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For President Biden, the Democrats risk being their own worst enemy
For only the third time in the past four decades, Democrats enjoy unified control of the House of Representatives, Senate, and White House. Joe Biden was elected with a 7-million vote majority on the second-highest share of the national popular vote (51.3%) of any Democrat since Lyndon Johnson (only bested by Obama in 2008). Yet, Biden’s legislative agenda is likely to be significantly weaker than such a mandate suggests. At the core of this blockage is the upper chamber of the US legislature, the Senate. A simple reform could unlock a transformative Democratic policy agenda, but a handful of recalcitrant Democratic senators stand in the way.
On 5th January, just one day before the Capitol insurrection, Democrats gained two Senate seats in Georgia. This should have been the final piece in the puzzle of effective Democratic governance. The additions of senators Raphael Warnock and Jon Ossoff gave Democrats 50 seats in the 100-member chamber. The Vice President holds a unique constitutional role as ‘President of the Senate’, meaning that Kamala Harris provides Democrats with the extra vote they need to control the chamber.
Democratic presidents have only enjoyed unified control of Congress for four of the past forty years (1993-94 and 2009-10). Periods of unified control are often characterised by intense legislative activity. The first two years of Obama’s presidency were the most legislatively productive since the Great Society of Lyndon Johnson in the 1960s. It was during this 2009-10 period that Obama passed his landmark Affordable Care Act.
However, Biden’s legislative agenda will likely be curtailed severely by the internal rules of the Senate. Unlike the House of Representatives, the Senate operates according to the principle that debate should continue until every member has had their say. Debates require a supermajority vote (three-fifths of members) to be brought to an end, should a member wish to continue the debate. This threshold for ‘cloture’ (to close the debate) enables a minority of the Senate to filibuster bills indefinitely. Unless cloture can be reached, a vote on the substance of the legislation cannot take place, effectively killing the policy, even if a majority of the Senate wishes to pass the bill.
Barack Obama overcame the filibuster in his first term by winning, for just six months, 60 Democratic seats in the Senate. This time, Biden would need to find 10 sympathetic Republicans. Given the intensification of ideological sorting and partisan polarisation, the idea of 20% of Republican senators regularly lending their votes to support key priorities of the American centre-left is for the birds. Public health insurance, a new voting rights act, a Green New Deal, gun control, a higher minimum wage, regulation of the financial sector, campaign finance reform, and much else are effectively dead on arrival.
For those who believe that elections should have consequences, the Senate filibuster violates this core democratic principle. The filibuster is not a neutral instrument that protects 'the minority'. It introduces an immense status quo bias in the American political system. The groups in society who benefit most from the filibuster are those who do not wish to see policy change. Given the enormous social problems facing the United States, the filibuster is an instrument of perpetuating gross inequalities. It makes social democracy a near impossibility in the United States.
There is a way out of this contemptible situation. Rule changes only require a simple majority and cannot, themselves, be filibustered. The filibuster has been weakened twice in recent years. In Obama’s second term, the minority Republicans thwarted Barack Obama’s attempts to appoint members of his administration and nominate judges to the federal courts. In November 2013, Senate Democrats, who enjoyed a 55 vote majority, ended the filibuster by 52 votes, for all executive and judicial nominations, except for Supreme Court nominations. In 2017, the Republicans removed the filibuster for Supreme Court nominations, to confirm Trump’s appointee Neil Gorsuch (by 54 votes to 45).
Yet, the filibuster remains in place for most pieces of legislation. Reform of the filibuster in this session seems unlikely. Joe Biden's biggest obstacle is his Democratic senators. Several defend the legislative filibuster. These include West Virginia’s Joe Manchin, Montana’s Jon Tester, Arizona’s Krysten Sinema, and California’s Diane Feinstein. These senators argue that the filibuster encourages bipartisan legislating for the national interest, but the reality of their position is that it enables Republicans to block most forms of transformative social policy and structural reforms to the creaking institutions of American governance.
With the filibuster in place, a Biden policy agenda has two other options. The first is to pass as much of his legislative agenda through a narrow set of bills that are exempted from the filibuster. Some fiscal bills can be passed through a process called ‘reconciliation’, established by the Congressional Budget Act of 1974. Under this law, debate on certain fiscal bills is limited to twenty-four hours (rather than the usual unlimited time given to debate in the Senate). At the end of the debate period, the bill must be voted on, and it requires a simple majority for passage.
Reconciliation, however, has its limitations. The process can only be used on three bills a year: a spending bill, a revenue bill (cutting/raising taxes), and a motion to raise the debt ceiling. Besides, only certain types of fiscal bills are eligible for the reconciliation process. Perhaps most significantly, a bill under reconciliation cannot be predicted to increase the budget deficit beyond a certain ‘budget window’. A budget window cannot be any longer than 11 years, meaning that no bill passed by reconciliation can contribute to the deficit beyond a decade. In effect, this makes long-standing spending commitments, the kind needed to sustain transformative social programmes, extremely difficult.
Barring filibuster reform and reconciliation, Biden has little chance of achieving major policy change through legislation. He will be forced to turn to the powers available to the head of the executive branch. There is much that a president can achieve through his executive powers, but he is constrained to operate within existing statutory and constitutional limits. For Biden, this means that he can repeal many of Donald Trump’s most troublesome executive orders with a simple stroke of a pen. He can adjust federal regulation, use procurement, and set enforcement priorities in ways that help to make some of his policy aims more achievable. But, he cannot alone introduce major social programmes or implement the kind of profound structural change that left-of-centre Americans might wish to see. To do that, he needs Democrats in the Senate to kill the filibuster.