Good job, Biden. Now comes the hard part.
President Biden and his Democratic allies are riding high after Congress passed the expansive COVID-19 relief and stimulus package on Wednesday. And they deserve to take a victory lap, because the American Rescue Plan promises to ignite a broad economic recovery and realizes long-sought progressive goals like direct cash payments to parents.
Despite the bill's messy and divisive denouement in the Senate, and the failure to include a minimum wage hike, the stimulus package should be seen as the cherry on top of a hugely successful first seven weeks in office for Biden. It is also, however, likely the end of the easy wins for Democrats and the start of a much more challenging period of steering legislation through a closely divided Congress.
In addition to the relief bill, the president used the Defense Production Act to turbocharge COVID-19 vaccine production and signed a flurry of Executive Orders, effectively vaporizing former President Trump's policy legacy by, among other things, reversing the controversial travel ban from seven Muslim-majority countries, halting construction of the border wall, rejoining the Paris Climate Accord, canceling the Keystone XL pipeline project, and lifting the immigration restrictions imposed under the cover of COVID.
With a few effortless strokes of a pen, President Biden was able to wipe away pretty much everything Trump did except the 2019 tax cuts and the far right's successful takeover of the federal judiciary. Obama himself tried to convince Trump of the ephemeral nature of victories achieved by executive fiat. Unsurprisingly, the 44th president was right and the 45th was wrong.
But these victories also mark the end of the new president's honeymoon period. The low hanging fruit has been plucked, eaten, and juiced. The harder work begins today, and the president must soon make some more difficult choices. He will never be more popular, and Democrats have more leverage today than they will for the rest of this congressional term. House Democrats and nearly all of the party's Senate caucus are on board with an aggressive agenda, including shoring up voting rights and democracy with the newly-passed For the People Act (H.R. 1), granting statehood to Washington, D.C., and possibly Puerto Rico, raising the minimum wage, reinvesting in America's decaying infrastructure, reforming immigration rules, and following through on the president's campaign promise of adding a “public option” to the Affordable Care Act's health-care framework.
But Democrats won't be able to realize this ambitious agenda through budget reconciliation, the parliamentary maneuver they used to pass the American Rescue Plan with a simple 50-49 majority in the Senate. If any of these policies are to arrive on the president's desk in the form of legislation, the perilously narrow Democratic majority in the Senate must abolish the legislative filibuster, a bizarre piece of American institutional arcana to be found precisely nowhere in the Constitution, which requires a supermajority of 60 votes for most bills. The voracious appetite on the left to nuke the filibuster with extreme prejudice could not be overstated, but for now Sen. Kyrsten Sinema (D-Ariz.), Sen. Joe Manchin (D-W.Va.), and possibly a handful of others including Sen. Dianne Feinstein (D-Calif.) stand in the way and remain publicly committed to this absurd and enervating rule.
President Biden himself has remained maddeningly coy on the subject. Given the speed with which he plowed ahead with the stimulus package without any Republican support, it's safe to assume that despite his campaign theme of unity and bipartisanship, he is under no illusions about the prospect of Republican buy-in for other priorities like voting rights.
But when the stimulus contact high wears off, both he and the Democratic Party will find themselves at a crossroads. One path will lead to months or years of fruitless negotiations with a Republican Party that could not possibly produce 10 votes in the Senate for anything that is important to Biden and the Democrats. GOP leaders want nothing more than to grind the president's agenda to a halt in the service of a MAGA restoration. If Sinema and the rest of the filibuster fan club won't budge, that means Biden will be forced to pursue his priorities through executive action. And in theory, there's a lot that could be achieved that way, from student debt relief to strengthening organized labor.
But it's also a project that is deeply vulnerable to immediate pushback from the conservative-dominated judiciary. Already, a federal judge in Texas blocked the Biden administration's attempt to pause all deportations for 100 days. More judicial roadblocks would be sure to come in response to the kind of far-reaching, unilateral action that the president has so far shied away from publicly. And as Biden himself surely realizes after signing dozens of Executive Orders reversing Trump administration policies, it's all a house of cards ready to be blown down by the next Republican president.
The alternative path is clear. The president must take the side of good governance by either publicly supporting filibuster abolition, or setting clear benchmarks and guidelines for how long he is willing to tolerate the coming dalliance between Democratic and Republican moderates in the Senate. This needn't involve bestowing Trumpian nicknames on recalcitrant Democrats and berating “Killjoy Kyrsten” and “Job-Killing Joe” on Twitter, or threatening expulsion from the left's big tent. Biden has been around long enough not to get riled up by Sinema's thumbs down on the minimum wage, or Manchin's long-dark-night-of-the-soul agonism. Any pressure applied specifically to these Democrats should be behind closed doors (which may already be happening).
But that doesn't mean that the president can't use his bully pulpit to make the case for what he wants to happen. And that, ultimately, requires President Biden and his team to make a clear choice: either accept that nothing of consequence is coming out of the Senate for the next two years, or fight like hell to empower hard-won Democratic majorities to govern as they see fit, as they would in any other country on Earth that won an election. If they prefer the latter, they need to act proactively rather than reactively. Instead of letting the party's moderates blunder and stumble their way toward majority rule, President Biden, as the party leader and most influential person in the country, must first unify Democrats in Congress and the electorate behind the principle of majority rule.
It is also possible, of course, that Biden and the moderates already have a plan — to let Republicans obstruct popular policies like making the Deferred Action on Childhood Arrivals (DACA) for so-called DREAMers permanent, and then to act on filibuster reform once the public grows weary of gridlock. While this is a misreading of public sentiment about the filibuster and while it would waste many precious months of the first unified Democratic government in a decade, it is better than asking voters to give them bigger majorities in 2022 when they didn't do nearly enough with the power they had in the first place.