“And That's the Way It Is”
Walter Cronkite, the legendary anchor for CBS News, used to end his programs with that sentence. Suppose he were presented with a post-election scenario in which a newly elected Democratic president had a diminished majority in the House and the Senate evenly balanced with the Vice President casting the tie-breaker. Would he predict an era of sweeping reforms? Or would he expect halting, incremental change? You know the answer.
Joe Biden did indeed win a substantial victory in the presidential race, notwithstanding over 50 failed lawsuits by Trump, and the persistence of Trump in fostering the myth that he wow robbed. But Biden was a candidate with no coattails: Democrats actually lost several swing districts in the House, and failed to win enough to take the the Senate—until the two Georgia runoffs gave him the barest of majorities.
Biden and his party begin his term in the weakest position any Democratic president in living memory. It could only be worse if they had failed to win both Georgia runoffs.
Now, Biden and his party begin his term in the weakest position any Democratic president in living memory (I’m going back to Grover Cleveland here). It could only be worse if they had failed to win both Georgia runoffs.
Biden has a very aggressive program to both reverse Trump’s abuses and to move the country forward on a broad front, from confronting the Coronavirus to grappling with global warming, from racial to economic justice. But his ability to move that program legislatively will depend on getting Republican support. For most normal legislation and appropriations, he will have to get 60 votes to block a filibuster. That’s 10 more than his Democratic contingent. And at least a couple of Democratic senators (Joe Manchin of West Virginia and Kyrsten Sinema of Arizona) won’t necessarily back some of his more progressive initiatives. There are a four or five Republican senators who will come around on some issues, but again, not on the more progressive bills. So he’ll have trouble getting to 60 votes without significant concessions.
He does have some aces in his hand. There is what legislators call “reconciliation,” whereby a bill that is said to be making adjustments in previously authorized legislation may be passed by a simple 51 votes. So any of his proposals that are just making adjustments (even major adjustments) in existing programs can be passed without a filibuster.
The filibuster also no longer applies to presidential nominations (except for Supreme Court). Those too can be approved with 51 votes.
The majority, even a minimal one, can also change the rules at will, as the Republicans under Mitch McConnell’s leadership did repeatedly in recent years. That could include getting rid of the filibuster entirely, a step that would only come in the event of a complete Republican blockade, and would mark the end of any prospect of negotiating. The Republicans would then use other rules to immobilize the Senate. This is why it’s called the “Nuclear Option.”
And it’s not even clear that the Democrats would have the votes to abolish the filibuster: both Manchin and Sinema have declared against the idea.
Biden and his party must live with the consequences of their electoral underperformance in 2020. The most important consequence is having to make deals with Republicans.
And that’s the way it is.