It’s easy to imagine ways Joe Biden’s presidency might open very badly. COVID-19 may still be spiking. The economy could slip back into recession. Mitch McConnell might still control the Senate, blocking every major Biden proposal. President Donald Trump will be unleashed as National Narrator blasting everything that happens.
Things don’t get much better in the unlikely event Democrats capture both of Georgia’s Senate seats to achieve a 50-50 tie, broken by the Democratic vice president. Republicans, freed from all responsibility, will go into full opposition mode, and nothing will pass when 60 votes are needed to overcome a filibuster. Democrats will try to govern with a razor-thin majority controlled by several relatively conservative Democrats. So Democrats will have ownership of the government without the means to deliver.
How can Biden and team deal with this challenging circumstance?
One way was proposed by Sen. Elizabeth Warren in a Washington Post op-ed this week: Use executive orders. She suggested some obvious moves Biden absolutely should make on Day 1 — like reentering the Paris climate accord — but also suggested some big and expensive unilateral policy changes: raising the minimum wage for federal contractors to $15, canceling billions of dollars in student debt.
With all due respect to Warren, opening the Biden era by stiff-arming Congress and ordering all sorts of big policy changes by presidential diktat could knock the legs out from the Biden presidency.
In the first place, Biden will have to get a COVID-19 relief package through Congress, which if done right doesn’t have to be an ideological showdown. Signaling that you’re going to insult the Constitution and govern by executive order doesn’t seem like an ideal way to win congressional support. Second, uniting the country and restoring its soul were at the core of the Biden campaign. His basic diagnosis is that partisan enmity has created a fundamental breakdown in our political culture. He has to at least try to fix that.
A better approach starts with the understanding that Biden’s policies remain popular. Democrats underperformed in congressional races because voters hate political correctness, “defund the police” and “socialism.”
A better approach would, next, be about finding policy measures that can win 60 Senate votes. This is actually not that hard. I spoke to Sen. Mitt Romney this week, and he ticked off a series of areas where he was optimistic the parties could work together: fix prescription drug pricing and end surprise billing; an immigration measure that helps the Dreamers and includes E-Verify; an expanded child tax credit; green energy measures.
Isabel Sawhill, the long-term Democratic adviser now at the Brookings Institution, reeled off a few more: expanding national service, student debt forgiveness, a middle-class tax cut.
Oren Cass of American Compass, which is Republican-leaning, pointed out that there were a lot of newly emerging issues that the two parties haven’t yet had time to get polarized about. Common action could be envisioned there: an infrastructure bank, reshoring U.S. supply chains so we’re not so dependent on China, expanding non-college career pathways, industrial policy to benefit the Midwestern manufacturing base.
Finding areas of agreement is easy. Getting them to the Senate floor for a vote under Leader McConnell would be harder. His priority has always been winning GOP majorities, not necessarily governing. But a number of steps could be taken. First, Biden could try to convince McConnell it’s in his interest to allow votes, at least in the first year. Republicans will be defending open Senate seats in places like Pennsylvania and North Carolina in 2022. It wouldn’t look great if they achieved absolutely nothing.
Second, deal-making and moderate senators could form bipartisan gangs around specific issues and try to force McConnell’s hand. Reelected senators like Susan Collins have potentially immense power in a closely divided body.
Many senators of both parties are already frustrated by how many possibly successful bills simply get bottled up and never reach a vote. “I don’t know what the calculation is that goes on in the mind of the leaders about what to take to the floor, but we don’t vote on a lot of legislation,” Romney told me.
At this point the threat of executive orders comes in handy. If the White House makes a good-faith effort to work in a bipartisan way, if senators come together to craft legislation, and still nothing passes, then Biden will have more justification for doing what Warren suggests.
“If the Senate refuses to tackle the major issues, then the president will, and he’ll just issue executive orders,” Romney said. “Just saying ‘no’ doesn’t enhance our power. It’s a way to cede power.”
Given the likely division of power, Biden is not going to lead an FDR-style New Deal administration. But there is a path for him to pass a series of important pieces of legislation that would help millions of Americans. More than that, he has a chance to take a dysfunctional system of government and turn it into a humane and functioning one. That in itself would be a miracle.