The Senate Is the Reason We Can’t Have Nice Things

Why the $15 minimum wage failed—and why it’s so damn hard for the Senate to get anything done

Photo by Darren Halstead on Unsplash

When we were little kids, Schoolhouse Rock! made it seem like the process of passing a law was pretty simple: Someone wrote a bill, worked with her colleagues to build support for it in committee, and made her case for it. The bill’s opponents got to have their say. Voters weighed in via letters and phone calls (now emails and social media posts), and then everyone voted. If a majority voted yes, it passed.

Oversimplified as this vision of legislative democracy may be, it isn’t actually that far from the truth of how a bill gets through one of the houses of Congress, the House of Representatives. Unfortunately, it has nothing to do with how a bill gets through the Senate.

Over the last 40 years or so, getting legislation through the Senate has become a remarkably complicated, confusing, and difficult-to-understand process, one that gives the minority party in the Senate tremendous power and that brings new meaning to the word “byzantine.” The result has been that the Senate has become the place where good ideas, even good ideas that are popular with people from both parties, go to die.

This is possible because the Constitution allows each house of Congress to set its own rules governing things like how long debate can pass, what you have to do to bring a bill to a vote, and so on. And the Senate has chosen to use that power to put in place and maintain a set of arcane and arbitrary rules, which make it very difficult for a bill to pass by simple majority vote. It’s often said that the Senate is an undemocratic institution, and it is. But what we often forget is that it’s an undemocratic institution because that’s what a majority of senators have always wanted, and still want it to be.

Look no further than this week’s battle over the $15-an-hour minimum wage. Until a couple of days ago, Senate Democrats had been hoping to include the minimum-wage increase in the massive Covid relief bill, as the House has. But those hopes were dashed when the Senate parliamentarian, whose job it is to advise the Senate on its own rules and procedures, ruled that Democrats could not include the minimum-wage provision in the Covid bill. Why? Because it did not satisfy the requirements of something called the Byrd Rule.

The Senate has become the place where good ideas, even those popular with people from both parties, go to die.

Have you fallen asleep from boredom yet? Just wait, it gets better, by which I mean “even more boring.” The Byrd Rule, which was first adopted by the Senate in 1985 and then written into law in 1990, limits the kinds of provisions that can be included in bills that deal with taxes and spending (which are called, for somewhat obscure reasons, reconciliation bills). Essentially, anything included in one of these bills is supposed to have a substantial impact on the budget and not be “extraneous” to its purpose. (Here’s a good explainer of how the Byrd Rule works.)

In theory, the job of determining whether a provision is extraneous or not belongs to the presiding officer of the Senate (who is the vice president). But in practice, the presiding officer just takes the advice of the Senate parliamentarian, Elizabeth MacDonough. If she determines a provision can’t be included, it’s stripped from the bill, even if it’s already passed the House. Since the Byrd Rule became law, hundreds, or even thousands, of provisions (many of them quite small) have been stricken from reconciliation bills.

The Byrd Rule’s restrictions on what can be included in reconciliation bills are very important to the Senate because those bills are the only ones that can be passed by a simple majority vote — that is, they can’t be filibustered. Since overcoming the filibuster requires 60 votes, and is therefore almost impossible to do, the majority party has every incentive to stick provisions of all sorts into non-filibusterable bills. The Byrd Rule keeps them from doing that, and it does so in order to ensure that the filibuster remains an effective weapon for the Senate minority.

This is not an incidental effect of the Byrd Rule. It is the reason it exists. If you go back and read debates on the Senate floor over the Byrd Rule, its advocates were explicit about the fact that they wanted to preserve what Sen. Pete Domenici called “the right to debate and filibuster,” which he argued was an essential part of what made the Senate great. Sen. Robert Byrd, similarly, called “the right to debate” (by which he meant the right to filibuster) a crucial part of the “basic cement” of the Senate, which he described as “an institution for the protection of minorities.” (This was unintentionally ironic, given that the main use of the filibuster for most of the 20th century was by Southern white politicians preventing the passage of civil rights legislation.)

Now, we can argue about whether the filibuster is a good idea or not. (It’s not.) But the point I want to make here is a different one. The reason the Byrd Rule is in place today is because most senators voted for it. And it wasn’t just senators — in 1990, the Byrd Rule became an actual law, which means a majority of House members voted for it as well. So to the extent the Byrd Rule limits the power of the majority, it’s only because that’s what most members of Congress wanted. In other words, Congress democratically decided to keep the Senate an undemocratic institution.

And it’s still doing that—or at least the Senate is. The Senate could vote to change its rules so that the Senate parliamentarian has no role to play in enforcing the Byrd Rule. But it won’t, because even though most Democrats want to include the $15 minimum wage in the Covid relief bill, Kyrsten Sinema of Arizona and Joe Manchin of West Virginia don’t, nor do any Republicans. Sinema and Manchin plus 50 Republicans is 52 votes against including the minimum wage in the bill or changing the role of the parliamentarian.

(The only way Democrats can get the minimum wage in the bill is, paradoxically, via the undemocratic method of having Kamala Harris, in her role as presiding officer of the Senate, overturn the Senate parliamentarian’s ruling. But if Harris were to do that, Sinema, Manchin, and the Republicans would likely unite and vote to amend the Senate’s rules to prevent that from happening again.)

The same is true of the filibuster. Senators sometimes talk about the filibuster as if it’s set in stone, an institution handed down by the framers that’s just part of the essential functioning of the Senate. But the filibuster is no more in the Constitution than the Byrd Rule is. It’s a Senate rule, and it can be abolished by a simple majority vote. If it hasn’t been abolished, it’s because a majority of senators have always wanted, and still want, a minority of senators to be able to keep bills from being passed. If Democrats want to get anything done over the next two years outside of reconciliation, that’s the reality they have to change.

I’m the author of The Wisdom of Crowds. I’ve been a business columnist for Slate and The New Yorker and written for a wide range of other publications.

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