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Here’s how Biden’s infrastructure plan could get passed through Congress

The three scenarios for how Biden’s $2 trillion infrastructure plan could become law, explained.

Secretary of Defense Lloyd Austin, right, looks on as US President Joe Biden speaks briefly to reporters at the start of a cabinet meeting in the East Room of the White House on April 1, 2021, in Washington, DC.
Drew Angerer/Getty Images

With the first part of President Joe Biden’s $2 trillion jobs and infrastructure plan officially released, Congress has a massive priority set for the rest of the summer.

Whereas Biden’s $1.9 trillion Covid-19 stimulus plan moved relatively quickly through the Democratically controlled Congress, getting infrastructure and the accompanying tax plan the White House proposed through the House and Senate will be no easy feat. The wide-ranging list of priorities — hundreds of billions for roads, bridges, ports, and rail; $300 billion to bolster manufacturing; plus money for research and development, clean energy and climate resilience, affordable housing, and more — could be transformational to American society if it gets through Congress.

The consensus among many on Capitol Hill is that Democratic leadership and the Biden administration will once again use budget reconciliation to pass a large bill with 51 votes in the narrowly divided Senate, due to mounting Republican opposition to their proposed tax plan to pay for infrastructure.

“That package that they’re putting together now, as much as we would like to address infrastructure, is not going to get support from our side. Because I think the last thing the economy needs right now is a big, whopping tax increase,” Senate Minority Leader Mitch McConnell (R-KY) told reporters this week.

Biden had a feisty response to McConnell on Friday, telling reporters that “asking corporate America to pay their fair share will not slow the economy; it will make the economy function better.”

“If the Republicans decide we need it but they’re not going to pay for it, it’s just going to increase the deficit,” Biden said. “I think the Republican voters are going to have a lot to say about whether we get a lot of this done.”

Even if Democrats are hoping to use budget reconciliation, some lawmakers like key swing vote Democratic Sen. Joe Manchin of West Virginia are holding out hope for a bipartisan effort — one of a couple other possibilities.

Going forward, there are three main scenarios for how Democrats could plausibly pass an infrastructure and jobs package, including the $2 trillion American Jobs Plan Biden released this week, and a forthcoming second plan focused on child care, health care, and other priorities. Let’s walk through them.

The three scenarios to pass Biden’s infrastructure plan, explained

At the top, it’s worth noting that it’s still very early, and a lot could — and probably will — change between now and when Biden’s plan is officially introduced in the US House as a bill. Then, there will be rounds of negotiations between the House and Senate to get to a final product.

But until we know more, here are the rough scenarios for how Biden’s $2 trillion infrastructure bills could become law.

Scenario 1

Democrats lump everything together in one budget reconciliation bill. Budget reconciliation, an arcane procedural tool in the Senate, allows the majority party to bypass the 60-vote threshold of the Senate filibuster and pass certain kinds of bills on a simple majority.

As the name suggests, budget reconciliation can only be used for things that impact the federal budget. As Vox’s Dylan Scott has previously explained, each budget resolution is able to set up three bills, though they are typically lumped together in one large package, meaning lawmakers usually have one chance to use budget reconciliation every fiscal year:

The budget resolution can, in theory, set up three separate reconciliation bills: one for taxes, one for spending, and one for the federal debt limit. However, in practice, most reconciliation bills have combined taxes and spending into a single piece of legislation. That’s the reason that, historically, the Senate has usually been limited to passing only one budget reconciliation bill in a given fiscal year.

Since Democrats already used the 2021 fiscal year budget reconciliation bill to pass Biden’s Covid-19 relief bill, the American Rescue Plan, this one would be for the 2022 fiscal year.

Under this scenario, Democrats will still have to wait for Biden’s second proposed plan dealing with child care and health care to drop, and see how much of both bills they can write into a budget reconciliation plan for fiscal year 2022. Of course, not everything that’s in Biden’s initial proposal will be able to pass through budget reconciliation, so things are subject to change. Just as she did when deciding about minimum wage, Senate parliamentarian Elizabeth MacDonough can determine exactly what can be in a budget reconciliation bill and what can’t.

Remember, only things that affect federal spending and revenue can be passed via reconciliation. So while Democrats could certainly pass tax changes and big chunks of an infrastructure bill via reconciliation, things in the proposed package like a clean energy and electricity standard may be harder to get past the parliamentarian.

Scenario 2

In this scenario, Democrats theoretically could be able to pass multiple budget reconciliation bills — thereby giving themselves more options to pass Biden’s massive jobs plan in parts, or lump more things into budget reconciliation.

Arguing in front of the parliamentarian, Senate Majority Leader Chuck Schumer’s team is trying to make the case that Democrats should be able to pass up to three budget reconciliation bills this calendar year. Specifically, aides are pushing for a second bill tied to fiscal year 2021 by citing an arcane rule that hasn’t been used before — Section 304 of the Congressional Budget Act of 1974.

As Vox’s Li Zhou and I reported recently:

Per Section 304 of the Congressional Budget Act of 1974, budget resolutions can be revised if they’re updated before the end of the fiscal year that they cover: If Democrats’ argument stands, for instance, they could go back and amend the resolution for the 2021 fiscal year, and include instructions for another reconciliation bill. Any new legislation could theoretically focus on Democratic priorities that the original bill — which contained $1.9 trillion in coronavirus aid — didn’t include.

The Senate parliamentarian could rule on this as soon as Friday. If MacDonough agrees and lets them amend the fiscal year 2021 budget resolution, Democrats could theoretically break Biden’s infrastructure plan and his forthcoming child care and health care plan into two different reconciliation bills — sticking one in the amended 2021 resolution and putting the rest in the 2022 resolution. It gives them more options and chances to use reconciliation to pass their priorities with 51 votes.

Scenario 3

In this scenario, Democrats and Republicans would work together to at least pass a bipartisan surface transportation reauthorization bill, which comes up every five years. Relevant House and Senate committees are currently working on this reauthorization bill, as well as a water infrastructure bill.

Then, Democrats could still use reconciliation to pass the remaining elements of Biden’s infrastructure and jobs plan.

The House Transportation and Infrastructure Committee has proposed around a $500 billion reauthorization bill, and while the Senate Committee on Environment and Health is still working out its topline number, it’s expected to be close to that House figure. The five-year reauthorization bills deal pretty narrowly with fixing up roads and bridges, and Republicans on the committees think the reauthorization bill should be worked on and passed in a bipartisan way.

“Our committee unanimously reported legislation to rebuild our nation’s water systems. This proves that infrastructure can and should be done on a bipartisan basis,” Sen. Shelley Moore Capito (R-WV), the ranking member of the Senate Committee on Environment and Health, said in a recent statement.

However, it’s worth noting that the White House views its plan as being passed on top of whatever Congress does on infrastructure on its own. Biden has proposed $621 billion for spending on the nation’s roads and bridges, rail and public transit, and airports and ports.

“All elements of the plan reflect additional investment on top of existing programs and authorities,” an administration official told Vox. “On transportation infrastructure, the plan includes an additional roughly $600B above the five-year budget baseline, assuming a straight extension of FAST-Act funding levels for surface transportation programs.”

So, either Democrats and Republicans could pass a bipartisan surface transportation reauthorization and then pare down the amount set aside for surface transportation in their reconciliation bill, or they could pass around $1 trillion for surface transportation infrastructure.

Expect a busy next few months on infrastructure

After Biden’s second piece of his overall jobs plan drops in the coming weeks, Congress will get to work turning it into an actual bill. The process of writing a spending bill begins in the US House, before it gets sent to the Senate and the two chambers conference to come up with a bill they can agree on.

House Speaker Nancy Pelosi and Schumer already have their work cut out for them. House progressives are saying the infrastructure package should be bigger, and moderates are demanding an accompanying tax bill to reinstate the state and local tax deduction in exchange for their votes (something Pelosi told reporters she agrees with at her Thursday press conference).

Meanwhile, Republicans are saying Biden’s plan should be smaller and not come with corporate tax increases. Getting Republican support for the American Jobs Plan is looking ever more difficult, and the White House already seems to be preparing a similar argument that they had for the Covid-19 relief bill: Infrastructure is bipartisan, even if Congressional Republicans don’t support it. And while Democrats have a path to pass an infrastructure bill with only Democratic votes, there could be a wrinkle in the form of Sen. Joe Manchin, who is insisting an infrastructure bill be bipartisan.

“This plan starts off with enormous support among the American public, 2-1 support among all groups, all sectors,” White House chief of staff Ron Klain told Politico’s Ryan Lizza, referencing a recent Politico/Morning Consult poll. “And that kind of support was the driving engine around the passage of the American Rescue Plan, and I think that support is what’s going to drive this plan to passage.”

There’s still a lot we don’t know about what will be in the final infrastructure bill or how it will move through Congress. But it’s looking increasingly likely that it will happen without Congressional Republican support.