Among the many items in the Inflation Reduction Act, or IRA, which passed the Senate over the weekend, was one that Democrats had sought for decades: giving Medicare the power to negotiate drug prices with pharmaceutical companies. One portion of their original draft didn’t make it into the final bill, however. Senators dropped a requirement over the weekend that would have essentially capped annual price increases for drugs if they go beyond the inflation rate.
The IRA’s final form is mostly the result of lengthy negotiations between the 50 Democratic senators who voted to pass it. Some lawmakers, like West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, played an outsized role in scrapping various parts of it over the past 18 months. But the person who removed the inflation-cap provision for drug prices didn’t do it for policy reasons or political ones. Instead, the bill was effectively rewritten by someone who wasn’t elected to Congress at all: Elizabeth MacDonough, the Senate’s parliamentarian.
It’s worth noting that MacDonough does not seem to have done anything legally or jurisdictionally wrong here. Nor is this really about the particular merits of the price-hike cap in question, even though it sounds like a fairly good idea. But this moment—and the final passage of the IRA itself—shows how the Senate’s rules have devolved the legislative process into an inscrutable whirligig of procedural legerdemain.
I’ve spilled oceans of ink about the filibuster, so I won’t bother rehashing all of the arguments against it here. But it goes without saying that, thanks to this rule the Senate invented, there is a de facto 60-vote threshold for legislation to pass the upper chamber. Requiring a near-supermajority to conduct regular business in a legislative chamber is absurd, so lawmakers from both parties have adapted by carving out various exceptions to it.
For one, the filibuster no longer applies to judicial or executive branch nominees from the president after Democratic and Republican senators abolished it over the past decade. Though it wasn’t done with this intent in mind, the move effectively guaranteed that a minority party couldn’t block a president’s slate of nominees with the filibuster. A majority party could still do it to a president from the other party, of course, but that would fall within the Senate’s constitutional power to advise and consent to all nominees. A Senate majority is also more likely to have some sort of electoral mandate behind it.
For the IRA, Democratic lawmakers used another “one neat trick” to surmount the filibuster: the reconciliation process. In 1974, Congress passed a law to regularize the budget-making process that allowed lawmakers to pass certain types of spending and taxation legislation with a simple majority. Technically, this also applies for the House, but since the House does almost everything by simple majority, it only really matters in the Senate. And while it was apparently intended as a housecleaning measure to ensure a cohesive budget would be sent to the president’s desk, it lately serves as the primary vehicle to pass major legislation precisely because it allows the Senate to work normally.
The downside to this is that not everything can be put through reconciliation. Under the “Byrd rule,” named for another influential West Virginia senator, a reconciliation bill’s provisions must affect either budget spending or revenues to qualify. This means that Democrats can’t use it to, say, pass any of their voting rights legislation or grant statehood to the District of Columbia. A reconciliation bill also can’t increase the deficit in most cases, change Social Security, or do a few other things that aren’t relevant here.
MacDonough’s move is not the only time that the Senate parliamentarian’s judgment has had major consequences for legislation—and, accordingly, for the American people. Last September, MacDonough nixed a provision that would have raised the federal minimum wage to $15 an hour. The following week, she torpedoed a measure that would have provided a pathway to citizenship for an estimated 8 million undocumented immigrants. MacDonough also proved to be a thorn in the side of Senate Republicans during the early Trump years, ruling against multiple items in the GOP’s failed 2017 bill to repeal the Affordable Care Act.
But this is a pretty good system for Republican senators such as Senate Minority Leader Mitch McConnell, whose primary interests are cutting taxes for wealthy Americans and corporations, as well as placing conservative judges on the federal bench. For Democrats, the state of affairs is significantly less ideal because it still subjects a large portion of their agenda to the filibuster. And since Republicans know they benefit more from the status quo, they have no interest in changing it.
But when a reconciliation bill wins the approval of the Senate parliamentarian, there are still some ridiculous twists it must endure. On its way to final passage, a reconciliation bill is subject to something called a “vote-a-rama.” Under the Senate’s rules, reconciliation bills can’t go up for a final vote until all proposed amendments have been “disposed of.” This gives members in general one final opportunity to shape the bill before it passes. In practical terms, it also gives the minority party the chance to add amendments that could be politically uncomfortable for the majority party.
This might sound like normal legislation, but the catch is that amendments could theoretically be added ad infinitum. The only natural stopping point then becomes human stamina, so the Senate leadership forces lawmakers to take vote after vote after vote until they get too exhausted from the process to offer any more amendments. Over the weekend, this process went on for nearly 15 hours before the senators finally threw in the towel.
Much of what transpired during the vote-a-rama was kayfabe. Democrats were more or less unified in preserving the integrity of the bill that survived McDonough’s red pen; amendments offered by Democrats mostly lost by wide margins. Meanwhile, Republicans lacked the votes to pass anything so their amendments tended to be trollish and toilsome fliers meant to either own the libs or just annoy the legislators. The one exception involved Senator Krysten Sinema—nominally a lawmaker from Arizona who has in recent years morphed into the private equity industry’s representative in Washington. Sinema’s support was sought for an amendment, introduced by South Dakota Senator John Thune, that would alter the bill’s corporate minimum tax provisions in a way that was advantageous to private equity firms. This necessitated some last-minute tightrope walking from Democratic legislators to sort out. The entire ordeal was an exercise in bewilderment. It’s no wonder that people only call the Senate the “world’s greatest deliberative body” in mockery these days.
The absurdity of the vote-a-rama isn’t that it happens, of course, but that its basic features don’t happen more often. The point of being a lawmaker is to vote on legislation, after all. Everything else—committee hearings, constituent services, press conferences, and so on—can be valuable and important, but it is all subsidiary to actually casting votes on legislation. “Voting on things” is also a good way for elected officials to signal to voters where they stand on the issues, which in turn allows the electorate to make changes if those elected officials vote in ways they don’t like. You can see why so many senators prefer not voting over voting—and why they should be compelled to do it more often. (Albeit with changes to the welter of nonsense rules, not by forcing octogenarians through overnight tests of endurance.)
Once the vote-a-rama is done and the Senate parliamentarian’s judgments stand, a bill becomes a law. But a plethora of questions remain. Why does the Senate parliamentarian have any power at all? Because Democrats chose to pass their legislative package through the budget reconciliation process. Why did they use the budget reconciliation process? Because they only have 50 votes plus Harris’s tiebreaker, and that simple majority is not enough to pass legislation in the modern Senate. Why isn’t a simple majority enough to pass legislation in the modern Senate? Because of the filibuster.
And why, after all of this, is the filibuster still a thing? Because a majority of senators would rather pull all-nighters and allow an unelected congressional employee to shape major legislation than actually cast real votes. And they will continue to do so until voters elect senators who are actually willing to serve in a real legislative chamber rather than bask as incumbents in this hall of procedural mirrors that occasionally meets in the Capitol building.
