We’re barreling toward 2022 with 2021 nearly in the rearview, and the Democrats are scrambling to find new roads to President Joe Biden’s progressive goals. Build Back Better is firmly in the ditch, for now at least, and without Sen. Joe Manchin (D-WV) on board, none of the legislative routes to getting back on track next year seem open. There has certainly been no shortage of creative ideas from the left, but with the midterms coming up, the clock is ticking. And the Democrats still have one major dilemma: Can the Biden agenda survive Manchin?
A Genius Plan – In Theory
With control of the White House, a good enough majority in the House of Representatives, and a lockdown in the Senate that should – in theory – go their way since the vice president is one of them, the Democrats should have had a powerhouse year in 2021. Even with the filibuster holding things up in the Senate, the razor-thin majority can have its way, so long as everyone is on board. There were even a few very creative changes and reinterpretations of standing rules to get things done.
Formerly, there was a single use per fiscal year of the budget reconciliation process. The rule allows a simple majority to pass certain spending measures to “reconcile” reality with the proposed budget already passed. But there’s a catch: The majority party can’t slip in non-budgetary items to push its entire legislative agenda past the filibuster.
Thanks to Senate Parliamentarian Elizabeth MacDonough’s creative interpretation of the rules, Democrats now get a second use of that per year. This was supposed to be the method for passing Biden’s Build Back Better Act – which critics describe as a massive wish list of progressive pork disguised as an infrastructure bill – without any GOP support needed. Though MacDonough gave them another use annually – effectively doubling the majority party’s appropriation power – she has not as of yet broadened the scope of that power to include amnesty for illegal immigrants, as Senate Majority Leader Chuck Schumer (D-NY) wants. Despite the setback, getting that in the reconciliation package remains the leader’s goal.
Another brilliant plan, which actually did pay off, was to include a one-time rule change for a single vote into an unrelated bill in order to get the minimum 60 votes required to invoke cloture and break a filibuster. As Democrats and Republicans fought tooth and nail over the debt limit, 14 Republicans showed they cared far less about opposing a debt limit hike than just appearing to oppose it. As an amendment to a bill preventing Medicare payment cuts, a new rule was laid out to establish a one-time vote on a resolution on the debt limit that requires only a simple majority to pass, with no further option to delay, like the filibuster or a motion to reconsider. The cloture vote was 64-36 and the final, passing vote was 59-35. Just a few days later, “without any GOP support in the Senate,” congressional Democrats – and Rep. Adam Kinzinger (R-IL), of course – increased the debt limit by $2.5 trillion.
The Manchin Effect
Netting another $2.5 trillion in spending potential is a definite win – but it doesn’t push the overall Biden agenda forward. On that front, Mr. Manchin has been the proverbial wrench in the gears. Or to get back to the imagery of driving a car, he’s the guy who keeps shouting out directions at the last minute and occasionally grabbing for the steering wheel.
The GOP put a halt to the vast majority of Democrat attempts to pass bills through use of the filibuster. Schumer and Co. kicked around the idea of nuking the filibuster, but Joe Manchin will have none of that. Surely one guy can get pushed over though, right? Well, let’s just say the West Virginia senator is certainly living up to the state nickname. Manchin took a stand and refused to budge – and not just on the filibuster. He also tanked Build Back Better after his demands that the overall price tag be lowered, not make inflation worse, and the bill text reflect the honest cost over ten years were ignored.
Now the Democrats are scrambling to find a way around him. Can President Biden simply enact the most important parts of BBB individually by executive order? That’s what House progressives now demand. “There’s too much at stake and there is a very powerful tool in the president’s ability to take executive action,” Progressive Caucus Chairwoman Rep. Pramila Jayapal (D-WA) said.
It should come as no surprise that a statist would believe the government can rule by simple presidential decree – but one might wonder how she felt about executive action when Donald J. Trump occupied the Oval Office. Regardless of her feelings, though, that “very powerful tool” is also very limited. It’s the job of Congress to appropriate funds, and this is, at its heart, an appropriations bill. That’s the only way reconciliation would be possible, despite the fact that it would also cover a lot of the progressive left’s social and environmental issues by tying them to the budget. The president simply can’t appropriate funds. He can, however, redirect the funds that have already been made available to the various parts of the government under the executive branch – though that is limited as well and subject to lawsuit.
But stay tuned; Rep. Jayapal also claims the Progressive Caucus “will soon release a comprehensive vision for this plan of action, which will include immediate focus on actions that lower costs, protect the health of every family who calls America home in this time of surging Omicron cases, and show the world that America is serious about our leadership on climate action.” Whether that will include detailed steps to achieve those grand goals or simply a directive to the Biden administration to figure it out remains to be seen.
Back in the Senate, Schumer plans to revisit the idea of nuking the filibuster next year, and one of the ideas being floated about is changing the rule so the filibuster doesn’t apply to voting rights legislation. According to the majority leader, Senate Democrats can expect to vote on both his filibuster reform and BBB early in the year. Perhaps Schumer thinks he can bulldoze a path through Mount Manchin – or maybe he thinks he can go off road and around by luring in a Republican. In any case, the people driving the Biden agenda see that light turning red as the midterms approach. Will they make it through the yellow and get something done they can be proud of before Republicans can take one or both congressional chambers – or will they crash and burn?
~ Read more from James Fite.