Q&A – Overruling the Senate Parliamentarian – Driven By Braman Motorcars
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Today’s Entry: Submitted via Talkback asking about the Senate Parliamentarian
Bottom Line: Today’s question is in response to my coverage of the Senate’s vote-a-rama process Monday while guest hosting for Mark Levin. Specifically, the parliamentarian, Elizabeth MacDonough, denied some of the planned Republican Medicaid cost savings in the Big, Beautiful, Bill Act. Of particular note, the effort to strip illegal aliens of Medicaid coverage was determined not to be reconciliation eligible – requiring 60 votes in the Senate to enact the change. During Monday’s vote-a-rama two efforts were made to enact that change – each failing with only 56 ‘yea’ votes as almost all Democrats in the Senate voted to continue to allow illegal immigrants access to Medicaid – including criminal illegal immigrants. While the vote was highly revealing, it also raised the question about overruling the Senate's parliamentarian. It was at that point that I called on Vice President JD Vance to overrule the Senate parliamentarian to allow for a simple majority vote. Something he didn’t do. So, about that, and also the question raised by today’s Q&A about the parliamentarian and Obamacare.
In addressing the question about whether the current parliamentarian is the parliamentarian who ruled on an aspect of Obamacare, the answer is no. Elizabeth MacDonough was appointed to the position in 2012 – after the passage of the Affordable Care Act, aka Obamacare. But about that aspect of today’s question. It’s important to note that Obamacare wasn’t passed through the reconciliation process. The original law passed on December 24th, Christmas Eve, 2009, with 60 votes in regular order. Where the confusion on the reconciliation process comes into play with the ACA, is that it was later amended, in 2010, through the Health Care and Education Reconciliation Act. That was a ruling by the senate parliamentarian that was consistent with long established procedures.
As it pertains to budget reconciliation, the parliamentarian is tasked with evaluating policy proposals to see if they align with general spending, revenue and debt levels under previously established law. In the case of the ACA amendments, because the law had already been previously established, it was consistent with established procedures for the law to be amended with a simple majority reconciliation vote. In fact, this dynamic is in play as it pertains to the Tax Cut and Jobs Act.
Due to the limitations of the reconciliation process under “the Byrd Rule” Republicans weren’t able to make 2017’s Tax Cut and Jobs Act permanent. However, under the One Big Beautiful Bill Act, the parliamentarian did rule that Republicans may now make those tax cuts permanent due to it having been established law for seven and a half years. So, with that said, the parliamentarian’s role is to provide advice. Nothing the parliamentarian issues is a mandate.
The Office of the Senate Parliamentarian was established in 1935. Since then, there are five times the Parliamentarian has been overruled. Twice through a simple majority senate vote and three times by the president of the Senate, the Vice President, overruling the parliamentarian. These are those instances:
- 1967 and 1969 - Vice President Hubert Humphrey (Democrat): Humphrey overruled the Senate Parliamentarian’s determinations regarding the filibuster threshold on two occasions during his tenure as Vice President.
- 1975 - Vice President Nelson Rockefeller (Republican): Rockefeller overruled the Parliamentarian’s advice concerning procedures for voting to change the Senate’s filibuster rules. This is one of the most cited examples of such an action.
- 2013 - Democratic-led Senate: The Senate, under Democratic leadership, overruled the Parliamentarian to eliminate filibusters for most presidential nominees, allowing confirmation by a simple majority rather than a 60-vote supermajority. While this was a Senate vote rather than a direct action by the Vice President, it involved disregarding the Parliamentarian’s advice.
- 2017 - Republican-led Senate: Similarly, Republicans overruled the Parliamentarian to eliminate filibusters for Supreme Court nominees, again through a Senate vote rather than a direct Vice Presidential action.
So, there you go. It’s been done by both parties with Democrats having pulled the trigger three times and Republicans twice. In my view JD Vance should have made this the three times to further curb abuse of Medicaid by illegal immigrants – given that Democrats weren’t willing to do it.