The recent struggle between Senate Democrats and Republicans over the rules that would govern the House in this session was complicated and mysterious. All you really need to know is that Democrats are not likely to use their small majority to destroy the obstruction. So what exactly can Democrats do with a government trifecta (control of the Senate, House and US presidency), but not an obstruction-proof margin in the Senate? And just as important, what can they not do?
Let’s start with three things, Democrats I can Does …
Use the budget “reconciliation” process in fiscal policy and spending
This is really great. There are many good and detailed manuals on online reconciliation, so I’ll briefly describe them here. Essentially, as part of each year’s budgetary process, the Senate can pass at least one major bill that is not subject to obstruction and, therefore, pass it with a simple majority. Generally, the provisions in these accounts must relate to taxes and expenses. In theory, Democrats could approve at least three reconciliation projects before the middle of the 2022 term (for the 2021, 2022 and 2023 budget cycles). But these projects are subject to all kinds of intricate rules, with the Senate parliamentarian, a non-partisan official, in a position to determine what may or may not be included.
Reconciliation has been used successfully by George W. Bush and the Republicans to pass major tax cuts, Barack Obama and Democrats to enact the Affordable Care Act and by Donald Trump and Republicans to pass tax cuts and almost to revoke parts of the ACA. Therefore, some of the most important parts of Biden’s agenda are likely to be placed in these reconciliation projects to ensure that they are approved, just as they were during previous administrations.
For example, most of the main elements of Biden’s economic stimulus proposal – sending hundreds of billions of dollars to cities and states, as well as one-off payments of $ 1,400 for most adults – can likely be included in a bank account. reconciliation. But it is unclear whether the willingness of this proposal to raise the federal minimum wage to $ 15 an hour can be approved through reconciliation. (More on that soon.)
In general, both parties used reconciliation to enact health and fiscal policies. I would expect Democrats to do the same over the next two years – to boost tax increases on wealthy people and expand access to health care. But if Republicans obstruct most other major legislation, expect Democrats to try to find ways to use reconciliation on a broader range of issues, such as reducing college costs, forgiving student loan debt, increasing federal funding for daycare centers and mandatory sick pay leave.
Fill vacancies in the executive and judicial branches
With a majority in the Senate, Biden can basically choose whomever he wants for the cabinet and sub-cabinet functions at federal agencies, as these choices are not subject to obstruction. This is important for Biden to be able to fulfill his agenda in areas where he is not looking for additional money or authority from Congress.
In terms of federal court appointments, as Elena Mejía and Amelia Thomson-DeVeaux of FiveThirtyEight explained in a recent article, Trump and Senate Republicans did not leave many vacancies for Biden to fill – 43 of 677 in the district courts and two of 179 in the courts of appeal.
That said, there is already evidence that many older judges appointed by previous Democratic presidents may vacate their positions now that Biden is in office, giving him more judges to fill. The most important is that of Supreme Court judge Stephen Breyer, 82, whose vacancy Biden would probably occupy by nominating the first black woman to the highest court in the country.
Repeal Trump’s last-minute regulations
The Congressional Review Act allows Democrats to step back from regulations passed in the last few months of the Trump administration. Just before leaving office, Trump and his team implemented a series of measures aimed at limiting environmental policies that could restrict business. Expect to see Democratic congressmen and the Biden government reversing them as part of their broader agenda to prioritize policies to mitigate climate change.
What Democrats Probably Can’t Do
It is said that Democrats can, instead of getting rid of the obstruction completely, create more exceptions for it. This has happened twice in recent years: in 2013, a Democratic majority in the Senate effectively ended the obstruction for nominations for district and circular courts, as well as for executive branch appointments, and in 2017, a Senate controlled by the Republican Party ended the obstruction for appointments to the Supreme Court. But more conservative Democrats like Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona do not seem inclined to support even a modest obstruction reform, at least now.
So today, many policies are likely to be out of reach for Democrats unless, for some reason, 10 Senate Republicans also adopt them. Democrats will not be able to use reconciliation to enact the government reform bill that House Democrats passed in 2019, which among other things would create two weeks of early voting in all 50 states and place redistricting in the hands of non-party committees and independent. Democrats cannot make Washington, DC and Puerto Rico states through reconciliation; they cannot increase the number of magistrates at the district and circuit court levels or add judges to the United States Supreme Court. And they are unlikely to be able to pass most new environmental regulations, gun restrictions or protections or expanded abortion rights.
Emphasis on the word most likely. What can be done through reconciliation ultimately depends on the parliamentarian and senators, who can decide to annul it, although this is very controversial. Some liberals are suggesting that there are ways to use reconciliation to provide a path to citizenship for undocumented immigrants and to raise the federal minimum wage – the types of policies that have traditionally not been included in reconciliation projects.
“It is sometimes difficult to predict whether a given provision will meet the standard,” said Richard Kogan, a senior member of the Left Budget and Political Priorities Center and a former senior official on the House Budget Committee. “Sometimes there are disagreements even among experts, and it is not always easy to predict how the Senate parliamentarian can decide on a particular issue.”
When you look at what Democrats cannot approve of without reforming or getting rid of obstruction, it further illustrates why obstruction is such an important point of debate in the party now. Democrats are constantly discussing whether they are talking too much about racial and cultural issues, whether they are appealing to colored and / or white voters without a college degree at the expense of alienating any of the groups and whether they are leaning too far to the left or not too much. left enough. In a world where the obstruction remains as it is, they are unlikely to pass the types of legislation that would benefit color voters in particular (State for DC and Puerto Rico, which have large populations of colored voters; voting rights provisions; immigration reform), that relate to culture and identity (limiting gun rights, expanding abortion rights) or that lean far to the left. Because of this, the party’s agenda tends to move more toward economic issues that may go through reconciliation.
In effect, maintaining the obstruction prioritizes Manchin’s view of the Democratic Party (culturally conservative and economically somewhat liberal) over the view of Rep. Alexandria Ocasio-Cortez (very liberal in all measures). This does not mean that Manchin is opposed to getting rid of the obstruction because he, for example, is opposed to the creation of a state for DC (for the record, he says he is open to the idea). But the urgency for someone like Manchin to destroy the obstruction may be less than for Ocasio-Cortez, because what Democrats could go through in an unobstructed world is less exciting for Manchin than for Ocasio-Cortez. That’s why I hope that Democrats will go through a lot of reconciliation in the years to come – and that the left wing of the party will continue to demand that Democrats remove the obstruction so they can get things going their agenda too.