Romancing the Parliamentarian

If Alan Frumin can’t be bullied or bought, can he be bypassed?

Click here for a guide to following the health care reform story online.

We clocked off five miles more, and I said, “But suppose there isn’t anything to find.”

And the Boss said, “There is always something.”

And I said, “Maybe not on the Judge.”

And he said, “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud. There is always something.”

—Robert Penn Warren, All The King’s Men.

The fictional Gov. Willie Stark notwithstanding, all evidence indicates that the office of the Senate parliamentarian is without original sin. Senate rules prohibit the parliamentarian from receiving gifts in excess of $50 or accumulating from any single source gifts whose combined value exceeds $100, and a spokesman for the Senate ethics committee can recall no complaint ever being lodged against any person holding the job. The Senate parliamentarian can (and has been) fired for rendering an opinion displeasing to the Senate majority, but there would seem to be little point, because the replacement is always incorruptible, too. Perhaps because he performs the most unrewardingly Jesuitical work on Capitol Hill (and holds what is arguably the most boring job in all of Washington), the current officeholder, Alan Frumin, commands deep bipartisan respect. Whatever vanity he possesses is wrapped up in maintaining a scrupulously antiseptic allegiance not to the law, nor even to the Constitution, but rather to a peculiar set of customs and precedents unique to the U.S. Senate.

The U.S. Capitol Building

Frumin’s susceptibility to influence, or lack thereof, is a matter of growing interest because it’s increasingly likely he’ll play a significant role in health care reform. With the prospect of bipartisan agreement fading rapidly, it’s becoming more likely that Senate Democrats will break health reform down into two bills. The uncontroversial parts (for example, tighter regulations on health insurers, which nearly everyone seems to favor) would be considered under normal Senate rules. The controversial parts (for example, taxes to pay for new subsidies to help low-income people purchase health insurance) would be considered under a budget procedure known as “reconciliation” that is exempt from the filibuster, allowing this portion of health reform to pass on a simple majority vote rather than the 60 votes required to break a filibuster. (The death of Ted Kennedy reduced the Democrats’$2 60-vote Senate majority to 59.)

Under reconciliation’s Byrd rule, named for the ailing nonagenarian senator who devised it (Sen. Robert Byrd, D-W.Va., harbors a lifelong passion for procedural arcana), the Senate may not consider under reconciliation rules any bill, amendment, or conference report that does not relate directly to the budget. If, for instance, a reconciliation bill would affect government spending or tax revenues, but only in a way that’s incidental to the bill’s true purpose, it can be ruled in violation of the Byrd rule. (To read the Byrd rule text—something I don’t recommend—click here and scroll to Section 313.) Byrd supports health reform, but interpreting its suitability for reconciliation under the Byrd rule does not fall to him. It falls to Alan Frumin.

There’s a growing consensus that the Obama White House made a political mistake in emphasizing cost reductions as a selling point for health reform (something Slate’s Mickey Kaus has been arguing from the start). But establishing a paper trail that says health reform is all about saving money may ultimately prove handy when it comes time to convince Frumin that the portions of the bill submitted under reconciliation really do relate directly to the budget. A nice irony pointed out by Brian Beutler on Talking Points Memo is that in order to pass muster for reconciliation, health reform might need not only to include the controversial public option (which political sharpies inside the White House and out want to discard) but to expand and strengthen existing public-option proposals sufficiently to establish that health reform really would reduce spending. As I’ve argued more than once, a strong public option is health reform’s only plausible way to control health care spending meaningfully. (A potential snag, though: The public option shows greater promise for reducing private health spending than health spending by the government.)

In April, when the prospect of health reform via reconciliation was more remote than it is today, the Hill reported that both parties were already lobbying Frumin. Sen. Kent Conrad, D-N.D., who’s cool to the reconciliation idea, said that Frumin had told him that a health care bill passed via reconciliation might end up looking like “Swiss cheese” because many portions might have to be removed. (This was before the two-bill strategy took shape.) “I’m sure some representative of the majority leader, if not the majority leader,” has also spoken to him, Frumin’s predecessor, Robert Dove, told me.Dove also said, “I am so happy that I’m not doing this!”

Dove has served as parliamentarian twice: from 1981 until 1987, and then from 1995 until 2001. These were both periods when Republicans controlled the Senate—in between Dove worked for Sen. Robert Dole, R-Kan.—but in 2001 Dove was fired by Republican Majority Leader Trent Lott for not approving reconciliation rules for two measures Lott favored. No one much cared (except Byrd), and Dove, who had first joined the parliamentarian’s office in 1966, was replaced by his assistant, Frumin, another Senate lifer who had first joined the parliamentarian’s office in 1977. Like Dove, Frumin has twice held the top job. He replaced Dove after the Democrats regained the Senate in 1986 and was in turn replaced by Dove after the Republicans regained the Senate in 1995. Thanks to Lott, Frumin can boast that he has served as Senate parliamentarian under both Democrats and Republicans. “I know I’ve done my job when everyone thinks I’m somehow favoring the other side,” Frumin told Congressional Quarterly in a rare 1987 interview. (Frumin did not reply to my request for one.)

The procedural matters Frumin has dealt with over the years are so technical that it would be difficult to tease out any patterns. Probably the most controversy he’s generated in his career occurred in 2005 when then-Senate Minority Leader Harry Reid, D-Nev., publicly stated that Frumin had told him he would oppose a contemplated move by the Republican majority to abolish use of the filibuster against judicial nominees. (In the end, the GOP chickened out.) Did that indicate Frumin was biased in favor of the (blatantly undemocratic) filibuster? If so, that could spell trouble for the Democrats should they try to use reconciliation as a vehicle for health reform. Or did it indicate that Frumin was biased in favor of Democrats? If so, that could prove an asset in health reform.

One can go mad trying to read the tea leaves. Frumin, who graduated from Colgate in 1968 and Georgetown Law in 1971, hails from New Rochelle, N.Y. I’m from New Rochelle, too. It was founded by Huguenots, the French Calvinist dissenters famously slaughtered in the St. Bartholomew’s Day massacre. Perhaps this connection bequeathed Frumin a legacy of overly principled stubbornness (though my only memory of any lingering Huguenot influence was a statue of the Huguenot governor Jacob Leisler on North Avenue that got doused in paint every year before New Rochelle High played Iona Prep). I gather Frumin has a mustache. Excepting Arabs, facial hair used to indicate liberal leanings. Does it still? Frumin is a doctor’s son; his late father was an internist and cardiologist. That might make him more sympathetic to health reform. Or it might make him less so.

The title “Senate parliamentarian” is so distinguished that one might easily assume it dates back to the 18th century. In fact, the post was created in 1935 in revolt against John Nance Garner, the vice president who famously said his office wasn’t worth “a bucket of warm piss” and who apparently worked out his frustrations by rendering as president of the Senate questionable parliamentary rulings. Only three people held the post before Frumin and Dove’s 28-year do-si-do. According to Dove, Vice President Hubert Humphrey routinely ignored his parliamentarian’s advice. Might Vice President Joe Biden do the same with health care? Dove sees it as a “more plausible” prospect with Biden than it might be with other vice presidents because Biden (like Humphrey) is a former senator who can draw on personal familiarity with Senate procedure. He’s also (I would add) kind of a know-it-all, an annoying quality in many contexts but a potentially useful one here.

I had no idea, before Dove told me, that it was even possible for Biden to overrule his parliamentarian in interpreting the Byrd rule. Perhaps all this speculative fretting about who Alan Frumin is and what he might do is beside the point. If the Senate parliamentarian can’t be bribed or threatened, then perhaps, if he makes one or more inconvenient procedural calls, Democrats should consider the option of simply ignoring him.