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On the Scent58

The Capitol Audit: Parliamentarian Edition: Unelected but Overridable: Grading the Senate (and House) Parliamentarian.

FREEDOM BEAGLE STAFF · JULY 24, 2026

This is the second entry in the Capitol Audit series, which began with a scorecard grading Congress’s leadership. This entry turns to a different kind of subject: not a person, but an office — the parliamentarian — and whether the way that office is filled, fired, and used lines up with the Constitution it operates under. It closes with two scorecards: one grading the office’s design, one grading the nine people who’ve actually run it.

The office that isn’t in the Constitution

Search Article I for the word “parliamentarian” and you won’t find it. The office exists nowhere in the Constitution, no act of Congress created it, and no statute governs how it’s filled. It is, in the precise legal sense, a creature of custom: each chamber’s own rules and the accumulated precedent of the presiding officer’s rulings, nothing more.

The Senate’s version grew out of an informal role. Charles Watkins, an Assistant Secretary of the Senate, spent over a decade advising presiding officers on procedure before the position was formally organized as the Office of the Senate Parliamentarian in 1935. The House’s took longer to formalize: parliamentarian-type duties were handled by officials titled “messenger to the Speaker” and “clerk at the Speaker’s table” before a parliamentarian was appointed in every Congress starting in 1927, with the office itself formally established as a standing, nonpartisan body by the 95th Congress in 1977–79.

Neither chamber’s parliamentarian is elected, confirmed by the Senate, or subject to any public vetting. Both are hired, and can be fired, by one person.

How you get the job — and how you lose it

The Senate Parliamentarian is appointed by, and serves entirely at the discretion of, the Senate Majority Leader; the office sits inside the Office of the Secretary of the Senate. The House Parliamentarian is appointed by the Speaker of the House. In neither chamber is there a codified qualification requirement — no statute mandates a law degree, a bar admission, or a procedural-certification exam. In practice, recent officeholders have risen through the office itself: current House Parliamentarian Jason Smith was deputy parliamentarian before his 2020 appointment by then-Speaker Nancy Pelosi, and current Senate Parliamentarian Elizabeth MacDonough — the first woman to hold the post — worked as a Senate floor assistant and attorney before her 2012 appointment by then-Majority Leader Harry Reid.

That informal, apprenticeship-style path is what “merit” means in this office. It is not a merit system in the civil-service sense — no independent board, no statutory protection from removal, no fixed term. The clearest evidence of that: in May 2001, Majority Leader Trent Lott fired Senate Parliamentarian Robert Dove after a string of rulings against Republican-favored provisions under the Byrd Rule. It remains the only time in the modern era a Senate majority leader has fired a sitting parliamentarian outright, and it is the standing proof that the job’s independence is a norm the majority chooses to observe — not a rule that binds it.

That norm is being tested again as of this writing. Reporting through mid-2026 documents an active push by President Trump and a number of Senate Republicans to remove MacDonough, tied to her rulings against gun- and private-school-related provisions Republicans wanted included in a major reconciliation package. Former Senate Parliamentarian Alan Frumin has publicly defended her. As of publication, she remains in office — but the pressure campaign is real, on the record, and unresolved.

What the office actually does

Day to day, the parliamentarian advises the presiding officer on questions of order, compiles and interprets chamber precedent, and rules on whether a motion or amendment is in order. The job that actually moves legislation, though, is narrower and far more consequential: enforcing the Byrd Rule in budget reconciliation.

Reconciliation bills can pass the Senate with a simple majority, bypassing the 60-vote filibuster threshold — but only for provisions that are primarily budgetary. The Byrd Rule lets any senator raise a point of order against a provision whose budgetary effect is “merely incidental” to its policy purpose; the parliamentarian advises whether that provision would survive the challenge. Provisions that don’t survive are informally said to have failed their “Byrd bath.”

This is not a hypothetical power. On February 25, 2021, MacDonough ruled that a $15-an-hour federal minimum wage increase could not be included in that year’s COVID-19 relief reconciliation bill, because its budgetary effect was merely incidental to its policy purpose. Senate Majority Leader Chuck Schumer called the ruling “deeply disappointing” but did not attempt to override it. Later that year, MacDonough rejected three successive Democratic proposals — including a final version rejected December 16, 2021 — to grant lawful permanent resident status to millions of immigrants through the same reconciliation bill, again on the grounds that the policy change outweighed any budgetary effect. In both cases, a policy priority backed by an elected majority died on a procedural ruling from an unelected office.

The ruling is advice. Whether it holds is a vote.

Here is the fact that cuts hardest against the “unelected official kills bills” framing: the parliamentarian’s ruling is advisory, not binding. The presiding officer — usually the Vice President or a senator in the chair — issues the actual ruling on a point of order and normally follows the parliamentarian’s advice, but is not legally required to. The full chamber can also vote to overturn the chair’s ruling by simple majority, which sets new binding precedent going forward.

That mechanism is exactly how the Senate’s “nuclear option” has worked when a majority decided the precedent itself needed to change: in November 2013, Majority Leader Harry Reid used a point of order, an unfavorable ruling from the chair, and a majority vote on appeal to lower the cloture threshold for most nominations from 60 votes to a simple majority — without touching the formal rule, which still requires 67 votes to amend. Senate Republicans under Mitch McConnell extended the same mechanism to Supreme Court nominations in 2017.

So the honest description of the office’s power is narrower than “can kill any bill it wants”: the parliamentarian’s ruling holds only because, and only for as long as, a majority chooses not to overrule it. In 2021, Democrats had the votes to override MacDonough’s immigration and minimum-wage rulings and chose not to. That was a political decision, not a constitutional one.

Representation of the people

Strip away the procedure and the tension underneath this office is simple: the House and Senate exist because the Constitution wanted policy decided by people voters can remove. A parliamentarian is not one of those people. She cannot be voted out by anyone but the single officeholder who hired her, and the public has no say in who that officeholder chooses.

The case for why that’s still compatible with representative government is the one made in the last section: the ruling is advice, the vote is real, and the majority that elected representatives actually control can overrule her at any time by a simple majority. In that reading, the parliamentarian doesn’t take power away from elected representation — she just makes the majority spend a visible, recorded vote to get what it wants when a provision is procedurally shaky, instead of letting it ride through on a voice vote nobody has to answer for.

The case for why it erodes representation anyway is just as direct: in practice, that override vote almost never happens. Not once in 2021, across three separate immigration rulings and the minimum-wage ruling, did a Senate majority that plainly had the votes actually hold the recorded roll call to overrule MacDonough. Not once in the 2026 pressure campaign against her has a vote to remove or overrule her come to the floor, as of this writing. When a majority consistently has the power to act and consistently chooses not to use it, the formal availability of that power stops doing much work. What the voters actually got, both times, was a policy their elected majority wanted, killed by a person they never voted for — with the elected majority’s own inaction as the reason the override never came.

Neither reading is wrong. They’re describing two different things: what the Constitution formally permits, and what elected majorities actually do with the permission they have. The office passes the first test. Whether it passes the second is a decision Congress remakes every time a ruling comes down and nobody calls the vote.

Grading the office

It is the journal’s editorial judgment of the office’s design, broken into the four questions this piece has actually documented above. Same 0–100 scale as every Capitol Audit entry: 85+ is a strong design with no red flags, 65–84 is solid with real but limited questions, 45–64 is mixed — genuine structural gaps alongside a genuine working check, 25–44 is a weak design with major concerns, under 25 is functionally unaccountable.

30
1

Constitutional or statutory basis

Design criterion

Neither office appears in the Constitution and no statute created either one — both are pure chamber custom, formalized decades after they first existed informally. That's not disqualifying on its own (Article I, Section 5 explicitly lets each chamber "determine the Rules of its Proceedings"), but it means the office has zero textual anchor of its own to fall back on if a chamber ever decided to gut it.

55
2

Appointment & qualification standard

Design criterion

No statute mandates a law degree, bar admission, or procedural certification for either post. What exists instead is an informal but consistent practice: recent officeholders in both chambers have risen through the office itself, promoted from deputy parliamentarian rather than brought in from outside. That's a real, working norm — just not one written down anywhere a future leader would be bound to follow.

45
3

Protection from at-will removal

Design criterion

None, formally — both officeholders serve entirely at the pleasure of one person. In practice the norm of continuity has mostly held: only one parliamentarian has ever been fired specifically over a ruling in the last 50 years (Robert Dove, by Trent Lott, May 2001). But "mostly held as a norm" is a different thing than "protected by a rule," and the active 2026 pressure campaign against Elizabeth MacDonough is a live test of exactly that distinction as of this writing.

100
4

A working check on the office's power

Design criterion

This is the one place the design is unambiguous and strong: every ruling is advice, not law. The presiding officer isn't bound to follow it, and the full chamber can overrule it outright by simple majority vote at any time, on any ruling, with no supermajority and no waiting period required. The check fully exists. Whether elected majorities actually use it is a separate question, taken up below.

58 / 100
The office's design, graded against the Constitution

The office lands at 58 for the same reason a car with one excellent brake and three worn tires still gets driven every day: the one part that actually matters most when something goes wrong — the override — works completely. Everything around it is optional by design, held together by norm rather than rule, and norms are exactly the kind of thing a single ruling in 2001, and a live pressure campaign in 2026, can test.

Grading the officeholders

The office is one thing. The nine people who have actually run it over the past 50 years are another — and the record on them is checkable in a way abstract institutional design isn’t. Here’s the rubric:

Independent tenure (did they leave on their own terms, or get removed over a ruling?) A parliamentarian fired specifically because of a ruling is the clearest evidence the office’s independence failed in practice, regardless of which party did the firing.

Cross-partisan retention (did the other party keep them on when it took control?) Being kept in place by both parties across a change of majority is the strongest available evidence of perceived neutrality — nobody keeps an advisor they believe is working against them.

Ruling record (where a documented public record exists, did rulings cut against both parties over time, or consistently favor one side?) Most tenures generate no major public controversy at all — under this rubric, that’s scored as a neutral-to-positive sign that the office worked as designed, not as a research gap. A thin public record is disclosed as exactly that, not treated as a mark against the person.

Constitutional fidelity in office (did they stay inside the office’s proper role — advisory, procedural, never binding — or is there documented evidence they tried to act as if a ruling were final?) This is a different question from independent tenure above. Independent tenure asks whether the system respected the office’s independence. This asks whether the officeholder respected the limits of the job while doing it. A parliamentarian who gets fired for a rigorously procedural ruling has still stayed inside the Constitution’s lines — the failure in that case belongs to whoever fired them. Likewise, a ruling that gets formally overruled by a floor vote is the check working exactly as designed, not a mark against the parliamentarian who made the call. What would count against this score is evidence someone tried to treat their own ruling as beyond challenge, or ruled on grounds untethered from precedent — no sourced instance of either was found for anyone on this list.

Merit (did their path into the job reflect genuine procedural or legal qualification, or documented cronyism unconnected to expertise?) Since neither chamber has a codified qualification standard, this has to be assessed from the documented career record. An officeholder promoted from deputy parliamentarian, or with a demonstrated legal/procedural background before appointment, scores high here — that’s the office’s real, if informal, merit ladder. A thin public record on someone’s pre-appointment background is disclosed as exactly that, not scored as if it were evidence of cronyism that was never actually documented.

Criminal history (any documented criminal charges or convictions, in office or otherwise, tied to the officeholder) No criminal charges, indictments, or convictions were found in the public record for any of the nine people graded below. That is reported as a clean record for all nine — not a data gap, a finding.

76
1

Murray Zweben

Senate Parliamentarian, 1974–1981

Served through Mike Mansfield's Senate majority and left in 1981 when Republicans took control — an orderly, non-forced transition, later honored with the title "Parliamentarian Emeritus" by Senate resolution. No documented controversy or bias accusation on record, nothing found suggesting he ever treated a ruling as final rather than advisory, and no criminal history of any kind on record. His pre-appointment background is thinly documented, so his merit score reflects that limited record rather than any negative finding. Untested by a cross-partisan retention, since his tenure ended exactly at the change of control rather than surviving it.

71
2

Robert Dove

Senate Parliamentarian, 1981–87 & 1995–2001

Two non-consecutive stints, both ending in dismissal at a change of Senate control — the first in 1987 by Majority Leader Robert Byrd, unremarkable at the time since swapping parliamentarians along with party control was still a live norm in that era. The second ended in May 2001, when Majority Leader Trent Lott fired him specifically over rulings against Republican-favored provisions, including capping reconciliation bills at one per year and rejecting a GOP-backed disaster-relief allocation. That firing is the single clearest case in 50 years of a parliamentarian's independence actually failing under pressure, and it drags his tenure score down. But on the separate question of whether he stayed inside the office's proper role while serving: the rulings that got him fired were textbook Byrd Rule analysis — testing whether a provision's budgetary effect was merely incidental to its policy purpose, the same standard every parliamentarian since has applied. He was fired for ruling correctly, not for overstepping. Being trusted with the post twice by different majorities, a decade apart, is itself real evidence of merit; no criminal history was found on record. Weigh all six factors together and his overall grade sits meaningfully above where the firing alone would put it.

88
3

Alan Frumin

Senate Parliamentarian, 1987–95 & 2001–2012

Promoted twice, including immediately after Dove's 2001 firing, and the only person to serve as Senate Parliamentarian under both parties' majorities in the same stint — retained through Senate control changes in 2001, 2003, and 2007 alike. Presided over the high-profile, heavily scrutinized 2010 reconciliation rulings on the Affordable Care Act's companion bill; no sourced accusation of partisan bias was found tied to those rulings, only controversy over the reconciliation process itself, and no evidence he ever asserted a ruling as beyond challenge rather than advisory. Promoted from within the office both times he took the top job — as clean a merit path as exists in this dataset — with no criminal history on record. Retired voluntarily in 2012.

90
4

Elizabeth MacDonough

Senate Parliamentarian, 2012–present

The richest, most tested record of anyone on this list, and the only current officeholder facing an active removal campaign as of publication. Rulings have cut against both parties in succession: against a 2015 ACA-repeal provision, against the 2017 Johnson Amendment repeal, against the 2021 minimum wage and immigration provisions — but also for Republicans on 2017 ANWR drilling language and for Democrats on a 2021 ruling expanding reconciliation's per-year use. That symmetry is itself the strongest evidence on this list of consistent, precedent-bound procedural fidelity rather than result-driven ruling. Retained across four majority leaders of both parties (Reid, McConnell, Schumer, Thune) and publicly defended by her Republican-appointed predecessor, Alan Frumin, during the 2026 pressure campaign against her. Sen. Patrick Leahy (D) called her "the best"; Sen. John Cornyn (R) said she "calls them straight down the middle" — symmetric praise from opposing parties. Her pre-appointment record as a Senate floor assistant and attorney is the most explicitly documented legal/procedural qualification on this list, and no criminal history was found on record. As of this writing, she has not been removed.

74
5

William Holmes Brown

House Parliamentarian, 1974–1994

Twenty years in the post under four consecutive Democratic Speakers — Albert, O'Neill, Wright, and Foley. No documented controversy or bias accusation on record, no sourced instance of overstepping the office's advisory role, and no criminal history found. The tenure was never tested by a change of House party control, so there's no cross-partisan retention data point either way, and his pre-appointment background is too thinly documented to score merit beyond a neutral default.

75
6

Charlie Johnson

House Parliamentarian, 1994–2004

Took the post as Newt Gingrich became Speaker in the 1994 Republican wave and served a full decade, retiring in 2004 to formal honors from House leadership. No documented controversy on record, no sourced instance of exceeding the office's advisory role, and no criminal history found. Like Brown, his tenure sat entirely within one party's House majority, so it offers no cross-partisan retention test, and his pre-appointment background is too thinly documented to score merit beyond a neutral default.

83
7

John Sullivan

House Parliamentarian, 2004–2012

Appointed under Speaker Dennis Hastert (R) and kept in place through the House flipping to Speaker Pelosi (D) in 2007 and back to Speaker Boehner (R) in 2011 — a genuine cross-partisan retention spanning two changes of control, and about as strong an indirect signal of procedural fidelity as exists in this dataset: neither party trusted him less after watching him work under the other. Twenty-five years total in the parliamentarian's office before retiring in 2012 is itself a career-long merit record, and no criminal history was found. No documented controversy on record.

87
8

Thomas Wickham Jr.

House Parliamentarian, 2012–2020

Appointed by Speaker Boehner (R) and retained through Speaker Pelosi's 2019 Democratic majority — the same majority whose Speaker he then ruled against: in 2019, Wickham found Pelosi's floor remarks calling President Trump's tweets "racist" out of order, and the House (led by her own party) voted to overrule him. That sequence is this dataset's clearest real-world test of constitutional fidelity, and he passes it on both counts: he ruled against his own promoting party's leader rather than defer to her, and he accepted the floor's overruling vote as final rather than treating his own ruling as binding. Deputy parliamentarian since 2005 before becoming chief in 2012 — a clean, documented merit path — with no criminal history on record. Publicly described stepping down in 2020 as voluntary "term-limiting" himself after 25 years in the office, matching his predecessor's tenure length.

76
9

Jason Smith

House Parliamentarian, 2020–present

Appointed by Speaker Pelosi (D) and retained through the switch to Speaker McCarthy and then Speaker Johnson (both R) — a genuine cross-partisan retention data point. Because the House Parliamentarian doesn't administer the Byrd Rule, the office's rulings draw far less press coverage than its Senate counterpart, and no sourced controversy, ruling dispute, or claim of overstepping his role involving him turned up in this reporting; that thinner public record is disclosed here rather than treated as either a mark for or against him. He was deputy parliamentarian before his 2020 promotion — a documented merit path — and no criminal history was found on record. Not to be confused with Rep. Jason Smith (R-MO), chair of the House Ways and Means Committee — a different person entirely.

80 / 100
Average across the last nine officeholders, six factors: tenure, retention, ruling record, fidelity, merit, criminal history

This is a different number from the 58 at the top of this piece, deliberately. The 58 grades the office’s design — how it’s created, filled, and fired — against the Constitution. The 80 grades the people who have actually held it, across six dimensions: whether they left on their own terms, whether the other party trusted them enough to keep them, what their documented ruling record shows, whether they stayed inside the office’s advisory role while doing the job, whether their path to the post reflected genuine procedural or legal qualification, and their criminal record. That last one moved nobody’s grade, because it’s clean across the board — nine officeholders, fifty years, zero documented criminal charges. Merit moved the average up further, because the office’s informal apprenticeship path — deputy to chief, floor staff to attorney to parliamentarian — turns out to be a real, checkable credential most of these nine actually hold. Put it all together and the record shows something specific: the people on this list who got in the most trouble, Dove and Wickham, got in trouble precisely because they ruled correctly and let the chip fall against their own side or their own boss. The design leaves the door wide open for the kind of failure that happened in 2001. The individuals who’ve walked through that door have, almost without exception, used it to rule straight rather than to protect themselves.

The last word

Rate the office against the Constitution directly, and the verdict is not “unconstitutional” — Article I gives each chamber the power to “determine the Rules of its Proceedings,” and a chamber delegating procedural interpretation to a staff office it can override by majority vote is squarely inside that grant. Nothing here bypasses a vote that has to happen; it only shapes what’s on the floor before the vote is taken.

What earns this a mixed grade instead of a clean one is the gap between formal power and practical effect. An office with no constitutional basis, no statutory qualification standard, and no protection from at-will removal is, by design, exactly as independent as the majority that employs it wants it to be — and for twenty years, both parties have found it more convenient to let an unelected advisor absorb the blame for a dead priority than to hold the recorded vote to overrule her. That is not a defect in the Constitution. It is a choice Congress keeps making about how much of its own authority it wants to exercise in public.

Ubi jus ibi remedium — where there is a right, there is a remedy. The remedy here has always existed: a majority vote. That it goes unused is not a flaw in the office of the parliamentarian. It’s a fact about the Congress that keeps her.

Sources & methodology: