In the two months since Election Night, Joe Biden has been staring at the likelihood of a stillborn presidency, his fate dependent on the mercies of Mitch McConnell, whose incentive is for Biden to fail. Now, with victories in the Georgia Senate runoffs by both Raphael Warnock and Jon Ossoff, he is staring at a prospect few people seriously considered: a Democratic-controlled Senate that can actually govern.
Biden’s majority will be historically narrow. He will not have the chance to pass the full agenda he campaigned on, let alone the agenda of his party’s progressive wing. But the difference between a one-vote majority and a one-vote minority is not trivial. It is everything. It is the difference between impotence and having a presidency. The nature of reporters and commenters on cable news and social media is to overreact to whatever most recent development is playing out on their screen. In this case, we may be under-reacting.
The most significant result of a Democratic Senate is that Biden will have the ability to seat judges. A Republican Senate could continue the judicial blockade McConnell imposed after his party won control of the Senate, preserving the swollen Republican gains he produced by filling the Obama-era vacancies he created. Now Biden will be able to swing the pendulum back, at least a bit, and probably confirm a replacement for 82-year-old Stephen Breyer.
Legislatively, Democrats will be constrained by the filibuster. The Senate’s bizarre rules allow a majority to confirm any jurist to a lifetime appointment with a bare majority, but require 60 votes to pass even basic legislation. And while a majority can eliminate the legislative filibuster, several Democratic Senators have expressed reluctance to do so, and one, West Virginia’s Joe Manchin, has adamantly insisted he won’t.
That means measures like increasing the minimum wage to $15, liberalizing immigration laws, and enacting (small-d) democratic reforms like automatic voter registration, anti-gerrymandering laws, and statehood for Washington D.C. and Puerto Rico are almost certainly off the agenda.
However, there is one off loophole in the Senate’s arcane rules that will allow Biden to pass at least one major law. Budget-related legislation can be passed with a majority, as long as it meets certain conditions — it can’t change Social Security, it cannot increase the deficit after ten years (but it can before), and it can only effect changes to taxes and spending.
That leaves a lot of room to maneuver. Democrats can use reconciliation to pass economic relief, including the $2,000 checks that proved highly popular. This will give them a chance to accelerate the economic recovery, which in turn will create conditions likely to make voters reward Democrats in the majority.
They can also enact many of Biden proposals to shore up and expand Obamacare. A budget reconciliation bill could increase subsidies for people buying insurance in the exchanges, and also create a public option. Democrats have a fair amount of consensus on these changes. They might be able to also create some form of general income support, like “baby bonds.”
Of course, since budget reconciliation rules prevent deficit spending after ten years, any permanent new spending programs will have to be financed, probably by tax increases on the rich. There’s plenty of room to hike taxes on the wealthy without causing any significant economic harm, especially after Trump dumped a trillion-dollar windfall on business owners that had no detectable effect on growth. But that doesn’t mean rich people will like it, or that Democrats will be able to automatically persuade every single member of their party in both chambers to raise taxes on the rich.
It will be a battle. Crafting (and, hopefully, passing) the Budget Reconciliation Acts of 2021 is likely to be the drama that defines Biden’s domestic legacy. (Congress usually passes one per year, and since it hasn’t passed one for the 2021 fiscal year, Democrats can potentially use this vehicle twice.)
Moderate Democrats are going to hate the idea of passing any major bill by a party line vote. They will likely try to pry at least a few Republican votes to give them cover, a process that will both consume months of time and dilute the final product, if it succeeds at all. It’s possible the spectacle of watching Republicans defend Donald Trump’s grotesque abuses of power has so estranged Mitt Romney from his party that he would break from his party and deal with Biden. (Romney had a moderate history as Massachusetts governor, after all.)
It’s also possible Lisa Murkowski would make a deal that took care of her home state. The Alaska Permanent Fund, a state-owned oil reserve that pays out annual dividends to every Alaskan, is worth about $70 billion. If Democrats wanted to pass a big green energy transition bill, they could give the state twice as much money to keep it in the ground. After Murkowski, the pickings get slim. The most probable outcome is that Biden’s agenda will come down to what all 50 Democratic Senators and 218 House members can agree on.
None of this will be easy. It will be frustrating and grueling. But control of the majority opens up possibilities for creative dealmaking and governing. It is worlds away from the grim fate of McConnell burying every Democratic bill without a vote while Biden’s presidency flounders impotently.
Before Georgia, it appeared Biden’s main achievement would consist of saving the country from a second Trump term. Now it appears he will have a real presidency.