Democrats’ long-held hopes for providing a path to legal status for millions of immigrants is now in the hands of a little-known figure: The Senate parliamentarian.
Democrats pitched Elizabeth MacDonough, a nonpartisan referee, Friday on their plan to provide permanent legal status, which paves the way for a path to citizenship, for 8 million immigrants, including Dreamers, temporary protected status holders, agricultural and other essential workers.
After struggling for years to get a deal on immigration reform, and with President Biden’s sweeping comprehensive plan stalled on Capitol Hill, Democrats are ready to go it alone by including their smaller plan in a sweeping $3.5 trillion social spending bill they hope to pass as soon as this month.
But first, they’ll need to convince MacDonough, a former immigration lawyer who has jettisoned key priorities for both parties in budget reconciliation measures in recent years.
“You think about that all the time,” Sen. Tim Kaine (D-Va.) told The Hill about trying to figure out what will pass muster with the parliamentarian.
Democratic staffers from the Senate Judiciary and Budget committees, as well as Senate leadership staffers, met with MacDonough to make their case that the immigration plan complies with the arcane rules that govern what can be included in the spending package.
Democrats are using the budget reconciliation process to prevent the GOP from filibustering their measure in the Senate. The problem is that there are sharp limits on what can be included in such measures.
The most well-known requirement Democrats will need to convince MacDonough of is that the immigration plan has an impact on federal spending and revenues and that its impact isn’t “merely incidental” to its non-budgetary goals.
“We believe that passing this legislation through reconciliation is permissible because the bill’s budgetary effects are a substantial, direct and intended result and the non-budgetary effects do not so disproportionately outweigh the budgetary effects as to make them merely incidental,” a Democratic aide said.
Democrats say their plan would increase budget deficits by $139.6 billion over a 10-year period, according to initial estimates from the Congressional Budget Office.
The Senate plan is narrower than Biden’s pledge to provide a pathway to citizenship for 11 million immigrants. But Democratic staffers indicated that the narrower four categories gave them the strongest pitch for getting immigration reform into the spending package and complying with the budget rules.
They also stressed that the bill doesn’t directly address citizenship, noting they see it as a bill that provides a pathway to getting permanent legal status or a green card. Earning permanent legal status allows an individual, if they can meet a slew of requirements, to eventually apply for citizenship.
GOP staffers also pitched MacDonough on Friday about why the Democratic plan doesn’t meet the requirements laid out for what can get included in the budget bill. They’ve been signaling for weeks that they would fight Democrats’ plan to try to sidestep them on immigration.
Sen. John Cornyn (R-Texas), a member of the Judiciary Committee, argued that the Democrats’ plan “almost surely will not work, consistent with the rules of the Senate.”
Cornyn has also pointed back to one of MacDonough’s predecessors, Alan Frumin, who has warned that while changes to immigration do likely impact the budget, those impacts could be argued to be “merely incidental” to the plan’s larger goal of immigration reform.
There’s no guarantee MacDonough will greenlight the Democratic plan. She’s sparked frustration on both sides of the aisle with recent decisions. In 2017, she jettisoned a Senate GOP plan to repeal and replace ObamaCare, and earlier this year she warned Democrats that boosting the minimum wage to $15 per hour, a key priority for progressives, didn’t meet the rules for budget reconciliation.
If she rules against immigration reform, the provision could be stripped out of the bill unless Democrats can muster 60 votes, meaning the support of at least 10 GOP senators, to keep it in the bill.
MacDonough is part referee, responsible for deciding what complies with the Senate’s budget rules, and something of a Senate oracle, unknowable to reporters and largely leaving senators and staff to try to interpret which way she’s leaning by questions she asks.
“It varies from oral argument to oral argument whether we do get any feedback. There have been some, where we do get a lot of questions and we can learn from that sort of like watching the Supreme Court when they have a lot of questions,” a second Democratic aide said about pitching MacDonough.
Democrats are feeling hopeful that they will be able to get immigration reform into the $3.5 trillion spending plan, pointing back to 2005 when a plan to address a backlog of visas was included in a reconciliation bill.
Democrats and aligned outside groups have been ramping up pressure to include immigration reform in the sweeping spending package.
The Senate previously passed “comprehensive” immigration reform back in 2013, but it hit a wall in the then-GOP controlled House.
Since then, the discussion around immigration on Capitol Hill has become more polarized with then-President Trump demanding billions to build the U.S.-Mexico border wall, supporting cuts to legal immigration and taking a hard line on asylum. Bipartisan discussions under Biden have failed to make much headway.
Biden, who chaired the Judiciary Committee during his time in the Senate, has endorsed including immigration in the reconciliation bill but hinted that it “remains to be seen” if it’s allowed to stay in.
Asked by The Hill before the summer break when he would start worrying about the parliamentarian, Sen. Dick Durbin (D-Ill.), the Judiciary Committee chairman, quipped: “I’ve already started.”
And Speaker Nancy Pelosi (D-Calif.), during a recent virtual town hall, pledged that Democrats would “fight” for their immigration plan but acknowledged there are questions about what “will survive the parliamentarian in the Senate.”
“We are limited in what the parliamentarian in the Senate will allow,” she said, “and that is most unfortunate.”