Elizabeth MacDonough’s job doesn’t generally bring her into the limelight. While MacDonough has served as the Senate parliamentarian for five years and has worked in the office of the parliamentarian for eighteen, the public knows little of her important role with the upcoming debate on the senate bill to repeal and replace the Patient Protection and Affordable Care Act (ACA) or Obamacare.

After receiving her education at George Washington University and Vermont Law School, MacDonough worked as an intern for Judge Royce C. Lamberth on the US District Court for the District of Columbia and the Immigration and Naturalization Service in Burlington, Vermont before joining the office of the parliamentarian in 1999 as an assistant parliamentarian. In 2002, she was promoted to a senior assistant parliamentarian, and in 2012 she was elected by the Senate to become the first woman to ever serve as the Parliamentarian of the United States Senate since the position was first recognized in 1935.

The Senate parliamentarian is a nonpartisan staffer appointed by the presiding officer of the Senate to “provide expert advice and assistance on questions relating to the meaning and application of [the Senate’s] legislative rules, precedents, and practices.” As a staff official, the parliamentarian is not empowered to make binding decisions in the Senate; they can only offer advice, and the presiding Senator may choose to accept or reject it. While the parliamentarian’s guidance is not final, legislators have traditionally respected their nonpartisan expertise. Day-to-day tasks of the parliamentarian’s office include advising the presiding officer on conducting Senate business and answering senators’ complicated questions about balancing a technical point of order with the chamber’s legislative rules. These responsibilities don’t typically give MacDonough key decision-making power, but when a critical piece of legislation is intertwined with Senatorial legalities, she can be thrust into an influential position in the legislative process.

Such an occasion has arisen for MacDonough with senators preparing the Better Care Reconciliation Act (BCRA) for debate in the coming weeks. MacDonough plays a particularly important role in the healthcare bill’s path through Congress, because it is a budget reconciliation bill, which can only adjust taxes, spending, and deficit limits. BCRA’s reconciliation status grants it special privilege; it requires a simple rather than three-fifths majority to be debated. This allows the bill to sidestep filibusters and is one of the reasons why GOP leaders decided to use the reconciliation process to repeal ACA. Utilizing this budget process is a way to expedite Senate consideration of the bill and vote on critical decisions in health reform. The reconciliation status, however, also presents additional obstacles to Senate Republicans. The bill must comply with the Byrd Rule (named after its principal sponsor, Senator Robert C. Byrd (D-W. Va.), by an amendment to the 1974 Congressional Budget Act, which created the reconciliation process, and prohibits the Senate from considering matters extraneous to the purpose of implementing budget resolution policies in reconciliation legislation.

The Congressional Budget Act outlines six tests in determining matters as extraneous under the Byrd Rule. The most challenging of these tests states that a matter is extraneous if it produces “changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision.” This test is difficult to meet, because the language involved is open to considerable interpretation; what constitutes as “incidental” change is debatable.

The task of interpretation ultimately falls to the presiding official of the Senate, who is advised by the expertise of the parliamentarian. In the case of the BCRA, this gives Parliamentarian Elizabeth MacDonough the ability to flag any language in the bill that primarily affects policy change beyond budgetary concern. And, if the bill retains too many extraneous elements and thus extends beyond the definition of a reconciliation bill, the parliamentarian retains the power to strike the bill in its entirety. 

Once the Senate brings BCRA to the floor for debate, and the “vote-a-rama” of rapidly introducing and voting on amendments begins, all eyes will be on Elizabeth MacDonough.

  -- Mary Lee Deddens