The Senate Parliamentarian
One interesting facet of the health care debate is the political authority being wielded by civil servants. For example, every time a new version of the legislation is proposed, there is a pause while the Congressional Budget Office (CBO) determines how much the plan will cost. This “score” ends up being quite important, as many Senators will not support a bill that costs more than a certain amount. Nevertheless, they are not in a position to challenge the CBO’s numbers, as their independent determination would be dismissed as nothing more than politics.
Things are more ambiguous with respect to legal interpretation. The Attorney General would take some political heat if he rejected an opinion of the Office of Legal Counsel (OLC), and the President would take even more heat for rejecting the legal views of the Justice Department. Nevertheless, it would not be beyond the pale for that to happen because the political costs might be tolerable, in a way that would not be true if a President or Attorney General tried to defy a federal court order. The latter reflects a constitutional principle and the former does not –probably because it is an intra-executive-branch dispute. (Of course, the OLC is led by a political appointee, but until recent years it was seen as a nonpartisan institution.)
How does the Senate fits into this equation? Rulings on Senate procedure are normally made by the parliamentarian, a civil servant, who advises the presiding officer about what should be done. The presiding officer is formally free to disregard that advice, but the Vice-President has not exercised his authority to do so since 1975. One could say that this abdication to the parliamentarian is now so settled that a contrary action should be deemed out of bounds. I am not clear, though, about the political costs of rejecting the parliamentarian’s advice.
The reason I raise this point is that, if the Senate Democrats use the reconciliation process to pass health care, the parliamentarian could become a household name. (He’s Alan Frumin, and has been in office since the 1990s). If he makes some favorable rulings on the points of order that the Republicans are sure to raise, that will put Joe Biden in the hot seat. Will he feel bound by those rulings? Or will he overrule any decisions that mess up the President’s proposal by excluding them from reconciliation and subjecting them to the sixty-vote cloture rule? And if he does that, how will the country react? Will anyone care?