Victor Juhasz
The waste of a year’s worth of the time of members of Congress, their staffs, reporters, think tanks, political operatives, advocacy groups, media planners, political advertising producers, and really the majority of the U.S. public culminated on the December 19 edition of Fox News Sunday, with Joe Manchin’s tortured announcement that he simply could not move forward on the Build Back Better Act. “I’ve tried everything humanly possible. I can’t get there,” a saddened Manchin intoned.
I suppose he could have tried actually wanting to get there. If there were any doubt before that Manchin simply wasn’t interested in passing anything resembling the Biden agenda, that should be put to rest, including by those who are wish-casting a path forward now. Manchin has more than made clear that, from the very beginning, he wasn’t buying what Democrats were selling during the 2020 campaign.
Take as further evidence the July 28 document, signed by Manchin and Senate Majority Leader Chuck Schumer, cementing the terms for a reconciliation bill. Just about everything in it has been incorporated into Build Back Better, and Manchin’s still opposed.
Manchin asked for means testing on every program; that’s in there, with the exception of pre-kindergarten, a policy Manchin implemented in West Virginia without means testing and which he has endorsed throughout the debate. Manchin wanted opioid addiction treatment in the package; BBB provides $11 billion in funding, and addiction treatment providers support the bill. He wanted sole authority on the clean electricity standard; Democrats took it out at his request. He wanted technology-neutral incentives on climate, with eligibility for carbon capture, hydrogen cars, and even keeping fossil fuel tax credits intact; all of that made it in. He wanted any revenues raised beyond his spending cap to go to deficit reduction; Democrats have been touting that the bill saves money. He laid out red lines on taxes that Democrats didn’t come close to crossing. He even wanted an end to Federal Reserve quantitative easing, and while Congress couldn’t possibly guarantee that, the Fed did it anyway, on his schedule.
The Biden administration must now pivot to executive action to make progress, as Manchin has stalled it at the legislative level.
The main thing Manchin didn’t get was a $1.5 trillion spending cap, but he made a private offer to the White House at $1.8 trillion, so that line obviously moved. If a politician gets 100 percent or near 100 percent of what they were asking for and still won’t agree to the terms, you have to conclude that they won’t agree to anything.
Manchin’s response would be that he wanted to remove gimmicks that serve to “camouflage the real cost,” by creating temporary programs that would later be made permanent. I have agreed that doing fewer programs on a permanent basis would be better policy; the leadership promised the moon in a tight legislative environment and then hobbled everything when spending was capped instead of eliminating programs, making an unpalatable soup of the agenda.
Manchin’s private offer included universal pre-K (so obviously means testing wasn’t a no-go on everything), expanding Obamacare subsidies, and $500 billion to fight climate change. There would be plenty of headroom to include other pieces in such a package,
But you’d have to believe that Manchin would actually be willing to get to yes to start pursuing that option. I can structure a lot of frameworks based on things Manchin has historically supported or endorsed days or weeks ago, but I can’t see any cause for optimism that Manchin, from his current crouch, will jump at them.
He has repeatedly and disingenuously cited inflation or the deficit as an excuse for inaction. On Monday, he cited the lack of a Senate committee process (recall that BBB already went through committees in the House) as an excuse for inaction. He has talked about the inability to roll back the Trump tax cuts, which his colleague Kyrsten Sinema effectively ruled out, as an excuse for inaction. Efforts to encourage unionization at electric-vehicle companies or end offshore drilling have been held out as excuses for inaction. There’s a new excuse that White House staff singled out Manchin by name last week as holding up the bill (which, well, is true), and that offended him. I certainly believe Manchin is petty enough to break off talks over this, but again, it’s just an excuse for inaction. That’s the common thread: inaction.
Well over two years ago, this magazine wrote a guideline to using presidential power called the Day One Agenda.
Meanwhile, talks are now continuing; if there’s one thing Manchin loves, it’s talking. But the best practice is to be highly skeptical of the idea that anything will result. I don’t see much value in arguing with a piece of granite.
Pramila Jayapal has come around to the right idea, after foolishly putting her trust in Biden to work out a deal with Manchin. She said on a press call today that the Biden administration must now pivot to executive action to make progress, as Manchin has stalled it at the legislative level. “We cannot make the same mistake twice,” Jayapal said. “It is abundantly clear that we cannot trust what Sen. Manchin says.”
It just so happens that well over two years ago, this magazine wrote a guideline to using presidential power called the Day One Agenda. We identified 77 discrete actions the next president could take on their own authority simply by executing laws already passed by Congress. In fact, we wrote it imagining precisely the kind of political gridlock we now face, where there just aren’t enough votes to advance policy.
There’s a lot of energy that will be put forward in the coming days to calling executive action a weak substitute for a wide-ranging legislative package like BBB. And certainly, it’s not the preferred path of congressional reporter tip sheets that measure progress by a legislative scoreboard they can easily track. But enormous progress could be made through executive action. Some already has.
The Biden administration has taken at least some action on about one-third of the 77 policies we outlined. He raised the minimum wage for nearly half a million federal contract workers to $15 an hour, got started on a postal banking pilot test to promote financial inclusion, and engaged a host of actions at the Federal Trade Commission to resolve inequities caused by corporate giants. Just this week, Biden imposed a new tailpipe emissions standard that mandates fleet-wide fuel economy of 55 miles per gallon by 2026.
But he has shied away from some of the more impactful ideas. Biden could cancel student debt for 42 million borrowers. He could give millions more workers access to overtime pay. He could deschedule marijuana from the list of controlled substances, effectively legalizing a burgeoning industry. His IRS could end the carried interest loophole that makes private equity so attractive and prohibit private equity management fees, weakening this cancerous financial scheme that is destroying hundreds of businesses. On the near-term crisis of the pandemic, Biden has several options, from ensuring cheap at-home tests by approving more for use, to using approved funds to improve ventilation in indoor public spaces like schools.
Most important, in areas that intersect with Build Back Better’s priorities, Biden has not only been fairly muted, but has failed to use his power in ways that could spur Manchin and Congress to act. The new tailpipe emissions are a start, but Biden has significant command-and-control authority to meet his Paris Agreement goals, which if used aggressively could spell the end of a certain mining technique Manchin is wedded to in West Virginia. In the absence of Build Back Better provisions lowering prescription drug costs, Biden could use federal law to seize drug patents developed with public money and assure they will be distributed affordably. (And yes, the Supreme Court could seek to block such actions, but that would be a pitiful excuse for not even trying.)
For those like Manchin who desire the status quo, a president committed to taking action would put him in the position of wanting to legislate, to ensure he has a say in the process. There’s been no effort to threaten executive action as the antidote to legislative inaction. Between that and the fear that no Build Back Better means reduced economic growth, maybe you can get Manchin to yes on something.
I wouldn’t hold my breath, but executive action is a duty regardless. The function of the president is to take care that the laws are faithfully executed. If Biden wants a successful presidency, the only path forward goes through using his own prodigious authority. We wrote the Day One Agenda precisely as a counterpoint to the despair of legislative paralysis. There’s not a ton we can do about the paralysis, but a president can govern. And we know what he can do. We wrote it down and everything.
