If former Vice President Joe Biden wins the presidential election in November, he will almost certainly take office amid an ongoing public health and economic crisis that desperately needs a big bill with a high price tag. Its main obstacle will be GOP disability.
It would be politically beneficial for Senate Republicans to pass a stimulus package when they make their way to the polls, but they're blocking it instead. During the Great Recession, they were reluctant to work with Barack Obama on an economic stimulus plan, which Obama eventually completed by pulling out three Republicans. Two of them are now out of the Senate, and the third will possibly be by next year.
If Biden wins, he'll likely have control of both Houses of Congress, but a simple majority isn't good enough in the Senate – you need 60 votes to get the required bill passed. Where Obama needed three Republican votes, Biden will very optimistically need five or six, and probably more.
The Biden camp's current position on the filibuster appears to be that it will allow Republicans to negotiate in good faith before they even try to do anything extreme. The difficulty, as Jonathan Chait writes, is that Senate Majority Leader Mitch McConnell intervened on this piece back in 2009, dragging Senate Democrats into 12 months of ultimately pointless negotiations that undermined the ongoing enthusiasm for health reforms and ugly ones Process stories let the news dominate agenda.
"It would be the proverbial definition of insanity to allow the exact same Republican leader to use the exact same trick to deceive them," writes Chait.
As my colleague Ezra Klein points out, there is simply no such thing as a good filibuster defense on the matter other than being bound by the status quo. Still, you can't take politics out of politics. Nothing Biden says is going to make wavering senators jump out of the gate with a rule change.
Instead, to avoid mistakes, two important points must be recognized.
Breaking the Filibuster is possible, but very specific circumstances will be required and it would be ruthless for Biden to put his presidency on the idea that he will make it.
The other thing to be aware of: the Obama administration made a number of avoidable mistakes in addressing related issues such as economic stimulus, health care reform, and George W. Bush tax cuts. Biden doesn't have exactly the same problems as his former boss. But like Obama, Biden wants to boost the economy, expand the social safety net and reverse the regressive tax policy of his predecessor.
What he really needs to do in order to make progress on all of this is to do it all at once.
Embrace the miracle of budget reconciliation
As it turns out, the filibuster has a big loophole – the budgetary reconciliation process.
Reconciliation is weird. First, Congress needs to pass a budget resolution (which it does not always do) setting out tax and spending priorities for the future. These resolutions are not laws, the President does not have to sign them and they are passed by a simple majority. If there is a budget, you can write one – but only one – invoice aimed at aligning national tax and spending priorities with the framework set in the budget. This reconciliation invoice cannot be filibustered. Nor can it change social security or otherwise make major legislative changes that are not directly budgetary.
At Vox, we have often focused on the limits that the reconciliation process places on what can be achieved in terms of climate policy or Medicare-for-all aspirations. A reconciliation law must also reduce the budget deficit in the long term.
While these limits are very real, they also open up some pretty broad horizons.
In particular, a reconciliation invoice can:
Increase the generosity of the social safety net
Raise taxes for the rich
Imposing tax increases after increasing the safety net, creating short-term incentives
Obama has not handled his legislative agenda that way. The American Recovery and Reinvestment Act was a purpose-built stimulus measure that did not initiate any new programs and was in no way "paid for". Therefore 60 votes were required in the Senate. And Obama wanted to leverage the impending expiry of Bush's tax cuts later in his tenure to get bipartisan tax law that expanded cuts for the middle class while increasing taxes for the rich.
This left Obama's health law as a stand-alone unit that ultimately used the reconciliation process, but was not intended to stimulate the economy and therefore only had benefits years after it came into force.
But with a Senate majority – and if Senate Minority Chairman Chuck Schumer and House Speaker Nancy Pelosi can convince Biden to act quickly, the Democrats can do anything.
What an emergency settlement calculation could achieve
Reconciliation, of course, has very real limits. It is difficult to use this to ban fossil fuel extraction, legalize undocumented immigrants, or change labor laws. But from the right point of view, these are the virtues of reconciliation. The issues that Democrats are not allowed to touch are precisely the areas where moderates have the greatest concern about a majority running the Senate. What top Democrats have to do is convince nervous moderates that a very aggressive reconciliation strategy is key to getting the left off their back.
Consider the following ideas that Biden adopted:
Biden need not see these ideas as separate from the short-term need to stimulate the economy. He can just do all five and get unemployment insurance and state / local budgets and some cash for certain public health interventions on a short term basis. Then long-term increases in spending can be offset with his proposed tax hikes for the rich going into effect. This will ensure that the deficit will decrease in the long run. However, since the short-term deficit is not a problem and the whole idea is to stimulate the economy, the tax cuts can be delayed until 2023.
Such legislation would go against many congressional traditions. The budget would have to be created quickly, with most of the work being done effectively in the lame duck era. And a sweeping law that affects the competences of many committees would have to be written through a centralized process.
But that's how Paul Ryan and Mitch McConnell handled the ACA repeal and tax cut struggles of 2017 and 2018 when they controlled both houses of Congress – which severely constrained the committee process in the name of speed.
To do that, Biden must convince members of Congress that it is in their collective interests that he have a successful presidency with a roaring economy and real achievements. And if they don't want to contain the filibuster, they have to do the job with a massive reconciliation bill. Once that's done, Biden can switch to the filibuster.
A minimum wage war for the ages
Or Biden can turn to a dispute over his proposal to raise the federal minimum wage to $ 15 an hour.
This is a great topic for a number of reasons.
This last point is important and underestimated. The GOP has often been able to turn its intransigence against Obama into coalition struggles. Rather than blaming Republicans for inaction on climate change and immigration, protesters accused Obama of failing to unilaterally block the Keystone XL pipeline or stop enforcing immigration regulations.
However, the minimum wage is a popular topic. It is popular in all regions. It contains very little complexity. And only Congress can respond. Biden can show up in any state in the union and find local politicians and workers who would like to rally with him for a pay rise. And the focus will continue to be on the GOP.
Under the circumstances, Biden's optimistic rhetoric about the opposition party might prove prescient. Perhaps the "six to eight Republicans ready to get things done" would show up.
In addition to signing a minimum wage increase, Biden could then have the option to focus on bipartisan laws on popular priorities like the DREAM bill, fundraising investments to make sure rich people pay their taxes, and a big new infrastructure bill. That would be a very successful term and that is exactly why I think Republicans are unlikely to allow it, but if they do, that's great. If not, awesome.
After the filibuster
The point of it all: A struggle for the minimum wage, as opposed to a battle over court or statehood for Washington, DC, or extensive immigration reform, could really move wavering senators to decide they have enough.
If American politics is nothing more than a symbolic culture war over Goya beans and singing the national anthem at NFL games, then vulnerable Senate Democrats, more than anyone, are at risk. Strengthening a left political agenda doesn't necessarily help them, but outright castration of a moderate agenda could endanger their seats.
Biden's job would be twofold: to convince moderates to be brave in the fact of GOP obstructionism on a hugely popular subject and to convince them that it is ready to take the heat off the grassroots to the one they feared Block legislation.
What should follow instead is a series of lower-profile reforms that are nonetheless well coordinated across the country:
New states added, possibly including Guam and the US Virgin Islands, as well as DC and Puerto Rico.
Automatic voter registration to make voting easier, stop wasting money on voter registration drives, and ease the constant battle over ID laws.
Strict restrictions on partisan gerrymandering.
It is very unlikely that the Supreme Court enlargement would be popular with voters if the Court does not take specific, unpopular action.
However, it would be a good idea to expand the size of the federal district and county courts to keep up with the increase in case volume since the last expansion, and serve as a shot over the bow of the Supreme Court. Beyond litigation issues, a filibuster-free Senate would push Democrats to push other popular laws like legalizing marijuana, universal background checks, creating a path to citizenship for most long-term undocumented residents, and a public option for making generic drugs to increase competition and keep prices down.
This would be an historic record of progressive success and many voters would like it. But Biden would have to take it upon himself to get rid of ideas like drastically curtailing immigration enforcement, overly broad student debt relief, reparations, or banning private health insurance.
A post-filibuster Senate would fly without a network, and vulnerable senators don't want to go overboard or upset party leaders. Having won the primary with more moderate positions, Biden is ideally placed to argue, both privately and publicly, that he understands the importance of implementing popular ideas and realizes that there is a large list of ideas that the Democrats are referring to can focus if they can restore the legislative capacity of Congress.
A legacy of healing
In his rhetoric, Biden isn't exactly a politician who comes first.
Before Covid-19, he tended to define his candidacy as a cure for the moral and psychological wounds of the Trump era. And for the past six months, he's been focusing heavily on the pandemic itself. Biden's primary super-PAC was called "Unite The Country" and illustrated his central campaign theme that a reserved, decent, well-respected politician with a moderate platform can end the era of toxic political polarization.
It's great news. But when Biden believes his personal charm can bring back the Senate with low polarization, he recalls his service in the 1970s and 1980s when he was wrong. And if he really tries, he is preparing for catastrophic failure. Times have changed, the media has changed, the institutions have changed, and the incentives have changed. The good old days are not coming back.
Even so, Biden can break the toxic appeal of disability by refusing to be hindered.
McConnell's main realization in 2009 was that if you block everything, the consequences of failure will ultimately hurt the president and his party. But if you're still a vulnerable member of Congress, what's the point of casting unsuccessful no-votes to popular bills that are going to pass anyway?
Above all, the majority rule promises to bring back non-partisanship. An authorized majority makes it potentially worthwhile for members of the minority party to come to the table and try to win specific small concessions in exchange for their votes.
Changes that give the American electoral system and legislation a certain semblance of political equality would be even more beneficial. We know from the success of governors like Larry Hogan in Maryland, Charlie Baker in Massachusetts, and Phil Scott in Vermont that Republicans can still win elections on an equal footing. What they would need to do is put a less unreasonable, more disciplined foot forward when trying to appeal to the interests and ideas of a majority of voters.
It would take a lot of hardball to get there, but unlike friendly conversations with McConnell over a few glasses of bourbon, it might actually work. And on the way to improve a number of tremendous social problems significantly.
Will it happen After living through the past nine months, I hesitate to tell someone to hope for good things. But a persistent Biden presidency could make it happen.
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