With the Senate poised to keep the filibuster intact, there will be little to distinguish the new upper chamber from the one that largely stymied former President Donald Trump’s legislative agenda, potentially hobbling President Biden’s ambitious plans on everything from a sweeping jobs bill to immigration reform to overhauling the country’s infrastructure.
The new chief executive took office last week calling for “unity” in the wake of Trump’s contentious term that ended with the Jan. 6 Capitol riot by some of his supporters. But with the Senate now expected to keep a 60-vote threshold for legislation in place, Biden faces the daunting challenge of negotiating with Senate Republicans on most major legislation and the prospect that any failed deal-making could further divide the country.
The filibuster’s survival means Democrats’ ability to break ties in the evenly divided chamber via Vice President Kamala Harris’s decisive vote often will be moot. Without 60 votes to end the debate, meaning 10 GOP senators would join all Democrats, major bills would never get a simple majority vote to clear the chamber. That leaves Biden and Democrats to turn to a special budget rule that allows them to push one massive package through with 51 votes and then spend floor time on executive and judicial nominations.
That might sound familiar. The Senate of the Biden era is shaping up to be not that much different than that of the Trump years, observers say.
“The challenges [Biden] faces are the same challenges Trump faced, and are exactly why Republicans had no legislative agenda during the two years they controlled the House and the four years they controlled the Senate, which is, the party is divided,” said James Wallner, a senior fellow at the R Street Institute, who led the Senate Steering Committee staff under Republican Sens. Pat Toomey of Pennsylvania and Mike Lee of Utah. “The Democratic Party is divided, as well, and I suspect that those divisions will keep just as much stuff off the floor in the Senate as Republicans will.”
For now, Democrats, though they hold a slim majority, are focused on the votes needed for Biden’s $1.9 trillion coronavirus package. Two centrists in the caucus, Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, this week pledged to uphold the filibuster rule, notionally striking down the possible threat.
Biden has stressed a unity message, but a March cliff for aid doled out in a December bill is approaching. Senators also face the logistical constraints from a second impeachment trial of Trump.
Top White House aides and centrist lawmakers from both parties said they favored a bipartisan agreement. But pushback is already evident from the senators that the Democrats need to move past the 60-vote threshold.
In conversations with the White House, centrist Republicans such as Maine’s Susan Collins or Ohio’s Rob Portman have balked at both the overall cost and at some specific proposed provisions.
The bill is shaping up as an early test for Biden and his legislative ambitions: negotiate or bypass Republicans.
Democrats point to a budgetary tool called reconciliation that would allow one shot at passing a massive package with 51 votes. The wheels are in motion: On Tuesday, Senate Majority Leader Chuck Schumer said that he would bring a budget resolution to the Senate floor “as soon as next week.” That starts the reconciliation process.
It’s not an unfamiliar scenario for Democrats.
Twelve years ago, when then-President Barack Obama sought Republican support for his economic stimulus plan, House and Senate Republicans told him they didn’t like the size of his $800 billion plan.
Other major legislative fights at the start of Obama’s first and second terms in office serve as reminders of Senate obstruction, Wallner said: “If you think back to the Affordable Care Act, you can use reconciliation as a threat to force the other side to participate in that process, not to accept your bill but to participate in the process.”
In 2009, Democrats, who controlled both chambers, passed a budget that included reconciliation instructions for healthcare reform, paving the way for lawmakers to pass a bill with a 51-vote threshold instead of 60.
“Republicans were trying to get their colleagues in the Senate not to participate with Democrats in healthcare reform … and Democrats then threatened time and time again to go it alone with reconciliation if Republicans would not negotiate with them,” Wallner said.
By the summer of 2009, Republicans, many of them conservatives, participated in negotiations with Democrats. “And the reason they’d tell their colleagues inside the Senate is that, ‘They’ll go it alone with reconciliation if we don’t,’” Wallner said.
“Right now, one way to interpret the reconciliation talk coming out of Democratic circles is to send signals to Republicans that ‘we can do certain things.’ And if you want to have an opportunity to change the law, if you want to have an opportunity to put your own stamp on stuff, then you need to get involved in the negotiations and the process, and you need to compromise,” he added.
“Democrats want to pass a bill with Republican support, but if they have to, they will use budget reconciliation to pass part of the legislation with a simple majority,” said Aaron Scherb, the legislative affairs director for liberal political advocacy group Common Cause.
But reconciliation has limited uses and can take months.
Jim Manley, a former top aide to onetime Senate Majority Leader Harry Reid, a Nevada Democrat, called the deal a “test case” of what’s to come.
“If they can’t cut a deal on this, it’s difficult to imagine they’re going to cut a deal on anything else for the next two years,” he said.
Biden’s top aides, including chief of staff Ron Klain, are urgently negotiating with lawmakers and other constituent groups, White House press secretary Jen Psaki said on Wednesday.
“Quarterbacking” the effort are two longtime Biden aides, White House counselor Steve Ricchetti and Legislative Affairs Director Louisa Terrell. The duo has had “dozens of conversations with individual members” in recent days, she said.
“The decision to use reconciliation will depend on how these negotiations go,” Biden told reporters on Monday, contending whether or not to use the special tactic would ultimately be up to congressional leaders.
Wallner said he has seen no evidence that the Senate would operate differently under Biden than Trump. He predicted business as usual for senators in the months ahead.
“I suspect that the Senate is going to act just like the Senate did last year,” he said. “Right now, it is confirming nominees for Biden in the same kind of manner that it confirmed nominees for Trump at the beginning of his tenure.”
He added, “And that tells me that it doesn’t matter in the grand scheme of things who wins the next election if senators are ultimately not going to act regardless of who’s in control.”
