Kamala Harris Needs to Act Now to Advance a $15 Minimum Wage
By David Sirota and Andrew Perez, Jacobin
26 February 21
A confidential memo now circulating spells out exactly how Vice President
Kamala Harris to help push through a $15 minimum wage. There are no excuses
for inaction.
On Thursday, a key Senate official advised Democratic lawmakers that the
chamber's rules do not allow them to include a minimum wage increase in
President Joe Biden's first COVID-19 relief legislation. The ruling from the
parliamentarian means that Vice President Kamala Harris could decide the
fate of one of the Democratic Party's most significant campaign promises -
but it remains unclear what she will end up doing.
As the presiding officer of the Senate, Harris - who has long touted her
support for a $15 minimum wage - can now use the power her predecessors have
used to ignore the advisory opinion and fulfill Biden's campaign promise to
boost the wage. A confidential memo we obtained that is now circulating on
Capitol Hill spells out exactly how that could be accomplished.
However, White House chief of staff Ron Klain this week declared that Harris
will refuse to use that power - a decision that would effectively put the
Biden-Harris administration in the position of potentially killing the
prospect of minimum wage legislation for the foreseeable future. Immediately
after the parliamentarian's ruling, the White House issued a statement
reiterating Klain's comment, declaring that "Biden respects the
parliamentarian's decision."
Some congressional Democrats have already been arguing that the Biden
administration's refusal to overrule the parliamentarian would be immoral
and a political disaster for their party.
"It's been twelve years since we've raised the minimum wage, and if we're
going to make those promises, we have to be able to deliver on them,"
Democratic representative Pramila Jayapal said Wednesday on MSNBC. "Because,
I'll tell you what, in two years . . . when people vote in the midterms,
you're not gonna be able to say, 'Well, I'm sorry, we couldn't raise the
minimum wage because the parliamentarian ruled that we couldn't do it.'
That's not gonna fly."
"Ultimately It's the Vice President of the United States"
The maddening process conversation surrounding a $15 minimum wage increase
is the result of Democrats refusing to eliminate the legislative filibuster,
which means Republicans can block most legislation unless Democrats find
sixty votes.
As such, Democrats are working to pass the COVID bill using the convoluted
budget reconciliation process. The process will allow for a simple majority
vote on the final legislation, but it also allows Senate parliamentarian
Elizabeth MacDonough to recommend tossing certain provisions if she decides
they violate the so-called Byrd Rule, which is designed to prohibit
extraneous matters outside of federal spending issues to be added to budget
legislation.
The minimum wage, however, has budget implications, according to the
Congressional Budget Office - which is why proponents had hoped MacDonough
would advise that it is in order, especially since the nonpartisan
parliamentarian has previously ruled that other, less significant
budget-related issues were in order.
MacDonough, however, refused to do so on Thursday evening. The development
is not catastrophic for the $15 minimum wage provision - if Harris simply
uses her power to ignore the opinion and clear the path for the measure she
has long insisted she supports.
The problem is that the White House is signaling she will do the opposite.
In an MSNBC interview on Wednesday, Klain said that if the parliamentarian
advises Democrats against including the minimum wage hike, the White House
will not want Democrats to move ahead with it. If Harris refuses to use her
power, that decision could leave workers who are paid poverty wages and
toiling in hazardous conditions during the pandemic to wait indefinitely for
better pay.
"Not sure if it's ever happened in the past," Klain said when asked if
Harris will ignore the parliamentarian. "Certainly that's not something we
would do. We're going to honor the rules of the system and work within that
system to get this bill passed."
Vice presidents have ignored the parliamentarian in the past. According to
Slate, "Vice President Hubert Humphrey routinely ignored his
parliamentarian's advice."
Roll Call reported last month: "Precedents for ignoring parliamentary advice
include 1967, 1969, and 1975 efforts to change the Senate's threshold to end
debate from a two-thirds vote to three-fifths."
"Ultimately it's the Vice President of the United States," said former
Senate parliamentarian Robert Dove in a 2010 interview about such matters.
"It is the decision of the Vice President whether or not to play a role here
. . . And I have seen vice presidents play that role in other very important
situations . . . The parliamentarian can only advise. It is the vice
president who rules."
At the time, the Huffington Post explained that a vice president "can choose
whether or not to accept the parliamentarian's decision or rule . . . that
ruling is subject to appeal - but the appeal is decided by majority vote."
Confidential Memo Spells Out a Path Forward
In a new memo we obtained that is circulating to lawmakers, Harris's power
as the presiding chair of the Senate is spelled out, citing a precedent set
during the Clinton administration.
"It would take 60 votes to overturn the ruling of the Chair on a Byrd Rule
point of order, regardless of what the Parliamentarian advises," states the
memo. "Based on a search of the Congressional Record, it appears that only
twice has the chair's ruling on a Byrd Rule point of order been appealed.
Both instances occurred on August 6, 1993, during consideration of the
Omnibus Budget Reconciliation Act of 1993. Neither appeal garnered the 60
affirmative votes necessary to overturn the Chair's ruling."
The memo spells out exactly how Democrats could use the same process now,
explaining the scenario that would play out if Harris invoked her power:
"What would probably happen is a senator would appeal the ruling of the
chair and then the full Senate would vote on whether to sustain the appeal,"
it says. "The Chair's ruling would be upheld as long as there are not 60
affirmative votes to sustain the appeal. So, if the majority could hold
enough members together (less than 60 affirmative votes to sustain the
appeal), the ruling that runs counter to the Parliamentarian's advice would
be upheld."
The same memo also warns against Harris accepting the parliamentarian's
advice and Senate Democrats then pretending to push for the new minimum wage
as part of the deliberations. In that situation, the memo suggests Democrats
would be setting the minimum wage measure up for defeat.
"If in the same scenario, the chair followed the parliamentarian's advice
(and) a senator from the majority party (in favor of the provision at issue)
were to appeal that ruling, then it would also take 60 affirmative votes to
overturn the chair's ruling," says the memo. "Thus, the majority would be in
a weaker position by doing it this way, because they would need to muster 60
affirmative votes to overturn the chair."
Biden Has Been Retreating for Weeks
Biden's "American Rescue Plan," released on his first day in office, called
on Congress to raise the minimum wage in its COVID relief bill.
"Throughout the pandemic, millions of American workers have put their lives
on the line to keep their communities and country functioning, including the
40 percent of frontline workers who are people of color," his plan stated.
"As President Biden has said, let's not just praise them, let's pay them."
But for weeks now, it's seemed like Biden and his fellow Democrats were
actively hoping the parliamentarian would give them a halfway plausible
reason to avoid including the minimum wage in the COVID bill. Indeed, last
week, Biden suggested in a meeting with governors and mayors that he didn't
think the Senate parliamentarian would allow the wage increase to remain in
the bill.
If you watched White House chief of staff Ron Klain's appearance on MSNBC on
Wednesday, it was abundantly clear that he and his colleagues do not view
securing the minimum wage hike in the COVID legislation as a priority.
Instead, Klain went to the mat to defend Biden's scandal-plagued Office of
Management and Budget nominee Neera Tanden, who probably won't have the
votes to win confirmation after Senator Joe Manchin (D-WV) announced he'll
oppose her.
Klain said, "We're fighting our guts out to get her confirmed." He added:
"If Neera Tanden is not confirmed, she will not become the budget director.
We will find some other place for her to serve in the administration that
doesn't require senate confirmation."
The contrast could not be more stark: the Biden administration appears to be
pulling out all the stops to confirm a Washington insider to a relatively
obscure position, but not doing the same to fight for a policy that polls
show is wildly popular and that economic data suggests is desperately needed
now more than ever.
According to a recent study by the US Congressional Budget Office, raising
the minimum wage to $15 could affect the wages of 27 million US workers.
Earlier this week, the Federal Reserve published research showing that the
current federal minimum wage of $7.25 is worth less today than it's ever
been.
This abominable reality could continue for the foreseeable future if Harris
now refuses to use her power to add a minimum wage increase to what could be
the only piece of major legislation that could move in a gridlocked Senate.
