The buzz on Capitol Hill is that the Senate parliamentarian may hold the key to passing parts of the health-care bill. Naturally that raises a few important questions; namely, who is the parliamentarian, what does he do, and how can he change the outcome of a bill?
"It's not surprising to me that there are a lot of people who don't understand the role. I had no clue what [the parliamentarian] was until I came into the office," says Bob Dove, a former Senate parliamentarian who began learning about the position more than 40 years ago.
Both the House and Senate employ a parliamentarian to assist members of Congress in interpreting the standing rules. Because the size of the two houses varies, their procedural rules differ. The House readopts procedural rules every two years. The Senate, however, has developed rules that can change at any moment.
Wendy Schiller, associate professor of political science and public policy at Brown University, compares the Senate standing rules to the Supreme Court's judicial precedent. "There's a specific code that has been built up over time, and it exists until you change it," she says. That means that an expert needs to be appointed to learn and interpret these rules and their history—and that's precisely the parliamentarian's job.
The parliamentarian is considered a nonpartisan employee of the Senate. Indeed, Dove says that his lack of political savvy and partisanship actual helped him land the job back in the 1960s. "They asked me if I knew any senators, and I said no. It was pretty embarrassing. It turns out they didn't want someone who was a friend of any senator," Dove recalls.
But in a city steeped in politics, the partisan label can get applied to a parliamentarian when one party sees an advantage in doing so. Current Senate parliamentarian Alan Frumin has come under fire from Republicans, even though they were the ones who appointed him in 2001. But regardless of any personal attacks, it's the parliamentarian's job to serve as the "referee of the U.S. Senate," Dove says.
So how does one qualify for the job? There's no standard educational path to become a parliamentarian. Both Frumin and Dove graduated from Georgetown Law School, but Dove insists that a legal education isn't a prerequisite for the position. On-site training is the key, Dove says. He spent 14 years as an apprentice before he was selected to fill the position. "The best background is to live in that office for years and learn how the Senate works," he says.
The first Senate parliamentarian was appointed to office in 1935, when Charles Watkins was selected to unravel the procedural complexities of New Deal–era legislation. Watkins was praised for his curiosity about Senate procedure, photographic memory, and work ethic. In fact, on one occasion, he worked 48 straight hours during a filibuster. Since the position was created, only five men have held the title. So far, no woman has been appointed parliamentarian.
The job can be stressful, too, something that may be particularly true this year, because, as Dove notes, "The parliamentarian has an enormous effect on the shape of legislation."
So how can Frumin affect the passage of health care? There's a special Senate procedural rule that allows items directly affecting the budget to be considered under the budget reconciliation process. Senate bills are introduced to the parliamentarian, and it's his job to determine whether they have a legislative or budgetary purpose. The health-care bill falls somewhere in the middle because it has both legislative and budgetary components. If a bill is deemed to have a legislative purpose, there can be long, heated debates and the possibility of a filibuster, which requires a supermajority of 60 senators to break, a supermajority Senate Democrats no longer have. If a bill is budgetary, debate is limited to 20 hours.
"It's rare that the parliamentarian will be this pivotal in legislation that will affect every American," Schiller says. "The parliamentarian has been important in the past, but not in a bill with this much scope."
Sen. Kent Conrad (D-ND), chairman of the Senate Budget Committee, which oversees the reconciliation process, says that reconciliation won’t be used for comprehensive health-care reform. And it doesn't need to be, since both Houses of Congress have already passed the comprehensive bill. However, the versions differ, and both houses must pass the same version for the president to sign it. Now that Republicans have 41 seats in the Senate and have promised to filibuster any final bill, Democrats are hoping that the House will pass the Senate version. Then, the Senate could appease the House by making final tweaks in the reconciliation process. But those items of disagreement between the House and Senate must be budgetary to qualify for reconciliation. So how rigidly Frumin categorizes what's legislative and what's budgetary could matter.
The Senate parliamentarian's rulings aren't necessarily final. The Senate chair, who is normally the vice president, has the authority to override the parliamentarian's decision. But this rarely happens. "I haven't seen a situation where the [parliamentarian's] advice wasn't accepted since Hubert Humphrey," Dove says. Given how high the stakes are in health-care reform, is it possible that it could happen again?