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’s in urgent need of a big bill with a big price tag. His biggest obstacle will be GOP obstruction.
It would be politically advantageous for Senate Republicans to pass a stimulus package as they head into the election, but they are instead blocking it. Back during the Great Recession, they were reluctant to cooperate with Barack Obama on a stimulus bill, which Obama got done eventually by peeling off three Republicans. Two of those are out of the Senate now, and the third very possibly will 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 pass the kind of bill needed. Where Obama needed three Republican votes, Biden will very optimistically need five or six, and likely more than that.
The Biden camp’s current position on the filibuster appears to be that they will give Republicans a chance 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 already ran interference on this play in 2009, dragging Senate Democrats into 12 months of ultimately pointless negotiations that sapped progressive enthusiasm for health reform while allowing ugly process stories to dominate the news agenda.
“To allow the exact same Republican leader to fool them with the exact same trick,” Chait writes, “would be the proverbial definition of insanity.”
As my colleague Ezra Klein emphasizes, there’s simply no good defense of the filibuster on the merits other than attachment to the status quo. Nonetheless, you can’t take the politics out of politics. Nothing Biden says is going to make wavering senators decide to leap out of the gate with a rule change.
Instead, avoiding failure means recognizing two key points.
Breaking the filibuster is possible, but it will take a very particular set of circumstances and it would be reckless for Biden to stake his presidency on the idea that he’ll get it done.
The other thing to keep in mind: The Obama administration made a series of avoidable errors in how it handled the linked issues of economic stimulus, health care reform, and George W. Bush’s tax cuts. Biden does not face the exact same issues that his former boss had. But like Obama, Biden wants to stimulate the economy, expand the social safety net, and roll back his predecessor’s regressive tax policies.
What he really needs to do to make headway on all that is tackle it all at once.
Embracing the miracle of budget reconciliation
The filibuster, it turns out, has a huge loophole — the budget reconciliation process.
Reconciliation is weird. First, Congress needs to adopt a budget resolution (which it doesn’t always do) laying out tax and spending priorities for the future. These resolutions are not laws, the president doesn’t have to sign them, and they pass by simple majority vote. Then with a budget in place you get to write one — but only one — bill that aims to “reconcile” national tax and spending priorities with the framework laid out in the budget. This reconciliation bill cannot be filibustered. It also cannot change Social Security, or otherwise make big legislative changes that are not directly focused on the budget.
At Vox, we have often focused on the limits the reconciliation process places on what can be achieved on climate policy or aspirations for Medicare-for-all. A reconciliation bill also can’t increase the budget deficit over the long run.
But while these limits are very real, they also do open up some fairly large horizons.
In particular, a reconciliation bill can do the following:
- Increase the generosity of the social safety net
- Raise taxes on the rich
- Impose the tax increases after the safety net increases, generating short-term stimulus
Obama did not handle his legislative agenda this way. The American Recovery and Reinvestment Act was a ring-fenced stimulus measure that launched no new programs and was not “paid for” in any way, so it required 60 votes in the Senate. And Obama wanted to use the looming expiration of the Bush tax cuts later in his term as leverage to get a bipartisan tax bill that expanded the middle-class cuts while raising taxes on the rich done.
That left Obama’s health care bill as a freestanding entity, one which ultimately did use the reconciliation process, but which was not designed to stimulate the economy, and thus had benefits only come online years after enactment.
But with a Senate majority — and if Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi can convince Biden to move fast — Democrats can do it all.
What an emergency reconciliation bill could achieve
Reconciliation does, of course, have very real limits. It’s hard to use it to ban fossil fuel extraction, to legalize undocumented immigrants, or to alter labor law. But from the right point of view, these are the virtues of reconciliation. The topics it won’t let Democrats touch are precisely the areas where moderates have the most qualms about a majority rules Senate. What top Democrats need to do is convince nervous moderates that a very aggressive reconciliation strategy is the key to getting the left off their back.
Consider the following ideas Biden has embraced:
- Creating a new universal child allowance to help parents and slash child poverty.
- Creating a fully funded rental housing voucher program to ensure that every family that needs help gets it.
- Expanding the Affordable Care Act to cover millions more and make coverage more generous for those who get it.
- A climate plan that centers investments in clean energy, rather than taxes on dirty energy.
- A huge increase in funding to low-income school districts.
Biden does not need to treat these ideas as separate from the short-term need to stimulate the economy. He can simply do all five of them, and throw in a short-term boost to unemployment insurance and state/local budgets and some cash for specific public health interventions. Then the long-term increases in spending can be offset by enacting his proposed tax increases on the rich. That will ensure the deficit falls over the long run. But 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.
Not every part of these Biden plans may be possible in budget reconciliation — in particular, a public health care option. And legislating in this manner would cut against a lot of congressional traditions. The budget would need to get written quickly, with most of the work effectively done in the lame-duck period. And a sprawling piece of legislation that touches on the jurisdictions of many committees would need to be written via a centralized process.
But this is how Paul Ryan and Mitch McConnell handled the ACA repeal and tax cut battles of 2017 and 2018 when they controlled both chambers of Congress — sharply curtailing the committee process in the name of speed.
To get it done, Biden needs to convince members of Congress that it’s in their collective interest for him to have a successful presidency with a roaring economy and real accomplishments. And if they don’t want to curb the filibuster, they need to get the job done with a massive reconciliation bill. Once that’s done, Biden can pivot to the filibuster.
A minimum wage fight for the ages
Or, Biden can turn to a fight over his proposal to raise the federal minimum wage to $15 an hour.
This is a great issue to fight on for several reasons.
- A bill has already been written and passed the House, so it can just be done again.
- It’s overwhelmingly popular, with 67 percent support according to Pew and 68 percent support according to Data for Progress.
- These poll results have held up in real world field tests, with minimum wage ballot initiatives passing in Arkansas, Missouri, Colorado, and Maine in recent years.
- The issue contains very little in the way of complicated moving pieces to negotiate over; Republicans either need to say yes or no to it.
- A minimum wage increase clearly requires a new act of Congress, so recalcitrance on the part of Senate Republicans doesn’t simply ratchet up pressure on the executive branch to take unilateral action.
This last point is important and underrated. The GOP was often able to weaponize its intransigence against Obama into coalition-wrecking infighting. So rather than Republicans taking the blame for inaction on climate change and immigration, protesters came to blame Obama for not unilaterally blocking the Keystone XL pipeline or halting immigration enforcement.
But the minimum wage is a popular issue. It’s popular in all kinds of geographies. It contains very little complexity. And only Congress can act on it. Biden can show up at any state in the union and find local politicians and workers happy to rally with him on behalf of a wage hike. And the focus will remain squarely on the GOP.
Under those circumstances, maybe Biden’s optimistic rhetoric about the opposition party would prove prescient. Maybe the “between six and eight Republicans who are ready to get things done” would emerge.
Not only could Biden then sign a minimum wage increase, he’d have the ability to pivot to bipartisan legislation on popular priorities like the DREAM Act, money-raising investments in making sure rich people pay their taxes, and a big new infrastructure bill. That would be a very successful term, which is precisely why I think it’s unlikely Republicans will allow it, but if they do that’s great. If not, the hammer.
After the filibuster
The point of all this: A fight over the minimum wage, unlike one over court-packing or statehood for Washington, DC, or comprehensive immigration reform, is what genuinely might move wavering senators into deciding that they’ve had enough.
If American politics amounts to nothing but symbolic culture war posturing over Goya beans and the singing of the national anthem at NFL games, then it’s vulnerable Senate Democrats more than anyone who stand to lose. Empowering a left-wing policy agenda doesn’t necessarily help them, but totally neutering a moderate one could endanger their seats.
Biden’s task would be twofold — convincing moderates to be bold in the fact of GOP obstructionism on an overwhelmingly popular issue, and persuading them that he is willing to take the heat from the base in terms of blocking legislation they fear.
What should follow instead is a series of lower-profile reforms that nonetheless all poll well across the country:
- Admitting new states, potentially including Guam and the US Virgin Islands along with DC and Puerto Rico.
- Automatic voter registration to make voting easy, stop needing to waste money on voter registration drives, and calm down the perennial wrangling over ID laws.
- Strict curbs on partisan gerrymandering.
Expanding the Supreme Court is very unlikely to be popular with voters, absent concrete, unpopular action by the Court.
But expanding the size of federal district and circuit courts to keep pace with the increase in the volume of cases since the last expansion would be a good idea and serve as a shot across the bow of the high court. Beyond process issues, a filibuster-free Senate would let Democrats move forward with other popular legislation like marijuana legalization, universal background checks, creating a path to citizenship for most long-term undocumented residents, and a public option for generic pharmaceutical manufacturing to increase competition and keep prices down.
This would be a historic record of progressive achievement, and many voters would like it. But Biden would need to take it upon himself to keep losing ideas like drastically curtailing immigration enforcement, excessively broad student debt cancellation, reparations, or banning private health insurance off the table.
A post-filibuster Senate would be flying without a net, and vulnerable senators don’t want to walk the plank, nor anger party leaders. After winning the primary with more moderate stances, Biden is ideally positioned to make the case both privately and publicly that he understands the importance of running on popular ideas and recognizes that there’s an ample list of them for Democrats to focus on if they can restore Congress’s legislative capacity.
A legacy of healing
In his rhetoric, Biden is not really a policy-first kind of politician.
Before Covid-19, he tended to define his candidacy in terms of healing the moral and psychic wounds of the Trump era. And for the past six months, he’s been heavily focused on the pandemic itself. Biden’s primary super PAC was called “Unite The Country,” illustrating his key campaign theme that a low-key, decent, widely respected veteran politician with a moderate platform can end the era of toxic political polarization.
It’s a great message. But if Biden thinks that his personal charm can bring back the low-polarization Senate he remembers from his service there in the 1970s and ’80s he’s mistaken. And if he genuinely tries to do that, he’s setting himself up for catastrophic failure. Times have changed, the media has changed, institutions have changed, and incentives have changed. The good old days aren’t coming back.
Still, Biden can break the toxic allure of obstruction by refusing to be obstructed.
McConnell’s key insight back in 2009 was that if you block everything, the consequences of failure ultimately hurt the president and his party. But if you’re an even slightly vulnerable member of Congress, what’s the point in casting futile “no” votes against popular bills that pass anyway?
Majority rule, more than anything else, promises to bring back bipartisanship. An empowered majority makes it potentially worthwhile for members of the minority party to come to the table and try to win concrete small-scale concessions in exchange for their votes.
Changes to bring back some semblance of political equality to America’s voting system and legislatures would have an even more salutary effect. 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 a level playing field. What they’d have to do is put a less-unreasonable, more-disciplined foot forward as they attempt to appeal to the interests and ideas of a majority of the electorate.
Getting there would take a fair amount of hardball, but unlike musing about friendly chats with McConnell over a couple of glasses of bourbon, it could actually work. And along the way, greatly ameliorating a number of egregious social problems.
Will it happen? After living through the past nine months, I hesitate to tell anyone to hope for good things. But a tenacious Biden presidency could make it happen.