What are the prospects for bipartisanship?

WHEN IT COMES to actually passing legislation in Congress, intramural unity among Democrats will matter much more than the bipartisan unity that President Joe Biden seemed to be seeking in the opening days of his administration. As the impeachment trial of former president Donald Trump limps to its foregone conclusion in the Senate, Democrats will also be muscling through Mr Biden’s ambitious covid-19 relief package costing $1.9trn unilaterally, using a parliamentary manoeuvre that will require no Republican votes. There is little reason to doubt that the same strategy will be employed to pass the second immediate aim of the Biden administration, an enormous infrastructure package. Parliamentary quirks and partisan incentives mean that conservative Democrats will matter much more to the White House than luring liberal-ish Republicans.

There are two conceivable routes to passing Mr Biden’s legislative agenda. The first is through normal operating procedure, also called regular order. Such bills can be sweeping in scope or narrowly tailored to attract Republican votes, most likely those of senators like Susan Collins of Maine or Lisa Murkowski of Alaska (both of whom voted against repealing Obamacare) or Mitt Romney, who favours, like many Democrats, expansive child benefits. The problem with bills proposed in the ordinary way is that they are subject to the threat of a filibuster, effectively raising the threshold for passage from 50 votes to 60.

The task of luring another seven Republicans derails most major Democratic ambitions. Political scientists have devised a quantitative score of how left- or right-leaning a legislator is, known as DW NOMINATE. The current rankings show that the 60th most liberal senator is Cindy Hyde-Smith of Mississippi—a pro-life, pro-balanced budget sort of Republican not especially known for her bipartisan ways. There are perhaps a few areas where some legislation could avoid a filibuster, like criminal-justice reform and paid family leave, but these pale in comparison to Mr Biden’s dreams. That was clear in the president’s reaction to the counter-offer made by ten Republicans offered to his proposed stimulus, which was about one-third the size of his. After giving a good-natured, two-hour-long hearing to the senators at the White House, Mr Biden ultimately ignored their preferred framework and advanced instead by the second route: reconciliation.

This is the special parliamentary procedure for passing budgetary legislation, which is immune from filibustering and requires only a simple majority of senators to pass. In general, reconciliation can be used only once per fiscal year. But because Republicans did not pass a budget resolution for the current fiscal year, Democrats will probably have two opportunities in 2021. The first will be devoted to the stimulus, while the second will probably be devoted to infrastructure and possibly include tax increases and revisions.

In theory, a 50-vote threshold ought to allow more cross-party coalitions. But the temptations of reconciliation—the rare chance it offers of sidestepping a filibuster—mean that, in practice, it is not very conciliatory to the minority party. The incentives are to instead stuff as many majority-party proposals allowable under the so-called Byrd rule—the strict and complicated rule adjudicating which policies are allowed in reconciliation bills—while the chance is available. “It’s very difficult for the minority party to support a reconciliation package, just based on the structure of the approach, which is to diminish their involvement,” says Jason Grumet, the president of the Bipartisan Policy Centre, a think-tank. Even if a senator like Mr Romney were supportive of Democrats’ child-tax credit reforms, for instance, he would almost certainly balk at other features of the legislation, like the proposed $350bn bailout of state and local governments, and vote against the entire package.

For that reason, both of the last significant reconciliation bills—the Trump-era tax cuts and an Obamacare-related law—received no votes from the opposition party in the Senate. In a sign of things to come, the budget-resolution bill to start this round of reconciliation was passed on February 5th on strict party lines.

Reconciliation makes kingmakers of conservative Democratic senators, like Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. With them, Democrats can achieve a sizeable chunk of their agenda. Without them, their efforts will go down to defeat just as Republican efforts to repeal Obamacare using reconciliation did. Already they have started to flex their powers. Mr Manchin has pushed for the $1,400 cheques Mr Biden promised to go to a more limited set of Americans. His scepticism of plans, dear to progressives like Bernie Sanders, to eventually increase the federal minimum wage to $15 may end them too. With Ms Sinema and six other Democratic senators, Mr Manchin also voted for an amendment barring stimulus payments to undocumented immigrants.

Progressives have launched some efforts to berate them into changing. “Unfortunately our senator, Joe Manchin, thinks he knows better than both our president and the Democrats in Congress. I guess Joe just don’t know what it’s been like to live through the pandemic,” claims one radio ad airing in West Virginia from the No Excuses PAC, a pressure group. So far, there has been no discernible budging. Mr Manchin, who once released a campaign ad of himself shooting a hole through Barack Obama’s climate plans, will probably determine the outer limit of the president’s clean-energy agenda too. He has favoured investments in energy innovation like carbon capture, but remains lukewarm on Mr Biden’s other climate proposals.

The promised repeal of the Trump tax cuts, which may be proposed to pay for infrastructure spending, may also prove hard. That is because it would require “268 of 272 elected Democrats [a majority in the House plus 50 senators] to agree on the same set of policy choices,” says Rohit Kumar of PwC’s national tax-policy group, a former deputy chief-of-staff to Mitch McConnell. Because that degree of party discipline is hard to achieve, Mr Kumar is sceptical that Democrats will agree to increase the corporate-tax rate from 21% to 28%, as Mr Biden campaigned on, or to increase the tax rate on capital gains from 20% to 39.6%. Another likely result is that traditional infrastructure spending on roads, bridges and broadband may survive, while the green-tinged bits on retrofitting schools and houses and installing electric-vehicle charging stations, may be culled.

Politicos pouring over obscure senatorial rules (one coming attraction will be feverish discussion over the “Byrd bath”) can sometimes miss that the rules restraining Mr Biden are self-imposed. Three Republicans could be conceivably picked off on piecemeal bills, but gathering ten to avoid a filibuster looks impossible in most cases. Eliminating the filibuster, by a simple majority vote is thus appealing to some. “Over my dead body,” Mr Manchin recently told The Economist. Ms Sinema’s office has said quite definitively that she is “against eliminating the filibuster and she is not open to changing her mind.” That will push Democrats towards a parliamentary manoeuvre that is repellent to persuadable Republicans. So much for bipartisanship.■