Since 1935, the Senate has had a parliamentarian. Their job is to decide, in a truly nonpartisan way, how things operate in the chamber. Their power to decide what can and cannot be done when it comes to legislation, filibustering, motions, and points of order has grown ever since.
Today, learn about this complicated and often-unseen role from Sarah Binder, professor at George Washington University, and a person who spent over thirty years in the office, former Senate Parliamentarian Alan Frumin.
Transcript
senate parliamentarian final.mp3
Archival: Is it the contention of the Chair that under the rules of the Senate, I am not allowed to accurately describe public views of Senator Sessions.
Nick Capodice: Hannah, I want to play this clip from February of 2017.
Hannah McCarthy: Sure. Go ahead.
Nick Capodice: Senator Elizabeth Warren is found in violation of Senate Rule 19 and is being cautioned by the chair.
Archival: The chair has not made a ruling as respect to the senator's comments. The senator is following process [00:00:30] and tradition by reminding the center of Massachusetts of the rule.
Nick Capodice: Standard procedural stuff. Right. But I cut something out. This is what it really sounded like.
Archival: The chair has not made a ruling as respect to the Senator's comments.
Archival: Following process and tradition.
Archival: The Senator is following process and tradition.
Archival: Reminding the Senator from.
Archival: By reminding this.
Hannah McCarthy: Wait, someone is just feeding him lines. This is happening in the Senate?
Nick Capodice: It happens every day [00:01:00] in the Senate.
Nick Capodice: So I've read a few articles about you, and people tend to refer to you in sports metaphors like you're a referee or an umpire. Is that accurate? Is it like that?
Alan Frumin: Yes. Yes, it's like that.
Hannah McCarthy: Who's that?
Nick Capodice: That is Alan Frumin. I know we've had a lot of guests over the years who know an awful lot about how things work in Washington. But when it comes to the Senate, Allen beats [00:01:30] them all. And he would never say that he is a humble man. But it's true because knowing the intricacies of the Senate was his job for 35 years.
Hannah McCarthy: What was his job?
Archival: JWell, we've got breaking news tonight. The Senate parliamentarian has denied Senate Democrats attempt to include a $15 an hour minimum wage..
Archival: Senate needs to step up override the parliamentarian. The parliamentarian is not elected.
Archival: Big [00:02:00] news and it is big news, the Senate parliamentarian says. Only one new budget resolution and one reconciliation package. That's it.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we're talking about a position that has been referred to as, "the most powerful person in Washington," the Senate parliamentarian.
Hannah McCarthy: Are you trying to tell me that the person whispering in the chair's ear is more powerful than the speaker of the House [00:02:30] or the Senate majority leader or the president? Are you serious?
Nick Capodice: Maybe I'm being a bit hyperbolic. That line was from a Politico article about the current Senate parliamentarian Elizabeth McDonough. And I will get into why McDonough has claimed to hold so much power right now a little bit later.
Hannah McCarthy: All right. First off, can you tell me what the Senate parliamentarian does.
Alan Frumin: At the risk of sounding conceited? The Senate parliamentarian is the de facto presiding officer of the Senate.
Nick Capodice: The [00:03:00] presiding officer is the person who sits in the chair of the Senate and rules on everything, who can speak, who can interrupt somebody speaking, what someone speaking can and cannot say. They rule on every point of order. Points of order are basically objections to what someone else is saying or doing.
Hannah McCarthy: Oh wait. I thought that the Vice President was the presiding officer in the Senate.
Nick Capodice: Yes, technically they are. But when the veep is not around, which is pretty much all the time, the most senior member of [00:03:30] the majority sits in the chair. And Alan told me most of the time Senators don't want to be in the chair ruling on things. They want to be down there doing senator stuff. Now, to be clear, the parliamentarian doesn't sit in the chair, but they tell the person in the chair what they should do.
Sarah Binder: They make decisions. They give advice based on past episodes of confusion.
Nick Capodice: This is Sarah Binder. She's a professor of political science at George Washington University.
Sarah Binder: I teach [00:04:00] Congress. It's the only thing I know anything about. So if you look at the Constitution, it says Article one, Section five. The House and Senate will make their own rules if you have the power to make your rules. You also have the power to apply your rules. And that's the point at which the parliamentarians in the House and the Senate come to play a role. They are supposed to be the non partisan, neutral [00:04:30] expert arbiter of how to apply the rules. And it sounds like, well, that's not hard. However, if you look at the rules of the House and you look at the rules of the Senate, they don't actually tell you what to do and how to apply them in every single circumstance.
Hannah McCarthy: The House has a parliamentarian too?
Nick Capodice: It does. And while I am focusing on the Senate parliamentarian for this episode, the parliamentarians in both chambers of Congress are the ones who know the rules and they advise [00:05:00] the Presiding Officer on what to do in any given situation. Now, Hannah, do you know what dictates the rules of the Senate?
Hannah McCarthy: I'm pretty sure it's something that people use in like student council and community meetings. It's Robert's Rules of Order, right?
Nick Capodice: Yeah, I thought so too. But I was wrong and don't feel bad. Even some senators thought the same thing.
Alan Frumin: Laypeople assume and one or two senators elect had assumed that the Senate used Robert's Rules of Order. And I would suggest to people that, [00:05:30] okay, if you are familiar with Roberts Rules of Order, you probably know that Colonel Robert first published him, I believe, in 1876, which would then beg the question, how did the Senate muddle through from 1789 until 1876, before Colonel Roberts saved them, which he didn't do, of course?
Hannah McCarthy: If they don't use Robert's Rules of Order, what do they use?
Nick Capodice: They use their own rules. They make them and they update them every few years. [00:06:00] The most recent rules and manual of the Senate is from 2013 and comprises 44 rules.
Alan Frumin: Point being that the Senate is a self-governing body that operates by its own rules and precedents. Nobody is familiar with them coming into the Senate. And smart senators recognize right away that the rules of the road in the Senate are unique to the body, and some of them will set out in various ways to become knowledgeable. [00:06:30]
Hannah McCarthy: How complicated are those 44 rules?
Nick Capodice: Fairly complicated. I tried to read it. You're looking at basically a dense 80 pages of procedure. Honestly, I would have a really tough time learning them if I was to spend a day in the Senate. But those 80 pages are the absolute tip of the iceberg.
Sarah Binder: So here's the thing. There were what we call precedents. So the House might decide something or Senate might decide something, and some of them might have scratched it down on a piece of paper. And there might there was a clerk at [00:07:00] the front on the dais, and they usually reported to the speaker or to the presiding officer. But basically there was no written, right? There are no really compilations of precedents. So neither the House or Senate really knew the members didn't know what to do in any new circumstance. So there were lots of appeals, lots of points of order. Hey, stop. I raise a point of order. That's not how this works.
Archival: For what purpose does the gentleman from New York or Mr. Speaker, I rise to a point of order. A gentleman [00:07:30] will state his point of order. Speaker, I object to consideration of this bill because it. violates rule.
Sarah Binder: And they'd arbitrate. There'll be lots of votes on the floor.
Nick Capodice: But those decades of precedents, often written on little slips of paper, have been collected and compiled into an official manual. Allen helped edit it. It's called Redux, Senate Procedure, Precedents and Practices, and that's 1608 pages.
Hannah McCarthy: So the parliamentarian is the one who knows all of this stuff. They [00:08:00] advise whomever is the presiding officer in the Senate.
Nick Capodice: Right.
Hannah McCarthy: How did they do that physically, though?
Nick Capodice: Well, to explain this, Alan showed me a photo of where everyone on the Senate dais sits.
Alan Frumin: There's the Senate floor. Unfortunately, my fat head is in the way. There are four chairs across the secretaries desk, journal clerk, parliamentarian, legislative clerk and bill clerk. There are other chairs behind. There is a chair for the Secretary of the Senate. There's a chair for the sergeant at arms. So. So [00:08:30] this is the parliamentarian's battle station. It's a swivel chair. It's a swivel chair that rocks. I have seen it go over once, before television. That was quite a scene. And in essence, what the parliamentarian does is she swivels and speaks to the presiding officer up here. The presiding officer's mic has a mute switch. It's a spring activated mute switch. The parliamentarian can press and hold if she wants to mute the microphone so [00:09:00] that the conversation between the parliamentarian and presiding officer is not public.
Nick Capodice: I asked Alan if the parliamentarian is just swiveling back and forth all day, and he said that was pretty accurate.
Hannah McCarthy: Is this job anywhere in the Constitution?
Nick Capodice: No, it is not. The job was created in 1935 during FDR's New Deal Era.
Alan Frumin: when Roosevelt and his administration became a little more proactive legislatively. And Roosevelt's vice president [00:09:30] had other things to do than sit on the dais of the Senate and preside. And so the Senate decided that they needed somebody to be the repository of the various interpretations of the Senate's rules. And they selected a man named Charles Watkins who had first come to the Senate in 1904.
Nick Capodice: Charles Watkins. He started out as a stenographer in 1904 in the Senate. He moved up to a journal clerk. That's the person who takes the minutes [00:10:00] of what happens all day, every day in the Senate. And the job of parliamentarian was created for him in 1935, and he was good at it. He had a remarkable memory. He was considered completely non partial to either party. And before the microphone mute button existed, Watkins would spin around in his chair and whisper to the presiding officer hundreds of times a day, and as a result, a newspaper called him, quote, the Senate's ventriloquist. And he held [00:10:30] the job until he retired in 1964.
Hannah McCarthy: So 60 years.
Nick Capodice: 60 years! And the next parliamentarian, he had worked with Watkins.
Sarah Binder: My daughter once asked me like, how do you get to become the Senate parliamentarian? And I somewhat flippantly said, Well, first you have to be the assistant parliamentarian, but it turns out to be generally true that they hire from within.
Nick Capodice: Allen came in this way. He had been the assistant parliamentarian.
Sarah Binder: Why is that [00:11:00] important? It helps to limit the partisanship, right? Because they they get first of all, they get socialized into the practice of being the parliamentarian. And it's a source of expertise.
Alan Frumin: It's always been the model and it's the only appropriate model.
Nick Capodice: Alan told me in the office of the parliamentarian, you want to have assistants spaced out generationally. So when someone leaves office, the next person can be there a long time. And to this date there have been six [00:11:30] and only six Senate parliamentarians.
Hannah McCarthy: And Sarah says the job requires limited partisanship, which honestly is something that feels nearly impossible here in 2022. Can a parliamentarian be truly nonpartisan?
Nick Capodice: From what I can gather, parliamentarians just might be among the most nonpartisan people in Washington, D.C. And I say that because their rulings help both sides and they [00:12:00] take heat from both sides as a result. And let me give you an example. One parliamentarian, Robert Dove, was dismissed by Democratic Majority Leader Robert Byrd and was replaced by Alan Frumin. And then Robert Dove was reappointed again a few years later and then fired and replaced by Alan again, but this time by Republican Senate Majority Leader Trent Lott.
Hannah McCarthy: What did Dove do that caused so much controversy?
Nick Capodice: Well, that is related to the powers of the Senate parliamentarian that we haven't gotten [00:12:30] into. The reason why they have been named the most powerful people in America, so powerful that at one point Alan and his family received death threats. And all that's coming up after the break here on Civics 101.
Hannah McCarthy: But first, when Nick was researching for this episode, he sent me this list. It was the 56 things that they don't teach you at parliamentary school that Alan had sent him. And he promises he will include selections of that list in next week's [00:13:00] newsletter. And you can subscribe to get that free and fun newsletter that comes out every two weeks at the top of our website, civics101podcast.org.
Hannah McCarthy: We're back. We're talking about the Senate parliamentarian. Let's get into why this job is so powerful.
Nick Capodice: Yeah, this is maybe the reason why we've gotten so many requests from listeners to do an episode on this. Two specific facets of the position [00:13:30] that result in some senators getting very, very frustrated. Number one committee assignments. Here's Sarah Binder again.
Sarah Binder: This one's a little less noticed about the parliamentarian, but the bulk of the work is actually deciding when a bill is introduced which committee gets the bill. That's a power of the speaker and it's a power of the presiding officer and the rules. But [00:14:00] a norm of practice is that the parliamentarian makes those decisions and those decisions can be pretty consequential.
Hannah McCarthy: So even though deciding which committee gets a bill is technically the power of the presiding officer of the Senate, the parliamentarian is the one really making the call.
Nick Capodice: Yeah. Every time. And since most bills die in committee, senators care a great deal about which committee they go to. You can work on a bill for months in advance before [00:14:30] you write it, meeting with members of a committee beforehand to make sure it goes through and at the last minute find out it's going to go somewhere else. Here is former parliamentarian Alan Frumin again.
Alan Frumin: You can have a thousand page bill dealing with environmental remediation, all of this material in the jurisdiction of the Environment and Public Works Committee. If, however, there is a provision in there that affects revenues, that bill is supposed to go to the Finance Committee. Suffice to say that [00:15:00] the staff of the Environment Committee doesn't like that. The staff of all the other committees do not like that if they have a provision that might be scored is affecting revenues. They don't necessarily put a star, put stars around it. They'll let the parliamentarian find it if she's willing to spend the four or 5 hours going through every page in line.
Hannah McCarthy: Wow, so how many bills does a parliamentarian have to go through line by line?
Nick Capodice: A lot.
Alan Frumin: All [00:15:30] in all, the parliamentarian is responsible for referring probably 10 to 12000 items in any particular Congress. And virtually all of that plays out without any evidence on on the floor of the Senate. My point being silent killer, nobody sees that job being done. The committees are always jealous of their jurisdictions.
Nick Capodice: And finally, the reason why Alan Frumin was in the media spotlight a lot and dubbed the most powerful person [00:16:00] in Washington. The reason why law enforcement was sent to his house to protect him and his family in 2010. We've got a first talk about that uniquely senatorial action, the filibuster.
Hannah McCarthy: I thought that was coming.
Nick Capodice: Hannah. You want to break down the filibuster for everyone?
Hannah McCarthy: I'll take a swing at it. Bills that come to the floor of the Senate for a vote require only a majority to pass. However, a bill can be debated endlessly until what is called cloture [00:16:30] is invoked by 3/5 of the Senate, which means that, in essence, a bill does not pass unless it has the support of 60 people in the Senate.
Nick Capodice: Yep! Well done. It's rule 22 in the Senate rules and nowadays you don't even see a bill get to the floor without that support, without those 60 votes. And senators rarely stand and talk for hours like Jimmy Stewart and Mr. Smith goes to Washington anymore.
Archival: Somebody will listen to me. Somebody!
Nick Capodice: And [00:17:00] as a result, very, very few bills get through the Senate. But. There is a special kind of bill, a bill that is not subject to the filibuster. It's called a reconciliation bill. It is a bill that deals with [00:17:30] policies that change spending or revenues in the budget. So the budget bill can't be filibustered and neither can reconciliation bills that alter that budget.
Hannah McCarthy: Okay. Well, if I were a senator who really wanted something passed, I would try to squeeze things into those reconciliation bills that maybe weren't related. So what stops a senator from doing that?
Nick Capodice: Something called the Byrd Rule, named after Senator Robert Byrd in the 1980s. Things in those reconciliation [00:18:00] bills and proposed amendments to them can’t be what’s called “extraneous” . They have to be about the budget. And if they're not about the budget, they have to be removed or that bill will be subject to the filibuster and probably won't pass. And guess who decides what is and is not allowed.
Hannah McCarthy: Now I'm going to guess it's the Senate parliamentarian.
Nick Capodice: Yeah, you got it. Alan told me that extraneous material removed from reconciliation bills under the advice of the parliamentarian is lovingly referred to as "Byrd droppings." Seriously.
Alan Frumin: Determined Senate majorities over the years of both parties [00:18:30] have always pushed the limits of what could be done in reconciliation bills because they recognize that these bills can be filibustered and that a simple majority is all that's needed to pass a reconciliation bill.
Archival: Last night's ruling was extremely disappointing. It saddened me. It frustrated me. It angered me because so many lives are at stake. Senate Democrats have prepared alternative proposals, will be holding additional meetings with the parliamentarian [00:19:00] in the coming days.
Nick Capodice: That was Senate Majority Leader Chuck Schumer in 2021. There was a massive spending bill, and a component of that bill would have provided a path to citizenship for Dreamers.
Hannah McCarthy: Dreamers being young, undocumented immigrants who were brought to the United States as children who currently have little to no pathway to citizenship.
Nick Capodice: Absolutely. But Senate parliamentarian Elizabeth McDonough decided that part of the bill was not germane, meaning the Democrats had to take it out or the bill was going to be [00:19:30] subject to a filibuster and not pass. And so the Democrats removed that Dreamers part.
Alan Frumin: And in the middle of all of this is the dear parliamentarian who has always been a career civil servant, whose entire career is dedicated to serve the Senate in a non partisan capacity, who in essence is required to talk truth to power. Every decision the Senate parliamentarian makes, every consequential decision will anger some very [00:20:00] powerful person every single time. And the parliamentarian is just doing her job.
Hannah McCarthy: Can we go back to something you said earlier? What was the ruling that Alan made that resulted in those death threats?
Nick Capodice: Yeah, it was related to the passage of the Affordable Care Act in 2010. The bill had gone through the House, it was in the Senate, and the GOP tried many procedural methods to kill that bill or make alterations to it because that would force it to go back to [00:20:30] the House for another vote. Alan ruled against those. He was in newspapers and blogs everywhere, and the sergeant at arms informed him that as a result, members of the Tea Party had posted they were going to his house.
Hannah McCarthy: It sounds like a really difficult and unique job.
Nick Capodice: Yeah, it is. Alan said it's not for everybody. These people aren't looking to get advancement to a more powerful role. They're not going to run for higher office or recorded by lobbying firms to make seven figure [00:21:00] salaries. When they leave Congress, they make $172,000 a year. Their job is taxing, quiet and mostly unseen until they make a decision that drags them into the spotlight.
Nick Capodice: Last thing, I can't let this episode end without an anecdote. Indeed, Alan did share a list of dozens of strange and wonderful and terrifying things he saw in his long tenure in the Senate, but none more bizarre than the porta potty [00:21:30] incident.
Hannah McCarthy: All right, I'll bite. What's the porta potty incident?
Nick Capodice: Senator Lowell Weicker from Connecticut was on the floor.
Archival: a..I'll correct my language, an historic occasion.
Nick Capodice: And Senator Jesse Helms wanted him off the floor. And it's hard to get someone off the floor. You can't do that unless Weicker yielded and Weicker didn't yield.
Alan Frumin: Senator Helms kept coming to the desk wondering if Weicker had violated this rule or that rule. Blah, [00:22:00] blah, blah, blah, blah. And finally, Helms looked at me and said, Well, eventually he's going to need to he's going to need to go to the bathroom. And naturally, Weicker and his allies knew that as well.
Nick Capodice: But there is a small provision in the rules that senators could have, quote, mechanical devices on the floor of the Senate. And Wicker's ally, New Jersey Senator Bill Bradley, knew about this provision.
Alan Frumin: Senator Bradley came up to me and said, well, mechanical devices, Alan, what do you think of a porta potty? [00:22:30] You know, if we can provide Weicker with some relief, so to speak, does that qualify under this provision? And I thought he was kidding. Bradley was about six, five or six, six, and he stood over me and said, Alan, I mean, it would I decided to do was pass the buck. And I've decided that that's up to the Senate Sergeant at arms.
Nick Capodice: The sergeant at arms was duly summoned. He went up to Senator Bradley and just said no.
Hannah McCarthy: This whole thing is ridiculous.
Nick Capodice: It's not [00:23:00] over yet.
Alan Frumin: Bradley wasn't deterred. He came and asked me about a can of tennis balls. I just said no.
Hannah McCarthy: I never thought that civics 101 would be a show where we talk about peeing in a tennis ball can, but things can go anywhere when it comes to American government. There you go.
Nick Capodice: Like I said, the parliamentarian has a pretty unique job.
Nick Capodice: That'll [00:23:30] do it for Senate Parliamentarian. Point of order, Hannah. We got to get out of here. pretty funny, isn't it? Motion to adjourn. Alan, if you're hearing this, thank you so much. And I hope it didn't get anything wrong. This episode was made by me. Nick Capodice with you, Hannah McCarthy. Thank you.
Hannah McCarthy: Thank you. Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer.
Nick Capodice: Music in this episode by a lot of the old favorites we know and love. [00:24:00] Kevin McCloud, Konrad OldMoney, Lobo Loco, Scott Holmes, Myeden, ProletR, Rachel Collier and the Greatest of All Time Chris Zabriskie.
Hannah McCarthy: Civics 101 is a production of NHPR New Hampshire Public Radio.
