Biden has the slimmest Senate majority possible. What can he accomplish?

Biden has the slimmest Senate majority possible. What can he accomplish?February 14, 2021

On Jan. 20, Joe Biden was sworn in as the 46th president of the United States, marking the official end of the Donald Trump presidency and signaling a shift in governance. But two weeks earlier, something equally — or perhaps even more — important happened 700 miles away: Democratic candidates for Senate Rev. Raphael Warnock and Jon Ossoff won their contests in Georgia, officially bringing the count of Democratic votes in the Senate to 50. The two wins were notable because Democrats defeated two Trump Republicans in a Southern state, but also because they completely changed the early outlook of the Biden presidency.

The 50-50 split in the Senate means that the Biden administration’s legislative and policy agenda has a fighting chance. With Vice President Kamala Harris at the ready to cast a tie-breaking vote in the Senate, and Democrats having retained their majority in the House, Biden will enjoy full congressional control for at least the first two years of his presidency. That means that with some smart maneuvering, he and his fellow Democrats can pass some big legislation — as long as they don’t need to clear the usual 60 votes.

It’s looking increasingly likely that the first 100 days of Biden’s presidency will be achieved through a mix of executive orders and budget-related items. That’s because a loophole called “budget reconciliation” allows the Senate to pass bills with 51 votes instead of 60 — a.k.a., it gives Democrats a way around the filibuster. That means with Harris’s deciding vote, the Senate could pass a number of items, but only if they relate to taxes and spending.

As the Congressional Research Service (CRS) explained, “The chief purpose of the reconciliation process is to enhance Congress’s ability to change current law in order to bring revenue and spending levels into conformity with the policies of the budget resolution.” In other words, budget reconciliation is technically about adjusting policy, rather than creating new items. Importantly, budget reconciliation items aren’t subject to the filibuster. While Senate Minority Leader Mitch McConnell recently stepped back from his fight to preserve the Jim Crow-era relic that was once used to prevent the passage of civil rights legislation, moderate and conservative Democratic Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have pledged to preserve the filibuster.

Health care

This is all to say, the Biden administration will need to use budget reconciliation to get much of his Build Back Better agenda accomplished. As Matt House, a consultant and former aide to Senate Majority Leader Chuck Schumer, told NBC News, “Budget reconciliation offers Schumer and the Democrats the chance to enact meaningful and significant policies early in the Biden presidency.”

Because most everything in government is related to taxes and spending, the budget reconciliation process is actually a huge opportunity for the Biden administration to address a number of different issues that are important Democrats. For example, by way of budget reconciliation, Biden could lower the eligibility threshold for those receiving health care through the Affordable Care Act marketplace by eliminating the so-called “subsidy cliff” that prevents people earning more than 400% of the federal poverty level from receiving coverage. Advocates say that budget reconciliation would also be a way to improve state health care coverage for poor people by increasing federal matching for Medicaid.

Wages and taxes

There’s also talk that Biden could use reconciliation to increase the federal minimum wage to $15 per hour and offer some student debt relief. As Sen. Bernie Sanders (I-Vt.) — who happens to be the new chairman of the Senate Budget Committee — wrote in an op-ed for CNN, “[If] we are to have the best-educated workforce in the world, we need to make public colleges and universities tuition free and cancel all student debt for working-class Americans.” Sanders argues that all of this is possible through budget reconciliation.

One of the biggest examples of a successful change in policy through budget reconciliation was Trump’s 2017 rollback of income taxes for the rich. With that said, one of the first things the Biden administration could achieve via reconciliation is a rollback of Trump’s rollback, to restore some of the previous tax standards. Repealing even parts of Trump’s tax plan would help Biden pay for his legislative proposals, by giving the government more revenue to work with. It could also potentially even have environmental impacts, given that the original legislation directed the Department of the Interior to implement a leasing program for parts of the Arctic National Wildlife Refuge.

Speaking of taxes, the Biden administration could potentially increase the corporate tax rate (a change he called for in his own tax plan) in order to pay for public services that support low-income and poor people. This is important because Biden could work around Republicans, who appear unwilling to discuss Biden’s $1.9 trillion coronavirus relief package and instead favor their own $600 billion relief package, by breaking down the line items eligible for budget reconciliation and pass those with Democratic party support. Biden said last week that he’d “like to be doing it with the support of Republicans … but they’re just not willing to go as far as I think we have to go.”

Judges

Lastly, Democrats’ simple majority in the Senate will be crucial for Biden’s ability to nominate and seat new judges. While Trump rushed to nominate and seat a record number of judges to the federal bench, with liberal help from McConnell, Biden could fill any remaining positions with 51 votes. That’s because in 2013, Senate Democrats removed the filibuster for all non-Supreme Court judicial nominees; in 2017, when Republicans held the upper chamber, they removed the 60-vote threshold for Supreme Court justices as well.

There are still 46 vacancies at the district court level that Biden could work with, and there’s talk that 82-year-old Supreme Court Justice Stephen Breyer (who was nominated by former President Bill Clinton) is looking to retire. If Breyer does decide to step down, then Biden could nominate and seat a young liberal judge to the high court with his narrow Senate control — much like Republicans did with Neil Gorsuch (who was 49 when he was seated), Brett Kavanaugh (53 when he was seated), and Amy Coney Barrett (48 when she was seated).

With that said, all of this is still contingent on having all 50 senators who caucus with Democrats fall in line, every time. And with politics there’s always a wildcard at play. This congressional term, the wildcards have names: Manchin, Sinema, Sen. Lisa Murkowski (R-Alaska), and Sen. Mitt Romney (R-Utah). Biden needs at least two of these individuals to make any of his dreams become a reality, and given that some Democrats have a penchant for voting Republican and those Republicans are open to voting Democrat, who’s to say how this will play out.

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