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The announcement last week that Majority Leader Trent Lott had abruptly sacked Parliamentarian Robert Dove threatened to rip asunder the fragile fabric of procedural regularity that holds the Senate together. Mending that vital trust will likely test even the proven mettle of Dove’s quickly named successor, Alan Frumin. To understand how key the parliamentarian is to an effectively run Senate, it helps to understand what the parliamentarian does: Whenever the Senate comes to a doubtful stage in its procedure, which is very often, the parliamentarian advises the chair what to say or how to rule. It is a sui generis office, a cross between a judge for specialized, abstruse legislative issues and a boxing referee in the nation’s highest-stakes political ring. The parliamentarian must resolve instantly and reliably under great pressure — or anticipate in advance with the calculation of a chess grandmaster — the subtlest of parliamentary questions. These range from the simultaneous pendency of nine floor amendments to the propriety of tenuously semirelated provisions in conference reports. And he must tell powerful senators, with their fierce drives and swollen egos, just how far they can go, which requires the diplomatic skills of a Talleyrand — and more than a cat’s nine lives. The problem that felled Dove, and that Frumin must dodge, arises from the majority party’s yearning for favorable parliamentary rulings. In the House, the majority party is almost always firmly in control of its agenda because the Rules Committee, with the majority’s backing, has the power to control daily procedure. The House parliamentarian stays neutral. By contrast, Senate procedure always exalts the rights of the minority party — to offer nongermane amendments, to debate at length, and effectively to block action and wrestle for agenda control absent the majority’s ability to pull together 60 votes for cloture. Under such procedures, today’s razor-thin Republican majority of 50 senators, plus Vice President Dick Cheney, cannot advance its agenda without multiple concessions to the Democrats. Since the nation as a whole gave so balanced an electoral decision in 2000, the thought of such compromise and centrism is hardly offensive. But the Republicans don’t necessarily see it that way. After all, the president, the speaker of the House, and the Senate majority leader are all Republicans. The GOP is formally in charge. And therefore, there is great pressure to pass the party’s agenda — pressure that can all turn against the Senate parliamentarian, if the majority leader decides to demand that the parliamentarian, like the House Rules Committee, daily refashion procedure to promote the majority agenda. But this no Senate parliamentarian can do without forfeiting the respect of the chamber and, for that matter, sacrificing the chamber’s own historic structure and fabric. INTO THE FRAY Since the office was created in 1935, only five individuals have served as Senate parliamentarian: Charles Watkins; Floyd “Doc” Riddick (the most renowned); Murray Zweben; Dove until 1987; Frumin until 1995; and then Dove again. To some extent, the sacking of Dove this time is just the latest step down in the Senate’s decreasing willingness to let the office remain above the fray. In 1981, the Republicans took over the Senate. Angry at some of Zweben’s rulings, they installed Dove. Six years later, the re-empowered Democrats replaced Dove with Frumin. Dove then took the unprecedented step of becoming parliamentary strategist to the minority Republicans — until 1995, when the Republicans, back in power, reinstated Dove, with Frumin as his No. 2. Now Dove’s sacking is a giant step down even from that sequence. This time there is no party change to occasion a rotation in office. And over the years Dove had proven himself, to the extent a parliamentarian can be, perfectly considerate of Republican sensibilities. The firing of Dove seems to suggest that the office of the parliamentarian is, and should be, subservient to raw partisan direction — a view that is anathema to anyone who truly grasps the role of that office. Considering that today’s Senate could become Democratic at any moment through the retirement of Sen. Strom Thurmond, or in two years by election, both parties should see the point in preserving the chamber’s procedural stability. Majority Leader Lott was reportedly provoked by Dove’s views on budget procedure. Most important, Dove said that there could be one, but only one, budget reconciliation bill reducing taxes this year. That meant that President George W. Bush’s $1 trillion-plus tax cut could be pushed through the Senate on a mere 51 votes, with no threat of filibuster and thus no need for 60 votes to invoke cloture, but that no other tax bill would be so privileged. This outraged the Democrats, who believe that the “reconciliation bill” exception to the usual debate rights (established under the Congressional Budget Act of 1974) was only meant to encourage deficit control, not to aid in surplus distribution. They argued that there should have been no such reconciliation bills this session. Conversely, having only one such bill outraged the Republicans. They aspire to pass more tax cut bills this year, which naturally will require greater compromise with Democrats if the reconciliation procedure is not available. Another issue involving comparatively small change — just a $5 billion fund — is said to be the straw that suddenly broke the camel’s back. If the 2002 budget contained this fund (to cover damage from natural disasters), Dove declared that it would need a 60-vote majority to limit debate. The disorderly way the sacking occurred and was announced, and the promotion of Frumin to fill the vacancy after only a day’s confused hesitation, does suggest that the majority leader did not exactly perform this maneuver under a carefully prepared master plan. Although Sen. Lott has functioned with his customary agility in keeping the acutely divided Senate moving forward on his president’s program, hotheads in his own party won’t stop muttering about how, if they were in charge, the Democrats would not be treated so well. When Republican senators interested in that $5 billion fund got angry, the majority leader may have hastily decided that if it was time for a human sacrifice, better it be the parliamentarian now, who had after all made those annoying rulings, rather than himself later. There have been plenty of other signs in recent years that a number of Republican senators care relatively little for their chamber’s traditions of procedural regularity and individual rights. Sacking Dove may have suited that group. SAVING FACE? The short-term bind now is what to do procedurally about those multiple tax bills. Nothing in Frumin’s 24 years of distinguished performance suggests that on a major point where Dove avoided partisanship by audibly saying no, Frumin will now say yes. But both parties must see that it is in neither’s interest to tear down the parliamentarian’s office. So perhaps the leaders will negotiate some unanimous consent agreement for later tax bills that avoids forcing the new parliamentarian to take a stand. Such an agreement could give the minority substantial, but not total, blocking rights. Or it could make any additional tax bills jump some procedural hurdles that are high but not utterly impassable. Allowing nongermane minority amendments, and unlimited debate on any conference report — and then adopting a rule preventing that same procedure from being used again — might be the way to finesse the conflict. The Senate often steps back from the procedural abyss in ways like this. Only two years ago, Dove and his whole staff could justly celebrate how effectively they had managed the novel and complex procedures of a presidential impeachment trial. One must hope that the Senate’s ongoing need for that same kind of high-wire balancing act will today preserve the parliamentarian’s office. Charles Tiefer was solicitor and deputy general counsel of the House of Representatives from 1984 to 1995, and assistant Senate legal counsel from 1979 to 1984. He is the author of “Congressional Practice and Procedure” (Greenwood Press 1989) and is currently professor at the University of Baltimore Law School.

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