4 facts about the Senate parliamentarian

The U.S. Senate’s parliamentarian—Elizabeth MacDonough—has been in the news this year for rulings she made regarding federal budget reconciliation procedures. If you follow the legislative process in Congress, you may have come across a newsletter or a news story that has mentioned the parliamentarian or Elizabeth MacDonough.

Given this prominence, I thought it would be a good time to dig deeper into what the parliamentarian’s role is. The Senate parliamentarian is a nonpartisan advisor to the chamber on procedural issues and legislative activity. During a Senate meeting, the parliamentarian—or a staff member from her office—sits on the Senate dais and advises the presiding officer.

If the Senate intends to pass certain budgetary measures, it matters whether those are considered new legislation or the reconciliation of a previously approved measure. Senators are not allowed to filibuster reconciliation bills and can therefore pass them by a simple majority.

Here are four facts you may not have known about the Senate parliamentarian.

Who hires the parliamentarian?

The secretary of the Senate hires the parliamentarian. The secretary can also fire the parliamentarian. The Senate selects the secretary at the beginning of each Congress.

What are the parliamentarian’s responsibilities?

The Senate parliamentarian’s duties include the following:

Provide advice and assistance on legislative rules and procedures
Advise the presiding officer on the appropriate procedure, statements, and responses during a meeting of the Senate
Offer written guidance on procedural questions
Recommend the referral of measures to the appropriate committee
Maintain and publish procedural rules

Here are two recent examples of actions the parliamentarian took:

In February, MacDonough advised the Senate that a provision in an initial version of the American Rescue Plan Act of 2021 seeking to increase the federal minimum wage to $15 was merely incidental to the bill, which disqualified it from being considered through the reconciliation process.
Earlier in April, MacDonough advised that a revised budget resolution could use the reconciliation process in the same fiscal year. This means that the reconciliation process used for the American Rescue Plan earlier this year could be used again for additional budget-related bills, such as the American Jobs Plan, currently under debate.

How many parliamentarians have there been?

Charles Watkins was the first Senate parliamentarian, serving from 1935 to 1964. Two parliamentarians served two nonconsecutive stints each—Robert Dove (1981-1987, 1995-2001) and Alan Frumin (1987-1995, 2001-2012). MacDonough has served since 2012 and is the first woman to fill the position.

What happened before 1935?

There was no parliamentarian. Issues were resolved by Senate staff.

According to the U.S. Senate’s official website, “In 1923 Watkins replaced the ailing assistant secretary of the Senate as unofficial advisor on floor procedure to the presiding officer. From that time, he became the body’s parliamentarian, in fact if not in title. Finally, in 1935, at a time when an increased volume of New Deal-era legislation expanded opportunities for procedural confusion and mischief, he gained the actual title.”

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Montana voters to decide changes to state supreme court elections

Next year, Montana voters will decide whether to begin electing state supreme court justices by district. Currently, the court’s seven justices are elected in statewide elections. The elections are nonpartisan.

Under the measure—a legislatively referred state statute—current associate justices would be assigned district numbers according to their seat number, and the chief justice would be assigned the seventh district. Associate justices may seek re-election in the district assigned to them or resign from their current district and file to run in another district. The change would take effect after the 2024 general elections.

Four current judges on the court were elected. Democratic governors appointed two judges and a Republican governor appointed one judge. (See our report on state court partisanship here.) Montana Supreme Court justices serve eight-year terms. If there is a vacancy, the governor may appoint an interim justice (or the chief justice does so, if the governor does not), subject to state Senate confirmation. Appointed judges hold office until the next general election, when they can run for election to complete the remainder of the unexpired term. Incumbents who run unopposed in a general election are subject to a retention election.

The 2022 measure is similar to a ballot measure that was removed from the ballot prior to the June 2012 primary election. District Court Judge James Reynolds ruled in favor of the plaintiffs, who argued that the measure deprived Montana voters of the right to vote for all state supreme court justices. Reynolds said the measure, which required supreme court candidates to live inside proposed regional districts, would contradict the state constitution. The state supreme court upheld that decision in a 6-1 ruling. The 2022 measure would not require justices to live in the same district they wish to represent.

The map below shows how judges are selected in each state’s highest courts. Voters elect state supreme court justices in 22 states. Voters in seven states—Illinois, Kentucky, Louisiana, Maryland, Mississippi, Nebraska, and Oklahoma—elect state supreme court justices by district.

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SCOTUS grants review for three more cases in 2021-2022 term

The U.S. Supreme Court accepted three more cases for review during its 2021-2022 term on April 26. With these, the court has agreed to hear 14 cases during the term, scheduled to begin on Oct. 4. Between the 2007 and 2019 terms, SCOTUS released opinions in 991 cases, averaging 76 cases per year.

Here’s a brief summary of the three cases:

New York State Rifle & Pistol Association Inc. v. Corlett concerns a person’s right to carry a firearm for self-defense under the Constitution’s Second Amendment. The question presented to the court is, “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”
Houston Community College System v. Wilson concerns free speech protections and limitations on an elected governing body’s authority to censure a member for their speech. The question presented to the court asks, “Does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member’s speech?”
United States v. Zubaydah concerns the state-secrets privilege. The question the court will decide is, “Whether the court of appeals erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities.”

Tuesday—May 4—is the final day of scheduled oral arguments for the 2020-2021 term. The court agreed to hear 62 cases during this term. Five cases were removed from the argument calendar. During the 2019-2020 term, the court accepted 74 cases for argument. Of those, 12 were postponed to the 2020-2021 term due to the coronavirus pandemic. One case was never scheduled for argument and another case was dismissed without argument after the petitioner died.
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