There was, for a time, a brief glimmer of hope that the federal minimum wage rate would be raised to a living wage of $15 per hour. That hope has now had a stake driven through its heart and is DOA – Dead On Arrival. Why? I could offer up a lot of reasons, such as the Senate Parliamentarian, Elizabeth MacDonough, has deemed it isn’t appropriate to tie the minimum wage to the coronavirus relief bill, but the bottom line is that it won’t fly because … the Republicans in Congress don’t want it to.
Note that some 75% of the people in this nation do want the minimum wage rate increased, and that includes 62% of Republican voters. Also note that it has remained stagnant since 2009, twelve long years, while inflation has not. But, of late, the Republicans in Congress do not choose to represent their constituents, the people of this country, but rather their wealthy donors, most of whom are corporate bigwigs who, quite simply, don’t want to be forced to pay their employees more than the $7.25 some of them now pay. Here’s another way of looking at it: If the minimum wage rate had been increased by only 65 cents each year since 2009, it would now be over $15 per hour. Just 65 cents per year!
Still, with a tied Senate, and the tiebreaker being Vice President Kamala Harris, one might foolishly think that any piece of legislation raising the minimum wage, could be passed. And it could, but for one little word: filibuster.
A brief explanation of what the filibuster is:
Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered.
Senators who are against the bill being considered, but know their views are not shared by a simple majority, will refuse to end debate simply to force a filibuster, or a supermajority requirement for passage of the motion. Rarely will you see a situation in an equally divided Senate where 60 of the 100 will agree on any damn thing! But there are options, as New York Times columnist Jamelle Bouie explains in his recent newsletter …
The Senate has bound itself with fake restraints
I know I am more than a little obsessed with the Senate filibuster. But my preoccupation is not without reason. I think the filibuster — or to be precise, the de facto supermajority requirement for legislation in the Senate — is both bad on the merits and a symbol of the sclerotic dysfunction of our Congress.
In the face of multiple, overlapping crises — and at least one long-term existential crisis — our elected officials refuse to act, much less take steps that would give them freedom of movement in the legislature. Instead, they hide behind rules and procedure, as if they are powerless to change both.
All of this is apropos of the news that the Senate parliamentarian, Elizabeth MacDonough, has ruled a proposed federal minimum wage hike as non-germane to the Covid relief reconciliation bill. Her ruling is not binding, but Vice President Kamala Harris, who also serves as president of the Senate, will abide by it. This means that if the Senate wants to increase the minimum wage, it will have to do so through ordinary legislation, making it subject to the supermajority requirement.
That means it isn’t going to happen, at least not anytime soon, but the point I want to make is that these are fake constraints. The Senate determines whether it will abide by the parliamentarian, and the Senate decides whether it wants to operate by supermajority. The Senate, and its Democratic members in particular, are handcuffing themselves and reneging on their promise to millions of American workers.
That Democrats are doing it to maintain their fragile coalition — to keep Joe Manchin and Kyrsten Sinema from sinking the entire package — is only a testament to how these fake constraints render the entire process of lawmaking a farce. I would rather the Senate take a simple up or down vote, and for individual lawmakers to show where they stand, than listen to some of the most powerful people in the country explain why they are bound by rules they could change at any time, for any reason at all.
Related to this, I want to share this 2010 Connecticut Law Review article titled “The Unconstitutionality of the Filibuster,” by the congressional scholar Josh Chafetz. The key point is this: A Constitution written in the name of “We the people” is necessarily one that cannot abide a supermajority requirement for the ordinary business of lawmaking. Here’s Chafetz:
The mere fact that our Constitution has some anti-majoritarian elements should not serve as a bootstrap by which any anti-majoritarian device is made constitutionally legitimate. … Rather than use some deviations from majoritarianism to justify still others, we should take note of the essential popular sovereignty foundations of our Constitution and insist that, in such a polity, minority veto cannot be piled atop minority veto indefinitely. The Constitution — our higher law — specifies certain deviations from majoritarianism. But the exceptions should not be allowed to swallow the rule, nor should antimajoritarian devices in higher law be used to justify antimajoritarian devices in ordinary law.
We can have a supermajority requirement for legislation or we can have meaningful self-government. We can’t have both.