Preview

In the world’s most boring update of LeBron James’ “The Decision,” Senate parliamentarian Elizabeth McDonough quietly announced her ruling that the increase in the minimum wage to $15 an hour by 2025 is not in order for budget reconciliation. We know that the minimum wage hike produces changes in outlays and revenues, as the Congressional Budget Office confirmed earlier this month. What McDonough had to rule to put the provision out of order under the “Byrd rule” is that those changes were “merely incidental to the non-budgetary components of the provision.” In other words, she had to read the mind of a legislation and decide what parts of it are incidental and what parts are primary.

That’s where we’re at in America.

It’s a stupid process that’s only necessary because a handful Democrats refuse to overturn another stupid process, the filibuster and minority rule. So they shoehorn the only legislating they can get done in a polarized Senate into a plainly inappropriate mechanism meant to resolve differences between the federal budget and public policy. “How democracies die” may sound hyperbolic, but yeah, this would be the path.

(As an aside, it’s not clear to me that the parliamentarian is done ruling. Changes to the souped-up child tax credit that allow for monthly advance payments may also be on the chopping block, along with the boosts to Affordable Care Act exchanges. Again, stupid process masking another stupid process.)

Nevertheless, there are a lot of ways Democrats can get around this ruling if they really want to. The problem is at least some of their members have ruled most of these options out. The one option left seems to be to take a vote. And that would be very much worth doing.

First off, yes, the Vice President can ignore the ruling of the parliamentarian. And though both Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have said that they would uphold the Byrd rule to their dying breath, if you read the latest Congressional Research Service report on the subject, you find that, if the chair rejects the parliamentarian’s advice and rules a minimum wage increase in order, it would take 60 votes, not 50, to appeal that ruling. So Manchin and Sinema would need eight Democratic friends and all the Republicans to succeed.

This even happened twice in 1993, when Al Gore was VP. And interestingly, Speaker Nancy Pelosi has said she will keep the wage increase in the bill that the House plans to pass today, meaning that somewhere down the line, Harris will have to make a decision to accept or ignore. (This is a testament to the power of House progressives, who could easily sink the bill if Pelosi ditched the wage provision.)

But White House chief of staff Ron Klain said explicitly this week that Harris would not ignore the ruling. And Press Secretary Jen Psaki’s statement last night said Biden “respects the parliamentarian’s decision and the Senate’s process.” So it’s not going to happen.

Senate Majority Leader Chuck Schumer could fire the parliamentarian for making a contrary ruling, and find someone who would put the minimum wage increase in order. This happened as recently as 2001, when Trent Lott fired the parliamentarian for adverse rulings in a 50-50 Senate. But Schumer only said that he was “deeply disappointed” in the decision, and I just don’t see him firing McDonough at this time.

You could change the provision to make it Byrd-friendly. Sens. Ron Wyden (D-OR) and Bernie Sanders (I-VT) are already talking about turning it into “a tax penalty for mega-corporations that refuse to pay a living wage.” That would probably pass muster, and with companies like Amazon and Costco already at or over $15, there’s already pressure in the marketplace.

But you’d need to either get that into the base bill (not sure how likely that is at this late date) or you’d need the votes for an amendment. And if smaller businesses aren’t incorporated it’s a stopgap solution with limited reach. Plus, for all these things you risk a fight over the full reconciliation package; Sinema has called the minimum wage increase “inappropriate” for the relief bill, and you need every Senate Democrat to vote for it for passage. Schumer is trying to lock down the relief bill as we speak; no minimum wage, where there is a little opposition, probably helps him.

You could wait and put the wage increase into the second reconciliation bill, which will involve infrastructure and jobs. But though people might be talking themselves into it being a better fit there, I don’t see what would make the parliamentarian change their mind.

And of course, you could kill the filibuster and end this nonsense once and for all, restoring majority rule in America. Of course, Manchin and Sinema are opposed to that, and probably some unnamed Senators are as well. The only way that changes, in my view, is if Democratic Senators experience first-hand, again, the wages of total obstruction. And that argues for putting the minimum wage bill on the floor.

The minimum wage is popular, across the political spectrum. It has passed in recent voter initiatives in Arkansas, Florida, and Alaska. Republicans have spent the entire week freaking out about it, coming up with their own (inadequate) versions, like an increase to $10 an hour by 2025 and indexed to inflation thereafter, tied to a tightening of E-Verify rules on undocumented workers. Sen. Josh Hawley (R-MO) has a wage insurance bill that would top up wages through a partial refundable tax credit.

Both of these are not good ideas, but they reveal the weakness of the Republican position. So does Sen. John Thune (R-SD) pulling the old “in my day we made $6 an hour and we liked it!” without recognizing that, adjusted for inflation, that equals $24 an hour. Susan Collins is out there admitting “it’s obvious that we do need an increase in the minimum wage,” and while you may not get 60 votes for $15 an hour, I think you’d be surprised what negotiations could yield. Manchin proposed $11 an hour by 2022, which is approximately where the Raise the Wage Act would have been if it were adopted when released in 2019. I know performing politics is a foreign concept, but maybe give it a try?

And if you can’t get the 60th member of the Senate to go along, then you put that on the list of policies where the popular will is being thwarted. So we can have increased wages for 17 million workers or we can have the filibuster. And we can have democracy reform, which is incredibly popular, or we can have the filibuster. The idea that such theatrics won’t move anyone frankly dooms the nation, and I guess it’s fine to give up if you want. But even if you think this doesn’t work on Democrats to change the filibuster, it certainly lets the base know there’s a debate going on.

There’s a particular type of savvy political cynic constantly making the case for doing nothing. They need to familiarize themselves with the concept of “getting caught trying.” Barack Obama failed to see the point in such matters, but fighting for popular policies shows that you actually stand for something. Pre-gaming everything out and talking yourself into stasis projects weakness and really negates the point of politics. Democrats have Congress. They can vote on legislation. The room’s reserved. Show rather than tell that you want every working American to have a living wage. Put the bill on the floor.

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