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Legislative Column: Finding a Legislative Path Forward

  • Finding a Legislative Path Forward 

    Jeff Simering, Director of Legislation


    After the swift enactment of the American Rescue Plan in early March, the Biden administration proposed a series of legislative priorities including the American Jobs Plan for national infrastructure, the American Families Plan for human infrastructure, and an annual federal budget that accelerates investments in meeting critical domestic needs.  Elementary and secondary student needs are central to each of these proposed legislative packages.  But the successful passage of the $2 trillion American Rescue Plan earlier this year masks the difficulty and complexity of passing additional domestic policy legislation. 

    The 2020 elections ushered in single party control of the presidency and both houses of Congress, albeit with one of the slimmest majorities in history.  And the expedited passage of the $2 trillion American Rescue Plan Act became possible using the simple majority voting procedures of the Budget Reconciliation process.  But those same reconciliation procedures are traditionally limited to only once each year and are constrained by parliamentary rules in the Senate that limit the scope of any reconciliation measure. 

    In short, all other federal legislative actions are covered by regular procedural rules in each house of Congress, and therefore are subject to being filibustered in the Senate and requiring a supermajority of 60 votes to move forward.  Annual appropriations bills, continuing resolutions, authorization bills, as well as debt ceiling legislation typically require a supermajority vote in the Senate in order to be considered and passed.  And few major bills garner this level of bipartisan support. 

    President Biden and the Congress now struggle with how to proceed on priority legislation.  National infrastructure remains a high-profile priority along with a package of social safety net programs viewed as a human infrastructure initiative.  And new federal voting rights legislation to counteract widespread state-level voting restrictions has taken on critical importance in the 117th Congress.  The political divide on these pending measures cannot be overstated. 

    Months of negotiations on federal infrastructure investments between the White House and small groups of legislators sought common ground that would secure a supermajority vote in the Senate.  The late June announcement of an agreement on a $1 trillion infrastructure package, including $579 billion in new funding along with reprogramming other unspent funds from earlier recovery bills, focused on investments in roads, bridges, rail, transit, water and sewer, broadband, electric vehicles, and utilities.  Key infrastructure programs for K-12 schools, higher education, child care, and housing, however, were omitted from the agreement sparking concerns from other legislators and various interest groups, including the Great City Schools.

    A quick clarification was issued from the White House and the majority leadership of the Congress that the remaining priorities of the Biden administration would be packaged into a separate but concurrent FY2022 Budget Reconciliation bill needing only a simple majority vote.  Later, however, an updated White House clarification indicated that the announced infrastructure agreement was not contingent on simultaneous passage of the larger reconciliation bill. 

    The path forward on the infrastructure “deal” and a reconciliation bill still remains unclear.  And the necessity to secure a bipartisan supermajority for the “must pass” federal debt ceiling extension and the annual appropriations bills presents further challenges for the 117th Congress. 

    Moreover, the specter of a filibuster looms for every major legislative initiative that cannot be shoehorned into an annual Budget Reconciliation bill.  The relatively rare occurrence of single party control of both houses of Congress and the presidency increases the pressure to eliminate the Senate filibuster and cloture rules thereby allowing a simple majority to move their legislative agenda unimpeded.  With new federal voting rights legislation now blocked by a Senate filibuster and various state-level initiatives to restrict voting access proceeding unabated, the arcane Senate parliamentary rules are garnering increasing criticism. 

    The major policy priorities of the Biden Administration and the Democratic controlled 117th Congress hang in the balance.  Yet, more fundamental institutional challenges from the January 6th insurrection, state legislative efforts to restrict voting access, and new scrutiny of Senate legislative procedures may ultimately overshadow the current set of administration and congressional priorities.