The Art of the Possible

Democrats ended 2021 on a down note with the apparent collapse of the Build Back Better Act. 2022 hasn’t started any better, with two voting-rights bills defeated despite President Biden’s impassioned plea for their passage. These failures would be distressing enough for Democrats if they could be blamed only on the fifty senators on the other side of the aisle, but they’re particularly galling because two of their own—Arizona’s Kyrsten Sinema and West Virginia’s Joe Manchin—are among the obstructionists, refusing to lift the filibuster to get the bills through. With the math against them and the midterms bearing down, it may benefit President Biden and his party to focus on things they might actually be able to achieve—especially given that Americans generally like much of what the Democrats are proposing.

Begin by rethinking Build Back Better. If Manchin and the Republicans complained mostly about its price tag, there were legitimate reasons to criticize how the package was crafted. There were, for example, its accounting “gimmicks,” as Manchin called them. The Build Back Better Act initially cost $3.5 trillion, and when Manchin said he would only support  a bill half that size, Democrats lowered the cost by funding the same programs for fewer years rather than fully funding fewer measures, expecting that the programs would be funded in the future. Party leaders failed to take what they could get when Manchin still seemed willing to negotiate. They also never really sold the bill to the public, a task that was especially vital given its size and scope. A clearer argument about how the provisions of the Build Back Better Act would have helped people concretely—including Manchin’s constituents in West Virginia—would have put more pressure on dissenters within the ranks.

Now that Build Back Better isn’t likely to be passed in its entirety, Democrats should break it down into its most popular components and vote on them separately. This will require some difficult decisions about what to prioritize. Democrats should start with the measures that the American people have been shown to like most: paid family leave, investment in renewable energy, the child-tax credit, and allowing Medicare to negotiate lower drug prices. Individually, some of these measures could secure enough Republican support to pass the sixty-vote threshold. Another potential upside for Democrats is that by holding a vote on each bill, issue by issue, they will force Republicans to make a choice: either vote yea or be on the record against measures intended to help children and families, miners suffering from black-lung disease, or municipalities seeking to construct affordable housing.

Democrats’ other legislative priority, the protection of voting rights, also seems out of reach. But they could still lead the effort to address the security of elections, which many observers believe is even more urgent than blocking new voting restrictions passed by Republican-controlled state legislatures. This would require fixing the Electoral Count Act of 1887, an obscure law that some Republicans cited as a legal justification for their attempt to overturn the 2020 election in favor of Donald Trump. As it stands, the ECA’s confusing wording allows Congress to change a state’s slate of presidential electors if just one member of each chamber challenges that state’s electoral results. A reform of the ECA could prevent another attempt to overturn presidential-election results by clearly requiring that a larger number of lawmakers challenge a state’s results before they can be set aside—and by clarifying that the vice president’s role in the Congressional certification of votes is merely ceremonial.

The passage of a new ECA is not only important, it’s also feasible. Republicans have demonstrated some interest in clarifying the rules. They remember that Democrats used the ECA to challenge state election results in the 2000 and 2004 elections, and to protest against Trump’s having won in the Electoral College in 2016 despite losing the popular vote (although none of these were a Trump-style attempt meant to overturn legitimate results). Wyoming Rep. Liz Cheney, one of two Republicans on the House select committee investigating the events of January 6, has said that the panel would recommend changes to the ECA, and Senate Minority Leader Mitch McConnell thinks that such changes are “worth discussing.”

There is a lot of talk about how the Democrats need some kind of legislative victory—anything, really—to show voters that they deserve to stay in power this November. That’s not wrong. But such partial victories are not merely symbolic or strategic. Democrats can rightly claim that they’re still making real progress on issues that matter, even if they are at a stand-still on other important issues. Sweeping legislation that includes everything they want may be off the table for now. But Democrats still have the opportunity to pass legislation on some of the most urgent problems facing the country. They should take whatever they can get—not only because it’s better than nothing but also because it demonstrates to the country that they are still capable of getting something done in the face of entrenched opposition. Nothing turns voters off like a reputation for helplessness.