There was a time a few months ago when much of the talk in Washington was about the breakneck speed with which the Democratic Congress was dealing with President Joe Biden’s legislative agenda. As spring begins to yield to summer, such talk has been replaced with headlines like this one from Politico: “Dems sweating a pileup of big votes on Biden’s agenda.”
Yes, Biden and company can take great pride in the size, scope, and partisan unity underlying the COVID-19 relief and stimulus package he signed on March 11. But moving progressive legislation outside the justification offered by the pandemic and its economic fallout has been predictably difficult. Biden and key centrist Senate Democrats hope to enact at least part of the administration’s agenda via bipartisan negotiation and “regular order” (i.e., not budget reconciliation, which allowed them to pass the stimulus package without fears of a Republican filibuster). This has introduced a set of interlocking strategic issues that must be resolved before Congress can get moving again.
Here are the roadblocks congressional Democrats are facing, and the likeliest timeline for enacting their ambitious agenda.
Democrats’ priorities keep expanding.
Biden put forth two massive spending proposals this spring: the American Jobs Plan, which focuses on infrastructure, and the American Families Plan, which aims to expand access to education, improving access to child care, and reduce child poverty.
But recent events have made several other legislative initiatives top priorities for most Democrats. For instance, lawmakers hoped to seize on momentum from the Derek Chauvin verdict to enact police reform, and Biden indicated that he wanted a bipartisan deal by May 25 anniversary of George Floyd’s murder. (Obviously, they missed that deadline, and the two two parties remain divided over Democratic demands to remove “qualified immunity” for police officers.) The state-level Republican drive to restrict voting opportunities in the wake of Donald Trump’s effort to overturn the 2020 election results has made federal voting rights a more pressing concern. And there’s the messy fight over Democratic proposals to create, and Republican efforts to evade, a formal commission to investigate the January 6 Capitol riot.
There’s also renewed interest in addressing several perennial issues. A spate of high-profile mass shootings this year increased pressure for bipartisan gun safety legislation. And 2020 Democratic losses among Latino voters have fed demands that comprehensive immigration reform measures.
Meanwhile, there is one complicated legislative package with interest in both parties, which is likely to see action as it is a signature initiative for Senate Majority Leader Chuck Schumer: the Endless Frontier Act, a bundle of science and technology investments and provisions aimed at countering China’s economic challenge.
Figuring out what to move when, and in what legislative form, has enormously complicated the congressional agenda for Biden and Democrats as the year has proceeded.
Reconciliation may be used twice more this year — but for what?
It was exciting news for Democrats in early April when Senate parliamentarian Elizabeth MacDonough agreed with Schumer’s suggestion that a revised budget resolution could trigger a second budget reconciliation bill in any given fiscal year. That opened the prospect of at least two more reconciliation bills in calendar year 2021 (a second FY 2021 bill, and a first FY 2022 bill) that could evade a Senate filibuster.
These reconciliation bills remain subject to various limitations, like the Byrd Rule “germaneness” requirement, and any second FY 2021 reconciliation bill must be completed by September 30. Plus, the parliamentarian is likely to rule that immigration, gun, and voting-rights legislation is ineligible (just as a $15 minimum wage was struck from the COVID-19 bill).
But otherwise, the composition of any reconciliation bill is entirely flexible. So, for example, it’s possible that both the American Jobs Plan and the American Families Plan could be part of one massive bill, along with tax offsets. Or they could be broken into two bills that will equally benefit from a filibuster exemption and pass with 50 Senate votes. Democrats have yet to decide how they’ll proceed.
Bipartisan “infrastructure” negotiations are off and on.
There has been bipartisan interest in an infrastructure bill dating back to the Trump administration, though the Biden administration seems to be more serious about its effort to reach a deal based at least loosely on its $2.25 trillion American Jobs Plan. A segment of the infrastructure agenda looks well on its way to enactment via regular order, in the form of a five-year, $300 billion highway-reauthorization bill that was recently agreed to by key Democrats and Republicans on the Senate Environment and Public Works Committee. Beyond that, the two parties are far apart on the scope and price tag for an infrastructure package, and for the revenue offsets necessary to pay for it.
Biden had set a tentative Memorial Day (May 31) deadline for reaching an infrastructure deal with Republicans. It’s not looking good at all. Part of the problem is that Republicans know any elements of the American Jobs Plan not included in a bipartisan bill can be moved separately in a reconciliation bill, over which they will have no control. So they are likely trying to secure agreements barring subsequent provisions along with a major paring-back of Biden’s economic proposals, particularly those involving climate change, wages, collective bargaining, and other items that don’t involve bricks and mortar.
The Manchin problem.
It’s not just Biden’s campaign talk about bipartisanship — or the support poll respondents show for cooperation across party lines even as more and more of them vote straight tickets — that is forcing negotiations before Democrats move on to the inevitable second and third reconciliation bills. Using reconciliation requires Democratic solidarity (or less plausibly, Republican defections), and certain “centrist” Democratic senators — notably West Virginia’s Joe Manchin — are insisting that maximum efforts be made to involve Republicans in the crafting of legislation wherever it is possible.
It is unclear at this stage how many concessions to Republicans Manchin will demand, and whether if they are unsuccessful he will support reconciliation as he did with the COVID-19 bill. But it appears Manchin wants to give negotiators plenty of time, and that’s slowing down the entire process.
The debt-ceiling cliff is back.
Aside from the self-imposed deadlines set by the White House and congressional leaders, there is one objective-reality deadline: the imminent breaching of the public-debt limit. If you haven’t heard about the debt limit in a while, it’s because it was suspended in the Bipartisan Budget Act enacted in August of 2019, which successfully put off the traditional crisis over debt-limit increases for the remainder of the Trump administration. On July 31, the suspension ends, and getting the votes to extend or to increase the limit won’t be easy, as the Washington Post explains:
The suspension of the debt limit ends after July 31, and Congress will need to either raise it or suspend it again around that time to prevent the nation from defaulting on its debt. Doing so triggered some of the most bitter fights in the Obama administration between the former president and congressional Republicans, and GOP lawmakers are signaling similar warfare in the coming months.
“It normally takes some concession for any administration to get the debt-limit increase,” warned Sen. Roy Blunt (Mo.), a member of the Senate GOP leadership. “I don’t know what that looks like yet, but I don’t think you’ll get a debt limit without working with our side on some things we’d like to see.”
The Post’s reference to the Obama administration is instructive: Voting against a debt limit increase would be an almost perfect opportunity for Republicans to symbolically express their return to fiscal hawkishness now that their free-spending 45th president is no longer in office. But there are two factors that could decisively limit Republican leverage on this subject. First, the Treasury Department has in its arsenal a variety of “temporary measures” to finance debt and avoid breaching the limit, which has the effect of postponing any debt limit “cliff” for several months. And second, a debt limit increase (or even the more radical approach of abolishing the debate limit altogether) can be included in a reconciliation bill, and Democrats do plan to have another one this summer or at the latest this fall.
Still, wrangling over the debt limit will absorb time and energy, while augmenting Republican messaging about the “radical socialist Democrat agenda,” allowing the GOP to score points about Biden initiatives in the aggregate that they cannot score on individually popular items.
And don’t forget the fiscal-year cliff.
Fiscal Year 2021 ends on September 30. While this year’s big legislative fights are over mandatory spending and taxes rather than discretionary spending, there are a number of emergency-assistance provisions set out in the last two COVID-19 relief and stimulus bills that run out just before or on that deadline. And appropriations do have to be renewed by September 30, with or without the usual expedient of temporary “continuing resolutions” that give negotiators more time to reach agreement. These deadlines do create pressure points that Republicans might exploit, or that give them leverage in broader negotiations.
The limitations of election-year psychology.
It is part of Washington lore than nothing significant gets done in even years because of election-year pressures, and the extremely narrow margin of Democratic control in both chambers could lead vulnerable Democrats to resist another big reconciliation bill next year. By the same token, however, the strong odds of a Republican midterm takeover of the House (and possibly the Senate as well) could spur Biden and the Democratic congressional leadership to get as much of their agenda done as quickly as possible.
It’s also far from certain that Democratic unity across ideological and regional lines will be sustainable. There are constant potential fault lines in the details of the tax legislation that will be needed to finance Biden’s “plans” (e.g., over the restored SALT deductions that well-placed lawmakers representing upper-income citizens in high-tax states are insisting on). And Biden’s apparent unwillingness to go as far as progressives would like on health care policy (particularly a “public option” within Obamacare) and climate change could be problematic.
The bottom line.
Any precise timetable for legislative activity in 2021 is impossible to lay out at the moment. A lot will depend on how much time Democrats devote to bipartisan negotiations that may or may not produce actual legislation. But once they give a green light to one or more reconciliation bills, things can move pretty quickly, as the COVID-19 relief and stimulus legislation showed: Congress passed the first FY 2021 budget resolution on March 8, and then the subsequent reconciliation bill in just over a month.
So if Democrats decide to load the American Jobs Plan and the American Family Plan into one giant reconciliation bill, they could start and finish the process this summer, and then decide what to throw into a third reconciliation bill before buckling down for the midterm election stretch drive. Alternatively, Democrats would likely need to pass two reconciliation bills by the end of the year. In either event, that would require avoiding a debt limit or year-end appropriations crisis, and spending a minimum amount of time on non-reconciliation matters (e.g., immigration, guns, and election reform). This will be tricky given the important constituencies invested in these measures, and unpredictable factors like how many delays Manchin demands to give Republicans a chance to cooperate.
Biden has already accomplished a lot, and Democrats have been more unified than anyone had reason to expect. But audacious plans loudly announced, and potentially a short window of Democratic control, mean that expectations will remain high throughout this fateful year. This may be a relaxed and celebratory summer for Americans as a whole, but their representatives in Washington will have to fully earn their pay.