“We have a deal,” said President Joe Biden surrounded by ten Republican Senators on June 24, referring to a newly brokered bipartisan compromise about the ongoing negotiations on an infrastructure bill. The President seemingly equivocated on the bipartisan compromise several times in the following days. This wasn’t a change of heart from the President so much as a conflict between him achieving his goal of a bipartisan compromise and him satisfying the ideological demands of the progressive wing of his own party. All of Washington is waiting to see how this conflict will play out. It is not just due to infrastructure, but also to see if President Biden would stand up to the more progressive wing of his own party and deliver on his Inauguration Day promise of bipartisan leadership.
The President’s own initial proposal, which is comprised of two parts, the American Jobs Plan and the American Families Plan, is one of the main reasons for the pressure he is under. Two massive proposals that included about $620 billion for traditional infrastructure and more than $4.5 trillion for “soft” or “human” infrastructure such as housing, elderly care, childcare tax credits, education, and many other spending items. While the topics included in the original $5 trillion Biden proposal are important and need attention, most of them are progressive social demands and not what Congress has always considered infrastructure. The initial proposal had significant amounts to curb climate change. It relied on massive tax increases to pay for these programs including taxes on corporations and wealthier individuals. These two proposals are a wish list of progressive demands considered urgent because of fears the Democrats will lose control of the House next year and, with it, the ability to reshape the government.
When the entire debate over an infrastructure bill started, there wasn’t any doubt about the need to upgrade the existing infrastructure. It is widely accepted by Americans that existing infrastructure is in desperate need of upgrades. While the White House’s initial proposal to fix infrastructure was extremely pricy, with two parts neither of which even contains the word infrastructure in the title, there have been months of back and forth between Congress and the President to determine whether most of the President’s proposal was for show and how much of it was realistically achievable.
The American Society of Civil Engineers released a 2021 report showing the cumulative grade for the nation’s infrastructure: “The 2021 Report Card for America’s Infrastructure found the nation’s infrastructure earns a cumulative grade of a “C-.” This is not good news, although it was expected. Pretty much every American is affected by deteriorating roads, bridges, railroads, and airports resulting in widespread public support infrastructure repairs, developments and upgrades, regardless of their political beliefs. If this report is not enough evidence, perhaps the collapse of a pedestrian bridge onto the Washington, DC, freeway, less than a mile from the U.S. Capitol, will drive the point home.
“Where there’s a will there’s a way” was what a lot of people thought when the current Administration emphatically announced that infrastructure would be a top priority. President Biden is well known for record as a political deal maker in the Senate. So far, however, the President seems to be having more success making a deal with Republicans in the Senate rather than his own party base.
The President made an interesting political play as he prepared for the NATO summit in Brussels and his meeting with President Putin in Geneva. Right before taking off for his first international trip, President Biden cut off the ongoing negotiations on infrastructure with one group of Republican Senators led by Sen. Shelley Moore Capito (R-WV). Yet, he kept one door opened by negotiating with the Problem Solvers Caucus and a small group of Republicans and Democrats in the Senate. The bipartisan group of 20 Senators – ten Democrats and ten Republicans – released a $1.249 trillion physical infrastructure proposal, of which $762 billion would be new spending above the projected baseline. The group of Republicans and Democrats in Senate, including Sens. Rob Portman (R-OH), Mitt Romney (R-UT), and Joe Manchin (D-WV), have originally proposed $900 billion over five years, including proposals that had already passed into law and were waiting in the pipeline. While everyone understood that no major decision would be announced in his absence by the bipartisan team of Senators, since his return, President Biden and his team engaged in good-faith negotiations with the bipartisan Senators and arrived at an agreement on spending.
The compromise bill includes funding for improvements to roads, bridges, transit and airports, enhanced infrastructure for broadband, water and electric vehicles. The total cost of the bill is over $1 trillion, a sum which Republicans initially rejected. After announcing the deal, the President had few walk backs and come backs on the proposal, leaving people to wonder if the President was merely agreeing with whomever he talked to last.
The problem for President Biden is that while he says he wants to find a compromise with the Republicans, the progressive wing is criticizing the White House for fear that it will abandon the more ambitious bills and “settle” for the $1.5 trillion bipartisan compromise. Sixty votes are needed to overcome a filibuster, but there is no way any of the 50 Republicans would support the larger bills and their accompanying tax increases. Accomplishing the progressive political agenda requires misusing, or some would say abusing, existing rules and traditions regarding the filibuster and budget reconciliation. Thus, the showdown between progressive Democrats and the moderates presents two dramatic options: Achieve a more modest, yet quite expensive bipartisan compromise, or abandon bipartisanship and try to pass the much larger package using procedural moves that would require partisan unanimity in both the House and Senate. The “all or nothing” partisan route is not impossible, for reasons we will explain, but the outcome is far less certain than the bipartisan compromise and risks blowing up any hope of the White House being able to work with Senate Republicans on other major legislative priorities.
It might be said that infrastructure is the Trojan Horse that is designed to allow progressive Democrats to pass most of their agenda in one fell swoop. Those demands require reversing the filibuster which requires three-fifths of the Senate, or 60 votes, to pass any significant legislation. The filibuster can serve a positive purpose by forcing political parties to compromise and thus temper the more partisan proposals coming from the House of Representatives. As long as the minority party in the Senate still has a voice by using the filibuster, it can oppose overtly partisan legislation and help shape a consensus on major issues. Republicans would state that it is not unreasonable to pursue a compromise on a legislative proposal that spends more in one bill than the United States spent in all of World War II (yes, in today’s dollars).
We have addressed the issues surrounding the filibuster extensively and raised an alarm of the consequences if the filibuster would be abolished. We have also discussed how the filibuster evolved over time and sometimes used as a political weapon rather than a procedure that could lead to bipartisanship.
As a result, many Democrats have proposed eliminating the filibuster through the so-called nuclear option – a procedural sleight of hand that allows a simple majority to change the way the rules are enforced without changing the Senate’s actual rules. To accomplish this, all 50 Democratic Senators would have to support the change and the Vice-President would be required to break the tie. Two Democratic Senators, Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), have said they will oppose any changes, foreclosing this option for now.
That leaves one other option; keep the filibuster in place, but pass the larger proposal using budget reconciliation. This complex budget procedure only requires a simple majority to pass and cannot, by law, be filibustered. The problem is that the Democrats already used this year’s budget resolution’s reconciliation instructions to pass the American Recovery Act in February – the $3 trillion legislative proposal to bring relief from the COVID pandemic. So, to create a new set of reconciliation instructions that allow the Democrats to pass a second reconciliation bill, they must first pass another budget.
Fortunately for the progressives, the new Senate Budget chair is Bernie Sanders, who thinks the large White House proposal was insufficiently ambitious. Senator Sanders will move the requisite budget proposal out of his committee, and if the Democrats can achieve unanimity on the Floor while the House passes the new budget, the progressives are back in business and have the opportunity for an up or down vote on their massive social spending program.
The progressive wing of the Democratic Party is pressing President Biden to accomplish their demands and abandon bipartisan compromise in the process. Speaker Pelosi and Majority Leader Schumer even floated the idea of passing the bipartisan proposal in tandem with everything else in the original proposal – a rather obvious non-starter from the Republicans (and some Democrats) who had just forged a compromise that did not include all of the extraneous items.
The problem with the reconciliation procedure in this context is related to a straightforward attempt to bypass the opposition of the minority party. Reconciliation is an optional feature of the congressional budget process. According to the Budget Act of 1974, Congress must adopt a concurrent resolution to establish a budget blueprint for spending and tax decisions for the entire year. This blueprint contains figures for the appropriate levels of spending, revenues and the deficit. Additionally, it may contain reconciliation instructions, which direct congressional committees to produce legislation that makes budgetary changes for the programs within their jurisdictions. So, for instance, reconciliation instructions could direct the House Ways and Means Committee and the Senate Finance Committee, which have jurisdiction over tax laws, to produce legislation decreasing the deficit by $10 billion for the upcoming fiscal year (which would mean tax increases) or increasing the deficit by $8 billion (which would mean tax cuts).
The progressive Democrats want to use reconciliation to pass their agenda for a simple reason: It bypasses the filibuster. According to the Congressional Budget Act, debate on reconciliation legislation is limited to 20 hours, so there is no way a minority can talk it to death via a filibuster, which is possible only due to the Senate’s tradition of unlimited debate. Thus, whenever a party controls both the White House and both Chambers of Congress, they often turn to reconciliation to pass partisan agenda items that the minority is unwilling to help pass. For instance, in 2017, the first year of President Donald Trump’s administration, the Republicans adopted the Tax Cuts and Jobs Act via reconciliation. In 2010, the Democrats used reconciliation as the second part of a two-bill package that they used to enact Obamacare. So, using reconciliation to pass major legislation is not abnormal – but it does require unified government where the same party controls the Presidency, the House, and the Senate. In the absence of eliminating the filibuster, adopting a “human infrastructure” spending plan via reconciliation is the only remaining legislative vehicle available.
This is where the political gambit comes into play. President Biden signaled a willingness to compromise with the GOP. But the same President cannot afford to have an entire loud caucus go against him and risk losing future votes in the Senate and maybe in the House as well. If one thinks that this entire discussion is still about infrastructure, that’s simply wrong. Today it is about infrastructure, but tomorrow or soon after, it could be about anything else. Issues like immigration reform cause deep divide between political parties, yet they require some degree of bipartisan cooperation. American society is used to debates and feisty speeches on the Senate Floor so at the end and through the political “sausage-making” process, something may or may not become a law.
It might be seen as ironic that in the biggest spending priority for his Administration thus far, the President may have to side with the Republicans against his own party base. If the President can pull that off, he may have the opportunity to pass several major compromises and even work successfully with a potential Republican House in the next Congress. However, if that gambit fails, and the progressives feel betrayed, he risks a failed presidency like that of President Jimmy Carter who vetoed more than 30 bills passed by a solidly Democratic House and Senate.
Finding a compromise, doing the very tough work of crossing the political aisle, actually sharing credit with the opposition party is completely rejected by the revolutionary nature of the progressive wing. It goes as far as to threaten their own president in his attempts to forge a compromise with the GOP. Representative Alexandria Ocasio-Cortez, preeminent messenger of the progressive wing, said it publicly “It’s very important for the president to know that House progressives and I believe the Democratic caucus is here to make sure he doesn’t fail. (…)The president shouldn’t be limited by Republicans.”
The Progressive Democrats want a showdown. Their goal is to get the President to abandon the bipartisan compromise he endorsed and pass their larger legislation without any Republican votes. It is an “all or nothing “ partisan power play that requires total war with the Republicans, setting the tone for the remainder of the Biden Presidency. Already agreeing to a compromise, there would be significant political ramifications for President Biden if he reneges on the deal.
Using the reconciliation procedure to pass the remainder of the provisions sought by the Democratic Party under the infrastructure plan undermines the Senate’s role as the “cooling saucer” as George Washington said. The Constitution expects the House to be partisan. It expects the Senate to be a consensus-builder.
Traditional infrastructure needs to be upgraded. All the other social provisions of “human” infrastructure can be discussed, debated, and considered in a transparent way. But the President should be careful not to be seen as joining the progressives and holding hostage a nation by bullying it into agreeing to demands just so they can drive to work each morning. The “all or nothing” approach will never lead to compromises but to more severe partisanship and legislative gridlock.
Mark Strand is the President of the Congressional Institute and Anca Butcaru is a Senior Advisor to the President for educational outreach and international affairs. Timothy Lang is the research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.