American liberalism is in a state of high anxiety.
Democrats hold slim majorities in both houses of Congress. And the midterm elections, which typically don’t go well for the president’s party, will be upon us before long.
That means time is running short to pass one of the most sweeping and consequential political agendas in modern American history.
Approval of the $1.9 trillion economic recovery package, which delivered billions in stimulus payments and takes a big bite out of child poverty, was a major achievement.
But the left is increasingly concerned that climate change, gun control, immigration, and voting rights legislation will go nowhere in the Senate, where the filibuster effectively requires a 60-vote majority to get most substantive bills passed.
Last month, nearly 100 restive House Democrats sent an urgent letter to Senate Majority Leader Chuck Schumer, arguing that the country is facing an “existential moment” with the “very survival” of many of their constituents at stake and insisting “there is simply no avenue for bold legislation that meets the needs of everyday Americans without ending the filibuster.”
The letter writers, who included prominent progressives like Alexandria Ocasio-Cortez of New York and Ayanna Pressley of Massachusetts, may be right.
But this much is clear: There’s no discernible path, at the moment, to jettisoning the filibuster. Senator Joe Manchin, a West Virginia moderate who holds outsize power in the Democrats’ can’t-spare-a-vote majority, insists it’s a critical lifeline to the chamber’s dying tradition of bipartisanship. And he has made it clear that he will never agree to spike the rule — no matter how many times progressive colleagues plead with him or members of the press ask him about it. “Jesus Christ,” he told a group of reporters back in March. “What don’t you understand about ‘never’?”
And just as important: It’s possible that the liberal despair animating that letter to Schumer is premature — that there is, in fact, a path to substantial change. A way around the filibuster.
The signal victory of the early Biden era — passage of the economic rescue package — came by way of a parliamentary procedure known as reconciliation that allows senators to approve budget-related legislation with a simple majority.
And while conventional wisdom says many other Democratic priorities can’t qualify as budgetary matters, activists and congressional aides are quietly working on creative ways to reshape and repackage some of the party’s biggest ideas so they can pass through reconciliation.
Weeks after House Democrats sent their plea to Schumer, word leaked out that the majority leader was weighing reconciliation as a vehicle for the sort of sweeping immigration reform that has eluded Congress for decades.
Lawmakers are also discussing a reconciliation-friendly tax-and-credit scheme that would force a dramatic increase in the production of clean energy — and take the country a long way toward meeting its obligations under the Paris climate accord.
And with a little creativity, one can imagine similar legislation in the realms of election reform and gun control.
Of course, it’s possible that the ideas floated here won’t pass muster with the Senate parliamentarian, the chamber’s chief rule enforcer. And twisting enormously important legislation to fit the parameters of an obscure parliamentary maneuver is no one’s idea of good governance.
Finding a clever way to get big progressive ideas to the Senate floor won’t matter much anyway if moderate Democrats like Manchin and Kyrsten Sinema of Arizona refuse to vote for them.
But reconciliation, whatever its flaws, has to be tested and stretched and put to the highest use possible. There’s simply too much on the line.
‘It’s time to start testing those boundaries’
The Congressional Budget and Impoundment Control Act of 1974 was a power play.
Born of a tussle between lawmakers and President Nixon over who controlled the federal purse, it aimed to consolidate control on Capitol Hill.
The measure created the House and Senate Budget Committees and the Congressional Budget Office. And with reconciliation, it established a procedure for fast-tracking budget matters.
That procedure went unused for several years. But eventually, it turned into an important policy-making tool.
President Reagan’s allies in Congress used reconciliation to push through spending cuts in the 1980s. President Clinton tapped it to usher in welfare reform a decade later. And the maneuver powered the Bush tax cuts of 2001 and 2003.
More recently, the Senate used the procedure to put the finishing touches on Obamacare. And twice, Republicans tried and failed to repeal the landmark health care law via reconciliation.
In the early years, lawmakers attempted to tack all sorts of unrelated measures onto must-pass budget reconciliation bills. But the Byrd Rule, named after then-senator Robert Byrd, aimed to curb the practice — allowing senators to object to the use of reconciliation for provisions that don’t affect the budget or have a budgetary impact that is “merely incidental” to their true purpose.
With more and more of American governance hinging on the reconciliation process, the rule has bestowed immense power on the Senate parliamentarian, who decides what can and cannot be included.
In February, parliamentarian Elizabeth MacDonough dealt liberals a sharp blow when she ruled that a $15 minimum wage had to be excised from the stimulus package because it was moving via reconciliation. But in April, she handed Democrats a key victory when she found that Democrats could make use of reconciliation more than once this year.
Progressives are determined to take advantage.
With bipartisan negotiations over a comprehensive measure to legalize millions of undocumented immigrants stalled, activists and Democratic congressional aides are busy preparing arguments for why the reform meets the criteria set forth by the Byrd Rule.
Researchers have dug up precedents, among them inclusion of an immigration reform measure in a 2005 budget reconciliation package. And they are adding up the budgetary effects of such reforms, which will amount to billions of dollars.
Whether the parliamentarian will consider those budget impacts “merely incidental” to the immigration overhaul is an open question.
But Schumer, as The New York Times recently reported, has privately told members of the Congressional Hispanic Caucus that he is “actively exploring” whether he can attach immigration reform to President Biden’s infrastructure package and get it passed through reconciliation.
Another candidate for reconciliation is the so-called clean energy standard.
Such a law would require utilities to ramp up their share of wind, solar, and other carbon-free power until they reach 100 percent clean energy — by 2035, under the most aggressive proposals.
Thirty states have some version of the policy on the books already. But some are more ambitious than others. And going national could have a transformative impact.
Cleaning up the electricity sector would wipe out one-quarter of US greenhouse gas emissions. And if the country electrifies as many of its cars and heating systems as possible — and hooks them up to clean power — it could get to 70 to 80 percent reductions economy wide.
Etching that sort of sweeping policy into law could also convince the rest of the world that the United States, which has vacillated between climate engagement and climate denial, is serious about reducing emissions — putting new pressure on other big polluters to step up.
“This is a huge pathway for progress on the climate problem,” says Leah Stokes, a political science professor at the University of California, Santa Barbara, who studies energy and environmental politics.
Earlier this year, Stokes co-authored a report detailing how Democrats could pass a clean energy standard using reconciliation.
There are several options. Under her favorite proposal, the government would establish escalating clean energy targets for utilities. Companies that meet those targets would get government funding to help defray the costs of the transition — retiring dirty plants, building clean ones, and lowering customers’ electricity bills. And those that don’t meet the targets would face financial penalties.
“There’s a really large carrot available for utilities doing the right thing,” she says. “There’s a potential stick for utilities not doing the right thing.” And because the program has such clear budgetary impacts, Stokes argues, it could fit into the reconciliation rules.
Whether a clean energy standard will ultimately make it into a reconciliation package is unclear; climate politics are as hard as ever. But lawmakers are weighing various possibilities now.
And veterans of Washington’s budget wars say the idea has a real shot if it gets to the Senate parliamentarian.
Zach Moller, a former Democratic staffer on the Senate Budget Committee who now works for the center-left think tank Third Way, says a pure regulatory play — a bill that says utilities have to cut back on emissions or face legal consequences — won’t fly. But “by saying there’s tax or a subsidy that goes along with it, you’ve redesigned the policy to make it budget reconciliation friendly.” The various proposals, he says, are “very plausible.”
Bill Hoagland, a former Republican Senate budget staffer who had a hand in nearly every reconciliation bill the chamber ever passed, agrees that a tax-focused clean energy standard could meet with the parliamentarian’s approval.
The main question, says Hoagland, now a senior vice president with the Bipartisan Policy Center, is whether the regulatory elements of the clean energy standard — as opposed to the clearly fiscal ones — would be acceptable. But there is reason to believe they would. The Byrd Rule allows for provisions establishing the “terms and conditions” of spending.
If a system of financial rewards and penalties could work to curb greenhouse gas emissions, why stop there? What about a carrot-and-stick regime designed to, say, ratchet down the production of assault weapons?
I spoke with Adam Skaggs, chief counsel and policy director for the Giffords Law Center to Prevent Gun Violence, the group founded by former Arizona representative Gabrielle Giffords, who was shot a decade ago.
He says the gun control movement, like so many others, is taking a hard look at the reconciliation process.
“Clearly, there are limits to what can be done,” he says. But Democrats haven’t even come close to comprehensively testing them, he says. “So I think, in light of the obstruction on this issue, and frankly so many others, by the Republican minority and the Republican leadership, it’s time to start testing those boundaries in a much more strategic, comprehensive, robust manner.”
Skaggs points out that Congress once withheld highway funds from states that refused to raise the drinking age to 21. He said he could imagine a similar effort on guns. Lawmakers could leverage, say, federal funding for local law enforcement to push states into raising the age for assault weapon purchases or requiring background checks for private gun sales.
The most successful gun control regime in the nation’s history, arguably, is one that tightly regulates machine guns and short-barreled rifles and shotguns and imposes a $200 tax on transfers of the weapons.
Advocates have long called on Congress to expand that regime to include semi-automatic assault weapons. But, Skaggs says, perhaps financial incentives could be used to get more states to take up the cause.
No doubt some states would resist these inducements, even with substantial federal dollars at play. But others, Skaggs says, could be nudged.
Partial victories in other realms may be possible, too. Much of the Democrats’ sweeping voter rights bill, known as HR 1, cannot be passed through reconciliation. But some of it has potential. One provision calls for a federal match of small-dollar campaign donations, in a bid to curb the influence of big money in politics. And another forbids the use of taxpayer dollars to settle sexual harassment or discrimination suits against members of Congress.
There are ways to financialize other elements of the bill, too. How about a small tax cut for registering to vote? Or federal incentives for states to set up nonpartisan redistricting commissions aimed at stamping out gerrymandering?
Would the Senate parliamentarian reject these proposals? Maybe.
But there’s only one way to find out.
If this attempt to stretch the bounds of budget reconciliation fails, some of the nation’s most vital work will be delayed. And that would be a bad outcome.
But long term, it could provoke an important reckoning.
In recent years, reconciliation has served as a sort of release valve in American politics. It’s been a way to get at least some big things done — tax cuts, stimulus spending — even as partisans have weaponized the filibuster to block progress in other areas.
But for an increasingly ideological Democratic Party, staring down increasingly urgent problems of climate change and gun violence, that release is proving less and less satisfactory.
And if reconciliation ultimately fails to deliver on those big issues, the pressure to get rid of the filibuster — and allow for a true majority-rules Senate — will be immense.
Immense enough to change the minds of Joe Manchin and other Democratic holdouts? Probably not.
But someday, when the Democrats get to 53 or 55 senators, some of them younger and more impatient for change, the filibuster will break.
And then, finally, some of the generational causes that have languished for so long may finally have their day.