Parliamentarians Advise, Senators Decide
Last week, the Senate advanced its compromise agreement with the House on the fiscal year 2025 budget resolution (H. Con. Res. 14) on a 51 to 48 vote. In a departure from past practice, the aggregate spending, revenue, and deficit/debt numbers in H. Con. Res. 14 are derived from a current policy baseline instead of a current law baseline. A current policy baseline assumes that the budgetary effects of policies presently in effect but otherwise scheduled to expire continue. In contrast, a current law baseline assumes that the budgetary effects of expiring policies do not continue. Republicans used a current policy baseline because it makes it easier for Congress to permanently extend expiring provisions of the 2017 Tax Cuts and Jobs Act via the reconciliation process.
Senate Democrats oppose extending the expiring tax cuts and argued that using a current policy baseline to score the budget resolution was a Senate rule violation in a bid to frustrate the Republican plan. Minority Leader Chuck Schumer, D-N.Y., stated that Republicans were "getting ready to decide for themselves which rules of the Senate to follow, and which rules to ignore." And Democrats called on the chamber’s parliamentarian to rule against Republicans’ effort to use a current policy baseline in the fiscal year 2025 budget resolution before the debate began.
Yet the parliamentarian did not rule out using a current policy baseline and Democrats could not stop Republicans from taking the first step towards extending the expiring tax cuts. This is because the parliamentarian doesn’t have the power to “rule” on anything, and the Senate’s budget rules stipulate explicitly that the House and Senate budget committees score legislative proposals (e.g., budget resolutions).
Democrats’ strategy of appealing to the parliamentarian to adjudicate their policy differences with Republicans highlights the growing deference senators in both political parties give to whoever occupies the position.
The Senate’s Complex Rules
The parliamentarian’s job is to advise senators on how to apply the Senate’s rules in practice. Applying those rules to specific situations is not always straightforward because of their complexity. The Senate’s rules are derived from five primary sources: the Constitution, the Standing Rules of the Senate, statutory rules passed by Congress and signed into law by the president, standing orders, and informal precedents. The interaction of each of these sources forms the complex procedural architecture within which the decision-making process unfolds in the institution and increasingly encourages senators to defer to the parliamentarian to apply the Senate rules to specific situations.
The Constitution
The Constitution’s Congressional Proceedings and the Rulemaking Clause (Article I, section 5, clause 2) give the Senate plenary power over its rules of procedure. The clause explicitly stipulates: "Each House [of Congress] may determine the Rules of its Proceedings." With this authority, the Senate establishes formal and informal parliamentary rules regulating its proceedings.
Standing Rules
The Senate presently has 44 Standing Rules. According to the concept that the Senate is a continuing body, these rules remain in effect from one Congress to the next. Rule V stipulates, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” For the most part, the Senate’s Standing Rules are very general and do not address circumstances that may arise in specific parliamentary situations. The Standing Rules total only 70 pages in length.
Statutory Rules
Senate rules may also be established by provisions included in bills passed by Congress and signed into law by the president. The Budget Act of 1974 (Public Law 93-344) created many rules that regulate the consideration of budget-related legislation in Congress today, including the rule empowering the House and Senate budget committees to score legislative proposals.
Standing Orders
Senate rules may also be created by standing orders, which have the same effect as Standing Rules and statutory rules. There are two kinds of standing orders. Permanent standing orders are created by a simple resolution and remain in effect until repealed by the Senate unless otherwise noted in the text of the order itself. Standing orders are also utilized more routinely whenever the Senate enters into unanimous consent agreements. Such orders remain in effect for the period of time specified and are listed in the Congressional Record on the day they are adopted.
Precedents
When the Senate isn't operating under a unanimous consent agreement, its deliberations are regulated primarily by informal precedents. The late Senator Robert C. Byrd (D-West Virginia) described precedents as reflecting “the application of the Constitution, statutes, the Senate rules, and common sense reasoning to specific past parliamentary situations.” Former Senate Parliamentarian Floyd M. Riddick observed that precedents embody the practices of the Senate under the Constitution, its Standing Rules, and any relevant rule-making statutes. These practices fill in the gaps in these procedural authorities when they fail to address specific parliamentary situations.
The first collection of Senate precedents - A Compilation of Questions of Order and Decisions Thereon - was compiled by the Chief Clerk of the Senate, William J. McDonald, in 1881. Its contents were organized alphabetically by topic and briefly covered the procedures governing issues such as offering amendments, floor debate, and voting. It was 25 pages in length. Another compilation followed in 1893 - Precedents Related to the Privileges of the Senate. This 350-page volume was compiled by the Clerk of the Senate Committee on Privileges and Elections, George P. Furber. Furber's compilation was augmented 1894 by Henry H. Smith, the Clerk of the Committee to Investigate Attempts at Bribery, etc. This expanded collection of precedents totaled 975 pages. It was titled Digest of Decisions and Precedents of the Senate and House of Representatives of the United States.
The first collection of precedents that resembled the volume presently utilized in the Senate was compiled by Chief Senate Clerk Henry H. Gilfry in 1908. The compilation - Precedents: Decisions on Points of Order with Phraseology in the United States Senate - was updated in 1914, 1915, and 1919. These volumes averaged around 700 pages in length. Like McDonald’s earlier compilation, Gilfry’s Precedents was organized alphabetically and served as a useful reference work for senators.
Charles L. Watkins and Floyd M. Riddick prepared the most recent compilation of Senate precedents in 1954. The collection - Senate Procedure: Precedents and Practice - was updated in 1964, 1974, and 1981. Its most recent edition - Riddick’s Senate Procedure - was updated in 1992 by Alan Frumin and is over 1600 pages long. This lengthy tome contains over a million precedents that regulate the legislative process in the Senate today. An up-to-date record of the precedents established since 1992 has not yet been published.
The Office of the Parliamentarian
Senators enforce the Senate’s rules by raising points of order against efforts to violate them. When that happens, the parliamentarian's job is to advise the Senate's presiding officer on adjudicating those points of order. In doing so, the parliamentarian does not decide how to apply the rules in a specific situation. The parliamentarian’s role is strictly advisory. Senate precedents stipulate, “The Chair rules on points of order, not the Parliamentarian; the Parliamentarian merely advises the Chair.” The presiding officer may rule on parliamentary procedure questions independently of the parliamentarian. However, such independence is often considered extraordinary in today’s Senate, partly because the presiding officer - and rank-and-file senators more generally - is inexperienced and thus unfamiliar with its complex rules, especially its precedents.
But senators’ dependence on the parliamentarian is a recent development. The Senate didn't have a parliamentarian for much of its history. Before the position existed, the Senate's Clerk advised the presiding officer - and individual senators - on parliamentary questions using compilations of the Senate's precedents to assist them. The Senate created the office of the parliamentarian in 1935 and named Charles L. Watkins its first official parliamentarian. Like the Clerk before 1935, the parliamentarian advised the Senate's presiding officer and rank-and-file senators on how to apply the rules in practice.
The parliamentarian gradually became central to managing the orderly flow of legislation and nominations on the Senate floor. When today's presiding officer is required to respond to a parliamentary inquiry or make a ruling on a point of order, the parliamentarian whispers the appropriate procedure to the Chair. The presiding officer’s reliance on the parliamentarian has increased, in part, because of the customary practice in which junior senators in the majority party are routinely tasked with presiding over the chamber’s deliberations. Without the parliamentarian there to assist them, those senators would lack the knowledge of the Senate’s rules needed to correctly rule on any points of order that their colleagues may raise during a debate.
Rank-and-file senators and their staff also rely on the parliamentarian's advice when crafting legislative proposals and planning parliamentary maneuvers on the floor. Staff will typically visit the parliamentarian’s office - or e-mail the parliamentarian in advance - to have their bosses’ proposal or maneuver blessed before any floor action. This interaction benefits both the staff and the parliamentarian. The parliamentarian is given advance notice of potential procedural questions with which they may be presented on the Senate floor. Such notice allows the parliamentarian to prepare for any relevant points of order that may arise by researching their procedural history. Individual senators and their staff generally receive advance advice on executing their efforts in compliance with Senate rules, as well as the parliamentarian’s interpretation of them.
Senators’ reliance on the parliamentarian also increased as the volume of precedents grew, if for no other reason than overworked members were increasingly dependent on independent professional advice to clarify complex parliamentary procedures on the Senate floor. By the middle of the twentieth century, hundreds of thousands of precedents were already regulating the legislative process. This number has grown to over a million today. Adding to the sheer volume of precedents is that, by their very nature, many of them are not well documented and easily accessible. Most senators do not have the resources or time necessary to master all the applicable precedents on a given parliamentary question. This lack of resources and time encourages them to defer to the parliamentarian and the advice she provides.
The Takeaway
The parliamentarian’s job is to advise senators – and their staff – on how to apply the Senate’s rules in practice. Senators are more likely to defer to the parliamentarian today than they were to the Senate's Clerk at the beginning of the twentieth century or the parliamentarian when the office was formally created in the 1930s. They defer, in part, because of the complex nature of the Senate’s procedural architecture and the explosion of new precedents over the last nine decades. That complexity obscures the parliamentarian’s strictly advisory role and encourages senators in both parties to attribute powers to the position that it lacks.