President Biden's American Rescue Plan has nearly worked its way through Congress and will reportedly be signed by the end of the week. It's a big, important bill, but according to Biden's 2020 campaign, just the start of what he wants to accomplish.
Attention now turns to the next possible round of legislation, which is expected to be an infrastructure package. American streets, bridges, buildings, and rail lines need a lot of maintenance and repairs after a decade of austerity, and we badly need huge infrastructure upgrades to slash carbon emissions and to protect key systems like the electrical grid against weather disasters.
Senator Joe Manchin (D-W.Va.) would be one of a handful of swing votes in the Senate to decide whether this legislation has any chance at all. In a recent interview with Axios, he said he was in favor of a major bill — but only if Republicans are included in the process. He said he would consider a bill costing up to $4 trillion over four years, but wants to hike taxes on the rich to pay for it. He apparently thinks he really could get Republican votes for this.
The crucial background here is that while Democrats control the Senate with 50 votes plus Vice President Harris to break ties, current Senate rules of course allow the minority to filibuster most legislation, raising the requirement for passing normal laws to 60 votes. Worse, a filibuster can be carried out effortlessly — requiring just one Senate staffer to respond to a single email. (This modern one-click filibuster that applies to virtually all legislation was basically made up by Mitch McConnell in 2007.) Democrats can and should abolish the filibuster with 51 votes, but Manchin and other moderates refuse to support this.
Currently the main route around the filibuster is the reconciliation process, which Democrats just used for the pandemic relief package. Now, it would be theoretically possible to do an infrastructure bill through reconciliation, but for a great many reasons, it would be highly sub-optimal. The arcane reconciliation rules mean the majority gets at most three tries each year, so an infrastructure bill would eat up one of those. The rules have already been bent beyond recognition compared to their original intent, but the Senate parliamentarian still can throw out individual items if she decides they don't meet the vague and arbitrary standard. (Vice President Harris could overrule the parliamentarian but so far the White House has declined to exercise that authority.)
Finally, filling out all the necessary paperwork to fulfill the reconciliation requirements, and then going through the process — which includes a "vote-a-rama" in the Senate in which any senator can suggest amendments to gum up the process — takes weeks or months. And with an infrastructure package, it will be much harder to keep party discipline on what can be included. At best it will take months of negotiation and squabbling to pass a bill that is less effective than it could be, and at worst the attempt will get so tangled up that nothing will happen. (Manchin also says he won't support using reconciliation for infrastructure, but he might be bluffing.)
It's all so incredibly pointless, if your goal is actual effective governance. This process bears no resemblance whatsoever to how the Senate was designed to work in the Constitution, or how any constitutional framers in any country have ever designed a legislature (including occupying U.S. forces in Japan and Germany after the Second World War).
So when Manchin suggests that 10 Republican senate votes will be forthcoming for a gigantic public works program (something they hate) so long as we include stiff tax hikes on the rich (something they hate even more) to offset the new spending, I simply can't believe he really thinks that. Not a single Republican voted for a pandemic relief package that was broadly similar to the legislation many of them did vote for repeatedly last year. There is absolutely no chance they will support a bunch of public goodies that would powerfully help the political fortunes of a Democratic president.
In a recent profile, former vice chair of the West Virginia Democratic Party Christopher J. Regan suggests that Manchin has little consistent ideology on political economy, tending instead to shift with the political winds in West Virginia. But he does seemingly have firm beliefs on procedure — in particular, his "confidence in his ability to build consensus and master the process of politics is extraordinary." My best guess is that he vaguely pines for the old mid-20th century days when polarization was not so extreme, and bipartisanship was the general rule for most legislation — thus this mania for getting Republicans involved.
At the risk of being preposterously naive, let me suggest a way to do what Manchin says he wants — by amending the filibuster to force Republicans to have a real honest-to-goodness debate on legislation, like the Senate of old. Again, one of the most marked features of the one-click filibuster today is that it stops the Senate from debating, compromising, or indeed doing much of anything. When a minority of 41 votes can bottle up almost any legislation, there is no point to any of that. (Manchin has seemingly suggested he's open to the principle of forcing Republicans to put up 41 votes on the floor, but never explicitly.) If Manchin (and Arizona Sen. Krysten Sinema) want to include Republicans in the process and allow them a chance at real input — fine! Make them rationally argue their position, in the spirit of democratic deliberation and public reason.
This genuinely used to happen in the Senate back in the day. Senators were infamous for blathering on at each other for hours or even days, trying to defend their position or attack their opponents. (It's one reason why the Senate became known as the "world's greatest deliberative body," a bit of hyperbole that curdled into a bleak joke decades ago.) The arguments were often disingenuous, but it was thought important to make them as plausible as possible, and politics was more honest for it.
One could set this up in many ways, but the general idea would be to get rid of the one-click filibuster and force the minority to work hard to block a vote, including participating in a more structured debate. As I've previously argued, changing the Senate rules to require 41 senators to be present around the clock on the Senate floor to block a bill would make it very burdensome to conduct a filibuster. To that we could add a debate block of time in which (let's say) at least 80 senators must be present, and each side would nominate one or two champions to go back and forth twice — one for and one against the question, and then one reply each. Better still, we could make this debate a capstone on the reformed filibuster process. Once it's done, the Senate gets a day to think the legislation over, and then it's a final up-or-down vote requiring a simple majority.
Now, the Senate does currently have a procedure for debate, but it has become basically fake. With rare exceptions, "debate" is merely a way to eat up floor time in which senators take turns talking into a chamber that is empty except for a few clerks and the C-SPAN cameras, and where speeches are just (excruciatingly lame) attempts to get on the news or go viral online.
A forced discussion would not change the broader political developments that have moved political argument out of Congress. There is no chance such a debate would produce a worthy successor to Daniel Webster's Second Reply to Hayne. But a high-pressure final debate where almost all senators were present, and the stakes were real, would fixate public and media attention. It might even motivate at least a little reasoned argument.
More importantly for our purposes, this debate system would satisfy the procedural fixations of these Senate moderates much better than the status quo, and it would make the Senate less of a dysfunctional joke institution. More than a decade ago George Packer wrote a famous New Yorker article about how most senators knew perfectly well that the Senate did not work at all and hadn't for years. The main reason, then and now, is the chamber's ancient rules increasingly serve no function except as weapons for an ever-more unscrupulous minority to use in their quest to gum up the wheels of government.
So instead of sticking to those rules to preserve traditions that never existed in the first place, why not change them to produce the outcome the moderates say they want? Joe Manchin can be first to speak in favor of Democrats' infrastructure package, and Krysten Sinema can be his second. Whaddya say?