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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Wednesday, December 01, 2021

Senate parliamentarian looms over White House spending bill


President Biden's social and climate spending bill is facing another hurdle as Democrats try to get it across the finish line: the Senate parliamentarian.

With Democrats and the White House wanting to get the massive bill to Biden's desk within weeks, senators are ramping up their conversations with parliamentarian Elizabeth MacDonough, who provides unofficial guidance on whether ideas in the bill comply with budget rules that place restrictions on what can be included.

Democrats are holding formal meetings with MacDonough this week, with aides and senators warning that those discussions and rulings from the Senate referee could bleed into at least next week.

"It's in the works and we hope that the parliamentarian is up to making some important rulings this week. The sooner the better," said Sen. Dick Durbin (Ill.), the No. 2 Senate Democrat.

Democrats are using the budget reconciliation process to prevent the GOP from filibustering their measure in the Senate, which means there are sharp limits on what can be included in the bill. The most well-known requirement is that any policy included in the bill must have an impact on federal spending and revenues and that its impact isn't "merely incidental" to its non-budgetary goals.

The parliamentarian's decisions could sink, or bless, some key parts of Democrats' spending bill. Though Democrats could formally vote to overrule guidance from MacDonough, such a move appears unlikely given that it would take total unity from all 50 members of the Senate Democratic caucus. 

Sen. Debbie Stabenow (Mich.), the No. 4 Senate Democrat, described the talks with the parliamentarian as "in process," adding that MacDonough was "listening to the different committees."

"It's going to move along. I think she's really operating in good faith," Stabenow said, while warning that "a lot" of issues are going before the parliamentarian.

Getting the bill cleared by MacDonough is one of the final steps before Senate Democrats bring the bill to the floor. Senate Majority Leader Charles Schumer (D-N.Y.) is telling senators that the bill could come to the floor as soon as the week of Dec. 13, a source confirmed to The Hill, noting that timeline was presumed on conversations with the parliamentarian taking up this week and stretching into next week.

"As soon as the necessary technical and procedural work with the Senate parliamentarian has been completed ... the Senate will take up this legislation," Schumer told reporters during a press conference on Tuesday.

MacDonough doesn't publicly release her decisions or interact with reporters, with her guidance frequently leaked out after it is circulated to Senate offices. Senators and staffers also frequently try to interpret which way she might be leaning based on the questions that she asks during the closed-door meetings.

It's a Rorschach test that splits even senators in the same party. Sen. Tim Kaine (D-Va.) told reporters that he had gotten potentially positive vibes from his readouts of the meetings on Democrats' latest immigration pitch, adding that "it looks like there may be some immigration reforms that I think would be significant that can be included."

But Durbin, whose Judiciary Committee staff has been in the talks, indicated that MacDonough had not tipped her hand.

"I don't have any indication one way or the other. She kept it very close to the vest. Didn't react when we made our initial presentation," Durbin said, asked about the optimism from some of his colleagues. 

MacDonough has frustrated senators in both parties in recent years. In 2017, she nixed a key GOP plan to repeal and replace the Affordable Care Act, with Republicans ultimately failing to repeal the health care law. 

She also spiked a progressive plan earlier this year to increase the minimum wage to $15 per hour as part of the coronavirus relief bill, angering activists.

In Biden's spending bill, the immigration fight has gotten the most attention from senators and outside groups. 

MacDonough has told Democrats that two previous immigration plans that would have provided a pathway to citizenship for millions of immigrants didn't meet the so-called Byrd rule, which lays out restrictions for what can be passed under the budget rules. 

Democrats initially pitched MacDonough on using their spending bill to provide 8 million green cards to immigrants in four groups: "Dreamers," who were brought to the U.S. illegally as children; temporary protected status (TPS) holders; agricultural workers and other essential workers.

But she rejected that earlier this month, saying that it was "not appropriate" for reconciliation. She also ruled against a back-up plan to change the registry date for certain undocumented immigrants and beneficiaries of humanitarian parole programs, saying that it was a "weighty policy change and our analysis of this issue is thus largely the same" as the first attempt.

Now Democrats are trying to get her to sign off on their latest proposal to grant 6.5 million foreign nationals a temporary parole status that would give them five-year work and travel permits, which was included in the bill passed by the House. If MacDonough finds that it doesn't comply with the rules, activists are urging Democrats to avoid formally voting to overrule her, which would likely fall short, but to instead pick someone to preside over the Senate that would ignore her guidance.

Durbin noted that Democrats have made an initial pitch to MacDonough but still need a formal meeting, where both Democratic and GOP staffers will sit down with her at the same time to make their competing cases.

It's not just the immigration proposal that is facing a challenge from the Senate referee.

Republicans are expected to challenge the inclusion of a $35 monthly cap on the out-of-pocket cost of insulin, as well as an electric vehicle tax credit that's also drawn pushback from Sen. Joe Manchin (D-W.Va.). 

Republicans are also expected to challenge a prescription drug agreement struck by Senate Democrats earlier this year, and wage and labor provisions that fall under the Finance Committee's jurisdiction.

"Our case that this is about federal spending - which is how you survive a Byrd challenge - I think is very strong," Sen. Ron Wyden (D-Ore.) said. "This is all about federal spending and that is the case we'll be making." 

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