The Democrats’ razor-thin majority in the U.S. Senate, combined with unanimous opposition from Republicans in the chamber, necessarily means that any Democratic senator can derail any bill. Holding the entire Democratic caucus together in the Senate is vital for any vote that requires a simple majority for passage.
This extends to the option of eliminating the filibuster, which requires 60 votes to secure passage of bills that do not fall under the guidelines of the budget reconciliation process (which the Senate parliamentarian has ruled can be used only once more in the next year). While eliminating the filibuster would free Democrats from Republicans blocking their legislation, complete unanimity within the Democratic caucus would still be required to pass legislation.
Recently, Democratic Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.) have signaled that they would not support a change in Senate rules that would eliminate the filibuster for legislation (it has already been eliminated for judicial and executive branch confirmations). The idea of eliminating the filibuster seems dead in the water. Manchin has been staunch in his opposition to ending the filibuster, explaining his opposition as being based on the Founding Fathers’ concerns for the protection of (numerical) minorities, particularly small, rural states such as his (which could be easily outvoted by larger states).
Sinema has explained her opposition to removing the filibuster as being based on her perception of the problem being one of behavior rather than a need to change rules. This has been frustrating to progressives in the party, and has led Arizona Democrats to publish a letter pleading with Sinema to change her mind.
Beyond the filibuster rule change, the votes of senators such as Manchin and Sinema could derail other pieces of legislation. Manchin has said that he would not support H.R. 1, the “For the People Act,” and has raised concerns about the tax increases to pay for the infrastructure bill. Given this constellation of forces arrayed against him, what tools does Biden have to pass his agenda through the closely divided Senate?
Presidents can’t just force their will on Congress. Although we often think of the U.S. presidency as the most powerful office in the world, the president actually has surprisingly little power when it comes to dealing with members of Congress. The president’s most important power doesn’t come from his formal constitutional powers, but rather, his ability to persuade other actors. The president’s only formal legislative power is the veto, which certainly isn’t something Biden is willing to exert or threaten when it comes to legislation passed by his own party. This leaves three alternatives for the president.
The first alternative is to attempt to persuade intransigent Democrats by “going public” — that is, speaking directly to these senators’ constituents in order to pressure them to support the president’s agenda. But going public can only be effective if the representatives’ constituents are in favor of the president’s proposals. Accordingly, this strategy may not be effective against Sinema, who represents a very divided state. This is an even worse strategy to influence Manchin, who represents a solidly red state.
The second alternative is to engage in bargaining with the legislators that the president needs to pass his agenda. This bargaining can take many forms. Often, it involves negotiating a compromise or concession into the legislation (such as former Sen. Ben Nelson’s (D-Neb.) “cornhusker kickback” in the Affordable Care Act). Other tools at the president’s disposal that help him in bargaining include fundraising and campaign assistance to the representative, executive orders and other aspects of law enforcement favored by the member of Congress, and the appointment of individuals favored by the representative to administration jobs or federal judgeships.
The third and last tactic is to bypass the troublesome members of one’s own party and to deal with members of the other party whose votes might be peeled off from the opposition. Considering the party-line votes on Biden’s agenda to date and a recent statement by Minority Leader Mitch McConnell (R-Ky.) regarding stopping Biden’s agenda, this may not be a productive strategy. Even the recently formed Senate working group of five Democrats and five Republicans to negotiate the infrastructure bill would yield only 55 votes, with another five still needed to overcome a filibuster on a bill that might be considered to have broad appeal.
The times when a president could sit down over drinks with the House speaker to work out policy, as President Reagan and Rep. Tip O’Neill (D-Mass.) did, seem to be gone. And while bipartisanship certainly isn’t dead (see the recent COVID-19 Hate Crimes Act and the industrial policy bill), it has become apparent that Biden can expect little help from Republicans. He needs to keep his coalition together to pass legislation, meaning that he must carefully manage it by bargaining with his own party’s members.
Sinema seems to have styled herself as a moderate maverick, and may be persuadable on certain issues. Machin is feeling pressure from many quarters, and the threat of voter backlash against his votes is real, and he is in a difficult position as a Democrat representing a very red constituency.
But without Manchin, the Democrats would not have a majority and would not be in a position to even think about getting rid of the filibuster, let alone advancing legislation. It will not be easy, but it is up to Biden to engage in significant bargaining to keep Sinema and Manchin on his side as he advances his agenda, whether he is chasing 50 or 60 votes on various bills in the coming months.
Todd Belt is a professor and the director of the Political Management Master’s Program at the George Washington University. He is the co-author of four books, including The Presidency and Domestic Policy (2nd ed.) with Michael Genovese and the late William Lammers. Follow him on Twitter @todd_belt.