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What Democrats Can’t Do As Long As The Filibuster Remains In Place — And What They Can

The recent fight between Senate Democrats and Republicans over the rules that would govern the chamber this session was complicated and arcane. All you really need to know is that Democrats don’t seem likely to use their slim majority to gut the filibuster. So, what exactly can Democrats do with a governing trifecta (control of the U.S. Senate, House and presidency) but not a filibuster-proof margin in the Senate? And, just as importantly, what can’t they do?

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Let’s start with three things Democrats can do …

Use the budget “reconciliation” process on tax policy and spending

This is the really big one. There are a lot of good, detailed primers on reconciliation online, so I will describe it only briefly here. Essentially, as part of each year’s budget process, the Senate can adopt at least one large bill that is not subject to the filibuster and therefore pass it with a simple majority. Generally, the provisions in these bills must be related to taxes and spending. In theory, Democrats could pass at least three reconciliation bills before the 2022 midterms (ones for the 2021, 2022 and 2023 budget cycles). But these bills are subject to all kinds of intricate rules, with the Senate parliamentarian, a nonpartisan official, in the position of determining what can and can’t be included.

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Reconciliation was successfully used by George W. Bush and the Republicans to pass major tax cuts, by Barack Obama and Democrats to enact the Affordable Care Act and by Donald Trump and Republicans to pass tax cuts and nearly to repeal parts of the ACA. So some of the most consequential parts of Biden’s agenda will probably be put in these reconciliation bills to ensure that they are approved, just as they were during previous administrations.

For example, most of the major elements of Biden’s economic stimulus proposal — sending hundreds of billions of dollars to cities and states as well as one-time $1,400 payments to most adults — can likely be included in a reconciliation bill. But it’s not clear whether the provision in that proposal to raise the federal minimum wage to $15 per hour can be passed via reconciliation. (More on that in a bit.)

In general, both parties have used reconciliation to enact health care and tax policies. I would expect Democrats to do the same over the next two years — to push forward tax hikes on wealthy people and expand health care access. But if Republicans filibuster most other major legislation, look for Democrats to try to find ways to use reconciliation on a wider range of issues, such as reducing the cost of college, forgiving student loan debt, increasing federal funding for child care and mandating paid sick leave.

Fill spots in the executive and judicial branches

With a Senate majority, Biden can basically choose whomever he wants for both Cabinet and sub-Cabinet roles in federal agencies, as those choices are not subject to the filibuster. That matters for Biden to be able to carry out his agenda in areas where he isn’t looking for additional money or authority from Congress.

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In terms of federal judicial nominations, as FiveThirtyEight’s Elena Mejía and Amelia Thomson-DeVeaux explained in a recent piece, Trump and Senate Republicans didn’t leave a lot of openings for Biden to fill — 43 of 677 on the district courts and two of 179 on the circuit courts of appeals.1

That said, there are already indications that a lot of older judges appointed by previous Democratic presidents may vacate their positions now that Biden is in office, giving him more judgeships to fill. The most important being that of 82-year-old Supreme Court Justice Stephen Breyer, whose seat Biden would likely fill by appointing the first Black woman to the nation’s highest court.

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Repeal last-minute Trump regulations

The Congressional Review Act allows Democrats to roll back regulations enacted in the last few months of Trump’s administration. Right before they left office, Trump and his team pushed through a series of measures designed to limit environmental policies that might constrain businesses. Expect to see congressional Democrats and the Biden administration roll them back as part of their broader agenda to prioritize policies to mitigate climate change.

What Democrats likely can’t do

There is talk that Democrats might, instead of getting rid of the filibuster completely, carve out more exceptions to it. This has happened twice in recent years: In 2013, a Democratic Senate majority effectively ended the filibuster for district and circuit court nominations as well as executive branch nominations, and then in 2017, a GOP-controlled Senate ended the filibuster for Supreme Court nominations. But more conservative Democrats like Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona don’t seem inclined to support even modest filibuster reform, at least right now.

So, currently, a lot of policies will probably be out of reach for Democrats, unless for some reason 10 Senate Republicans also embrace them. Democrats won’t be able to use reconciliation to enact the government-reform bill that House Democrats adopted in 2019, which among other things would create two weeks of early voting in all 50 states and put redistricting in the hands of nonpartisan, independent commissions. Democrats can’t make Washington, D.C., and Puerto Rico states via reconciliation; they can’t increase the number of judgeships at the district and circuit court levels or add justices to the U.S. Supreme Court. And they probably won’t be able to pass most new environmental regulations, gun restrictions or protections for or expansions of abortion rights.

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Emphasis on the word probably. What can be done via reconciliation is ultimately up to the parliamentarian and the senators, who could decide to overrule her, although that would be very controversial. Some liberals are suggesting there are ways to use reconciliation for providing a pathway to citizenship for undocumented immigrants and raising the federal minimum wage — the kinds of policies that haven’t traditionally been included in reconciliation bills.

“It is sometimes hard to predict whether a particular provision will meet the standard,” said Richard Kogan, a senior fellow at the left-leaning Center on Budget and Policy Priorities and a former top staffer on the House Budget Committee. “There’s sometimes disagreement even among experts, and it’s not always easy to foresee how the Senate parliamentarian might rule on a given issue.”

When you look at what Democrats can’t pass without reforming or getting rid of the filibuster, it further illustrates why the filibuster is such a major point of debate in the party right now. Democrats are constantly arguing over whether they are talking about race and cultural issues too much, whether they are appealing to voters of color and/or white voters without college degrees at the expense of turning off either group, and whether they are tilting too far left or not far left enough. In a world where the filibuster remains as is, they are unlikely to pass the kinds of legislation that would benefit voters of color in particular (statehood for D.C. and Puerto Rico, which have large populations of voters of color; voting-rights provisions; immigration reform), that relate to culture and identity (limiting gun rights, expanding abortion rights) or that lean fairly far to the left. Because of this, the party’s agenda is likely to move more toward economic issues that can pass via reconciliation.

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In effect, keeping the filibuster in place prioritizes Manchin’s vision of the Democratic Party (culturally conservative and economically somewhat liberal) over Rep. Alexandria Ocasio-Cortez’s vision (very liberal on all measures). That isn’t to say that Manchin opposes getting rid of the filibuster because he, for example, opposes statehood for D.C. (for the record, he says he’s open to the idea). But the urgency for someone like Manchin to gut the filibuster may be less than that for Ocasio-Cortez because what Democrats could pass in a filibuster-less world is less exciting to Manchin than to Ocasio-Cortez. That’s why I expect Democrats to pass a lot through reconciliation over the next couple of years — and for the party’s left wing to still keep demanding that Democrats eliminate the filibuster so they can pass the things on their agenda too.

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  1. Vacancies as of Jan. 20, 2021.

Perry Bacon Jr. was a senior writer for FiveThirtyEight.