Biden’s Legislative Strategies
President-elect Biden has recently unveiled a $1.9 trillion legislative proposal designed to combat the spread of the coronavirus pandemic and address the economic damage to the nation caused by the pandemic. Included within this proposal will be $400 billion to directly fight the pandemic and another $160 billion to fund the nation’s vaccination program; $350 billion to help state and local governments carry on their operations; $170 billion to enable schools to reconfigure their operations; $30 billion to aid Americans facing the loss of their homes; and funding to help the nation’s citizens subsist through the pandemic in the form of $1,400 economic stimulus checks for individuals and $400/week federal unemployment subsidies. Also included in this proposal is a provision to raise the federal minimum wage to $15.00/hour as well as a moratorium on evictions and mortgage foreclosures through the end of September.
The foregoing is just the first of two pieces of major legislation that the Biden administration plans to submit to the Congress. There will be a second proposal facilitating improvements to the nation’s infrastructure and creating new jobs for Americans replacing those lost to the pandemic, globalization and technology. On top of this, there is an acute need to revise the federal tax code and to address climate change, racial injustice, income and wealth inequality, immigration reform, voter suppression and gerrymandering and reorganization and expansion of the nation’s healthcare programs. The question confronting the Biden administration is how can it overcome the gridlock that has become the hallmark of our federal government.
Strategy A (Coalition Building)
In promoting all these programs, President-elect Biden is looking to build bi-partisan coalitions within both the House and the Senate. I say “hoping” because I’ve yet to hear just how he plans to put these coalitions together. He’s obviously aware of how Mitch McConnell sabotaged President Obama’s legislative agenda even when the Democrats held 59 Senate seats, forcing the Obama administration to rely almost exclusively on executive actions to get anything done. From McConnell’s perspective, obstructionism was clearly a productive strategy as it enabled the Republicans to regain control of the House of Representatives in 2014 and the White House and both Houses of Congress in the 2016 election.
The process of forming bi-partisan coalitions in the Senate is likely to be made even more difficult by the recently adopted Article of Impeachment aimed at preventing Trump from holding political office and depriving him of post-presidential benefits. Having to cast a vote in Trump’s second impeachment proceeding will sure enflame the bitter partisanship that was recently in evidence when the Congress was called upon to perform the normally routine function of accepting the votes of the Electoral College. Even if the Senate quickly disposes of the House’s latest Article of Impeachment, it remains likely that the Department of Justice will try to hold Trump (and possibly other Republican legislators as well) responsible for inciting insurrection and obstructing justice. With the Republican base still adhering to the belief that Biden won the presidential election through voter fraud, it seems highly unlikely that any Republican senators will be inclined to join a Biden legislative coalition.
In mid-October Harry Reid, the retired Senate Majority Leader, warned Biden to give the Republicans no more than three weeks to demonstrate their willingness to cooperate with his legislative agenda. Should they failed to do so, he counseled Biden to immediately abolish the filibuster rule and use his majority position in the Senate to push through his legislative proposals. That may have been sound advice in October when the polls were indicating that the Democrats were on their way to securing at least 53 Senate seats. With a 50-50 split in the Senate and Senator Manchin having already expressed his unwillingness to support a repeal of the filibuster rule, that approach is likely to be dead on arrival.
Wall Street also doesn’t hold out much hope that Biden will be successful in forming legislative coalitions. On the day before Biden announced his latest proposal the stock market closed unchanged even though the pandemic was surging at levels not seen before and unemployment was again on the rise. Stock analysts explained that the market felt that these adverse developments would cause the incoming Biden administration to propose economic stimulus legislation that would move stock prices higher. Yet, the morning after Biden announced his plan, the market went down assessing that his proposal was much too ambitious to even have a chance of attracting Republican votes.
Strategy B (The Reconciliation Process)
Progressive Democrats, like Reid, think that Republican cooperation died long ago and that the current unwillingness of most Republican legislators to even acknowledge Biden’s election is strong evidence that it will not be resurrected any time soon. They think that the only way to get any legislation passed will be a straight partisan vote utilizing the “reconciliation process” (more fully described below). That process was created in reaction to the filibuster rule which requires the affirmative vote of 60 senators just to allow consideration of a bill. The filibuster rule was successfully employed over the years (principally by southern senators) to block civil rights legislation. While that tactic was generally tolerated when the legislation being blocked dealt with civil rights, it stirred overwhelming opposition when the subject of the legislation involved fiscal issues. In frustration, the Congress enacted the Congressional Budget Act of 1974 which created the reconciliation process as an exception to the filibuster rule enabling certain limited types of legislation to be adopted in the Senate by a simple majority vote.
There are, however, strict limits on the use of the reconciliation process. It can only be utilized with respect to legislation that relates to government spending, taxation or the federal debt limit and only once per year for each of these three classes of bills. This means that It’s theoretically possible for the reconciliation process to be used up to three times in a single year; however, as most legislation that goes through the reconciliation process involves all three of these categories, reconciliation is rarely employed more than once a year. Naturally, once the reconciliation process was created it didn’t take long for a party in power with less than a filibuster-proof majority in the Senate, to begin attaching pet legislative proposals to bills that could be passed using the process. That practice was limited in 1985 when the Congress enacted an amendment to the Congressional Budget Act (commonly referred to as the “Byrd Rule” named after the West Virginia Senator who had proposed it). That rule precludes attaching legislative proposals that do not directly impact the federal budget. Thus, while many of the items contained in Biden’s recent proposal can be enacted through the reconciliation process, many of them (like the minimum wage provision and the moratorium on evictions and foreclosures) cannot.
Reconciliation, as its name implies, is a special process for reaching an agreement between the two chambers of the Congress, a process which is both complicated and time-consuming. It begins (usually at the outset of a calendar year) with the president’s submission of a budget proposal to the Congress. Then, each chamber of the Congress must pass a budget (not necessarily the one submitted by the president) and the two are then reconciled into a single budget in a conference involving a small contingent of House and Senate members selected by the leaders of the two chambers. The reconciled budget must then be passed by both chambers. Once the budgetary framework is approved, both chambers of the Congress, working individually, then seek to debate and draft the actual contents of the legislation. During these debates extraneous provisions outlawed by the Byrd Rule get stripped out of the legislation. Since both chambers of the Congress must pass the same legislation, the competing bills produced by the House and the Senate will again go through the conference process and the resulting legislation must again be passed in both chambers by simple majorities before being presented for signing by the President.
While the reconciliation process does enable a president to enact legislation by a simple majority vote, the nature of the process and the rules governing that process make it of limited value when the president has a legislative agenda of the breadth and fiscal magnitude of the in-coming Biden administration’s. This will place a burden on the President-elect to carefully decide which features of his legislative agenda will be handled via the reconciliation process and which must be addressed by other means.
Strategy C (a Congressional End-Run)
Although the reconciliation process can enable the Biden administration to achieve a a portion of its legislative goals, the reality is that much of what the President-elect would like to accomplish cannot be attained through that process. This is a problem because ever since Newt Gingrich became the Speaker of the House in 1994, Republicans have strived to undermine the legislative proposals of Democratic administrations. We saw this principle in action in 2009 when Republicans refused to support the Obama administration’s efforts to save the auto industry and restart the nation’s economy after it had come to a halt following the collapse of the nation’s financial sector in the fall of 2008. That opposition forced the Obama administration to enact stimulus legislation that was inadequate for the circumstances. Thereafter, Republicans cited the resulting slow economic recovery as being evidence of the “failed policies of the Democratic Party.” Mitch McConnell has been carrying on this tradition since he became the Senate Majority Leader in 2014 and has clearly mastered the art of legislative sabotage. During the last Congress over 200 bills passed by the Democratic controlled House were not even brought up for consideration in the Senate.
Faced with this problem President Obama was forced to rely heavily on executive orders and regulations adopted by the federal government’s administrative agencies to achieve much of his agenda. Even those efforts we not particularly effective as Republicans invariably challenged them in the courts. In fact, they are still challenging the constitutionality of the Affordable Care Act (dubbed “Obamacare” by Republicans). Such court challenges are likely to be particularly problematic for the Biden administration since over 200 of the 870 judges in the federal judicial system were recently appointed by the Trump administration. Even when such challenges prove to be unsuccessful, they nevertheless will likely delay the implementation of the subject order or regulation for several years and possibly beyond 2024 when they will be subject to rescission by a new administration.
Thus, if the President-elect hopes to bring into being even a small portion of his agenda he will need an entirely new legislative strategy. It’s not that the President-elect will be trying to enact legislation that is detrimental to the country or, for the most part, detrimental to the vast majority of the base of the Republican Party. In fact, virtually everything he will be trying to accomplish will unquestionably help working-class Americans of both political persuasions, including some of those composing the Republican Party’s donor base. The problem, in a nutshell, is that Congressional Republicans are steadfast in their opposition to any legislative achievements by a Democratic administration. That’s because in the ensuing elections they would like to be able to contend that the Democrats achieved little or nothing while they held the reins of government.
Republican obsession with opposing Democratic achievements even drives them to vilify those Democratic achievements which their own political base finds to their liking. For example, for six years Republicans railed against the Affordable Care Act and promised to repeal it. They didn’t bother to mention to their constituents that the entire structure of that act had been designed by their own Heritage Foundation and had been road tested by Mitt Romney, their 2012 presidential nominee, when he had served as the Governor of Massachusetts. Despite all of their years of protestations (which included roughly 60 attempts to repeal the act when they controlled the House of Representatives), they were not even able to do so in 2017 when they controlled the White House and both Houses of Congress.
In short, it’s not the substance of Democratic legislative proposals that Republicans object to. It’s the fact that they are proposals of the Democratic Party and, therefore, they must be opposed with all available means. This, in large measure, explains why in recent years the only bipartisan legislation proposed during a Democratic administration that has been adopted by the U.S. Congress (without benefit of the reconciliation process) originated in the Congress (as opposed to the White House) and was fashioned by a small group of legislators who were willing to work with members of the opposing party. I say “a small group” because quite frankly today there are very few Republicans willing to cross the aisles of Congress out of fear that their cooperation with Democrats will cause them to be faced with a primary challenge when they next run for re-election. Even the economic rescue legislation that the Congress passed last month was born out of such a process because Congressional Republicans couldn’t bring themselves to accept the idea of enacting legislation that had originated in the Democratic controlled House of Representatives.
All this doesn’t necessarily mean that the Biden administration will have to abdicate its efforts to promote legislative action. There is another way of promoting legislation which will not necessarily carry the stigma of being a partisan Democratic proposal. That path involves working with the nation’s governors, both Democratic and Republican. Unlike their fellow party members in the Congress, governors have real personal responsibility for improving the lives of the citizens of their states, and they need the assistance of the federal government to help them do many of the things they want to achieve. For this reason, they are natural allies of the administration. All governors fully appreciate the need for financial aid to state and local governments and better healthcare for their citizens. They also appreciate the importance of rebuilding the nation’s infrastructure, creating jobs, maintaining a healthy environment and even the need for reforms in the criminal justice system and modest restrictions on firearms.
The Biden administration therefore should convene regular conferences with the nation’s governors and work with them to come up with federal legislative proposals which could be presented to the Congress with their imprimatur. Then, faced with a proposed bill championed by their own state’s governor, Republican senators and House members might be hard-pressed to characterize it as just another left-wing extremist proposal leading down the path to socialism. While this approach will not likely prove helpful in achieving election or immigration reform, it can be useful in enacting significant portions of the Biden administration’s legislative agenda that cannot be accommodated through coalition building, the reconciliation process or executive action.