Analysis

Election Puts Left's Big Legislative Goals Out Of Reach

Law360 (November 7, 2020, 4:44 PM EST) -- Although Democrats have won the presidency, held their majority in the House and still might secure a slim edge in the Senate, progressives are unlikely to achieve the sweeping changes they have sought in areas ranging from health care to energy and climate change in the next two years.

On Saturday, the Associated Press called the presidential race for former Vice-President Joe Biden, after he moved safely ahead of President Donald Trump in the race in Pennsylvania. Democrats are also on track to keep a slightly reduced majority in the U.S. House of Representatives, and the party could yet claim a razor-thin majority in the U.S. Senate, with two Jan. 5 runoffs expected in Georgia. If they win both Georgia seats, the best Democrats can hope for in the Senate is a 50-50 split with Vice President-elect Kamala Harris breaking ties and effectively securing the majority.

Any legislation would need unified Democratic support in the Senate, including from moderates like Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. Pennsylvania Sen. Bob Casey might balk at sweeping energy changes that affect natural gas production, which supports jobs in his state.

"When you have a narrow majority, you basically have to have everyone onboard," said Sander Lurie, a longtime Democratic Senate staffer who is now a Dentons principal. "If you're doing climate change [legislation], you have to get Joe Manchin and Bob Casey onboard from coal country."

Senate filibuster rules require 60 votes to proceed with most legislation. Sen. Ed Markey, a progressive Massachusetts Democrat, earlier this year called for doing away with that supermajority requirement through a "nuclear option" vote, which would only require 50 supporters and allow ensuing legislation to be approved by a simple majority. But even if Democrats get 50 seats, the thin margin makes such a move highly unlikely because several moderate Democrats, including Manchin, have expressed opposition to ending the filibuster.

Progressives still might have hoped for major changes even with the legislative filibuster in place. Budget-related measures can pass the Senate with a simple majority under a process known as reconciliation that can advance policy goals, as in March 2010 when Democrats modified the Affordable Care Act and boosted tax credits for people buying health insurance. With 50 seats, a single Democratic defection would doom any reconciliation bill that doesn't have Republican support.

However, hitting the magic number of 50 seats is a tall order for Democrats, who would have to win the two runoffs expected Jan. 5 in Georgia, which has not sent a Democrat to the Senate since 1996. Lurie put the odds at "less than 50%" but predicted a pitched battle.

"There's going to be hundreds of millions of dollars spent. Every Biden organizer who wants to keep going is going to be in Georgia," he said.

The results in the House may also undermine progressive power, with Democrats keeping the majority but likely losing five to 10 seats after the vote counting is finished. Polls before the election had predicted the Democrats would expand their House majority, fueling progressives' plans for an ambitious legislative agenda.  Now, moderate House Democrats may be emboldened into breaking with the party or denying a majority to progressive proposals.

"The apparent outcome makes legislation like the public option for the ACA or sweeping climate action more challenging for Democrats," said Christopher E. Wilcox, a former Democratic congressional staffer now a principal with Williams & Jensen PLLC. "You'll continue to see more moderate members having an influence. … There's obviously some private disagreements that have been coming into public light."

However, he predicted Democratic leaders would push for new legislation on health care and climate. Biden has promised action on climate change and supported a gradual "transition" away from fossil fuels. Such proposals could run into trouble in the upper chamber.

"If Democrats do gain the narrowest of majorities in the Senate, it'll be a requirement, almost, that they need to be able to attract support from one or two Republicans to move just about anything," Wilcox said. And of course, a Republican majority would also halt any grand progressive plans.

Wilcox noted several areas where a proposal backed by most Democrats could get enough Republican senators to meet even the 60-vote threshold to defeat a filibuster, such as on drug pricing and technology.

There's a bipartisan drug pricing plan opposed by many Republicans but championed by Sen. Chuck Grassley, R-Iowa. Both parties are skeptical of big tech companies, although sometimes with different agendas; senators have proposed and advanced bipartisan measures that would limit companies' liability protections for user-posted content. There also could be interest in further criminal justice changes following 2017's bipartisan but modest First Step Act.

--Editing by Aaron Pelc and Peter Rozovsky.

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