Over the next few months, the Senate will debate its version of the Obamacare health care repeal passed by the House, and a little-known official could play an important role in what changes get included in the Senate’s version of the bill.
Earlier in May, the House sent its 1,600-page plus legislation to the Senate for consideration. Senate Majority Leader Mitch McConnell has said repeatedly that he will seek to have the Senate version of the bill approved using a process called reconciliation, which only requires a simple majority of votes.
The reconciliation process lets the Senate bypass the filibuster on measures that will affect the budget as spending, revenue or public debt changes. The passage of the Byrd Rules in the 1990s allows Senators to contest items in the Obamacare health care repeal bill, or any bill using the reconciliation process, as “extraneous.”
This broad definition lumps together proposed changes that don’t really change direct government spending or taxing; items recommended outside of a Senate committee’s jurisdiction; and changes that affect deficits outside of a certain time period without savings to balance the difference.
During this process, the Senate Parliamentarian will act as a referee on the floor of the Senate, to determine if some of the key measures in the American Health Care Act can remain in the bill – or if they have to go.
The Senate Parliamentarian is rarely in the public spotlight. The current Parliamentarian, Elizabeth MacDonough, was named to that position in 2012. There have only been six Senate Parliamentarians since the position was created in 1935. The first Senate Parliamentarian, Charles Watkins, had actually started in the role unofficially in 1923 and he retired as Parliamentarian in 1964, at the age of 85. The office of House Parliamentarian was created in 1927, and there have only been five House Parliamentarians since then. Louis Deschler served from 1927 to 1975 as the first House Parliamentarian.
The office of the Parliamentarian has its roots in Article I, Section 5, of the Constitution, which says that “Each House may determine the Rules of its Proceedings” and that “Each House shall keep a Journal of its Proceedings.” Thomas Jefferson played a key role in the early process of compiling the operational rules of the House and the Senate when he published his Manual of Parliamentary Practice in 1801.
The Senate and House have separate Parliamentarians who study the history of each chamber, including volumes of information about precedents and rules. Each has a staff, and the Parliamentarian or staff member is present at all time on the floor of both chambers, sitting close to the presiding officer.
The Parliamentarian answers questions from the presiding officer about the wording of motions, and about precedents related to motions or actions. The Parliamentarian also offers advice about interpreting standing rules about legislation. The presiding officer usually accepts interpretations issued by the Parliamentarian, but the interpretations aren’t binding on their own. (Members of Congress can also consult with the Parliamentarian’s office before and after sessions to get interpretations about rulings.)
MacDonough, the current Senate Parliamentarian, was a non-partisan appointment. She was named to that position by then Senate Majority Leader Harry Reid after serving in the Parliamentarian’s office since 1999. The Parliamentarian serves at the request of the leader of the majority faction in the House or Senate. In MacDonough’s case, Senate Majority Leader McConnell would have the ability to dismiss a Parliamentarian if he felt that was an appropriate action. That does happen rarely. In 2001, Trent Lott dismissed Robert Dove, the Senate Parliamentarian, after Republicans were angry that Dove, also a Republican appointee, disallowed spending measures as violating the Byrd Rules.
And on rare occasions, a presiding officer will overrule the Parliamentarian. In 1975, Vice President Nelson Rockefeller ignored advice from Senate Parliamentarian Floyd Riddick about the proper procedure for handing a vote about changing the Senate’s filibuster rules.
The Senate Parliamentarian also plays an important role when Congress is considering the impeachment trial of a government official, determining the basic rules of how the trial will be conducted in consultation with certain Senators.
Scott Bomboy is the editor in chief of the National Constitution Center.
