with Tobi Raji

Aloha Power people. Please join us today at 1 p.m. EST for a conversation with Governor Larry Hogan (R-Md.). Our Post Live team also will chat with Mayor London Breed, Robert Gates and more later this week. You can register here 😊 This is the Power Up newsletter – thanks for waking up with us. 

On the Hill

RUBBER MEETS ROAD: Democrats' big push to raise the minimum wage to $15 an hour will be put to the test this week — by a Senate staffer relatively unknown outside Capitol Hill. 

Senate Parliamentarian Elizabeth MacDonough is expected to issue a decision soon about whether Democrats can squeeze one of their top priorities into the $1.9 trillion coronavirus relief package through the budget reconciliation process. If MacDonough determines the minimum wage can indeed be considered under fast-track budget rules, Democrats can pass the bill containing the more controversial provision with a simple majority. That's critical for Democrats who control the 50-50 chamber with Vice President Harris's tiebreaking vote — and want to avoid the 60-vote threshold for significant legislation.  

  • “It's trite to refer to her as the umpire but it's a lot like that,” Rich A. Arenberg, who worked on Senate and House staffs for 34 years and co-authored “Defending the Filibuster: The Soul of the Senate,” told Power Up of MacDonough's position and influence. “She's a really non partisan straight arrow. 

Legislative experts were hesitant to predict to Power Up how MacDonough would ultimately rule on the minimum wage issue. But they all agreed that MacDonough is well equipped to handle the high stakes political pressure put one of the only remaining nonpartisan offices on Capitol Hill. 

  • The dynamics now: We're in a 50-50 Senate … and it's been more difficult with polarization to get legislation of significance passed,” Laura Blessing, a senior fellow at the Government Affairs Institute at Georgetown University, told Power Up. “This is a situation where you end up putting the parliamentarian's office in a position where they will make politically consequential decisions. That's not because of them but everything around the office. It speaks to how divided we are as a Congress and country.” 

Both sides are preparing their case: Both Democrats and Republicans are expected to meet with the parliamentarian on Wednesday to argue their case, Politico's Caitlin Emma and Aaron Lorenzo report. “Her ruling could follow soon after the arguments.”  

Democrats must show that every item in their reconciliation bill has a direct budgetary impact — a requirement under the Byrd rule, a provision added to the 1974 Congressional Budget Act named after the late Sen. Robert Byrd. 

Sen. Bernie Sanders (I-Vt.), who is leading the charge as the Senate Budget Committee's new chair to raise the minimum wage to $15 by 2025, has been collecting outside opinions to make the case. “Sanders argues that the measure qualifies as fiscal since the nonpartisan CBO found it to increase deficits by $54 billion over 10 years,” Bloomberg's Erik Wasson and Laura Davison report. “Opponents say the budget impact is ‘merely incidental’ compared to the overall labor market impact. The wage provision may also violate Senate rules against adding to deficits after 10 years, and therefore would require offsetting savings or revenue to qualify.” 

  • President Biden himself has suggested that the $15 minimum wage might not survive the budget reconciliation process and might need to be a stand-alone measure. He told a group of governors and mayors last week that the proposed hike was unlikely to happen, Politico's Natasha Korecki and Chris Cadelago scooped. “I’m not going to give up. But right now, we have to prepare for this not making it,” Biden told the group.

PRESSURE COOKER: Arenberg called it “remarkable” that the office has managed to maintain its nonpartisan posture while the rest of Congress has become steadily more polarized. That's not to say that lawmakers haven't before tried to influence the office due to frustration over rulings: in 2001, Sen. Trent Lott (R-Miss.) ordered the firing of then-Senate parliamentarian Robert Dove. This too was in a 50-50 Senate — with Republicans in charge. 

  • “Dove angered Republicans, especially Majority Leader Trent Lott (R-Miss.), with at least two recent rulings that effectively made it harder for the GOP to push President Bush's budget and tax cut proposals through the evenly divided body,” The Post's Helen Dewar reported at the time.
  • “The stakes are very high, and when you have a 50-50 Senate, it leaves the parliamentarian who is trying to be an honest broker in an excruciating position," Norman J. Ornstein, an expert on Congress at the American Enterprise Institute, told the New York Times at the time of the episode.
  • We were in shock when Lott fired Dove in 2001,” a source on Capitol Hill who worked closely with Dove at the time told Power Up. “We likened it to the idea of firing the umpire after calling you out on strikes.”

MacDonough worked her way up in the Senate, starting as assistant parliamentarian in 1999 before the Senate approved her as parliamentarian in 2012

  • She's outstanding,” Marty Paone, who spent almost 30 years as a top parliamentary adviser to Senate Democrats, told Power Up of MacDonough. “I can't say enough positive things about her and her staff. Elizabeth is the first woman parliamentarian in the Senate and she's done an outstanding job.” 
  • “It's an extremely difficult position… No one will thank her for a great ruling unless they are on the positive side of it and everyone is willing to criticize her if they don't get what they want and claim it's political,” Paone added. “But she bends over backward and they always have to stay out of politics.”

RULES AREN'T THE ONLY THING THAT COULD PLAGUE DEMOCRATS: Some Democrats, including Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.), have expressed doubts about the $15 an hour wage increase going through reconciliation process. 

  • “There are two issues going on right now — one is Byrd Rule problems, one is whip problems,” House Budget Chair John Yarmuth (D-Ky.) told Politico's Emma and Lorenzo. “If Joe Manchin isn’t going to vote for it because of the minimum wage, I assume we have to take it out or compromise in a way that he would accept.”
  • Manchin told CNN that he would try to amend the federal minimum wage hike to $11 an hour if the parliamentarian finds the provision within the rules of reconciliation. We can do $11 in two years and be in a better position than they're going to be with $15 in five years. 
  • Key: “Any dissension among Democrats is problematic in the evenly-divided Senate since Democrats can’t afford to lose a single vote among their own ranks and still pass the legislation,” they write.

The investigations

HAPPENING TODAY: The Senate Homeland Security Committee and Senate Rules Committee will hold a joint hearing on the security failures that led to the breach of the Capitol on Jan. 6.

  • The people: Former House sergeant-at-arms Paul D. Irving, former Senate sergeant-at-arms Michael C. Stenger, former Capitol Police chief Steven A. Sund and acting D.C. police chief Robert J. Contee III are all expected to testify.
  • Why it matters: Today’s “hearing could become a battleground for competing narratives over what prompted the riot and who was responsible for it — a question that has become even more pointed following former president Trump’s acquittal on impeachment changes earlier this month,” our colleagues Mike DeBonis and Karoun Demirjian report.

Meanwhile, Democrats have released the blueprints for the independent 9/11-style commission that would investigate the attack. In the draft, “each of the so-called ‘Big Four’ Congressional leaders [from the House and the Senate] would get to appoint two members to the commission. Biden would get to pick three additional members, including the chair, who would have subpoena power,” Politico’s Heather Caygle and Kyle Cheney report

The people

GARLAND’S BACK ON THE HILL: Merrick Garland will return to the Hill today to face another round of questioning from the Judiciary Committee as Biden's pick to lead the Justice Department. Monday’s hearing went smoothly, and he’s expected to be confirmed with bipartisan support. 

  • If confirmed, Garland’s first order of business will be the “sprawling investigation into the U.S. Capitol riot. He vowed to stamp out the rising threat of domestic terrorism and restore public faith in the Justice Department,” our Post colleagues report.
  • Garland also told the committee that he saw “no reason” to end Special Counsel John Durham's review of the FBI’s 2016 investigation into the Trump campaign.

Interior Secretary nominee Deb Haaland and Health and Human Services nominee Xavier Becerra will also appear before the Senate today.

  • Haaland, the first Native American nominated to lead the Interior Department, is expected to begin her groundbreaking Senate confirmation hearing with opening remarks that reflect her heritage and her nationality,” our colleague Darryl Fears reports.
  • The historic nature of my confirmation is not lost on me, but I will say that it is not about me,” she is expected to say, according to prepared remarks obtained by The Washington Post. “Rather, I hope this nomination would be an inspiration for Americans — moving forward together as one nation and creating opportunities for all of us.”
  • During the hearing, “Haaland is likely to face sharp questioning from many Republicans and possibly some Democrats over her opposition to new oil and gas drilling on federal lands.” She is also opposed to fracking.

TANDEN’S CONFIRMATION IN EVEN MORE JEOPARDY: Republican Sens. Susan Collins (Maine), Mitt Romney (Utah) and Rob Portman (Ohio) have joined Manchin in opposing Neera Tanden’s confirmation as director of the Office of Management and Budget, citing her pointed attacks against GOP lawmakers. 

  • This leaves Biden on the “cusp of his first Cabinet defeat, potentially dealing a major blow to an administration that has struggled to fill top posts across government,” our Post colleagues report.
  • But he hasn’t abandoned ship yet. “Psaki said Monday that the White House has been ‘working the phones’ to touch base with Democratic and Republican offices but did not say who they reached out to,” the Hill’s Brett Samuels and Morgan Chalfant report.
  • Tanden needs at least one Republican vote to confirm her nomination without Manchin's support, but there are very few moderate Republicans who are likely support her. On the watch list: "Sen. Shelley Moore Capito (R-W.Va.), who has not stated a position on Tanden but hasn't opposed any Biden nominees yet, or Sen. Lisa Murkowski (R-Alaska), a moderate who told reporters she is ‘still visiting’ the issue,” Forbes's Andrew Solender reports.

Names of potential replacement nominees are beginning to circulate. Although the White House is standing behind Tanden, senior Democratic and GOP aides told our colleagues that they “expect the administration to withdraw her nomination, considering the lack of support in the Senate.”

  • “Shalanda Young, who last month was nominated as deputy director of the Office of Management and Budget, has emerged as a leading contender for the position, CNN’s Jeff Zeleny reports.
  • “Two other contenders are Ann O'Leary, a former chief of staff to California Gov. Gavin Newsom (D), and Gene Sperling, a former director of the National Economic Council.”

Outside the Beltway

A GRIM MILESTONE: As the country's coronavirus death toll surpassed 500,000, White House flags were lowered at half-staff at 5 p.m. The Washington National Cathedral tolled its bell 500 times. And 500 candles were lit on the steps of the White House. 

  • Biden spoke of his own loss in addressing the nation: “I know all too well. I know what it’s like to not be there when it happens. I know what it’s like when you are there holding their hands; there’s a look in their eye and they slip away. That black hole in your chest — you feel like you’re being sucked into it. The survivor’s remorse, the anger, the questions of faith in your soul.”
  • He spoke of the enormity of the 500,000th death. “That’s more lives lost to this virus than any other nation on Earth. But as we acknowledge the scale of this mass death in America, we remember each person and the life they lived.”
President Biden delivered remarks on the 500,000 lives lost to coronavirus during a Feb. 22 candle lighting ceremony at the White House. (Drea Cornejo/The Washington Post)

Special report: Our colleague Michael S. Rosenwald explains how pandemics have remade the world

  • “The novel coronavirus took just a few months to sweep the globe. More than 2.5 million people around the world have died, including 500,000 in the United States. History shows that past pandemics have reshaped societies in profound ways. Hundreds of millions of people have died. Empires have fallen. Governments have cracked. Generations have been annihilated.”

From the courts

TRUMP STACKS DUAL WINS AND DUAL LOSSES: "The United States Supreme Court on Monday cleared the way for the Manhattan district attorney, Cyrus R. Vance Jr., to obtain eight years of Mr. Trump’s federal income tax returns and other records from his accountants. The decision capped a long-running legal battle over prosecutors’ access to the information," the New York Times's Mike McIntire reports.

  • "They will discover a veritable how-to guide for getting rich while losing millions of dollars and paying little to no income taxes. Whether they find evidence of crimes, however, will also depend on other information not found in the actual returns," McIntire notes. 
  • Worth noting: “None of the three justices Trump chose for the court — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — publicly objected to the subpoena seeking his assiduously guarded tax records, or concluded that his reelection defeat was tainted,” our Post colleague reports.
  • The Supreme Court [also] turned away Republican challenges to the presidential election results in Pennsylvania, refusing to take up a months-long dispute over extending the deadline in that state for receiving mail-in ballots,” our colleague Robert Barnes reports.

What Manhattan District Attorney Cyrus Vance, Jr. had to say:

The wins. The Supreme Court declined to “revive a defamation suit filed against him by adult-film star Stormy Daniels, who has said she had an affair with Trump many years ago — claims the former president denies,” Barnes writes.

  • The high court also “agreed to take up challenges to controversial Trump administration regulations on immigrants and on abortion counseling,” our Post colleague reports. 
  • Details: “One case involves a ‘gag rule’ that prohibits federally funded health clinics from referring women to abortion providers. The other involves regulations that could keep immigrants from getting their green cards if they use food stamps or other public benefits.”
  • But Biden has expressed opposition to both policies and is likely to rescind them.