Build Back Better or Build Back Best?

David Super

      It has been a long time since progressives have had the opportunity to advance a broad agenda of social reform with a serious chance of enactment.  President Obama proposed and won adoption of the visionary Affordable Care Act and secured House passage of a climate change bill, but he spent his last six years in gridlock with a hostile Congress.  President Clinton, too, had only two years enjoying a Democratic Congress before spending six years with a Republican Congress to which he capitulated on many important issues.  Otherwise, the last four decades have featured Republican presidents determined to hobble or dismantle some existing programs and largely disinterested in new initiatives on most issues progressives hold dear. 

     It therefore should not be surprising that when President Biden took office after a campaign embracing many progressive concerns, his budget proposals would address many of these concerns aggressively.  Among other things, his proposals would end the stagnation that left child care and subsidized housing programs serving only small fractions of those the programs themselves recognize as being in need.  His budget would continue the improvements in the Child Tax Credit and Earned Income Tax Credit to address persistent poverty.  It would make major investments in responding to climate change, a problem his predecessor refused to recognize at all.  His plan would act to prevent undocumented people and their families from becoming a permanent underclass in this country.  He would broaden access to higher education while strengthening K-12 instruction and preserving through the summers the nutritional supports that school meals offer during the school year.  He would patch weaknesses in the Affordable Care Act that appeared during the decade of legislative neglect that followed the 2010 election, the four years of the Trump Administration’s active sabotage, and the Supreme Court’s holding that states may refuse the ACA’s Medicaid expansion.  And he would provide paid family and medical leave to meet workers’ immediate needs and to allow them to keep their jobs during difficult times. 

     It should have been obvious from the beginning that decades of neglect could be righted in a single year.  Among other things, Congress does not have a progressive majority.  The Democrats have wafer-thin majorities in both chambers, but they only hold those majorities because they have continued to practice some “big tent” politics, including some fairly conservative people who reject the extremism of today’s Republican Party.  Maintaining and expanding this big tent is vital to turning back the current assault on democracy in this country, but it also means that progressives must give up the notions that every Democrat is a progressive and that no persuasion or negotiations are necessary with people who disagree. 

     The question was not whether the large package could win enactment but rather how to get to a package that could.  President Biden could have made his best guess of what could get through and scaled his budget accordingly.  Any such guess would have been inevitably imprecise, and he might have limited the discussion more than was necessary from the start.  Progressive social reforms typically get the lowest of what the budget, the policy, and the politics, respectively, will allow.  If the President’s budgetary top-line had been politically viable but some of his individual proposals were not, the package would have shrunk further. 

     Democratic leaders, too, could have tried to match the package’s size to what could pass by putting more modest limits in the concurrent budget resolution that authorized the current reconciliation process.  Getting moderate and conservative Democrats to vote for the larger numbers, and endure the resulting criticism back home, in hindsight might not have been the best expenditure of finite political capital.  On the other hand, negotiating against oneself when the politics are unclear is usually unwise.  Many of the most politically unpopular features of the 2017 tax law resulted from Republicans setting too low a ceiling on their package’s revenue losses before they had complete estimates and then scrambling to plug the gap.  Lower allocations in the budget resolution also might have inhibited committees’ development of coherent policies. 

     The higher numbers in the budget resolution likely misled many progressives into believing that a package approaching that size was truly possible.  In fact, moderate and conservative Democrats had put the leadership on notice early that they would not support spending anywhere near that level.  It now appears that the leadership did not have a clear plan for how to manage grassroots expectations.  And many progressive leaders wanted to keep those expectations high so that their base would be energized to press for the largest possible package.

     The mismatch between the large package that the budget resolution made procedurally possible and the much smaller one that was politically possible created a series of tensions.  In the House, progressives wanted to go on record voting for a large package even if it could not ultimately become law; Members from conservative districts, however, did not want to take the political heat for voting for controversial measures with no chance of enactment.  Votes for ambitious House proposals widely known to have no chance in the Senate played key roles in the Democrats’ loss of their House majorities in 1994 and 2010.  The ultimate compromise was a bill containing many features that clearly could not pass the Senate but also falling well short of what the budget resolution allowed. 

     As the bill moved to the Senate it faced three challenges, only one of which is widely understood.  First, Democratic leaders and now President Biden must negotiate with the moderate and conservative Democrats to secure the fifty votes needed to allow Vice President Harris to break a tie and put the bill over the top.  Second, the bill must undergo a “Byrd bath” through which the Senate Parliamentarian determines which provisions of the legislation violate the special Senate rules governing reconciliation bills.  With no chance of obtaining the sixty votes required to waive these points of order and potential procedural complications if the provisions are stricken through objections on the Senate floor, Senate Majority Leader Schumer will remove anything against which the Parliamentarian would sustain points of order.  And third, once the legislation reaches the floor, Republicans have relatively broad ability to force Democrats to vote on an unlimited number of politically difficult amendments. 

     These three processes interact.  Democratic leaders do not want to waste what limited leverage they have in negotiations with moderate and conservative Democrats on provisions that ultimately will not survive the Byrd bath.  With some high-priority provisions facing reluctance both from the moderate and conservative Democrats and from the Parliamentarian, the Byrd bath needs largely to be complete before the leaders know which pieces are worth prioritizing in negotiations.  It now appears that the Parliamentarian’s rulings on several key provisions, which had been expected imminently, may not appear until January.  This ensures that no deal with the moderate and conservative Democrats is possible until the New Year.

     Moreover, many people wrongly assume that whatever package Senator Schumer and President Biden can negotiate with Sens. Manchin and Sinema will be the final legislation.  The leadership needs a deal with all Democratic senators to bring the bill to the floor, but once the bill is there, the leadership likely will need every Democrat to vote against all Republican amendments that would weaken the bill.  Agreements to oppose all amendments to an agreed-upon package are common in congressional negotiations, but those agreements generally come only when all parties are genuinely content with the deal.  As progressives keep pressing the moderates and conservatives to accept provisions the latter thoroughly dislike, the odds of a deal to oppose all amendments dwindle dramatically. 

     The process by which these amendments come to a vote increases the pressure on vulnerable Democrats.  To prevent the minority from filibustering through the amendment process, reconciliation rules require that, after the permissible twenty hours of debate have been exhausted, any amendments remaining be decided without debate.  (Customarily, the Senate grants unanimous consent for one minute of debate on each side of each amendment.)  This gives senators no opportunity to explain votes that may be unpopular back home.  An energized minority can force votes on dozens of hot-button amendments during such a “vote-a-rama.”  Thus, for a controversial provision to be enacted, moderate and conservative senators must not only vote for a large package containing that provision but also must vote down an amendment to strike that provision from the bill. 

     Progressives understandably expressed disappointment at several key omissions from the version of the legislation presented as being the near-final deal earlier this Fall.  Progressives pressed senators not to make that version final until some key provisions that had fallen out of the legislation, such as paid family leave, were restored.  In taking this position, they implicitly assumed that the version they had seen was a floor beneath any final deal and that, with time to apply more pressure to Senators Machin and Sinema and more time to develop alternative designs that the Parliamentarian would approve, something better could be achieved. 

     It now seems clear that the final legislation will be significantly weaker than the version released as a tentative deal.  It is certainly clear that progressives were not the only ones to mobilize as the legislation stalled.  The cost of the largely futile effort to pressure reluctant senators to allow inclusion of provisions they clearly oppose – provisions that they might well have voted to strike during vote-a-rama – has been stalling the legislation long enough to allow Republicans and special interest lobbyists to pick apart important provisions that were securely included in the legislation initially announced.  For example, after having previously accepted expansion of the Child Tax Credit, Senator Manchin is now arguing publicly for its complete removal.  The longer the legislation is delayed to try to rescue doomed provisions, the more similar casualties are likely. 

     Build Back Better still seems likely to pass eventually.  And when it does, it will make dramatic improvements in several areas of long-neglected social and environmental policy.  But before that can happen, someone will have to tell several worthy constituencies with compelling cases for important proposals that the train will have to leave the station without them.  That will be tragic, and at this point it is unclear who has the heart, and the credibility, to do that. 

     @DavidASuper1