Byrd-Brained

As you may have heard, immigration advocates—including even such peripheral ones as myself—are currently engaged in a glacially-paced legislative struggle to try to attach path to citizenship provisions to Congress's budget reconciliation process. After years of focusing on abrupt and startling executive branch decisions (coming not only from Trump, alas, but also his successor), in which some horrible yet fast-developing news item would reliably break every Friday evening, just as we were ready to sign off, it has been strange to rediscover that there are still some policy-related news cycles that do not exhaust themselves within a 24-hour timeframe. The ones that drag on longer, we're re-discovering, tend to be those that depend on the two chambers of Congress to conduct the people's business. 

This particular slog involves the question of whether or not including path-to-citizenship provisions in the reconciliation deal will be approved under Senate rules. This ought not to be a problem; precedent exists for featuring immigration-related items in reconciliation, when the Republicans were in power. But there remains the possibility that the Senate parliamentarian may—for whatever reason—advise against these measures, under a Senate provision known as the "Byrd rule" (originally designed to limit the range of policy measures that can be enacted through reconciliation). If the parliamentarian does recommend against it, of course, all is not lost. But we would then face the much harder task of trying to convince the narrow Democratic majority and Vice President Harris (as the Senate's presiding officer) to overrule her decision. 

In an effort to gird myself in advance for such an uphill battle—should it prove necessary—I set about thinking of ways we might convince some of the conservative-leaning Democrats most likely to object to these measures. I tried to put myself in their place. What is Joe Manchin really worried about?, I wondered. Sure, he holds his Senate seat as a Democrat in a now–deep red state; sure, West Virginia voted for Trump by a considerable margin the last time around. He must be worried that if he rocks the boat too much, or if he can be portrayed as siding with "radical leftists" to tamper with long-standing Senate procedures (however ugly and anti-majoritarian the origins of those procedures may be), he might be vulnerable to losing his seat to a Republican next time around. Okay, I thought. Makes sense from his perspective. So how might one persuade him to stop worrying and love the override?

As I thought more about it, the fears I had imagined on Manchin's behalf seemed increasingly chimerical. After all, the question of whether the Senate does or does not overrule the advisory opinion of the parliamentarian must be one of the more arcane ones in the legislative process—the sort of thing that seems titanic to reporters in Washington but is a matter of supreme indifference to most voters. To convey what it means, after all—let alone to construe it as a big deal—would require explaining at least three stages of Senate procedure, and would require turning obscure parts of the legislative process into symbolically-charged cultural touchstones. Good luck with that!, I thought. I wouldn't want to be in the position of whatever copy-writer get's that assignment. Imagine trying to write an attack ad that explains what all of these terms even mean, let alone why Manchin's constituents should care!

Enamored of this insight, and feeling a lack of audience, I decided to take to Twitter and share it with the world. "What, in all seriousness," I typed out, "could be the political argument against overruling the parliamentarian's recommendation, if it comes to that? Good luck writing an attack ad that tries to explain the Byrd rule." Pleased with what I took to be this squirt of Swiftian polemical brilliance, I pressed tweet and sent it out into the world. No sooner had I done so, however, than that name "Byrd" seemed to stand out in tall letters from the screen. It nagged at me. No matter; I shook it off. I tried to read my tweet again in the spirit it had been intended. Ha ha ha! I thought. Whoever thinks they can write an attack ad making the Byrd rule seem important has another thing coming! But then I knew why the name was bothering me so much. Senator Robert Byrd, he of the Byrd rule... Wasn't he the Senator from...

... Uh oh. Yes. West Virginia. I had to look it up (he was long before my time), but yes, indeed. He was the immensely long-serving senator from West Virginia; and worse than that: he was virtually Joe Manchin's immediate predecessor in office, serving until his death in 2010, when Manchin took office following the very brief tenure of an interim appointee. Suddenly, the possibility of turning something called the "Byrd rule" into an issue with symbolic value for the voters of West Virginia—replete with shadings of relative status and local prestige—no longer seemed so far-fetched. And sure enough, the news over the next few days was concerning. In a conversation with reporters, Manchin confirmed he supported immigration measures, but hastened to add that he was no less committed to upholding the "Byrd rule." 

The troubling thing wasn't just the position he took (why would he want to adopt any other, when the parliamentarian hasn't even issued an opinion yet, and he might still be able to bypass this controversy entirely?). The red flag for me was that he didn't call it "the parliamentarian's recommendation" or the "standard budget reconciliation procedure" or one of the other options available to him. He chose to invoke the name of Byrd; presumably for a reason. 

Of course, none of this should have come as a surprise to me; especially since roughly the same scenario played out earlier this year in the Congressional debate around the minimum wage (though in that case, I had been tracking events less closely and from a less professionally-invested position). And it has also long been known that the Senate is a strangely ritualistic body where shibboleths and questions of the relative prestige of the chamber and its former inhabitants weigh heavily: exactly the sort of place, that is to say, where the fact that something is called the "Byrd rule" and was named after one's predecessor in office could take on undue significance. 

I still recall hearing, about the Senate passage of the Affordable Care Act, that one of the key factors leading the chamber to finally approve the bill was the death of Ted Kennedy in 2009. There was a sense, as journalists said at the time, that senators on both sides of the aisle were moved by the idea that we ought to "do this one for Teddy." 

Which struck me as an infuriatingly myopic reason to support or not support a piece of legislation affecting the health of nearly every person in the country. I mean, whatever it takes to get a much-needed and long-overdue reform over the finish line, I guess—but why was that the deciding factor?

Whether one likes it or not, though, the weird prestige-consciousness and esprit de corps of Congress' upper chamber may just have to be taken as a given of our politics: even one that can be used to one's advantage. In his highly enjoyable first-hand account of the legislative process in D.C., The Dance of Legislation, former Senate aid Eric Redman describes a prestige-invoking device used by Senator Warren Magnuson of Washington State, for example, to persuade his reluctant colleagues to endorse a bill to prevent the transportation of decommissioned nerve gas from Okinawa, Japan to the United States through the Pacific Northwest. 

As his legislative associate and sometime speech writer, Redman at first advises Magnuson to repeat the usual arguments he has deployed in the past against the proposal: the nerve gas might leak; it might prove a tempting target for terrorists, etc. But Magnuson rejects all of these, hitting upon a clever alternative:

It so happened that Robert Byrd himself (that guy again) had recently forwarded a resolution in the Senate that demanded—with respect to an unrelated issue—that the president consult with Congress before taking any policy steps affecting the U.S. presence in Okinawa. Magnuson recalled this, and incorporated it into his speech to colleagues, pleading with them to oppose the transfer of the nerve gas, and turning the issue into a matter of the relative prestige of the Senate vis-a-vis the White House. By doing so, Magnuson transformed what had been seen as a parochial issue chiefly affecting inhabitants of the Pacific Northwest into a matter that hit home with his fellow senators, regardless of which state they represented: namely, the idea that they should insist upon this point as a rebuke to an overweening executive branch that had failed to get their input before making a decision, despite being asked to do so. 

In his later book, The Art of Political Manipulation, William H. Riker cites this same anecdote (while disputing some of the details of Redman's recounting) as a prime example of the political strategy of "adding dimensions" to an issue, in order to forge a winning coalition. Sometimes, Riker argues, a political issue—no matter how much an individual advocate or interested party cares about it—may simply not seem salient enough to a broad enough cross-section of the relevant decision-makers to ensure a political victory. When this happens, one of the tactics available to the legislative strategist (or, to use Riker's neologism, the "heresthetician") is to add a further "dimension" to the issue to make it salient. In this case, Magnuson adding the new dimension of Senate prerogatives and the prestige of the chamber prompted a number of senators to feel invested in the issue who previously had taken no stance. 

Good for Magnuson; the problem for us, however, is that here the formalism and shibboleths of Senate prestige seem decisively arrayed against us. I think we have shown already what the shibboleth is in this case. "Byrd" is the word, evidently. and those of us who are suggesting the rule that bears his name should be ignored or overruled, that informal past precedent need not bind us indefinitely, that Byrd was a reactionary former segregationist and one-time Klansman anyway whose mixed legislative record need not be an absolute guide for anyone, are committing an act of inadvertent sacrilege. However right we may be on the facts, we are trampling on one of the Senate's sacred groves, and offending against its esoteric prohibitions. All of which we can fight, if we choose. Or we can try to accept it as an established fact of our current—immensely flawed and deeply anti-democratic—political institutions and see how it can be circumvented—or even repurposed to our advantage...

In the effort to engage in such rhetorical jiu-jitsu, we are not helped by the fact that many on the left seem to have no interest in finding ways to convince conservative-leaning Senate Democrats apart from browbeating them. Which, of course, can be a strategy in itself. I suppose the thinking goes that if we generate enough hostile publicity for Manchin and Sinema, they will be embarrassed to vote against the consensus of the rest of their party. On the other hand, that hasn't worked so far; and we should be cognizant of the ways such a tactic may have the opposite of its intended effect. For a Democratic senator like Manchin in a deep-red state, after all, showing voters that he is occasionally willing to "buck the party" and infuriate liberals on Twitter can actually strengthen his bona fides. By railing venomously against him, we may not be increasing the political costs associated with his stance, but actually engaging in a form of free campaign advertising for his next re-election bid. 

I don't yet know what the alternative strategy might be.... But I'd suggest we start by accepting rather than trying to alter the distinct psychology of senators, and the unique prestige economy that seems to govern their world. What would it look like to invoke the authority and prerogatives of the Senate as a reason to overrule the parliamentarian? What would a Byrd-based version of the argument for a path to citizenship look like...?

The answer's not coming to me just yet... I leave these hints to more informed herestheticians to find the working formula. 

Dear lord, I hope the parliamentarian just advises that yes, it can be included in reconciliation, and we are spared ever having to face this dilemma.