All eyes on Senate parliamentarian Elizabeth MacDonough as she reviews minimum wage provision in Covid relief bill

A little known but powerful Senate official is being thrust into the spotlight this week as Democrats are eager to see whether an increase to the federal minimum wage will be kept in President Joe Biden’s Covid relief package.

Senate parliamentarian Elizabeth MacDonough has been advising the chamber on how its rules, protocols and precedents should be applied — and now she’ll have to decide whether the $15 minimum wage provision is allowed under the budget reconciliation process.

Democrats and the White House are attempting to push Biden’s $1.9 trillion Covid relief package through the Senate by reconciliation, meaning the bill could pass with a simple majority of 51 votes and not require 60 votes to overcome a filibuster. Reconciliation, however, has a strict set of rules, and provisions have to undergo a review of whether it has an impact on the budget and not just an “incidental” one.

MacDonough is the first woman to serve in the role of Senate parliamentarian — a nonpartisan role — since that position was created in the 1930s.

“While serving its 100 members on a day-to-day basis, I still represent the Senate. No matter who’s in my office asking for assistance, I represent the Senate with its traditions of unfettered debate, protection of minority rights, and equal power among the states,” MacDonough said during a commencement speech at Vermont Law School in 2018, adding, “That Senate is my charge.”

She was appointed to the role in 2012 by former Democratic Sen. Harry Reid, who was the majority leader at the time. She replaced her former boss Alan Frumin, who retired that year after serving in the role for 18 years.

MacDonough herself has been with the Senate parliamentarian’s office for more than two decades, first joining as an assistant in 1999. Her first major task was helping to advise then-Vice President Al Gore on the Senate procedure for counting ballots in his 2000 election against George W. Bush, an experience she called “very exciting and humbling” in a profile piece for her alma mater.

She quickly rose in ranks after then-Senate parliamentarian Robert Dove was dismissed from the job by Republican leaders in 2001 and Frumin was promoted to the top position.

In an interview with CNN on Tuesday, Frumin described MacDonough as a “consummate professional” and a “very smart, centered” person with a great sense of humor.

“She’s a work horse, she’s not really a show horse. She doesn’t run around showing off what she knows and what she can do. She just goes about her work and does it,” Frumin said, adding that she “doesn’t shoot from the hip.”

MacDonough’s prior rulings in the nine years that she’s served as Senate parliamentarian include finding several provisions in the Republicans’ 2017 health care bill did not adhere to the Senate’s rules for reconciliation. That year, she said in the Vermont commencement speech, had been challenging because of the “difficult statuary analysis” and “complex controversial subject matter” she had to consider, as well as the degree of “public exposure” she received as parliamentarian.

In her time in office, MacDonough has also already advised on the two impeachment trials for former President Donald Trump. Last year, MacDonough was seen regularly whispering guidance to Chief Justice John Roberts as he presided over Trump’s first Senate impeachment trial.

On January 6, the Senate parliamentarian’s office was ransacked by pro-Trump rioters who sought to stop Congress from certifying the results of the 2020 election. As the rioters stormed the US Capitol, members of MacDonough’s staff safeguarded the electoral votes during the siege, according to Capitol Hill reports.

Democrats weigh options on minimum wage

This week, Democratic and Republican staffers will sit down with MacDonough as she evaluates whether the minimum wage provision would be permissible through reconciliation or if it would need to be struck from the Covid relief package.

Her ruling could be handed down as early as Tuesday evening or Wednesday morning.

In the meantime, Democrats are having discussions about alternative paths they could take to salvage their increase in the minimum wage as they face two potential hurdles.

First, it’s possible MacDonough could rule against allowing the $15 minimum wage to be in the Senate Democrats’ bill. If that happens, Democrats’ options would likely be to try and pass the legislation as a standalone in the future with a 60-vote threshold, something that Republicans wouldn’t support.

If the $15 minimum wage is allowed to stay in the bill, however, it opens up other potential challenges for the party. While progressives have fought for months to include the provision in the package, it could cost Democrats the votes they need to pass it with just 51 votes. Already two Democratic members — Sens. Kyrsten Sinema and Joe Manchin — have said they wouldn’t support that big of an increase in the minimum wage in the bill. Manchin, however, has expressed an openness to a smaller minimum wage.

According to aides, Democrats are looking at whether it might be possible to lower the increase in the minimum wage to $11 or $12 an hour, instead of $15. Another option being considered is to expand the phase-in period so that instead of getting to the $15 minimum wage in five years, nationally, it would take 10 years.

The talks, however, are just preliminary. Vermont Sen. Bernie Sanders, the chairman of the Budget Committee, is still committed to the full $15 amount.

The Senate Finance Committee is also eyeing a provision to give some of the smallest businesses tax credits to help curb the cost of the wage increase and incentivize businesses to increase their minimum wage, according to an aide familiar with the discussions.

Multiple aides warned that the discussions are still just ideas and all eyes are first on what the Senate’s parliamentarian would do. But, the minimum wage increase remains a key sticking point so Democrats are having some preliminary conversations about how the Covid relief bill’s votes could be salvaged if necessary.

Sanders, in arguing that the minimum wage provision is not “incidental” to the federal budget, has pointed to MacDonough’s rulings on the GOP 2017 tax bill which allowed the opening of the Arctic National Wildlife Refuge for oil drilling and repeal of the Affordable Care Act’s individual mandate penalties.

This story has been updated with additional reporting Tuesday.