What Gives in the Senate?

Key democratic legislative goals have hit some worrisome walls.

Sarah Silbiger | Credit: Getty Images

Progressives are understandably frustrated. After moving forward in good faith on the Bipartisan Infrastructure Framework on the promise that House moderates would support the Build Back Better (BBB) social safety net, the bill is stalled once more in the Senate with the clock ticking down to the holidays. And recent word is, talks between the White House and hold-out Senator Joe Manchin have failed to break the impasse, making passage this year look unlikely.

Sensing an unhappy logjam over BBB, Democrats instead are pivoting toward voting rights, with Sen. Raphael Warnock making the case that the Senate seems fully capable of setting aside the filibuster rule when it comes to passing a debt ceiling limit, but cannot seem to extend the same logic and action to the Freedom to Vote Act or the John Lewis Voting Rights Advancement Act. “Voting Rights needs to be the very next thing we take up,” Warnock said. “And in fact, we should not go home for recess until at least we have a defined and clear path for how we’re going to pass voting rights.”

But there’s the rub: Neither BBB nor either voting rights bill presently has a clear path through to passage. 

On BBB, Sen. Manchin is reportedly objecting to the way in which the ultimate cost of the plan has been calculated, particularly the cost of the Child Tax Credit (CTC), which was extended through this month but is now set to expire in 2022 if not reauthorized. Manchin complains that the current $1.75 trillion price tag for the bill has the CTC expiring again after one year but that it will be politically difficult to kill it next year, meaning there aren’t funds in the plan to pay for it beyond a year. He wants the CTC cost to be calculated over 10 years as if it were being renewed. This would make the “true price” (at least in Manchin’s head) much, much higher than his stated limit of $1.75 trillion—meaning he won’t support it.

While this argument has some superficial appeal because it targets the “gimmick” of sunsetting programs that might not actually ever sunset, the argument is also disingenuous. It was Manchin (along with Sen. Sinema) who demanded initially that the CTC only be extended for a year in order to win his approval on the bill’s outline. It is Manchin also who has the power to not extend the program after 2022, given that his vote is the 50th needed in the Senate for renewal. What Manchin is basically saying, then, is that he doesn’t want to go through this whole question again and have to play the bad guy in 2022.

Voting rights face a different hurdle in the Senate entirely. In order for the FVA and the John Lewis VRAA to pass, there must be 60 votes in favor because of the filibuster (budget bills, sometimes referred to as “reconciliation bills,” are not subject to the filibuster). So even though, with Manchin’s support, the Democrats have 51 votes in favor of voting rights, they would need 10 GOP senate votes unless there was some change to the filibuster rule. Such a change is possible, as Sen. Warnock pointed out, and was just pulled off to avoid a debt ceiling crisis. But currently neither Manchin nor Sinema favors getting rid of the filibuster entirely—the so-called “nuclear option”—claiming it would destroy what’s left of bipartisanship and hand the GOP too much power when it eventually retakes control of the Senate.

A possible, very narrow way past this is for some kind of filibuster reform short of eliminating the rule. For example, there could be a special carve-out for laws that protect democratic rights, such as the FVA or the John Lewis VRAA. That would follow similar carve-outs made for federal judicial and cabinet appointments, which now require just a majority to confirm after the rules were changed by both parties during the prior decade.

Another option would be to restore prior filibuster processes, such as a requirement that at least 40 senators actively object to ending debate or that a filibuster be maintained by continuously holding the floor, as the nation witnessed back in the Civil Rights era when white segregationists attempted to block civil and voting rights legislation. These and other options are being considered by a group of senators meeting behind closed doors as they try to find a path through.

It is unclear, however, whether any of these proposals will gain the support of holdout Democratic Senators Manchin and Sinema, putting voting rights at serious risk of legislative death. This carries high risks for the Democrats in 2022: Partisan gerrymandered districts, which the FVA would forbid if passed, give the GOP a mathematical advantage that likely hands them control of the House. Failure to pass voting rights also raises the existential risk in 2024 that voter suppression and GOP shenanigans at the state and local election board level will skew or up-end legitimate election results, delivering the White House back to the Republicans and possibly even back to Donald Trump through sheer chicanery.

There are internal risks for the Democratic coalition as well. Biden owes his political success in 2020 to African American voters, who provided him an overwhelming win in South Carolina and propelled him to the top of the ticket during the primaries. And Sen. Chuck Schumer knows it was Black voters who delivered two critical senate seats in January of this year to the Democrats in the Georgia run-off elections, without which he would not be majority leader today. A failure by the Democrats in the Senate to do all they can now in return, specifically by protecting voting rights and keeping millions of Black children out of poverty by extension of the CTC, could be seen as an unacceptable betrayal and could fracture the base that put the Democrats in charge of the federal government last election.

It is no understatement, then, to say that the next two months will be make-or-break for Biden and Schumer to honor their commitments to African American voters and leaders. The stakes remain enormously high, and as Sen. Schumer said as recently as May, failure is not an option.