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Even Without the Senate, Biden Can Get an Awful Lot Done

Slate logo Slate 11/7/2020 Fred Kaplan
Joe Biden wearing a suit and tie talking on a cell phone: Democratic presidential nominee Joe Biden speaks while flanked by vice presidential nominee, Sen. Kamala Harris, at The Queen theater on November 05, 2020 in Wilmington, Delaware. Drew Angerer/Getty Images © Provided by Slate Democratic presidential nominee Joe Biden speaks while flanked by vice presidential nominee, Sen. Kamala Harris, at The Queen theater on November 05, 2020 in Wilmington, Delaware. Drew Angerer/Getty Images

The election has left many Democrats in a turbid pool of dread, a daze of disappointment, a gnawing ache of incompletion. Yes, Joe Biden won the presidency, but the Republicans are likely to retain control of the Senate, and that means…hey, now, wait a minute, the complainers are burying the lede!

Let’s put it up top: Joe Biden is going to be president. Before tallying the grim implications of the Senate contests, focus for a minute on what that means: Donald Trump will not be president for much longer. Remember the nightmares of a prospective second Trump term—the rampant corruption, the casual lawlessness, the coarsening of culture, the slide toward authoritarianism, the smashing of democratic norms, the incitement of divisiveness and violence, the ravaging of the environment, the cruelty toward the powerless, the hostility to science and expertise, the evisceration of institutions, the politicization of intelligence, the decline of American prestige in the world, the blithe abandonment of allies, the clueless coddling of dictators, the boastful know-nothingism about everything. This horror picture—which would have been intensified by a re-election victory that Trump would have taken as a mandate to keep doing what he’s been doing, faster and more furious—will instead be erased from the White House and its environs.

This was the Democrats’ main mission in the 2020 election: to defeat Trump, to push him away from the levers of national power. Mission accomplished. If Biden is unable to do anything else in his four years as president, this achievement alone is worth celebrating.

On the other hand, the distraught among the Democrats are right. The Republicans’ retention of the Senate—combined with Majority Leader Mitch McConnell’s obstructionist ways and the 6-3 conservative Supreme Court that he helped wrought—will drastically limit the scope of Biden’s legislative agenda. As my colleagues Dahlia Lithwick and Mark Joseph Stern lament, a host of urgent issues that many Dems had hoped a transformational election would allow their party to address—gun violence, climate change, LGBTQ rights, voting rights, racist policing, and income inequality—will instead “run directly into the Senate buzz saw.” As was the case in the last six years of the Obama-Biden administration, when the Senate first switched to GOP control, McConnell will have the power to block liberal legislation, judges, and cabinet nominations from even coming to the Senate floor for confirmation.

There is a slim, but real possibility that Biden’s party will control the Senate after all. If both Democratic candidates in Georgia win their run-off race on Jan. 5, the Senate will be split 50-50, with Vice President Kamala Harris casting the tie-breaking vote that gives majority power to the Democrats. If that happens, Biden will be able to accomplish a great deal more. Nonetheless, there’s a lot that a president can do even without a Senate majority. For the past 30 years, power has steadily been concentrating in the Executive Branch.

First, there are Executive Orders. Obama signed 270 of them in the eight years of his presidency (that’s almost three per month); Trump signed 176 in his one term (with, perhaps, more orders to come in his remaining two-and-a-half months). Biden could, and probably will, follow suit. (One thing he’ll almost certainly do is repeal many of Trump’s Executive Orders, just as Trump repealed many of Obama’s.) Some of his predecessors’ orders were challenged, and even overturned, in the courts, but not that many. Besides, presidents have other tools of unilateral power at their disposal: administrative orders, federal regulations, and national-security decision directives, few of which can be challenged, many of which are deeply buried in bureaucratic documents, some of which are highly classified.

Second, presidents have enormous leeway in foreign policy (a privilege that, for better or worse, Congress and the courts rarely restrict). Biden will almost certainly reenter the Paris Agreement on climate change (which was signed within a United Nations framework, so the Senate would have no say), extend the New START nuclear arms treaty with the Russians (a provision allowed under the treaty itself, which the Senate ratified under Obama), and at least try to revive the nuclear arms deal with Iran (which was a multilateral agreement, not a treaty, and so never required Senate ratification). He won’t be able to enter the Trans-Pacific Partnership treaty without Senate approval (he would face obstacles with many Democrats as well as Republicans). But he can enter into lots of negotiations with other countries that, in some way, involve trade and regional security.

All this said, Biden is inclined, by nature, to try working through Congress. He ran on a platform of reunifying the country; throughout his career, he has prided himself on forming alliances across the aisle. Politics, of course, has changed since his halcyon days in the Senate. (Obama entered the White House with similar hopes; it took him a whole term, plus some, to realize the futility.) Still, there are some major legislative initiatives that even McConnell might find hard to resist. One of these might be an infrastructure package, with funding and jobs spread out across blue and red states. (It is puzzling why Trump, for all his talk about the subject, never presented an actual proposal.) Another round of COVID-19 relief funding will be necessary, as well. (McConnell has said he wants to pass one by the end of this year, but the virus isn’t going away any time soon; another will be needed a few months into Biden’s presidency.)

In any case, Biden will try to sit down with McConnell and do deals. He will also try to peel off a Republican senator or two for bills that appeal to their constituents. (Depending on the final Senate election results, one or two may be all he needs.) Untethered from the heavy pressure of Trump and his threats to run primary opponents against them if they don’t display total loyalty, a handful of them might welcome the overture.)

Who knows, McConnell may decide he’d like to do something—in exchange for favors of some sort—instead of constantly resisting. I’m doubtful, but one self-interested factor might enter into his calculations: 20 Republican senators will be up for reelection in 2022 (compared with only 12 Democrats). Usually the party out of power gains seats in the midterms, but, without Trump’s coattails, these next midterms might resemble 2018, with heavy GOP losses—including, possibly, the loss of the Senate, especially if Biden, invoking the spirit of Harry Truman, rails against McConnell and his minions, as “the do-nothing Republicans.” The country is smothered with problems. The multi-trillion-dollar relief bills, passed with ease during the height of the COVID pandemic, by a Republican president and senate, have made many people—and perhaps some legislators—more amenable to big government spending in an emergency. McConnell may have to do something.

Then there’s the fact that the Democrats will retain control of the House. Spending bills originate in the House. If Biden goes after the Senate for inaction, his indictment will carry more weight if the House passes tons of bills that help people—including many of the people who deserted the party to support Trump—and the Senate dismisses them out of hand. (This was the pattern during Trump’s four years, and Nancy Pelosi and Chuck Schumer complained about it; but the message would have more force coming from the president.)

I admit, this is a rosy-eyed view of the coming year or two or four. If McConnell emerges as a dealmaker, it would be a huge surprise, akin to Scrooge bringing a turkey to the Cratchits on Christmas morning. On the night of Obama’s inauguration, McConnell told his party’s caucus that their number-one priority should be to make Obama a one-term president and that the way to do that was to challenge him “on every single bill.” He’s likely to say the same thing about Biden—though, then again, McConnell was the minority leader when he issued that directive. “If you act like you’re the minority, you’re going to stay in the minority,” he told his partymates. Now he’s in the majority, but just barely. He never liked dealing with Obama, and the feeling was palpably mutual. Could things be different with Biden?

Those distraught by the Senate elections are right about at least one thing: Their hopes of an expansive progressive agenda are dead, at least for a while. But even if the Georgia run-offs put the Senate in Democratic hands, there probably wouldn’t be enough votes to pass many tenets of that agenda., which would give the Democrats control of the chamber, there probably wouldn’t be enough votes to pass many tenets of that agenda.

One lesson from the election is that the country isn’t as progressive as many progressives would like. Exhibit A: Very close to half the voters, in an election that attracted the highest turnout in 120 years, wanted Trump to stay on.

Our political system amplifies the most conservative voices, allotting, for instance, Wyoming as many senators as California (though it has just over 1 percent as many people) and preserving an outmoded Electoral College in which this century’s two Republican presidents were elected despite winning a minority of the popular vote.But we’re not going to get a new system anytime soon—reform would require the acquiescence of those who currently benefit from its distortions—nor are we going to get a new people.

We are stuck with the America we have, and in some ways Tuesday’s split election reflects that. Progressives will have to devise new ways to present their ideas in ways that make more people elect their candidates. Until then, they should let Biden pursue the partial deals he can get. Meanwhile, it’s time for cheer. The wicked witch has been vanquished.


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