If the Senate’s parliamentarian finds a provision in violation of the Byrd Rule, it would require 60 senators to overturn that ruling in order to keep the extraneous provision in the underlying bill, an extremely high hurdle to clear. But an idea now being advanced by progressive activists is for Vice President Kamala Harris — or whomever else is presiding in the Senate at the time — to simply ignore the ruling of the parliamentarian and let the contested provision stay in the bill, a controversial move that Senate experts say has not been employed since 1975 by then-Vice President Nelson Rockefeller.
Yet if Democrats were to go that route and ignore the advice of the parliamentarian, it’s bound to cost them the support of at least Manchin — and potentially others, like Sen. Kyrsten Sinema, an Arizona Democrat.
“My only vote is to protect the Byrd Rule: Hell or high water,” Manchin told CNN. “Everybody knows that. I’m fighting to defend the Byrd Rule. The President knows that.”
Asked if he told the President about his position, Manchin said bluntly: “Straight up.”
The push to include a federal wage hike to $15 per hour has become a delicate situation for Democrats as they seek to muscle the massive economic rescue package through both chambers of Congress by the first week of March. The House Budget Committee is expected to piece together individual pieces of the proposal in the coming days before sending the sweeping bill to the full House, which is expected to approve the plan at the end of next week.
House Budget Chairman John Yarmuth, a Kentucky Democrat who supports the minimum wage hike, was skeptical on Tuesday that the hourly increase could survive the Senate’s strict budgetary rules, while even Biden himself has expressed serious doubt that it would survive in the Senate.
“I think the minimum wage is a stretch to get through the Byrd Rule,” Yarmuth told CNN, noting its impact on deficits after the next decade. “I’m just not aware of how they do that.”
Yarmuth said he expects his committee to vote to send the bill to the floor either by the end of this week or by Monday once his panel goes through its own process of clearing the relief bill with the House’s parliamentarian to make sure it does not run afoul of budget reconciliation rules. Yarmuth added that House panels are already privately working to resolve differences with Senate committees in order to speed passage in both chambers.
“Our committees have been working with their committees the whole time,” Yarmuth said.
If the massive measure is approved by the House next week, as is expected, it would come to the Senate the week after. Since Democrats are using fast-track budget procedures, known as reconciliation, the measure cannot be filibustered, meaning the bill can be approved by a simple majority of 51 senators — rather than 60 votes typically needed to overcome any roadblocks in the Senate. With a 50-50 deadlock, Harris would cast the tie-breaking vote.
Because Democrats are using the budget reconciliation process, they must adhere to the Byrd rule, named after the late Sen. Robert C. Byrd, whose seat Manchin now occupies.
Yet, Sanders says he has attorneys and experts of Senate rules on his staff who plan to argue for a favorable ruling with the Senate parliamentarian, Elizabeth MacDonough.
“The only way to increase the minimum wage to $15 an hour now is to pass it with 51 votes through budget reconciliation,” said Sanders, who argued that a recent cost estimate by the Congressional Budget Office strengthened his argument to keep the provision in the bill.
On Monday, Sanders told CNN: “We are going to make our case to the parliamentarian that we absolutely believe that raising the minimum wage to $15 an hour is consistent with the rules of the Senate and the reconciliation process.”