The strict rules of reconciliation, which require that provisions affect federal revenue or outlays, could also kill other aspects of the plan. Some labor leaders are bracing for a determination that the pro-union Protecting the Right to Organize Act — which Biden recommended be included as part of the infrastructure package — may not qualify under those conditions, nor is it likely to be able to generate enough Republican votes to pass through regular order.
Any employer mandates surrounding paid leave, which many Democrats are pressing to be part of the second infrastructure package, may be called into question depending on how they are structured. And budget experts warn that the Senate parliamentarian has in the past been skeptical of provisions that benefit a single entity — meaning that any infrastructure funds dedicated to a specific, named project may have to fall by the wayside.
“This is the moment of trial balloons,” said one senior Democrat in close touch with Congress and the Biden administration. “This is the moment of coalition-building and seeing what has legs.”
The exact legislative path forward remains in flux, in part because most of the plan has yet to be fleshed out in enough detail to know whether certain aspects would meet reconciliation requirements, budget experts caution.
At the same time, the White House continues to search for bipartisan support. Senior administration officials are making clear that Biden is willing to make changes to his proposal in order to get GOP lawmakers on board, and that he is willing to take more time to negotiate than the White House did when it passed its $1.9 trillion coronavirus relief plan without a single Republican vote.
The president is “open to ideas and to different permutations of how we actually get this accomplished,” Bharat Ramamurti, deputy director of the National Economic Council, said at an event on Thursday. “If there are things that the Senate, that the House are able to do on a bipartisan basis — even if it is not the entirety of his plan — I think we are supportive of that.”
While presidential aides continue to emphasize Biden’s outreach, including meetings he hosted at the White House with GOP lawmakers, Republicans have derided the proposal as a bloated progressive wishlist that they will line up in unison to vote against.
Rep. Kevin Brady, the top Republican on the House Ways and Means Committee, said he was “very disappointed in the president’s broken promise to reach across the aisle” and that Biden has “regrettably misled the public on every step of every piece of legislation he has sent to Congress.”
Asked what it would take for him to support the infrastructure package, Brady replied: “For starters, restart.”
Even moving forward without Republicans, however, could still require complex fights over policy details to win over moderate Democrats without losing support from the Congressional Progressive Caucus, which has laid out its own set of ambitious priorities.
At the top of that list are some of the provisions Biden has proposed to combat climate change. Progressive Democrats and environmental groups have already criticized the president’s proposal for not going far enough and not allocating enough money in that area. And while they applaud the steps that Biden would take — including eliminating subsidies, loopholes and other special foreign tax credits that benefit the fossil fuel industry — some have raised concerns that provision could be cut or softened during negotiations.
“I’m worried about it,” said Rep. Andy Levin, a Michigan Democrat who has been a vocal proponent of taking steps to tackle climate change and who founded a clean-energy business before running for Congress. “But I’m pushing back — pushing back hard.”
Environmentalists consider cutting subsidies an essential step toward making progress on climate change. But Manchin, who has spent much of his career defending the coal industry in his home state, was one of three Democrats who voted against a failed amendment in 2016 that would have phased out the subsidies.
Rep. Ro Khanna, (D-Calif.), who chairs the House Oversight environmental subcommittee, called it “imperative” that an end to fossil fuel subsidies be included as part of the infrastructure package. But he said the details will matter, including how comprehensive the repeal is. He is set to hold a hearing later this month focused solely on eliminating the tax breaks.
Khanna warned that beyond the environmental and revenue-raising benefits of cutting subsidies, failing to do so would deal a blow to the environmental community and progressive activists still reeling from the unsuccessful bid to implement a $15 minimum wage as part of the last stimulus package.
“It’s not just that these are moral issues,” Khanna said. But before the 2022 midterms, Democrats have to ensure “that our base is mobilized,” he said, “and these are the two issues that most directly speak to the base.”
Other policy priorities are likely to get cut if Democrats move to pass the package through reconciliation, an outcome many on Capitol Hill widely expect and which White House aides have hinted they will pursue if they can’t win Republican support. Under what’s known as the Byrd Rule, bills that pass via reconciliation cannot include “extraneous matter,” but there is significant gray area surrounding what can qualify that will ultimately be determined by the Senate parliamentarian.
Perhaps the most glaring example of a provision that may not pass muster is the PRO Act, which would make it easier for workers to form unions and extend collective bargaining rights to independent contractors. Biden supported and pledged to go beyond the bill during his campaign, and he recommended Congress pass it as part of his infrastructure package.
But even as labor unions and Democratic lawmakers make the case that workers’ rights and wages should meet Byrd rule qualifications, some are uneasy about the possibility that the parliamentarian — who just a few months ago ruled against including the $15 minimum wage in a reconciliation bill — could feel otherwise.
“I am concerned about that,” said Jason Walsh, executive director of the BlueGreen Alliance, an organization of labor unions and environmental groups jointly working on environmental issues. “But if we’re not able to get it through reconciliation, we will keep moving it and have every expectation that the president will continue to advance it as a priority.”