The Senate’s infrastructure gamble, explained

“Senate Democrats are navigating a tricky balancing act: attempting to simultaneously advance both a $600 billion bipartisan infrastructure bill and a $3.5 trillion budget resolution full of Democratic priorities that’s only expected to garner partisan support.

This plan, which has colloquially been referred to as the “two-track strategy,” is intended to demonstrate that lawmakers can actually work across party lines to get something done on “hard” infrastructure, like roads and airports, and that Democrats can also deliver on “human” infrastructure that’s a party priority but that Republicans won’t support, like funding for long-term caregiving and paid leave.

It is a somewhat circuitous approach to approving infrastructure legislation, driven by the focus that moderate Democrats, and President Joe Biden, have put on bipartisanship — as well as their refusal to alter the filibuster.”

Democrats’ new plan for passing more bills with 51 votes, explained

“the Senate can’t pass an unlimited number of reconciliation bills; typically Congress passes one per year. Given a legislative backlog in 2020, Democrats were on track to do two reconciliation bills in the near term — one addressing the budget of the 2021 fiscal year, and one for the budget of the 2022 fiscal year.

According to a Schumer aide, his team is now trying to make the case that Democrats would be able to pass up to three budget reconciliation bills this year. In arguments to the Senate parliamentarian, an in-house procedural expert, aides are pushing for a third bill by citing an arcane rule that hasn’t been used before.”

“Whether Democrats are ultimately able to do this is heavily dependent on the parliamentarian”

The filibuster’s racist history, explained

“While the filibuster’s origins in the early American republic have little to do with race, the practice has changed substantially over time. And the modern version, created in 1917, really does have a racist history.
“You start to see civil rights bills pass the House in the 1920s, and it was consistently used to block them,””

““If there was any ambiguity in the antebellum era, it certainly shed that during the Jim Crow era — where it was widely taken for granted that the filibuster was directly tied to [blocking] civil rights.””

“One of the most fundamental justifications for the filibuster offered by McConnell and conservative thinkers is that the practice protects minority rights, preventing the Senate majority from running roughshod over its political opponents.

The Jim Crow history of the filibuster shows that this defense relies on a philosophically impoverished notion of what “minority rights” means. It misunderstands what kinds of minorities need protecting in a democracy, and from whom.”

“the filibuster allows people who already have power to prevent changes to the political system. On civil rights issues, this effect almost always tends to redound to the benefit of people who want to preserve the racial status quo. There’s a reason why late 20th century liberals and groups like the NAACP repeatedly called for filibuster reform or abolition: They knew it would always stand in the way of fundamental system reforms.

“It is not a coincidence that the tool that blocks civil rights continues to be the tool that blocks progressive change today,” Jentleson says. “Even after the civil rights era, as the filibuster started to be used by both parties, it still consistently favored the party of established corporate power and the entrenched status quo.”

Right now, state-level Republicans are pursuing a series of bills disproportionately likely to disenfranchise nonwhite voters, an effort that the Brennan Center’s president Michael Waldman calls “the most significant attempted cutback of voting rights since the Jim Crow era.” Senate Republicans are protecting this offensive, blocking federal legislation like HR 1 and the John Lewis Voting Rights Act that could militate fair elections at the state level.

One could imagine all 50 Democrats voting for some version of these bills. So long as the filibuster remains intact, state-level Republicans are free to infringe on the rights of actually vulnerable minorities to their heart’s content.

This is the modern filibuster working as it always has.”

Joe Manchin opens the door to filibuster reform

“under a “talking filibuster,” any “member of the minority party can filibuster as long as he/she stays put on the floor.” But once a member finishes speaking, the filibuster would end, and “there’d be a vote at a simple majority threshold” of 50 votes, instead of the existing 60-vote threshold required to end a filibuster.

That’s a big change, because there’s currently no actual filibustering required to filibuster in the Senate, at least not in the conventional sense. As Vox explained back in 2015, the modern filibuster doesn’t require a senator talking on the floor for hours on end to delay a bill.

Instead, today’s filibuster is a straightforward move to reject unanimous consent on a bill that the minority can wield painlessly”

Democrats Are Split Over How Much The Party And American Democracy Itself Are In Danger

“Here’s the Democratic nightmare: Biden and congressional Democrats pass a few major bills over the next two years but leave the filibuster in place, preventing the passage of major reforms to America’s electoral system. A federal judiciary stacked with Trump appointees strikes down all or parts of many of the laws the Democrats do pass as well as many of Biden’s executive actions, leaving Democrats few permanent policy victories and driving down the president’s approval ratings.

Meanwhile, Republicans use their control of most state legislatures to draw state legislative and U.S. House district lines in ways that are even more favorable to the GOP than the current ones and enact laws that make it harder for liberal-leaning voting blocs to cast ballots. Combine gerrymandering, voting limitations, lackluster poll numbers for Biden and the historic trend of voters rejecting the party of the incumbent president in a midterm election, and it results in the Republicans winning control of the House and the Senate and making even more gains at the state legislative level in November 2022.

Post-2022, Republicans in Congress block everything Biden tries to do, further driving down his approval ratings. Meanwhile, Republicans use their enhanced power at the state level to continue to adopt laws that make it harder for people in liberal-leaning constituencies to vote and harder for Democrats to win in swing states. Then, these laws are upheld by lower courts and a U.S. Supreme Court still packed with Trump appointees. In 2024, Biden (or whomever the Democrats nominate) wins the popular vote but still loses the Electoral College — in part because Republicans have limited Democratic votes in some swing states. A GOP with control of the White House, Senate, House and most state governments in 2025 then effectively creates a system of “minority rule” in which Republicans can keep control of America’s government for decades even if the majority of voters favor Democrats as well as liberal and left-of-center policies.

In this scenario, the Democratic Party is in peril, but in some ways so is American democracy more broadly. So to this camp, Democrats must act aggressively and quickly over the next two years to forestall this outcome, by getting rid of the filibuster as it currently operates (most legislation requires 60 votes to pass in the Senate) and enacting an aggressive “democracy agenda.” This is a pro-democratic (small “d”) agenda in many ways, particularly in giving residents of Washington, D.C., representation in Congress and enhancing protections of the right to vote for Black Americans who live in GOP-dominated states. But it’s also clearly a pro-Democratic agenda (big “D”) in that it would, for example, add the two senators from D.C., who would almost certainly be Democrats.

Pfeiffer describes whether the Democrats get rid of the filibuster in the next two years as “the decision that will decide the next decade.” He argues that keeping the filibuster may be effectively “a decision to return to the minority and stay there for at least a decade.”

“The door is closing quickly in terms of us staying a functioning democracy. We have no time to waste,” said Meagan Hatcher-Mays, director of democracy policy at Indivisible. “Democrats have been handed this power to save it. We don’t have two years. We have a year. The window to actually get things done is really closer to 10 months.””

“Democrats would need every Democratic senator on board to get rid of the filibuster, so these members are super-important. And over the last few months, Manchin and Sinema have said they are strongly opposed to getting rid of the filibuster. Longtime senators like Feinstein have hinted in the past that they are wary of such a move too.

Part of this opposition to getting rid of the filibuster reflects ideological differences — Manchin in particular is more conservative than most (if not all) congressional Democrats. So he probably isn’t dying to get rid of the filibuster to vote for a $15 federal minimum wage, for example, because it’s not clear he favors that idea anyway.

But this bloc also disagrees with the this-is-an-emergency camp about the state of American politics right now. Feinstein is fairly liberal on policy issues. But she, like Manchin and Sinema, has suggested she wants to work in a Senate that is not hyperpartisan and seems to believe that is possible. In the view of people in this camp, the Republican Party is not completely dominated by an anti-democratic wing that won’t work with Democrats. So members in this camp view getting rid of the filibuster and other more aggressive moves as not only unnecessary but potentially really bad — making the Senate and Washington overall even more gridlocked and polarized than they already are.”

How Joe Manchin can make the filibuster “more painful” for the GOP without eliminating it

“In 1805, fresh off the duel where he killed Alexander Hamilton, Vice President Aaron Burr returned to the Senate and proposed streamlining the body’s rules by eliminating something called the “previous question motion,” a process that was rarely invoked in the early years of the Senate.

As Sarah Binder, a Brookings Institution expert on Congress and a professor at George Washington University, explained in 2010 testimony to the Senate Rules Committee, Burr’s intent was to produce a “cleaner rule book” that wasn’t too thick with duplicative procedures. And he thought the previous question motion was the kind of superfluous rule that could be eliminated.

Unfortunately for the nation, the previous question motion wasn’t the least bit superfluous. This motion turned out to be the only way to force the Senate to move off a particular topic. When the Senate took up Burr on his call, it allowed senators to lock the Senate into endless, pointless debate — halting progress even if a majority of the Senate wished to move forward to a vote.

The filibuster was born.

Since then, the rules permitting filibusters have been changed many times — and with increasing frequency.

In 1917, President Woodrow Wilson successfully urged the Senate to create a process, known as “cloture,” which would allow a two-thirds majority of the Senate to break a filibuster and bring a matter to the Senate for a final vote. The number of votes necessary to end a filibuster, whether on a piece of legislation or on a confirmation vote, was reduced to three-fifths of the Senate (ordinarily 60 votes ) in 1975.

In the 1970s, Congress created a process known as “budget reconciliation,” which allows many taxing and spending bills to become law with a simple majority vote, bypassing the filibuster. In 1996, Congress enacted the Congressional Review Act, which allows Congress to overturn recent federal agency regulations without having to deal with the filibuster.

And in the present-day Senate, filibuster reforms have been enacted fairly often. In 2011, a narrow Senate majority voted to strip away some of the minority’s power to force votes on amendments to a bill. In 2013, the Senate enacted a temporary measure that limited the minority’s ability to delay confirmation votes once the Senate agreed to end debate on a particular nominee, and a version of this rule was made permanent in 2019 (though nothing is truly permanent because a future Senate could always change this rule again). The Senate voted to allow non-Supreme Court nominees to be confirmed with a simple majority vote in 2013, and it voted to allow Supreme Court justices to be confirmed by a simple majority in 2017.

Indeed, this brief account of the filibuster’s history drastically undersells how often Congress creates exceptions. In her book Exceptions to the Rule: The Politics of Filibuster Limitations in the US Senate, the Brookings Institution’s Molly Reynolds writes that “a careful review of the historical record has identified 161” provisions of law that prevent “some future piece of legislation from being filibustered on the floor of the Senate.” This includes legislation fast-tracking votes on trade negotiations, expediting votes on military base closures, and allowing Congress to bypass the filibuster for certain regulatory and budgetary matters.”

“there are four broad ways that senators can weaken the filibuster without eliminating it altogether.”

“Make fewer bills subject to the filibuster”

“Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.”

“Make it easier to break a filibuster”

“Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.”

After Voting to Acquit Trump, Mitch McConnell Explains Why He Was Guilty

“After he voted to acquit Donald Trump of inciting the Capitol riot, Senate Minority Leader Mitch McConnell (R–Ky.) explained why the former president was guilty. McConnell explained the apparent contradiction by arguing that the Senate does not have the authority to try a former president. But as he conceded, that is “a very close question,” and McConnell’s rationale for his vote is puzzling in light of what he did after the House voted to impeach Trump a month ago. McConnell’s mixed message reflects the predicament of a party that has built its identity around a reckless, unprincipled demagogue whose influence will continue to weigh down Republicans for years to come.

“Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty,” McConnell said in a Senate floor speech on Saturday after seven of his fellow Republicans joined 50 Democrats in voting to convict. “There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their president. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth. The issue is not only the president’s intemperate language on January 6th….It was also the entire manufactured atmosphere of looming catastrophe—the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-president.”

McConnell rejected the notion that Trump’s rhetoric was typical of the language commonly used by politicians and that it is therefore unreasonable to blame him because some of his supporters took him more literally than he intended. “The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things,” he said. “Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally. This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.”

McConnell also noted that Trump’s “unconscionable behavior” continued after the riot started: “Whatever our ex-president claims he thought might happen that day, whatever reaction he says he meant to produce, by that afternoon, he was watching the same live television as the rest of the world. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this. Former aides publicly begged him to do so. Loyal allies frantically called the administration. But the president did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored.”

To the contrary, “according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election! Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence.”

While Trump urged his supporters to “stay peaceful” in a tweet he posted an hour and 45 minutes after the riot began, McConnell noted, “he did not tell the mob to depart until even later”—more than three hours after the protest turned violent. “Even then,” McConnell said, “with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.”

McConnell’s indictment of Trump, which elaborated on his previous criticism of the former president’s conspiracy mongering and his role in provoking the riot, could have come straight out of the arguments made by the House managers charged with prosecuting the former president. Why did McConnell nevertheless vote to acquit Trump?

“Former President Trump is constitutionally not eligible for conviction,” McConnell said. “There is no doubt this is a very close question. Donald Trump was the president when the House voted, though not when the House chose to deliver the papers. Brilliant scholars argue both sides of the jurisdictional question. The text is legitimately ambiguous. I respect my colleagues who have reached either conclusion. But after intense reflection, I believe the best constitutional reading shows that Article II, Section 4 exhausts the set of persons who can legitimately be impeached, tried, or convicted: the president, vice president, and civil officers. We have no power to convict and disqualify a former officeholder who is now a private citizen.””

“McConnell’s compromise seems to be aimed at appeasing the majority of Americans who supported Trump’s impeachment without alienating the majority of Republicans who did not.”

Poll: 69 percent of Republicans are less likely to vote for a senator who convicts Trump

“A new poll hints at one potential reason so many Republican lawmakers remain wary of distancing themselves from former President Donald Trump and seem reluctant to convict him in the Senate’s impeachment trial: There’s a real possibility they’d endanger their electoral prospects.

In a new survey from Vox and Data for Progress, 69 percent of Republicans said they’d be less likely to vote for a political candidate in their state if that person found Trump guilty in the trial, with 56 percent of Republicans saying they’d be much less likely to do so, and 13 percent saying they’d be somewhat less likely to do so.

Many Republicans, too, indicate that they don’t see Trump as being at fault for the January 6 attack on the Capitol.

Broadly, only 22 percent of Republicans surveyed blame Trump for the insurrection, compared to 91 percent of Democrats and 64 percent of independents. Support for the impeachment trial is similarly split along partisan lines, with 12 percent of Republicans agreeing that the Senate should find Trump guilty; 82 percent of Democrats and 52 percent of independents feel the same. Overall, 48 percent of likely voters believe Trump should be found guilty.”

‘The Democratic version of John McCain’

“These days, Manchin couldn’t be in a better spot. His ally Chuck Schumer is now majority leader and Joe Biden is president after running as a uniter. They need his support on just about everything, and Manchin has spoken to Biden several times in the past week alone.”

“Compared to most Democrats, Manchin is a fiscal conservative, often votes with the GOP on abortion legislation but has tried to cut deals on everything from immigration to gun background checks. He’s found more success lately on coronavirus aid than past endeavors, and is already pushing Biden’s package in a more moderate direction.
The Senate is already taking cues from Manchin, approving his amendment with Sen. Susan Collins (R-Maine) 99-1. Manchin famously endorsed Collins in her 2020 battle for reelection, which burnished both of their bipartisan credentials.”

“perhaps the most important major issue where Manchin will side with the GOP is on the minimum wage. He simply seems immovable on his opposition to a $15 national hourly rate.

“I would amend it to $11. You know that. Because I think that’s basically a base that we should have in America right now,” Manchin said, explaining that he would raise the wage up from $7.25 over two years. “It gets people who work 40 hours at least over the poverty guidelines. The states that have $15, already have it. That’s great.””

Democrat Chuck Schumer will finally take the title of Senate majority leader

“Thirty-one days into the new Congress and weeks after the Georgia Senate runoffs gave them 50 seats, Democrats now officially control the functioning of the Senate.
It took weeks of negotiation between party leaders to decide how Democrats and Republicans would share power and resources in the evenly divided Senate, as Senate Minority Leader Mitch McConnell stonewalled the process, trying to extract promises from Democrats about retaining the filibuster. That obstruction left Republicans chairing committees, despite the seating of a 50-50 Senate, in which Democrats, through Vice President Kamala Harris, hold the tie-breaking vote. But on Wednesday, the Senate finally passed an organizing resolution largely sharing power. The resolution was adopted by unanimous consent.”

“The belated passage of the organizing resolution eliminates the trouble Democrats ran into trying to confirm President Joe Biden’s Cabinet nominees without technically being seated as the majority. In the Senate Judiciary Committee, for example, incoming Chair Sen. Dick Durbin (D-IL) had to request that Sen. Lindsey Graham (R-SC) schedule a hearing for Biden’s attorney general nominee, because Graham still held the gavel. Graham rejected the request, underscoring the stakes of the hold-up over the organizing resolution.”