, "Under the statute, it is the vice president who rules. It is the presiding officer who makes the decision. The parliamentarian advises on that question."
In Cruz's view, the vice president can and should ignore the advice of Parliamentarian Elizabeth MacDonough should it contradict what the majority wants.
To reject the professional judgment of the Senate's nonpartisan parliamentarian, who serves as the referee in disputes over the Senate rules, simply by ignoring her would be unprecedented.
Parliamentarians in the past have persevered through intense pressures to rule impartially during highly partisan and intense reconciliation battles.
Without exception, they deserve the gratitude of the Senate and the nation. Robert Dove (who co-authored my book, "Defending the Filibuster: The Soul of the Senate"), was fired by then-Majority Leader Trent Lott (R-Miss.) in 2001 over Lott's frustration at Dove's advice on a reconciliation bill adverse to the Republican majority.
His successor, Alan Frumin, who was promoted to be Senate parliamentarian twice, once by each party, was an exemplary Senate officer. He denied the use of reconciliation for the consideration of Clinton's healthcare initiative in 1993-1994, as he did for the consideration of the Affordable Care Act in 2009-2010.
Frumin was thrust into the limelight during that battle when the Senate majority — the Democrats in this case — decided to use the reconciliation process to pass a second bill making some critical, but budgetary, changes in the ACA.
Suddenly, there were headlines in the news such as Slate's "Romancing the Parliamentarian. If Alan Frumin Can't be Bullied or Bought, Can He Be Bypassed?"
The parliamentarian was, on that occasion, even the subject of death threats.
Now, in effect, Cruz is demanding that if MacDonough "can't be bullied or bought, [s]he can be bypassed." President Trump, who has shown no particular respect for the mores and precedents of the Congress, is likely to welcome the Cruz idea.
In many ways, this outrageous suggestion is part of a tit-for-tat escalation engaged in by both parties.
In 2013, the Democratic majority used a parliamentary ploy to distort the interpretation of the rules to allow the confirmation of presidential nominees, except for the Supreme Court by simple majority.
Then, the Republican majority in 2016 — in a totally unprecedented move — ignored Obama's Supreme Court nominee, denying Merrick Garland even a hearing before the Judiciary Committee.
If the Cruz idea is adopted, it would blow a gigantic hole in the Senate rules, destroying the Senate as we know it. Senate majorities with a president of their party in the White House could use friendly decisions by the vice president to impose one-party rule on the Senate.
Hopefully, Senate Majority Leader Mitch McConnell (R-Ky.) — an institutionalist — and senior Republicans in the Senate will stand up and reject this for the partisan power-grab it would be.
Richard A. Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin(D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award-winning "Defending the Filibuster: The Soul of the Senate." He is a visiting lecturer of political science, and international and public affairs, at Brown University.