Infrastructure Summer: The Senate Deadline That Isn’t One

Understanding the various contours of an imminent failed vote on the bipartisan infrastructure bill today

Today sometime after 2:30 p.m. Eastern, the Senate will move to vote to proceed on the legislative vehicle for the bipartisan infrastructure framework, which I’ve taken to calling Portman-Sinema after its two lead negotiators. This vote will fail. Republicans have been very explicit that it will fail. They’ve said they haven’t had enough time to strike a final deal, more than a month after announcing the initial deal and agreeing to it with the White House.

Yet they also have said that they expect to soldier on after the failure of that vote, resolve the differences on Portman-Sinema by the weekend, and present it to Senate Majority Leader Chuck Schumer (D-NY) like nothing ever happened. And Schumer appears resigned to indulging that process.

Given all this, what was the point of holding this test vote, if it answered no questions and led to no changes in the fundamental dynamic?

Seen from one angle, the Schumer gambit of calling a vote, while met with seething anger from Republicans, absolutely worked. Negotiations over the final pieces of Portman-Sinema weren’t going anywhere until Schumer called the vote, and the bluff of Republican senators. Schumer had lined up all the Democrats in the “Gang of 10” before his announcement, presenting a united front to complete the outstanding issues. We’re now on a path where senators are talking about wrapping up by next Monday. That wasn’t going to happen without a deadline.

Schumer also needed to get clarity on Portman-Sinema before crafting the vehicle for the reconciliation package. Right now, that package stands at $3.5 trillion, but the expectation is that, if Portman-Sinema falls apart, the new spending in that bill would be folded in, pushing the figure to $4.1 trillion. You have to make the headspace for that in the budget resolution, which instructs the reconciliation process with topline numbers that set the limit for spending. If the Senate passed a $3.5 trillion budget resolution, they couldn’t fold in the outstanding money from Portman-Sinema. So its fate needs to be clear ahead of the budget vote.

But while on process, the Schumer gambit has been a spur to advance the Biden agenda, on substance, Portman-Sinema has gotten worse with each passing day. First there was the inevitable Republican pullout of the investment in IRS enforcement. A political party that has dedicated itself to starving the IRS of revenue was highly unlikely to green-light $40 billion for that agency. The talk from the negotiations is that other “pay-fors” have been found, but that $100 billion hole was significant and it’s unclear what substituted for it, since the entire tax code now is off the table. There was some talk of reversing the Trump “rebate rule” for pharmaceutical products and plugging that into Portman-Sinema, but Democrats want to use that for reconciliation, so there’s a mad grab for revenue-raisers.

The good news is that this becomes another revenue piece Democrats can use in the reconciliation package. The bad news is that the Congressional Budget Office won’t score increases in tax enforcement as raising revenue. And while the parties could agree to a handshake deal under regular order, Democrats have less wiggle room to do so under reconciliation. They can add the IRS investment, but it would “score” as costing $40 billion. That’s a circle they’re going to have to square.

Meanwhile, transit funding has come up as another flash point. And this is another case of Republicans just retrading the deal they already made. The original two-pager on Portman-Sinema was very clear; there was $110 billion for roads and bridges and “major projects,” $66 billion for passenger and freight rail, and $48.5 billion for public transit. But Republicans apparently want to starve transit of the routine spending that’s been folded into Portman-Sinema, breaking the age-old “80/20” split between highways and public transportation. That split was already unconscionable, particularly if you believe this infrastructure package needs to address our climate needs. The talks have been tight-lipped, but that could mean less overall money in the bill now that the revenues from IRS enforcement are out, with all of it coming out of transit.

As long as talks are allowed to continue, this trajectory is likely to persist as well. Democratic moderates are apparently so focused on getting a deal that they’re allowing the GOP to chip away at the substance. And even that hasn’t guaranteed passage.

The real open question is this: If Portman-Sinema does fall apart, and its elements are folded into the reconciliation package, will Democrats keep the most objectionable pieces that were added to gain Republican support? For instance, dozens of progressive groups are now on the record on killing the privatization elements in the bill, with detailed reasoning about how private funding is more expensive, risks deficiencies in labor and maintenance, and eliminates democratic control. Would Democrats just port privatization over to reconciliation, above this opposition?

There’s a lot that isn’t known about that reconciliation bill, and rumors are flying. The former director of the CDC under Obama, Tom Frieden, has suggested that funding for future pandemic preparedness has been cut back from $30 billion to $5 billion. Other things are likely to be pushed back from Biden’s initial plan, given the addition of Medicare expansion and other measures that didn’t appear in there.

Meanwhile, the House is simmering about being locked out of policymaking. Even the best-case scenario where the Senate gets a big bill across the line would involve no input on the part of the House; they’d have to accept whatever the Senate can pass. That usually leads to tensions.

And finally, there’s the little matter of the debt ceiling, which has been suspended for over a year. That suspension lifts next Saturday, and Senate Minority Leader Mitch McConnell has said his party won’t lift a finger to pass it. He suggested Democrats put it in the reconciliation bill, but there’s no way that bill will be passed and on Biden’s desk before the government runs out of borrowing room. This unthinkable, preventable disaster of failing to meet financial obligations already approved by Congress is something I’ve always seen as the spur to finally eliminating the filibuster once and for all, but not enough of the Senate Democratic caucus thinks like me.