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Three reasons Congress finally passed an infrastructure bill

And what happened to Build Back Better, the social and climate infrastructure bill?

- November 8, 2021

Infrastructure week, finally! Both chambers of Congress have passed a bipartisan infrastructure deal (known to many around D.C. as BIF) to provide a trillion dollars over the next five years to fix crumbling roads and bridges, expand access to broadband, and invest in clean energy, transit and other public works. President Biden signs the bill into law this week, and his administration will go on the road to sell it to the public.

After the House’s bipartisan BIF vote Friday night (which included 13 Republicans), lawmakers voted along party lines to set the ground rules for this month’s planned consideration of Biden’s Build Back Better (BBB) plan, an approximately $2 trillion “reconciliation” bill that expands social and climate policies. House Speaker Nancy Pelosi (D-Calif.) promised months ago to yoke together votes on BIF (favored by moderates) and a House-Senate agreement on BBB (favored by liberals). But under a last-minute deal brokered Friday night by the Congressional Black Caucus, liberals settled for a preliminary procedural vote and a promise from moderates to vote for BBB, so long as the bill’s cost estimates pan out.

So what led the House to pass the infrastructure bill at last? A cocktail of election surprises, lawmakers trying to avoid blame, and vexing Senate budget rules.

Alarming elections

Democrats’ defeat last week in the Virginia governor’s race and a razor-thin win in New Jersey focused the minds of Democratic lawmakers. Factions formed predictable narratives about Democrats’ poor showing. Moderates claimed that the results vindicated their call for more centrist policies, like the infrastructure bill, and cautioned against overreaching with Build Back Better. Liberals charged that it was time to stop watering down the party’s social welfare priorities and deliver a robust BBB to voters.

Party leaders exploited the results to press forward on both. Democrats had been making progress on BBB before Tuesday’s elections. But the Democrats’ electoral drubbing probably helped Pelosi and Biden wear down liberals’ reluctance to pass the infrastructure bill and pressure moderates to commit to supporting BBB.

After struggling to secure a majority for both votes, Pelosi on Friday remarked that she held her speaker’s “secret whip count” — liberals who promised to vote for BIF if Pelosi needed their votes. From the final vote, it looks as if Pelosi needed three Republican votes to pass the bill — 215 Democrats plus three Republicans put Democrats over the bar for passage. But it’s possible Pelosi had three of what political scientists call “if you need me” pledges in her hip pocket. Once those Democrats saw their votes weren’t needed, they joined three other Democrats in opposing the bill.

Blame-avoiding lawmakers

By settling last week for a procedural vote on BBB — rather than holding out for a bicameral BBB agreement — liberals abandoned their strategy of holding BIF hostage. But even before last week’s elections, liberals seemed to think that the hostage was becoming more of a liability than leverage. Indeed, the day before the elections, Congressional Progressive Caucus Chairwoman Pramila Jayapal (D-Wash.) announced that the CPC was ready to vote on both BIF and the emerging House BBB compromise. Negotiators had already whittled down liberals’ ambitions from about $6 trillion for social and climate policies to just shy of $2 trillion. But without moderate Democratic Sens. Kyrsten Sinema (Ariz.) and Joe Manchin III (W.Va.) yet on board, Jayapal suggested that the CPC would trust Biden to secure the senators’ support and be willing to move ahead instead with a House bill only.

Why the change in tactics? Many argued that liberals were ready to take a leap to trust their moderate colleagues. More likely, the liberals were feeling the heat from party leaders and the president that it was long past time to let BIF go. Shifting blame to moderate colleagues for dragging their feet on BBB probably looked better politically for liberals than being blamed for blocking a popular and bipartisan priority.

Byrd rule waiting in the wings

The complexity of Senate budget rules also probably convinced House Democrats that it was time to move ahead without the Senate on BBB.

First, the Senate’s version of BBB must comply with the Byrd rule — part of the Congressional Budget Act that restricts the sorts of provisions that a majority can tuck into a filibuster-proof reconciliation bill. The Senate parliamentarian advises senators on compliance with the rule, and she has already thrown cold water on two proposals to add certain immigration reforms to BBB. As negotiations continue over the bill, Democrats are working on a third proposal to overcome those objections, but Republicans could challenge other provisions, too. Without a clean bill of procedural health from the parliamentarian, pre-negotiating a final bicameral deal is impossible.

Second, as in the immigration case, the Byrd rule prohibits provisions if their effects on federal policies outweigh their effects on the federal budget. The parliamentarian relies on cost estimates from the Congressional Budget Office to make those and other determinations required under the Byrd rule. But the CBO has not yet completed its BBB score, another barrier to pre-negotiating a bicameral deal.

Third, committing to a bicameral deal before reconciliation goes to the Senate floor is particularly vexing when the majority party is internally divided, especially in a 50-50 Senate. Holdout senators have little incentive to negotiate with House partisans. They know the Senate cannot pass the bill without their votes, so why give too much away to the House? What’s more, budget laws allow for essentially unlimited amendments to reconciliation bills on the Senate floor. No matter what they promise now, maverick Senate Democrats could well side with Republicans on a vote or two, causing the House to have to vote again on whatever BBB version passes the Senate.

All told, it’s no surprise that liberals gave in on BIF without locking down a bicameral Build Back Better deal. The hostage was becoming costly to liberals’ reputations and to advancing the party’s agenda.

But even with infrastructure week behind us, potholes await Democrats on the road to seeking a BBB deal.