If Joe Biden wins the presidency, and Democrats capture the Senate to go along with the House, a clear majority of Americans will either rejoice, breathe a sigh of relief, or do both. But before long, all of us will confront a brutal reality: Donald Trump stays in office until Jan. 20, and will do what he can to leave the government as a scorched earth for his successor. One part of our long national nightmare will end, then, at noon on Jan. 20—but another part of the brutal reality will set in.
Even if Democrats have a dream election, they would get up to 53 Democrats in the Senate, meaning that 47 Republicans will still be there. Biden will likely face a Supreme Court with six of its nine justices set on limiting any ambitious plans he has, joined by an army of right-wing judges at appeals courts and district courts around the country, packed in due to Senate majority leader Mitch McConnell’s success at blocking President Obama from filling seats he had every right to confirm. Those judges will take on Biden in areas from environmental protection to civil rights, women’s rights, LGBT rights, labor rights and voting rights, while protecting corporations, guns and dark money.
Neither Biden nor all of his Democrats will choose to emulate Trump, McConnell and Sen. Lindsey Graham by doing whatever they want because they have the power. Biden is running as a president who will heal wounds, reach out to adversaries, and prove, as he has said repeatedly on the campaign trail, that there are sufficient Republicans in the Senate to have “an epiphany,” and work with him to find bipartisan solutions to issues from healthcare to climate change to economic recovery.
But we know the history here. When Republicans faced a sweeping Democratic landslide in the 2008 election, their response was not to work with Obama and congressional Democrats, but to implement a strategy they crafted on the night of the inauguration, Jan. 20, 2009, before Obama had been in office for a day: oppose everything he wants, block whatever you can, delegitimize what you can’t, demonize the president and use every tactic, from the debt ceiling to the filibuster, to destroy any policies that might be favored by the country and result in a positive response for Obama and his lawmakers.
That approach worked. With the help of a press corps that ignored or downplayed the destructive tactics and fell back on false equivalence, the Republican strategy demoralized Democrats, activated enraged Republicans with their Tea Party movement, and resulted in a bloodbath for Obama’s party in the 2010 midterm elections, giving Republicans their biggest gains in the House in a century, and big enough gains in state legislatures to dominate redistricting for the succeeding decade. They repeated the pattern when Obama won re-election in 2012—and won another stunning midterm victory in 2014, giving them the Senate to go along with the House.
It is hard to imagine a roundly defeated GOP shifting from a strategy that gave them two comebacks to something that would enrage their base and enable a President Biden to have legislative successes that would be good for the country but bad for their party. So what should Biden and his Democratic colleagues do, if they want to reform a broken political system and get the country back on track, instead of banging their heads against a Senate wall?
Reforming the filibuster is a prerequisite to doing anything in the legislative arena, outside of an awkward attempt to jam multiple policies into a reconciliation bill. It is equally clear that a major change in the rule governing filibusters will not likely have the votes in January. But we know something else from history: If you wait and wait to do bold things, your opportunities attenuate. As you move past the fabled first 100 days, and certainly past the first six months, and get closer to the midterms, special interests mobilize, your lawmakers up for re-election in 2022 get antsy and timid, and progress becomes harder and harder.
There is another path, though. Here is the roadmap I would employ if I were advising the new president and his legislative leaders. It begins with a promise on Jan. 21 to have four major initiatives passed by the House and brought to the Senate floor within days or weeks—all key measures that are urgently needed, and are supported by a strong majority of Americans, in some cases as many as 90%:
A Covid recovery/economic stimulus/infrastructure package. This would be extraordinarily ambitious, all the elements in the CARES Act—the $2.2 trillion economic stimulus bill Trump signed into law in March in response to the pandemic—plus all the parts of an infrastructure plan, including universal high-speed broadband, green energy initiatives, a secure and safe electrical grid, and the needed work on highways, bridges, dams, mass transit, water mains and sewers, as well as money for our election infrastructure (with a tax package to come later in reconciliation). It would include a permanent fix to the debt-ceiling farce, which allows lawmakers to hold the credit of the United States hostage to their demands. Also, it would restore the robustness of the Consumer Financial Protection Bureau.
A healthcare and coverage reform that would add a public option, à la Medicare, and reform and fix the rest of the Affordable Care Act—both the technical corrections that should have been done when the law was enacted but were blocked by GOP intransigence, fixing the individual mandate question before the Supreme Court, and other initiatives to expand coverage. It would include an ambitious component to reform the mental-health system and deal with psychological ailments the way we approach organ diseases—an urgent priority in part because of the expected surge in cases of mental illness that inevitably follow a pandemic.
The John Lewis Voting Rights Act. Not just a simple reform of the Voting Rights Act, but its application nationally, and broader reforms: making Veterans Day our Election Day, to honor those who fought to protect the right to vote; automatic voter registration for federal elections; protections against other forms of voter suppression, including restrictive voter ID laws; the right of former felons who have completed their sentences to vote in federal elections. It could also include campaign-finance reform.
The Manchin-Toomey Gun Bill, with three core features: universal background checks without loopholes; a ban on assault-style weapons; a ban on high capacity magazines.
The president would accompany these initiatives with a speech to Congress: “I am beginning with four bills that have deep and broad support across all categories of Americans. I am hoping we can have a return to normalcy in the way we conduct business in Washington, where we can have vigorous debate but allow the priorities of the country to get votes and be passed if they have majority support. I will guarantee Republicans the opportunity to offer up to 10 amendments on each of these bills. But in return, I want a pledge that they will not be filibustered and killed by a minority. If we cannot get that return to civil debate and opportunity for action, I and my colleagues in Congress will have to rethink our approach to the rules of the Senate.”
Perhaps Biden will be right, and there will be enough cooperative Republicans to overcome any effort to filibuster them to death. But if the Republicans fall back on use of the weapon of mass obstruction, there will be an opening—not to eliminate the filibuster, but to reform it to approximate the more reasonable practice of earlier decades. Rather than requiring a supermajority of senators to end debate, I would change the rule so that it would require 45 senators to continue to debate.
The ability of the minority, if it felt sufficiently strongly, to take the floor and talk continuously, to be present around the clock if needed, to focus public attention on their views and hope to influence the public enough ultimately to prevail, would still be there. But they would have to make real sacrifices to do so, which has not been there for decades. This would accomplish two big things. First, it would retain elements of the Senate that make it different from the House. Second, seeing Republican intransigence might convince Democrats who oppose eliminating the filibuster such as of Joe Manchin and Dianne Feinstein that there is a way to reform the rules without killing the mechanism.
Success in these four areas would pave the way for further change, in climate policy, workforce and labor reform, civil service reform, education, tax reform and more.
There is one other area the new president will have to grapple with: what to do about the deep-seated corruption and bad behavior everywhere in the Trump administration, from the White House to the Justice Department, from the secretary of commerce to the secretary of state to the director of national intelligence, from a slew of miscreants at the Department of Homeland Security and those at Health and Human Services handling asylum-seekers and their children, along with virtually every other cabinet agency and its political leadership. America has never had a level of corruption close to what we have seen with Trump’s administration.
But it is dangerous to go after the losers of an election—a feature in autocracies, a no-no in democracies. Many will call for reconciliation, letting it all go. A case can be made on that front when it comes to Trump himself, though the scale of his corruption is truly vast. But investigating and holding accountable others who violated laws—whether for their own personal enrichment or that of cronies, or to carry out base goals of a president—is a necessity. The failure to do so would embolden future miscreants, knowing they could violate laws with impunity.
The best way for a President Biden to handle this dilemma, and to keep it far away from his own actions or preferences, would be to make clear as he entered office that he was deputizing two entities to investigate any evidence of wrongdoing across the government. Those two entities would be the U.S. Attorney for the Southern District of New York, SDNY, known for decades for its independence and integrity; and the Public Integrity Section of the Department of Justice, with a similar longstanding reputation. Biden could pick a figure of impeccable credentials, like the former U.S. attorney for SDNY, Preet Bharara, to take the leadership of the Southern District, with a firm pledge not to interfere with the career prosecutors in their investigations and recommendations. And he could pick a career prosecutor at Public Integrity with no history of partisan involvement to do the same thing there. And the president would make a solemn pledge that neither he nor his attorney general would interfere with or try to influence their investigations or actions.
The tasks ahead for a Biden Administration are overwhelming and herculean. His victory, no matter how sweeping, will not eliminate the tribalism that infects our politics and is amplified by a tribal media, not to mention the challenges of a post-Covid world that may arrive soon after his inauguration. All of this would be daunting even if we had a political system firing on all cylinders, with commitment across party lines to solve problems. But finding a way in the first few months to show progress, to show that we can move ahead, is absolutely critical.
Norman Ornstein, a member of the Persuasion advisory board, is a resident scholar at the American Enterprise Institute and a contributing editor for The Atlantic.