The passage — with the Vice President’s tie-breaker — of the $1.9 trillion pandemic relief bill in the Senate is cause for some celebration among the Democrats. Its final passage in the House on Tuesday is also likely; the President will sign it shortly thereafter. It is a remarkably sweeping assertion of the liberal faith that when things get tough we need and expect the national government to actively channel resources to those in need.
Biden’s two most recent Democratic predecessors (Obama and Clinton) both started with much bigger majorities in Congress (Obama had 60 votes in the Senate until Ted Kennedy died and was replaced by a Republican), but proceeded much more cautiously. Obama kept his recession relief bill under $1 trillion in vain hopes of attracting Republican support, and bargained for months with Chuck Grassley on health care reform, again in the empty hope for GOP votes. Clinton, similarly, tried to draw in Republican support for his health care reform, but ultimately failed.
If Biden wants to continue his bold beginning by enacting more audaciously progressive legislation, he will, sooner rather than later, have to use his precarious majority to abolish the filibuster.
Biden, while saying he was open to bipartisanship, has also made it clear that he wanted to move quickly, and he has certainly done that in this case. Here he took his cue from Lyndon Johnson, who plowed full-steam ahead for civil rights legislation after he succeeded John F. Kennedy. He famously told his cautious advisers, “Well, what the Hell’s the presidency for?” But Johnson, too, had a stronger position in Congress than Biden did, even before the Democratic sweep of 1964 really put him in the driver’s seat.
George W. Bush actually provides a model for making bold moves from a weak position. After the disputed presidential election of 2000, in which he lost the popular vote and had to receive the presidency from the 5-4 Supreme Court, Bush refused to acknowledge that he had no mandate, and instead pushed ahead with a boldly conservative agenda even before the attacks of 9/11 put him in a much stronger position.
But the covid relief bill could get through the Senate only because it could fit into the peculiar rules of “reconciliation,” meaning that its provisions had to have clear budgetary implications. Much of the rest of his legislative program won’t fit that mold, and will thus be subject to being blocked by the threat of a filibuster. Under current Senate rules, most legislation can be delayed and effectively blocked unless 60 votes can be found to shut off debate. Exceptions enacted under the preceding Republican majority allow presidential appointments to pass by a simple majority. That includes all judicial nominations except the Supreme Court.
Biden might be able to get an infrastructure bill through under reconciliation, but that’s the sort of issue where he could also draw in ten Republican votes with properly tailored projects. The Democrats may be able to get 60 votes to raise the minimum wage by settling for less than $15, and/or lengthening the phase-in (remember that at least two of their own members oppose $15).
But other major priorities stand no chance of getting 60 votes. Two of the most prominent are immigration reform and electoral reform. Both projects seek to move in directions that are anathema to almost all Republicans. And then there is the Supreme Court. After Republicans muscled three Trump appointees onto the Court, Biden will almost certainly have one Justice to replace this year (Breyer), and will not want his nomination blocked by a filibuster.
Thus if Biden wants to continue his bold beginning by enacting more audaciously progressive legislation, he will, sooner rather than later, have to use his precarious majority to abolish the filibuster. The catch is that first he’ll have to get Joe Manchin and Kyrsten Sinema on board, since both have said they oppose getting rid of it. I suspect the key to that will be having the Republicans block something that Manchin and Sinema really want.
Failing that, Biden’s legislative accomplishments could well stop with the Pandemic Relief bill.