When It Comes to Senate Rules, Biden’s Neutrality Can’t Last

Is he going to negotiate with GOP? Fight to kill the filibuster? Time to choose, Joe.

In the war between the bipartisan institutionalists and the partisan norm-busters, Biden has displayed Swiss neutrality. To pass the American Rescue Plan, Biden didn’t engage in substantive negotiations with Republicans. Nor did he bend the Senate rules.

To circumvent a Republican filibuster, he used budget reconciliation, which was a partisan maneuver but also an existing norm—every president since Jimmy Carter has used reconciliation. When pressed by progressives to break a norm, by having Vice President Kamala Harris ignore the Senate parliamentarian and shoehorn in a $15 minimum wage, Biden balked.

Now that Biden has this victory behind him, he’ll turn to other issues, many that are not budgetary and can’t pass with reconciliation such as immigration reform, infrastructure, and voting rights. Biden is stuck in neutral. He hasn’t thrown his weight behind changing Senate rules. While he’s waxed nostalgic about forging bipartisan compromises, he hasn’t engaged in roll-up-your-sleeves bartering, just modest Oval Office meetings. At some point, Biden will need to shift into gear.

He and his team are using finely calibrated rhetoric to avoid taking a firm position. White House Press Secretary Jen Psaki said last week that Biden’s “preference is not to make changes to the filibuster rules, and he believes that with the current structure he can work with Democrats and Republicans to get work and business done.”

By saying his “preference” is to keep the current rules and stopping short of resolute opposition to changing the rules, Biden allows the possibility of unleashing partisan fire at a later date (Harris’ tie-breaking Senate vote would be needed to change the rules, so Biden’s position is directly relevant.) But the soft-shoe approach doesn’t escalate pressure on the Senate’s most stubborn Democratic traditionalists: Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.

Meanwhile, Biden is not producing evidence he is persuading any Republicans to vote for his initiatives. He has argued that the relief bill counts as bipartisan because of its broad public support. Nice try. But that attitude doesn’t help him get 60 senators on non-budgetary matters. He has participated in bipartisan meetings, most notably about infrastructure, but these sessions haven’t given Democrats confidence that middle ground can be found.

Sen. Ben Cardin of Maryland, a Democrat, who chairs the Senate’s transportation and infrastructure subcommittee, was caught on a hot mic Monday telling Transportation Secretary Pete Buttigieg that Democrats “most likely have to use reconciliation” again to pass an infrastructure bill, because Republicans will only “meet with you to a point.” (In keeping with White House neutrality, Buttigieg responded he is “pretty process-agnostic. We just want it to work, and get through.”)

Reconciliation is a perfectly fine fallback option for infrastructure, as it was for pandemic relief, because infrastructure is a budgetary matter. But voting rights, immigration, minimum wage, labor rights, LGBTQ rights, and gun control measures largely are not. How Biden plans to move forward on these fronts remains a complete mystery.

Biden would need to engineer a dramatic ice-break moment to convince the many skeptics of bipartisanship that old-fashioned transactional deal making can still happen in today’s polarized environment. But probably the best opportunity for such a moment was the relief bill, since past relief bills were bipartisan, yet neither party stretched to see if compromise was possible. Perhaps the second-best opportunity is infrastructure. Building roads and bridges remains good politics for both parties. But disagreements over climate and taxes make an infrastructure deal elusive, and the comments of Cardin and other Democrats strongly suggest the appetite for finding common ground is minimal.

So if neither relief nor infrastructure can yield bipartisan agreement, then envisioning it for more politically charged issues requires some very painful squinting. If Biden isn’t prepared to cast his lot with the norm-busters, and Manchin and Sinema (and any other quieter filibuster fans) are not successfully pressured to budge, then he will have to hope that whatever he can pass through reconciliation is enough to satisfy the public.

In the absence of a clear presidential strategy, some congressional Democrats plan to put partisan bills on the Senate floor, provoke Republican filibusters and use the resulting gridlock to pressure the institutionalists that rules reform provides the only path to success. It might work. Manchin has expressed openness to filibuster reform, while continuing to insist upon substantive engagement with Republicans. In regards to using reconciliation again, Manchin said earlier this month on “Meet The Press,” “I’m not willing to go into reconciliation until we at least get bipartisanship, or get working together or allow the Senate to do its job … There’s no need for us to go to reconciliation until the other process has failed. That means the normal process of a committee, a hearing, amendments.” Those comments suggest Democrats may need to go through a lot more motions before Manchin moves, and the possibility remains that he won’t. But there’s always the possibility if Do Nothing Republicans block Democratic initiatives ad nauseum, Manchin and Sinema may sign on to paring back the filibuster.

Whether it’s a path to 60 or a path to 50, there are no paths without land mines. We all should avoid so-called “Green Lantern” thinking—treating the president as a superhero who can make the Senate do his will with magical leadership. But wanting Biden to pick a path and push hard to reach his desired destination? That he can and should do.

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Bill Scher

Bill Scher is the host of the history podcast "When America Worked" and the co-host of bipartisan online show and podcast "The DMZ"