A showdown is looming over Senate Parliamentarian Elizabeth MacDonough’s ruling that major immigration reform may not be included in the pending budget reconciliation bill. More than 40 Democratic House members insist that the Senate “disregard” the Parliamentarian’s ruling. Any number of Senate Democrats are prepared to force such a vote as the Senate considers the bill. That vote, ostensibly about immigration law, will instead challenge the rule of law.

Critics of MacDonough’s ruling engage in dangerous, Trump-like bluster. “This ruling by the parliamentarian, is only a recommendation. @SenSchumer and the @WhiteHouse can and should ignore it,” Rep. Ilhan Omar tweeted. “Ignore this ruling or get a new one” said Rep. Rashida Tlaib. These comments echo fallout from MacDonough’s ruling earlier this year that a minimum wage increase could not be included in a previous reconciliation bill. On that occasion, liberal members of Congress and advocacy groups called for MacDonough to be fired to overcome her ruling.

The critics misunderstand the role of the parliamentarian. She isn’t a policymaker; she is interpreting statutes and Senate rules. In the legal forum of the Senate, she effectively functions as a judge. While the parliamentarian’s rulings are technically advisory because they can be overruled by the presiding officer or the full Senate, historically it has been extremely rare for such rulings to be reversed. And that is for good reason: if the rule of law means anything, her rulings must stand.

The Congressional Budget Act

One of the most significant laws MacDonough functionally enforces is the Congressional Budget Act of 1974. In that statute, Congress created a major exception to the longstanding Senate rule requiring a supermajority vote to cut off debate on any question – the much-maligned filibuster. The Budget Act allows bills that raise or spend revenue, known as reconciliation bills, to pass the Senate by a simple majority. But this exception is limited to true revenue measures. Section 313(b)(1) of the Act explicitly bars provisions that “produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision.”

In the decades since enactment of the 1974 Act, the parliamentarian has consistently ruled that substantive policy proposals that lack a sufficient budgetary impact, such as changing eligibility for citizenship or raising the hourly wage mandated by federal law, are not eligible for the shortcut process of reconciliation. They must be enacted the old-fashioned way – with sufficient bipartisan support to satisfy three-fifths of the Senate.

A Proxy Fight

A skirmish over the parliamentarian’s reconciliation rulings, therefore, is a proxy fight over the filibuster itself. Overruling the parliamentarian is a back-door device to erode the filibuster outside the Senate rules. But like the parliamentarian’s rulings, the filibuster itself is the product of law.

The Rules of the Senate are, indeed, a type of law. Law comes in many different forms beyond legislatively enacted statutes. The Constitution is law. Administrative agency regulations are law. Judicial decisions are law. Each of these sets of rules has binding, enforceable legal effect. Similarly, the Senate rules are law because they are binding and enforceable directives governing the workings of the Senate. It violates the rule of law to arbitrarily disregard them.

Opponents of the filibuster make it sound as though the supermajority vote to end legislative debate is just a Senate tradition like bean soup, a creaky ritual that can be abandoned whenever most senators tire of it. In fact, the filibuster is embodied in law – the Senate rules. Section 2 of Rule XXII of the Standing Rules of the Senate provides with great clarity that, absent consent, debate on any “measure, motion, [or] other matter pending before the Senate” may be brought to a close only when 16 senators move to do so and “three-fifths of the Senators duly chosen and sworn” affirmatively vote to support that motion.

The Rule of Law

Everyone claims to revere the rule of law, but what does the phrase actually mean?

The Rule of Law is defined in the Oxford English Dictionary as “[t]he authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior.” It is a “principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.” In a rule of law system, according to the American Bar Association, “no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws.”

More colloquially, the rule of law requires everyone to play by the same rules. In baseball, the Yankees only get three outs each inning and can’t insist on four. In tennis, Roger Federer needs to win six games to claim a set and can’t declare victory after winning five. The rules are established well before the Yankees come to bat or Federer walks onto the court, and cannot be changed arbitrarily by one of the contestants.

The rules of the Senate game are just as clear: enactment of non-revenue laws requires 60 votes, and the parliamentarian determines what is a revenue law.

It may seem quaint to insist on respect for parliamentary rulings and the filibuster itself on “rule of law” grounds. But the abstract rule of law concept protects concrete rights. If one party can unilaterally change the rules today to pass its favored laws, the other side can unilaterally pass their favored laws tomorrow.

Changing the Rules of the Game

Of course, rules can be changed. But the rule of law demands that changes be implemented pursuant to the rules themselves. For example, Article V of the Constitution sets forth a multilayered supermajority process for amending the Constitution itself, and no one seriously proposes a “nuclear option” to amend the Constitution in circumvention of Article V. Similarly, Senate Rule XXII quite specifically sets forth the rule for changing the Senate rules. That can only happen when “two-thirds of the Senators present and voting” agree to do so.

These are concrete, carefully crafted rules. Note that the threshold to terminate debate on most questions is a hard 60 (three-fifths of those “duly chosen and sworn”), while the threshold to change the rules might be less than 67 if fewer than 100 are “present and voting.” The former formulation puts the burden on proponents of a question to show up and vote yes while the latter formulation puts the burden on opponents of a rules change to show up and vote no. Neither formulation, however, allows the rules to be changed by a simple party-line majority vote.

Yes, it has sometimes happened that way. In 2005, Republicans seeking to  confirm President George W. Bush’s judicial nominations threatened the “nuclear option” under which a simple majority of senators (the GOP majority) would eliminate the filibuster for judicial nominations by voting to overturn a ruling by the presiding officer that Rule XXII requires three-fifths of the senators to terminate debate on a nomination. A bipartisan “Gang of 14” blocked the move at that time by negotiating a deal in which the Democrats in the group agreed to vote for some filibustered nominations. In 2013, Democrats, in response to GOP obstruction of President Barack Obama’s nominations, chose to detonate the same nuclear weapon they defused eight years earlier. By majority vote, they changed the rules governing consideration of all nominations other than those to the Supreme Court.

Then in 2017, Republicans retaliated by using the nuclear option to change the rules for Supreme Court nominations, enabling them to seat President Donald Trump’s nominee Neal Gorsuch. That rules change also paved the way for confirmation of Trump’s next two Supreme Court nominees, Brett Kavanaugh and Amy Coney Barrett.

The use of this parliamentary device to muscle through rules changes by a simple majority vote was illegitimate when proposed by Republicans in 2005, and when carried out by Democrats in 2013, and by Republicans in 2017 and 2019. In each instance, it plainly violated the rule of law to change the rules unilaterally.

Filibuster foes point to the budget reconciliation process and other exceptions to Rule XXII, such as fast-track trade agreements and military base closures, in which bills move forward by simple majority vote. But in each of these instances, a bipartisan supermajority supported the underlying law establishing the Rule XXII carve-out. The 1974 Act creating the reconciliation process, for example, passed the Senate unanimously.

What Goes Around, Comes Around

I have previously argued that a post-filibuster world would be a nightmare for progressives. Democrats who want to enact immigration reform by simple majority vote must be prepared to watch helplessly as a future Republican-controlled Senate repeals immigration laws and other civil rights protections under the same vote threshold. Supporters of immigration reform, and I am one, should not want to achieve it by violating the rules.

Moderate senators such as Joe Manchin and Mitt Romney have defended the filibuster as a valuable tool for forging consensus in a polarized Senate. I happen to agree with them. But you don’t have to love the filibuster to fear the descent of the Senate into a lawless battleground once the Senate rules cease to govern the body in an impartial fashion.

There could be no starker violation of the rule of law than for one team to overrule the umpire. The Yankees can’t do it, and neither should Senate Democrats.

Image: A screenshot taken from a congress.gov webcast of the Senate floor on the fifth day of former President Donald Trump’s second impeachment trial at the U.S. Capitol on February 13, 2021 in Washington, DC. (Photo by congress.gov via Getty Images)