Listening to the back-and-forth among Democrats on what to include in a shrunken Build Back Better package, I offered a way out of the dilemma at New York:

It’s clear the price tag of the Build Back Better budget-reconciliation bill will have to come down from $3.5 trillion to the roughly $1.5 to $2 trillion their senatorial majesties Joe Manchin and Kyrsten Sinema will allow. The two ways to pare the package are pretty obvious: enact a few big things in their original glory and drop others, or enact the whole enchilada in some sort of bargain-basement form. The latter approach typically involves either means-testing to reduce the number of beneficiaries, which progressives and those who poll likely voters stoutly oppose, or providing shorter-term benefits and daring Republicans to kill them if they can, which some progressives and polling mavens do like.

My colleague Eric Levitz recently weighed these options and came down emphatically in favor of the few-things-done-well approach (or, as his headline put it, “against temporary half-assed reforms”). More important, it’s the strong preference of House Speaker Nancy Pelosi, as she wrote to her caucus over the weekend:

“Overwhelmingly, the guidance I am receiving from Members is to do fewer things well so that we can still have a transformative impact on families in the workplace and responsibly address the climate crisis: a Build Back Better agenda for jobs and the planet For The Children!”

Aside from imposing that approach on unhappy progressives favoring a broader if less permanent agenda and on “centrists” who want means-testing or other limitations on the “transformative” items remaining, there’s the question of choosing what’s in and what’s out. It won’t be easy to achieve consensus, and any resolution will leave significant elements of the Democratic coalition unhappy.

But a lot of the angst involved in this set of decisions depends on a bit of dogma that really needs to be reexamined: Congress cannot do anything important in an election year.

Yes, it’s true that members of Congress up for reelection in any given cycle, as well as their Senate colleagues whose majority status is at risk, are less likely to favor perilous votes in an election year — particularly for the party controlling the White House in a midterm election where they are likely to lose ground in any event. But how about votes on genuinely popular initiatives that may actually improve the reelection odds of incumbents supporting them while giving that party’s challengers a strong and united message?

This could be one way out of the current Democratic dilemma: Remove from the FY 2022 budget-reconciliation package and reserve for a FY 2023 follow-on measure — to be debated and enacted in 2022 — some tasty, poll-tested initiatives that aren’t central to any short-term economic-stimulus strategy. A very good candidate for this treatment is the expansion of Medicare to include dental, vision, and hearing benefits. It’s very popular (a June 2021 Kaiser Family Foundation survey found 90 percent of respondents called it a “top” or “important” priority for Congress). It’s also pretty expensive (the enhancement was “scored” by the Congressional Budget Office as costing $358 billion in 2019).

Delaying, rather than dropping, the initiative could reduce the price tag of the Build Back Batter package significantly without infuriating its progressive proponents (such as Senate Budget Committee chairman Bernie Sanders). The delay may also accommodate dubious but strongly expressed centrist fears that too big a spending package right now could escalate inflation and/or make Democrats look fiscally irresponsible.

A shift from 2021 to 2022 for the most popular spending initiatives may be even more effective if matched with the most popular revenue-raising measures to pay for them, which might include higher taxes on the very wealthy or Medicare drug-price-negotiating authority.

For this gambit to work, of course, Democratic leaders would need to be resolute about their willingness to move another big reconciliation bill in 2022. The centrists who forced down the size and shape of the Build Back Better package would also need to be open to it. They should be since they say they’re just hesitant to commit to more spending before we know the future direction of the economy.

As for the impact on Democratic prospects in the midterms, it’s hard to see how a united party advancing a clear, highly popular agenda just as voters begin to focus on their 2022 preferences (presumably late next summer or even in the early fall) could fail to benefit. The Democratic base would be gratified by a promise delayed yet still fulfilled, while persuadable swing voters are precisely those boosting the poll numbers of the most popular initiatives like the Medicare expansion. If you’re like me and figure that Democrats will probably lose the House next year no matter what they do and that they need to accomplish all they can before 2023, splitting the original Build Back Better wish list into sequential pieces of legislation makes perfect sense.

So it’s possible for Democrats to have their cake and eat it, too, while remaining unified. The first step is to stop assuming their ability to legislate ends with 2021.

After months of reading and writing about Democratic congressional battles over infrastructure and reconciliation, I offered a bit of a historical corrective at New York:

If you follow the buzz in Washington, you would think there are massive divisions in the Democratic Party between “progressives” and “centrists” that threaten to blow up Joe Biden’s agenda. The “centrists” in particular have been troublesome by insisting on the shrinkage of said agenda, both quantitatively (various demands to reduce the price tag on the Build Back Better budget-reconciliation package) and qualitatively (complaints about too much climate-change activism or too many new entitlements or too little means-testing or too many taxes).

But lost in all the bickering and hostage taking is the fact that Democrats in Congress are almost certainly more united than they’ve ever been. And there are a lot more “centrists” working quietly in harness with party leaders and progressives than are out there making demands at press conferences.

There are two major groupings of Democratic centrists (or “moderates,” a term used almost interchangeably) in the U.S. House: the Blue Dog Coalition and the New Democrat Coalition. The Blue Dogs have eternally made “fiscal discipline” a signature issue for their membership and have in the past been more than willing to stand up to party leaders. Of the nine “rebels” led by Josh Gottheimer who insisted on a vote on the bipartisan infrastructure bill before they would countenance a reconciliation bill in the big blowup in September, eight were Blue Dogs (plus, Blue Dog co-chair Stephanie Graham made some sympathetic noises). But ten Blue Dogs stayed out of the rebellion.

The minority status of the rebels becomes even clearer if you look at the New Democrat Coalition, a newer group that was once considered close to the now-defunct Democratic Leadership Council (the famously controversial organization that coined the “New Democrat” brand). There are 95 NDC members in the House. Nine of them (ten if you count Murphy) were among Gottheimer’s rebels. Fully 85, including all the group’s leadership, were not.

In the Senate, every member is a caucus, so you don’t tend to have factional groups. Joe Manchin and Kyrsten Sinema have been the hostage takers and naysayers among “centrist” Democrats. But think about all the other “centrists” who haven’t been issuing demands or kicking and screaming about the Build Back Better package. I would count a lot of Senate Democrats as conspicuously moderate over the years: Michael Bennet, Tom Carper, Chris Coons, Dianne Feinstein, Maggie Hassan, Jeanne Shaheen, John Hickenlooper, Tim Kaine, Mark Kelly, Amy Klobuchar, Jon Tester, and Mark Warner. Maybe some of them sympathize with Manchin and Sinema on this or that issue. But they aren’t out there disrupting Democratic unity, are they?

In fact, if you look back at legislative challenges faced by recent Democratic presidents, the relative loyalty of today’s brand of “centrists,” becomes plainer. In 1993, Bill Clinton, himself a stalwart of the DLC who would drive some progressives batty, pushed a budget-reconciliation bill through Congress that had already been significantly pared of progressive provisions before it was introduced. In the end, though, Clinton lost 41 House Democrats and six Senate Democrats (nearly all of them conspicuous moderates or conservatives) who joined Republicans in voting against the legislation.

In 2009, Barack Obama had to deal with well-organized centrist Democrats in both chambers to get his budget enacted; the complex structure of Obamacare was one legacy of the compromises he had to accept after Joe Lieberman, among others, killed the “public option” before it was even incorporated into legislation. Fifteen Senate Democrats worked together to reduce the overall cost of the budget. In the end, 20 House Democrats voted against the package despite a host of accommodations.

The bigger picture is that in recent decades, ideological polarization has consolidated left-of-center voters and pols in the Democratic Party while right-of-center voters and pols have gone Republican. And partisan polarization has greatly reduced the number of ticket splitters. Both forces tend to enhance party unity in Congress. In 2008, despite Obama’s big national victory, 48 Democrats were elected in House districts carried by John McCain. In 2021, there are only seven House Democrats representing districts Trump won last year and only three from districts Trump carried by more than two points. The real outlier among House Democrats is Jared Golden of Maine, whose district went for Trump by seven points. Is it any wonder he’s one of the most vociferously adamant rebels against Biden’s budget bill? Or could anyone be surprised that Manchin isn’t “loyal to Biden” when Biden got less than 30 percent of the vote in West Virginia?

The real problem for Democrats in 2021 isn’t ideological disunity: It’s their shaky control of both chambers, which tempts individual House and Senate members to set themselves up as power brokers and posture for swing voters and wealthy and powerful interests back home.

After the 1992 elections, Clinton’s Democrats held 257 House seats and 57 Senate seats. After the 2008 election, Obama’s Democrats held 257 House seats and 59 Senate seats (which would soon become 60 when Arlen Specter changed parties). Now, Biden’s Democrats control 220 House seats and 50 Senate seats. Even a very unified party will have problems with such a small margin for error and that much incentive for factional or individual demands. And those who treat the current tensions as some sort of inherent “Democrats in Disarray” problem may be forgetting how much trouble Republicans had managing small congressional margins in 2017 and 2018. Remember the Obamacare repeal that never happened?

The cure for Democratic “disunity” isn’t expulsions or an imposed ideology; it’s to win bigger margins in Congress or to lose majorities altogether. Difficult as the status quo undoubtedly is, all Democrats would prefer the turbulent exercise of power to no power at all.

Got far down in the weeds of an obscure but important issue at New York this week:

The now-notorious Eastman memo — the script Donald Trump gave to Mike Pence for overturning the election results on January 6, 2021 — was potentially more dangerous to our nation than the rioters he incited to storm the building. The document provided a spurious, but convenient, constitutional rationale for Pence to abuse the authority granted to him in the 12th Amendment to tabulate electoral votes as part of a pro forma process for confirming Joe Biden’s election. According to Eastman, a lawyer on the president’s legal team, Pence had the lordly power to disregard state-certified electors, ignore the procedures spelled out in the “unconstitutional” Electoral Count Act, and either hand an unearned victory to his own ticket or kick the election into the House. Pence decided not to go there, though he seems to have strongly considered it.

I have feared that the attempted 2020 electoral coup may have been a dress rehearsal for Trump. But no matter what happens in the 2022 and 2024 elections, there will be one important change in the scenery when a joint session of Congress convenes to count electoral votes in January of 2025: Instead of Republican Pence, Democrat Kamala Harris will preside. As Russell Berman notes in The Atlantic, there’s a quiet debate underway as to what role she might play if Trump is the Republican nominee and tries again to steal the election:

“Should Trump or his acolytes try to subvert the 2024 election, the last Democrat with any power to stop the steal — or at least try to — would be Harris. ‘She’s certainly going to have quite a job on her hands on January 6, 2025,’ Laurence Tribe, a Harvard law professor and liberal constitutional scholar, told me. Nine months ago, Tribe and other Democrats praised Pence for interpreting his authority narrowly, but the next time around, they might ask Harris to wield the same gavel more forcefully.”

This does not mean there is significant support in liberal legal circles for some sort of reverse-Eastman memo, with Kamala Harris refusing to acknowledge electors that Trump won, relying on some outlandish constitutional argument. As Matthew Seligman of the Campaign Legal Center told me, election lawyers are unwavering on this point.

“It’s critical to be clear that the Constitution does not vest the vice-president (as president of the Senate) with any unilateral authority at all to reject electoral votes or to resolve disputes about competing slates of electors,” he said. “That theory was the basis of the Eastman memo, and it is absolutely incorrect — whether it’s Vice-President Pence, Vice-President Harris, or any other politician of any political party.”

But the Electoral Count Act (which Eastman wanted Pence to disregard) does give some powers to the vice-president, while leaving certain potential issues maddeningly unclear, with virtually no court precedents to govern the sort of scenarios that could conceivably emerge in future elections. Distinguished Harvard emeritus professor Laurence Tribe told Berman it was clear the ECA gave the vice-president the power to reject “ungrounded challenges to state certifications.”

So if, hypothetically, a Republican-controlled Congress was tempted to supplant electors certified by the appropriate officials under a given state’s laws with some self-appointed alternative slate (like the fake Trump electors Eastman wanted Pence to recognize), Harris might be able to gavel such a move out of order. But as Seligman told me, the ECA does not give the veep “freewheeling authority to pick and choose how to count electoral votes, for good reasons or for bad reasons, and it would be dangerous if it did so.”

If a 2024 Team Trump (or anyone else) gets its act together enough to organize more regularly constituted electoral vote larceny — either by an entirely legal certifying authority that chooses to ignore or distort the popular vote, or by muddying the waters with a conflicting certification by a legitimate state body such as the legislature — there may be nothing Harris can do about it short of asserting powers she doesn’t have, and which a Republican Congress could formally deny her by challenging her decisions. But here’s the thing: The operations of the ECA in such uncharted territory are murky at best, as one might expect from an 1887 statute developed under the shadow of the very different disputed presidential election of 1876.

But prospects for fixing the ECA in the near term have been stalled by the lack of interest of congressional Republicans determined to “move on” from the embarrassing events of January 6. Perhaps the realization that Kamala Harris will be in the chair in 2025 will sink in enough to make them reconsider that hands-off stance toward placing clear limits on her power — power she will be strongly encouraged to exercise to the maximum extent if she’s defending not just another Democratic victory but democracy itself. For that matter, lawmakers in both parties need to understand the ECA is going to be a problem in future elections after which we have no way of knowing who will be sitting in the vice-president’s chair when the deal goes down, or which party will control Congress.

It’s true congressional Republicans may fear the wrath of Trump should he decide an otherwise non-controversial ECA fix could tidy up the muddy track he prefers in order to keep his legal and extralegal options open for a post–Election Day reversal of fortune. But if they value the Constitution and the rule of law, they may be forced to cast a very difficult vote to stop a Trump coup in 2025. Precluding at least some of this risk by clarifying the ECA at this early juncture might be an easier vote, and they can always tell their MAGA constituents they are just reining in Kamala Harris.

Watching all the arguing and fighting among Democrats over the infrastructure and reconciliation bills, it occurred to me we should count some blessing, so I did so at New York:

September was a tough slog for the Democrats whose trifecta control of Congress and the White House has made it essential, but hardly easy, to reach internal agreement on the Biden priorities of an infrastructure and budget reconciliation bill. As of Thursday night, it is entirely possible the Build Back Better reconciliation bill will get a severe haircut thanks to the demands of centrist Democrats like Joe Manchin and Kyrsten Sinema, and that the package will be significantly less progressive than originally envisioned. Totally aside from this set of problems, Democrats are presently stymied by the Senate filibuster on other key priorities ranging from voting rights to abortion rights to a path to citizenship for immigrants.

But these frustrated and sometimes battling donkeys should stop kicking and braying long enough to count their blessings. They came very close to not having a trifecta at all. And the narrow margins Democrats have to work with now could have been less than zero.

Most obviously, Donald Trump’s efforts to illegally reverse the presidential election outcome based on the Big Lie that he won should not make us forget that a shift of just over 77,000 votes in four states (Arizona, Georgia, Nevada, and Wisconsin) would have given him a Electoral College majority, despite Biden’s large win (which would have nearly reached seven million votes even with the above-stipulated shift) in the national popular vote. You have to reach a little deeper to come up with a hypothetical Republican conquest of the House, since the GOP won eight of the closest ten House races and still fell five seats short.

It’s pretty easy, by contrast, to see how Democrats might have fallen short in the Senate long after November 3: Had the two Republican incumbents won those January 5 U.S. Senate runoffs in Georgia, as most observers initially thought they would do, then Mitch McConnell would still be Majority Leader rather than the ranking obstructionist. Indeed, the most common explanation of those pivotal Democratic victories over David Perdue and Kelly Loeffler is that Trump made the runoffs all about his grievances while continuing to undermine Republican voter confidence in the electoral system.

Democrats were fortunate as well that new senators Jon Ossoff and Raphael Warnock were solid progressive Democrats, not the sort of Blue Doggy centrists wary of the national party that Georgia and other southern states once routinely sent to Washington.

In any event, life in America would obviously be very different if Trump were still in the White House. And had Republicans hung on to control of the Senate, there would be no Democratic-designed FY 2022 budget reconciliation bill for Manchin and Sinema to undermine. In all likelihood, Congress might have still enacted a significantly pared-down version of the American Rescue Plan, but would have probably called it a day. It’s doubtful McConnell would have felt any real pressure to let a significant number of Senate Republicans back a bipartisan infrastructure bill that Donald Trump loudly opposed. And all the developments that have depressed Joe Biden’s job approval ratings in recent months would still have likely happened anyway, with no countervailing public appreciation for what he may yet accomplish with his congressional allies.

The Democratic trifecta of the 116th Congress will leave a massive or modest legacy depending on what happens between now and November of 2022 — and obviously on what happens in the 2022 midterms. But the situation could be so much less promising and so much more depressing, and Democrats, especially disappointed progressives hoping for a new New Deal, should keep that in mind.

 

Surveying the gloom over Joe Biden’s current popularity, I offered some historical perspective at New York:

What do pessimists think about the trajectory of Joe Biden’s presidency? It’s not good, according to the Atlantic’s David Frum:

“Democracy is genuinely on the ballot in 2022 and 2024, as it was in 2016, 2018, and 2020. But this time, so too are prices, borders, and crime. If the Biden administration cannot deliver better on those issues than it has so far done, Trump and his enablers will be just as happy to scoop power by default as to grab it by stealth or force.”

That’s right: NeverTrumper Frum thinks conditions in the country could be so terrible by 2024 that Trump won’t even have to cheat or stage a coup to regain power. But while we cannot really know what course events may take between now and 2024, we do know the historical record, which suggests that presidents in Biden’s situation tend to get reelected, even if they look eminently beatable at some point during their first terms.

Since World War II, nine elected presidents have sought a second full term. Six of them (Eisenhower, Nixon, Reagan, Clinton, George W. Bush, and Obama) were reelected, the first three by landslides and the fourth by a near-landslide. Of the three losers, one, George H.W. Bush, had a “party fatigue” problem; his party had held the White House for 12 years when he ran for reelection. That leaves two presidents who pretty much earned defeat on their own: Carter and Trump. That’s probably unfair to Jimmy Carter, since he inherited a horrific domestic economic situation that had been largely cooked up by Nixon with a big assist from OPEC. He also took office in the midst of a giant ideological realignment that cut his southern regional base right out from under him. And even Trump, who worked very hard at alienating voters, had the back luck to be in office when COVID-19 struck, not that he helped matters much.

The point is that the power of incumbency should never be minimized. Five of the six reelection winners (all but George W. Bush in the highly anomalous 2002 midterms) lost ground in their first midterm election. Two lost calamitously: Democrats lost 52 House seats in Clinton’s first midterm in 1994 and 63 House seats in Obama’s first midterm in 2010. For that matter, Donald Trump lost 40 House seats in 2018, yet very nearly won reelection.

Yes, Biden’s job approval rating has been steadily sagging during the last three months and is now (per Gallup) at 43 percent. Using Gallup as well, Obama’s job approval rating hit 40 percent in August of 2011, and bumped along in the low 40s until it began to climb over 50 percent just prior to his reelection. Similarly, Bill Clinton’s rating fell all the way to 37 percent in mid-1993; was at 39 percent in August of 1994; and was only at 42 percent in early 1996. By the time he faced voters in November of that year his job approval was well over 50 percent. And yes, Trump secured some of the highest job approval ratings of his presidency during the run up to the 2020 elections, when he outperformed expectations.

Frum suggests Trump might cakewalk to a 2024 restoration if Biden doesn’t turn a lot of things around. But in reality, there is nothing that might give Uncle Joe more abiding hope of his own comeback than a comeback by his divisive predecessor, a totally known quantity with a demonstrated low ceiling on his support. Three times major parties have renominated a losing presidential candidate in the next cycle; on all three occasions these were rematches: Grover Cleveland (versus Benjamin Harrison) in 1892; William Jennings Bryan (versus William McKinley) in 1900; and Adlai Stevenson (versus Eisenhower) in 1956. Cleveland famously won. Bryan and Stevenson lost ground.

Does Trump resemble the stolid Cleveland in any significant way? Not really. He managed to come close to reelection by polarizing the country to the breaking point. Since then he has done absolutely nothing to appeal to any voters who failed to support him in 2020, and he’s the least likely person in America to change his ways.

Joe Biden will need both skill and luck to dispel the malaise currently afflicting his presidency. But based on what other presidents have done, and given his likely 2024 opponent, his reelection remains a solid — if hardly sure — bet.