The Senate’s Old-School Infrastructure Deal

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Speaker of the House Nancy Pelosi (D-CA) speaks before signing legislation passed by the House during an enrollment ceremony to memorialize the people killed in the Pulse Nightclub shooting in 2016 in Orlando, Fla, on Capitol Hill, June 16, 2021.
(Joshua Roberts/Reuters)

There’s lots of agreement in Washington these days that Congress is broken. But beneath that consensus is a disagreement over what a less broken Congress would look like. You can see that in reactions to the bipartisan infrastructure deal that is taking shape in the Senate.

Many observers implicitly treat the back and forth, bargaining, gamesmanship, and deal-making that’s happening as though it were the problem. It shows things are out of control, the leaders aren’t in charge, the outcome is uncertain, everybody’s always throwing a tantrum, people are playing leverage games, and the whole thing could fall apart. But I think that, as an institutional matter, all of that is a good sign. That’s what Congress is supposed to be: an arena for bargaining and negotiation, ideally across party lines and in ways that yield up unusual coalitions to arrive at messy policy compromises. To see it happening, thanks to the constructive pressure created by the filibuster and the factional tensions that divide both parties, should make us hopeful that some of Congress’s dysfunction could be relieved in time. You may not like some of the substance of the deal of course, and this kind of deal will give everyone lots to dislike. But you’ll probably like some parts of it, and we should all appreciate the way it’s taking shape. This is what the solution looks like. It’s the perfectly polarized, leadership run Congress devoid of strange coalitions and moderating deals that is the problem.

But because a lot of journalistic observers of Congress aren’t used to this sort of process, coverage of the deal has tended to fall into some familiar tropes that mask more than they reveal. A lot of the stories about this process want to describe two clear sides, and so they’re trying to figure out if Senate Republicans are serious about offers they make, and whether Democrats, led by the president, are going to let this process drag out or just stop pretending it’s possible to work with Republicans. That framework misses almost everything that’s interesting about this story.

This became particularly clear late last week in coverage of the pandemonium following contradictory statements by President Biden. After meeting at the White House with the bipartisan group working toward a deal on Thursday, the president announced with great fanfare that they had reached an agreement in outline to work out a bill that would actually focus on infrastructure as it’s traditionally defined, and leave lots of other Democratic priorities to be taken up later in a separate partisan reconciliation bill. Just a few hours later, though, in answering reporters’ questions, Biden said that he would only sign the bipartisan bill if the separate partisan bill also passed, and even endorsed Nancy Pelosi’s proposal to only consider the infrastructure deal in the House after the Senate passes the partisan reconciliation bill.

It was perfectly obvious that the president had (intentionally or not) betrayed the bipartisan group he had just been negotiating with, and in a way that could easily blow up its work. This was followed by a ridiculous pantomime from the White House, which began with an insistence that there was nothing unexpected or unusual about what the president had said, then proceeded to a modest walking back of what he had said by the press secretary on Friday, and concluded on Saturday with a more robust walking back in a statement from the president himself. Anyone who has seen a White House damage-control effort up close (and I worked for George W. Bush in his second term, I’ve seen lots) could surely recognize the hallmarks of the frantic mop-up operation and wonder how much more intense and frantic it must have been behind the scenes.

But coverage of all this still mostly insisted on fitting it into the familiar narrative, so that most stories described the near-breakdown of the process as a matter of Republicans exploding with anger at Biden and threatening to bolt. That strikes me as the wrong way to understand this quite interesting moment.

As I see it from the sidelines, and through conversations with some Republicans on Capitol Hill, a better way to make sense of the story would have to start by seeing that there are more than two groups involved, and that different actors are coming to the table with different interests and priorities. That’s what policymaking often looked like before the past 15 years or so, but it’s not what it has looked like lately.

For the Senate Republicans working toward a deal, institutional concerns loom large. These Republicans — Richard Burr, Bill Cassidy, Susan Collins, Lindsey Graham, Jerry Moran, Lisa Murkowski, Rob Portman, Mitt Romney, Mike Rounds, Thom Tillis, and Todd Young — surely have various infrastructure-related aims, but their top priority is to foil the Left’s efforts to blow up the filibuster. They want to genuinely bargain and enable a deal that could get more than 60 Senate votes to weaken the case for eliminating the 60-vote threshold, and to lower the pressure on the more moderate Senate Democrats who want to keep it. Most other Senate Republicans (though not all of course) are basically on board with what this group is up to, largely for this procedural and political reason but also because they think some kind of major infrastructure legislation has been coming for many years, and it doesn’t strike them as crazy that such a bill would take shape now. They want some part in it, and some benefit from it. Most Senate Republicans are ultimately skeptical that this bipartisan effort will work, but they’re open to it.

The more interesting group is the one getting the least attention in most of the coverage: the Democratic senators who are part of this group. These are Chris Coons, Maggie Hassan, John Hickenlooper, Mark Kelly, Angus King, Joe Manchin, Jeanne Shaheen, Kyrsten Sinema, Jon Tester, and Mark Warner. They’re the reason this is happening at all, and they are also the people most endangered and therefore most angered by Biden’s behavior last week. They are worried that the progressives’ version of the infrastructure bill, which would also include massive new social spending and huge tax increases, would be a political disaster for them and their party. And they approached some Republican colleagues about a more focused and straightforward infrastructure deal to try to avoid voting for that kind of progressive wish list, or at least (in some cases) to have a more traditional and bipartisan bill to point to as an achievement even if they do end up voting for a reconciliation bill later.

Then there is the White House, which seems to have agreed to get into talks with the Senate dealmakers mostly to go through the motions and say they tried, but then at some point in the middle of last week suddenly realized there could actually be a bipartisan deal here. Judging by what they’re doing and saying, Biden’s team seems internally divided over whether this deal is a good idea or whether it will only undermine the Left’s priorities. But the prospect of enabling a big bipartisan policy achievement, especially if it could be coupled with a separate reconciliation bill, empowered those who want to advance the deal.

The White House is not the driver’s seat, however. It seems clear that they were surprised by the bargaining breakthrough last week, and were playing it by ear after that — trying with mixed success to be responsive to both ends of the Democrats’ very narrow majority coalition in Congress and making decisions without a plan. The president declaring victory, then a few hours later threatening to veto the deal he had just proclaimed, and then spending the weekend cleaning up the resulting mess was only the most obvious evidence of that.

The reason this balancing act is so difficult has to do, of course, with the more progressive wing of the Democratic coalition, which is another party to this process. They see this deal as endangering their more ambitious aims. Their strategy this spring has been to use the broad appeal of infrastructure spending as leverage to bring Democrats together around a bill that would also advance more radical policy aims under a comically expansive definition of infrastructure. Such a ploy would garner no Republican votes, so it has been conceived as a second reconciliation bill. Senator Bernie Sanders, who chairs the Budget Committee, has sought to open up a vast space in the budget process for such a bill — he has spoken with a straight face about a $6 trillion budget resolution. Supporters of that approach in both houses fear that a separate, bipartisan deal that took up the actual infrastructure spending would make it impossible to get the votes for a reconciliation bill that would then be left with only the progressive wish list. Democrats have no margin for error in the Senate and almost none in the House, so any Democratic member who declines to support the progressive reconciliation bill could kill its chances. Progressives know that the Senate Democrats who are making this deal possible are doing it precisely because they fear that more radical bill. So the left wing of the Democratic coalition doesn’t want to see this separate deal happen.

Meanwhile, Democratic leaders in the House and Senate, who need to keep their precarious coalition together, also have their own distinct interests here. They’re the ones most adamant that any bipartisan deal should only move if the partisan reconciliation bill moves too. Both Pelosi and Schumer are more worried about trouble from their progressive wing right now, but know that they also need to keep more moderate Democrats on board — and indeed that those moderates are the ones facing electoral danger, so the Democrats’ hold on Congress depends on them. They don’t want a deal on real infrastructure spending if it will kill the partisan pseudo-infrastructure tax and spending bill, but they may not be able to stop it if the White House is fully on board.

And finally, Republican leaders have their own priorities too. Kevin McCarthy’s are simple: His eyes are on retaking the House, and the seats he could win are ones where Democratic support for a radical progressive measure would only help. He probably doesn’t see much benefit in a bipartisan deal that lets the parties share credit and blame. But he also has the least power of all the relevant actors. What he wants doesn’t matter much. Mitch McConnell is, as usual, playing a more complicated game, and he seems to think he has less to lose than almost any of the other major players. He wants to preserve the filibuster, and so has to be pleased to see deal-making happening that takes pressure off moderate Democrats. But McConnell is not particularly invested in those talks actually succeeding. Whether they succeed or fail, they will eat up time, divide the Democrats, and let Republicans show they are trying to work across party lines. As is often the case with McConnell, he is more focused on the process than the outcome, and he has to feel fairly good about how this is going.

This complicated mix of players, interests, and priorities makes this a real throwback kind of legislative process. And it also helps explain the president’s peculiar gaffe last week, and the continuing effort to undo it. This was all about the Democrats, not the Republicans. Progressive Democrats want a bipartisan deal to be made contingent on their partisan bill. But the people most unnerved by Biden’s embrace of that view were not the Republican backers of the deal but the Democratic ones. For them, the whole point is to avoid voting on a politically suicidal progressive wish list without cover. So moving the reconciliation bill (devoid of traditional infrastructure measures) before a bipartisan infrastructure bill would be the worst of all worlds. It was pressure from the likes of Mark Warner, not the likes of Todd Young, that led to the frantic backpedaling from the White House this weekend.

Two final points are worth noting about where things stand now. First, the more progressive Democrats and the more moderate Democrats are surely both right to worry as they do. The progressives worry that if the infrastructure items with broad appeal are all taken up in a bipartisan bill, the partisan bill that remains will have trouble getting all the votes it needs. The moderates worry that the bill the Left is planning will spark a backlash they won’t survive. Separating infrastructure policy with broad appeal from that partisan measure might let some moderate Democrats avoid voting for it, but it could actually make the political problems with the remaining partisan bill only worse. A massive taxing and spending bill that consisted only of progressive wish-list items could be an election-year disaster for Democrats. It could well be what Republicans are looking for to reconstitute some kind of familiar electoral coalition for next year — putting Trump-related differences aside and uniting against the Biden-era Democratic Party as they have so far struggled to do.

Second, it’s worth seeing that broad agreement is not the same as final bill text, and the bipartisan Senate dealmakers might have trouble gathering the expertise needed to get to a solid final text. A bipartisan group of 20 senators working toward a bargain on a matter of policy substance kind of sounds like a Senate committee. And when deals like this were more common, they would often emerge within the structure of the committee system. But the dysfunctions of the past two decades have meant that such deals now have to be struck by ad hoc groups of members going around that system. While such impromptu groupings can sometimes solve the political challenges of coalition-building, they can’t solve the substantive challenges of legislative drafting. They don’t have a committee staff with experience and expertise. On a bill like this, that is not a small problem. If the work proceeds, people with policy expertise in infrastructure outside of Congress will need to pay very careful attention to the details, because there will be ample room for major drafting screwups and lobbying shenanigans.

So given all of that, where are things headed on infrastructure? Everything could easily fall apart, but my sense is that the deal is reasonably likely to survive, and that the left wing of the Democratic coalition probably can’t force it to be held back until a reconciliation effort is finalized. The budget process will take longer than the drafting of this infrastructure language, and it won’t make sense to sit on a bipartisan bill that has the votes to pass while a partisan bill that likely doesn’t gets worked out by the Democrats.

I doubt that any of the parties to the emerging agreement seriously expected this to work when they got started. But it’s looking like it just might.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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