Infrastructure Summer: The Untrained Bipartisan Deal-Makers

The senators negotiating the infrastructure package don’t have expertise in infrastructure, and it’s showing.

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The best indication of the state of play on the by-now-comical bipartisan infrastructure framework came over the weekend, when two separate reports crossed the wires. On one end, members of the team of senators negotiating the bill were on the Sunday shows touting that their work was “90 percent done” and would be ready for viewing within 24 hours. On the other was a source close to the talks telling a Hill reporter that the outstanding issues included transit, broadband, water funding, prevailing wages for construction projects, offsetting the price tag with unspent COVID relief money, and even “highways/bridges.”

In other words, except for everything, the bill was in good shape.

This has been the trajectory of these talks throughout, with continual happy talk punctuated by ever-widening gaps between negotiators on the actual substance. Though the White House and the senators announced their endorsement of the tentative agreement on June 24, a month has now passed and they’re no closer to a deal.

The latest drama came when Democratic negotiators delivered a “global offer” on all outstanding issues in the package, and on Monday morning Republicans rejected it, claiming that it “goes against” previously agreed-to terms. “If this is going to be successful, the White House will need to show more flexibility,” relayed a GOP source to multiple reporters.

It’s first worth noting that Republicans didn’t mention an actual policy that Democrats were trying to renegotiate. But even if the Dems were renegotiating, it’s rich for Republicans to complain about it, seeing as they have already demanded a Simone Biles level of flexibility on issues that were long settled decades ago.

Take the Davis-Bacon Act, which requires that all public-works projects pay workers the prevailing wage in a particular region. This dates back to 1931, enacted under Herbert Hoover while Franklin Roosevelt was still governor of New York. Details are scant, but Republicans apparently want to create an exemption to an 80-year-old statute that was designed to cover precisely this kind of infrastructure spending.

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The Republican position on transit is a bit more obscure but just as norm-shattering. The best explanation for what’s going on was in Roll Call last week. The important context here is that the bipartisan bill is actually two bills. One is a bunch of new spending on various “hard” infrastructure projects, with offsetting revenues that cover their costs, ensuring there’s no impact on the budget. The second is the surface transportation reauthorization, a vehicle for routine spending on transportation projects that gets renewed roughly every five years. These costs are already partially funded through the gas tax; what changes with each reauthorization are various policy matters and the funding ratios.

Since 1983, one ratio has held firm: New funding into the Highway Trust Fund has been sent out with an 80/20 split between highways and mass transit. Democrats would like to harmonize this across all gas tax revenues, not just from post-1983 increases. Republicans resist that, and argue that because transit will be getting a $48.5 billion infusion from new spending, the 80/20 split doesn’t have to be adhered to. In fact, Republicans want to roll it back to 82/18. (Because of the lack of an 80/20 ratio on older gas tax funding, the real split is more like 88/12 in favor of highways.)

It should be noted at this point that 80/20 is a ridiculously low ratio in the face of climate disaster. Highway projects that reinforce fossil fuel infrastructure (unless you think we’re electrifying the auto fleet anytime soon) make no sense in world that is simultaneously flooding and burning. Yet even this bare minimum of an 80/20 split is triggering a fight.

The reason is that transit is the only major part of the surface transportation bill that the Senate didn’t resolve prior to this bipartisan negotiation. The Senate Commerce Committee and the Environment and Public Works Committee reported out their parts of the reauthorization. The Banking, Housing, and Urban Affairs Committee has jurisdiction over mass transit, however, and there a dispute engineered almost entirely by retiring Sen. Pat Toomey (R-PA) has derailed things.

Toomey has consistently objected to the 80/20 split, arguing that transit has gotten enough from COVID relief funding. It’s a nearly 40-year-old precedent that Toomey is trying to usher out the door.

Toomey, we should note, is not among the 11 Republicans who have said they’ll vote for the bipartisan bill if the five GOP negotiators approve it—but all those 11 have pledged to adhere to Toomey’s demand. Worse yet, none of the five Republican senators negotiating the bill—Rob Portman, Mitt Romney, Lisa Murkowski, Susan Collins, and Bill Cassidy—are on the Banking Committee, and therefore have no jurisdiction or (likely) familiarity with the transit funding issue. None of them are on the Environment and Public Works Committee either, and that’s also true of the five lead Democrats doing the negotiating (Kyrsten Sinema, Joe Manchin, Mark Warner, Jeanne Shaheen, and Jon Tester; Sinema, Warner, and Tester are Banking Committee members, however).

It should be noted that 80/20 is a ridiculously low ratio in the face of climate disaster.

It’s through this tortuous channel that the bipartisan bill has run aground. You have a bunch of freelancers—with next to no familiarity with the infrastructure matters on which other Senate committees work—hammering out an infrastructure bill. That’s what led Portman and even some Democrats to suggest that transit could be “left out” of the bill and picked up later. That’s a classic Washington trick, to set the contentious piece aside and move forward with everything else. Except leaving transit out of an infrastructure bill makes no sense, and the idea that you can just pick it up in reconciliation is simply incorrect. Reauthorizations of existing statutes cannot be done in reconciliation; you’d need to redo the surface transportation bill all over again through regular order, in just as fraught a process.

As noted, transit isn’t even the last outstanding issue. The bipartisan group has also hacked away at a water bill that passed the Senate 89-2, generating a lower level of funding. The specific numbers on revenue include a piece on pharmaceutical rebates that Bernie Sanders had grabbed for his reconciliation bill, so there’s a fight over pay-fors. The initial agreement seems to have been the kind of thing where you say to a friend, “Let’s have lunch sometime,” without agreeing to when or where or what kind of food or literally anything else.

As I’ve said previously, Democrats really need to know what the deal is on the bipartisan bill before the move forward with the reconciliation process, because they have to set a spending figure for that package and cannot estimate it without knowing whether they have to fold in the hard-infrastructure elements. Some Democrats have suggested just moving on to reconciliation, though that would strand the surface transportation reauthorization.

It’s hard to wait out the interminable bipartisan process—many would argue the interminability is intentional—without wondering why it’s still being discussed. With Trump firmly on the side of no deal and holding sway over the entire Republican Party, the odds of actually striking an agreement have always been slim, and the endless delay plays right into Mitch McConnell’s hands. Despite Nancy Pelosi’s continued vow to hold up all infrastructure bills until they pass the Senate, thereby ensuring a big reconciliation package, that completely sidelines the House from the substance of the legislation, adding to growing frustration.

Things could change rapidly; in Washington, they often do. But so far, it seems the only thing the bipartisan talks have accomplished is angering everybody. In fact, at least from the Republicans’ standpoint, that looks to be the point.

This article is part of our ongoing series on sustainable mobility, transportation, and climate.

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